Page 99 - Akerman | 2016 Guide to Doing Business in Florida

CERCLA authorizes EPA to investigate and remediate or otherwise address properties
contaminated by hazardous releases and to recover the cost of cleanup and associated
damages from the responsible parties. EPA’s authority includes two types of response actions:
(1) short–term emergency responses to releases or threatened releases of hazardous
substances (“removal actions”) and (2) long–term response actions that permanently and
significantly reduce the danger of releases or threatened releases of hazardous substances
(“remedial actions”). Sites can be cleaned up solely by EPA using the funds in the superfund,
or by responsible parties under EPA oversight. EPA’s cleanup monies come from a superfund
created by taxes on the chemical and petroleum industries. EPA is then entitled to recover its
documented costs from responsible parties, which can include owners, past owners and
operators of the site and generators and transporters of waste, or other hazardous materials
containing hazardous substances, sent to the site.

CERCLA allows the government and private parties to sue “potentially responsible parties,” or
“PRPs”, for reimbursement of clean-up costs caused by releases, actual or threatened, of
hazardous substances. Liability is strict, joint and several, with little or no regard for causation.
By statute, there are four categories of persons liable for clean-up costs:

• “Owners or operators” of the contaminated facility. A “facility” is virtually any place
in which a hazardous substance is found. The current owner or operator is liable,
regardless of when the hazardous substance was disposed of at the facility and
whether the present owner or operator did anything to contribute to the release.

• “Owners or operators” of the facility at the time of release of the hazardous
substances. Any person who contracted or arranged to have hazardous
substances taken to, disposed of, or treated at a facility. This category generally
applies to generators and manufacturers.

• Transporters of hazardous substances.
• Anyone who “arranged” for the disposal of hazardous substances. An entity
qualifies as an arranger only if it takes intentional steps to dispose such
substances. Mere knowledge that a release may occur does not meet this intent
standard.

There are limited defenses under Superfund that are narrowly construed. A PRP can escape
liability if it can establish that the hazardous substance release was caused solely by an act of
war, an act of God, or an act of unrelated third parties. This latter “third party” defense does
not apply if the damage from hazardous substances was caused by an employee or agent of
the PRP, or a third party acting in connection with a contract with the PRP.
Another provision of CERCLA, the Emergency Planning and Community Right-to–Know Act
(Title III of the Superfund Amendments and Reauthorization Act, requires the reporting of the
storage or of releases of hazardous substances in quantities above specified amounts (aka,
reportable quantities).

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