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Defenses and Exemptions to 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, or
- Acts/omissions of a third party with whom a potentially responsible party (PRP) has no contractual relationship, commonly referred to as a "third-party defense."
Exemptions and Protections from Liability
Superfund provides several exemptions and protections to liability that are briefly summarized below.
- Cleanup Contractors
- Good Samaritans
- Municipal Solid Waste (MSW)
- Service Station Dealers
- State and Local Governments
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.
A potentially responsible party (PRP) may avoid joint and several liability if it can prove that the harm it caused can be separated from the harm caused by other PRPs (this is rare due to the co-mingling of wastes at Superfund sites). Although a cleanup is often divided among PRPs to perform or pay for, that does not mean that the harm caused by each PRP's waste can be separated.
Section 107(d) of the Superfund law 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. . . ." These non-liable parties are frequently referred to as "Good Samaritans." EPA recently issued guidance relating to Good Samaritans performing removal work at hard rock mine sites. [More information on EPA's Good Samaritan Initiative.]
In 2002, Congress added liability protections for landowners who meet certain criteria. Specifically, landowners who meet the criteria of a bona fide prospective purchaser, innocent landowner, or contiguous property owner are now protected from Superfund liability. Additional information is available from the landowner liability protections Web page and policy and guidance documents are available within the landowner liability category of the Superfund cleanup policy and guidance database.
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's lender liability policy is contained in the Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities (6/30/1997).
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 at National Priorities List (NPL) sites. Information on this liability exemption is available from the Interim Guidance on the Municipal Solid Waste Exemption Under CERCLA Section 107(p) (8/20/2003).
Those who arranged for the recycling of certain materials are exempt from Superfund generator and transporter liability, providing they meet certain criteria. Additional information is available from the policy document titled Superfund Recycling Equity Act of 1999: Factors to Consider in a CERCLA Enforcement Action (8/31/2002).
The Service Station Dealer Exemption (SSDE) is for "service station dealers" that accept "do-it-yourselfer" used oil and send the used oil to another facility for recycling. Additional information is available from EPA's Use of CERCLA Section 114(c) Service Station Dealers Exemption (5/31/2002) and the Model Application/Information Request for CERCLA Service Station Dealer Exemption (11/8/2004).
More information about the Superfund exemption and other environmental issues pertaining to service station dealers is available on the National Automotive Environmental Compliance Assistance Center's website Exit.
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 "involuntarily" acquires a Superfund site or other contaminated property, 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 Brownfields and Land Revitalization topic.