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Enforcement

Defenses to and Exemptions from Superfund Liability

Defenses to Superfund Liability

The defenses that potentially responsible parties (PRPs) may raise to Superfund liability are available only if the release was caused by:

  • An act of God,
  • Acts of war, 
  • Acts/omissions of a third party with whom a PRP has no contractual relationship, commonly referred to as a "third-party defense," or
  • State and local governments.

Exemptions and Protections from Liability

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) provides several exemptions and protections from liability that are briefly summarized below.

Exemptions from liability apply to the following:

  • Generators of Municipal Solid Waste (MSW)

Provisions in the 2002 amendments to the Superfund statute give a qualified exemption from Superfund liability to certain residential, small business, and non-profit generators of municipal solid waste (MSW) at National Priorities List (NPL) sites. Information on this liability exemption is available from the municipal solid waste/municipal sewage sludge category of the Superfund cleanup policy and guidance database.

  • Recyclers/Service Station Dealers

Those who arranged for the recycling of certain materials are exempt from Superfund generator and transporter liability, provided they meet certain criteria established under the Superfund Recycling Equity Act of 1999 that amended CERCLA § 127.

The Service Station Dealer Exemption (SSDE), under CERCLA § 114(c), applies to "service station dealers" that accept "do-it-yourselfer" used oil and send the used oil to another facility for recycling. More information about SSDE and other environmental issues pertaining to service station dealers is available on the National Automotive Environmental Compliance Assistance Center's websiteExit

Additional information is available from the recycling category of the Superfund cleanup policy and guidance database.

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Protections from Liability apply to the following:

  • Cleanup Contractors

Companies and individuals that have been contracted to perform investigation or cleanup activities at Superfund sites are protected from Superfund liability, except in cases of negligence or intentional misconduct.

  • Landowners and Purchasers

In 2002, Congress amended the Superfund statute to add liability protections for landowners who meet certain criteria. Specifically, landowners who meet the criteria of a bona fide prospective purchaser (BFPP), innocent landowner, or contiguous property owner are now protected from Superfund liability. Additional information regarding BFPP and other third-party protections is available from the Tools to Address Liability Concerns Web page. Policy and guidance documents are available within the landowner liability category of the Superfund cleanup policy and guidance database.

  • Lenders

Generally, public and private lenders have some protection from owner/operator liability for loans made for facilities that may become contaminated. Further information on EPA policy and fact sheets on lenders and other secured creditors is available from the lender liability category of the Superfund cleanup policy and guidance database.

  • Rendering Care/Good Samaritans

Section 107(d) of CERCLA provides that persons shall not be liable for costs or damages for actions or inactions taken in the course of "rendering care, assistance, or advice in accordance with the National Contingency Plan (NCP) or at the direction of an on-scene coordinator."

In 2007, EPA used this authority to launch the Good Samaritan initiative, which provides liability clarification to third parties who volunteer to perform cleanup work under CERCLA at an orphan hard rock mine site even though they do not own the property, and do not intend to own it in the future. EPA issued guidance relating to Good Samaritans, which is available from the Good Samaritan category of the Superfund Enforcement Policy and Guidance Database.

  • State and Local Governments

State and local governments are not liable for costs resulting from an emergency response to a hazardous substance release or threatened release (unless gross negligence or intentional misconduct is involved).

In addition, if a state or local government acquires a Superfund site or other contaminated property using one of the acquisition methods listed in CERCLA § 101(20)(D), it may be protected from liability provided it did not cause or contribute to the contamination. More information on state and local government acquisition of contaminated property is available from the Addressing Liability Concerns to Support Cleanup and Reuse of Contaminated Lands Web page.

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