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Attorney Arie Lipinski

Defending against Superfund liability for property owners

On Behalf of | Mar 12, 2024 | Land Use And Property Rights

In the past, it was difficult for the government to hold landowners responsible for cleaning up the environmental damage after they dumped toxic chemicals and other hazardous waste on their premises. In many cases, a factory owner who had dumped extremely dangerous material at a site for decades could simply put a waiver into the deed when they sold the site in order to shield them from liability for the damage they caused.

This situation began to change with the passage of major environmental legislation including the so-called Superfund law.

This federal law, more formally known as the Comprehensive Environmental Response, Compensation and Liability Act of 1980, or CERCLA, famously set up a trust fund (commonly known as the Superfund) to help pay for the Environmental Protection Agency’s cleanup at sites that have extensive contamination from hazardous waste. Most state governments passed their own versions of CERCLA and created their own funds.

However, CERCLA and the state laws also hold landowners responsible for a significant part of the cost of cleaning up their sites. And, for some landowners, those costs can be extremely high.

CERCLA can be very strict in this regard. Liability can attach to:

  • Present owners
  • Past owners, if they were in control of a facility at the time hazardous waste was dumped
  • Third parties involved in disposing hazardous waste
  • Third parties involved in transporting hazardous waste

Limiting liability

For those parties that fit one of these categories, is not easy to get out from under CERCLA liability.

The EPA recognizes three main defenses to liability under the act, and all of them refer to events that were beyond a landowner’s control: acts of God, acts of war, or acts of an unaffiliated third party.

Certain types of parties are exempt from CERCLA liability. These can, in some cases, include recycling facilities and sewage facilities.

Other types of parties have some protections from liability. These include, in some cases, landowners or purchasers who were unaware of the hazardous materials when they bought the sites.

There are also some circumstances under which landowners can limit their liability, such as when they can prove that the public hazard posed by the waste materials is minor.