What kind of liability is there for polluters under Superfund?

Under the Comprehensive Environmental Response, Compensation, and Liability Act (commonly referred to as Superfund), a potentially responsible party is subject to strict liability. Strict liability means that "fault" is not required in order to establish a party's liability under section 107 of the statute. The liability of a party is independent of motive, without regard to whether its conduct was negligent, intentional, or in compliance with industry standards.  Equitable defenses to Superfund liability are not available.  Furthermore, the government does not need to show that a particular defendant's waste was released.  Rather, it need only show that waste of the same type deposited or transported by the defendant was found at a site where there was a release or a threatened release.

Superfund liability is also joint and several which is based on the legal concept of "indivisible harm."  Joint liability means that more than one defendant is liable to the plaintiff.  Several liability means the plaintiff may choose to sue only one of the defendants and recover the entire amount claimed.  Joint and several liability is used when harm is indivisible.  If a defendant can demonstrate that the harm can be apportioned, the defendant is liable only for the harm it caused.

Though EPA has this broad authority, the agency has historically tried to implement the statute fairly, especially through administrative reforms.

More information is available on EPA's Superfund liability web page.