Regulatory Puzzle


CERCLA – also known as "Superfund" – provides a national system for identifying and cleaning up abandoned, contaminated sites.  The Superfund program is administered by EPA. Several states also have associated state-level Superfund programs.

The following are some CERCLA issues or requirements that may affect you:

  1. Reporting releases
  2. Funding and/or conducting a remediation
  3. Considering natural resource damage liability
  4. Addressing state Superfund requirements

1. Reporting releases

Law: CERCLA Section 103(a)
Regulation: 40 CFR 302 (list of hazardous substances)

If you have a release (above the "reportable quantity") into the environment of one of the CERCLA listed hazardous substances, you must immediately report the release to the National Response Center (1-800-424-8802).

2.  Funding and/or conducting a remediation

Law: CERCLA Section 107
Regulation: 40 CFR 300

Parties liable for a CERCLA contamination are called PRPs (potentially responsible parties). As a PRP, you will be involved in funding and/or conducting the remediation. (Conducting the remediation is most likely for a contaminated site on your property.) The general remediation process is specified by the National Contingency Plan and includes: 1) emergency removal to address immediate environmental problems, 2) a remedial investigation/feasibility study (RI/FS) to determine clean up approaches, 3) a Record of Decision (ROD) to document the approach EPA has selected for clean up, and 4) the design, construction, operation, and maintenance of the final cleanup. During the cleanup, you will be required to meet all other environmental requirements (called "ARARs"). For example, you cannot release air emissions during the cleanup without addressing Clean Air Act requirements.

3.  Considering natural resource damage liability

Law: CERCLA Section 107
Regulation: 40 CFR 300

CERCLA liability includes both response costs – the costs of investigating and remediating a site – as well as costs to mitigate any damages to natural resources resulting from contamination. For example, PRPs would be liable for the loss of fishing opportunities caused by contamination by the Superfund site of a recreational or commercial fishing area. Natural resource damages are becoming a more significant part of CERCLA settlements.

4. Addressing state Superfund requirements

Law: Varies by state
Regulation: Varies by state

Many states have enacted state-level Superfund requirements. Although some of these laws are similar to the federal program, others have significant differences. For example, some states cover a broader range of hazardous substances (i.e., petroleum products), and/or may impose difference cleanup standards than the federal program. In addition, state-level Superfund requirements are important in the CERCLA program, since they may be held as "ARARs" in any federal Superfund cleanups.

One special kind of state requirement relates to the transfer of contaminated property. There are various forms of this requirement; one example is the New Jersey Environmental Cleanup Responsibility Act (ECRA). ECRA requires an owner to demonstrate prior to sale of a property that it is free from contamination. If hazardous substances are found to remain on the site, the company must cleanup the site based on a closure plan approved by the state. Failure to comply with ECRA entitles any transferee to recover damages from the previous owner.


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