- Current owners of property where hazardous substances were dumped in the past are liable for environmental clean up.Industrial Waste image by Diane Stamatelatos from Fotolia.com
The Comprehensive, Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), also known as "Superfund" legally empowers the Environmental Protection Agency (EPA) to force responsible parties to clean up hazardous substances that pose imminent risk to public health and the environment. Because many hazardous substance releases result from historic mismanagement of chemicals and manufacturing processes, CERCLA can be used to hold current facility owners liable for past practices. However, a CERLCA Section 122, "Expedited Settlement Agreement" can be used to release liability. Under this scenario owners must pay penalties so the EPA can recoup response costs, but advantages include a stated limit to penalties and clear delineation of the geographic and time-period scope of liability. - Under Section 122 of CERCLA a potentially responsible party can settle the total past and projects response costs associated with their liability. If you are a minimal contributor to a large-scale Superfund Site, the expedited settlement puts a final dollar amount to your penalty payment and releases you from future liability. Minimal contributor means that your facility is responsible for only a minor portion of the response costs, was responsible for a minimal amount of hazardous substance causing problems and there is minimal toxicity associated with such contribution. Additional, the owner has demonstrated that current management did not permit the release or have knowledge of such release. Under these conditions, a final dollar amount can be paid for penalties and the facility can operate, or be sold, free of liability.
- Hazardous substances can travel far from release point via groundwater, rivers and streams.Drain image by Hedgehog from Fotolia.com
An expedited settlement will limit the geographic area associated with responsible party's contribution. Section 106 of CERCLA lays out a process by which the EPA operates to protect the public from hazardous releases. Initially, the EPA conducts an endangerment assessment, requests that responsible parties clean up the site, for which a Remedial Investigation/Feasibility Study (RI/FS) will be conducted.The RI/FS delineates the scope of contamination and the fate and transport of contaminants which can be transported far away from a the original facility release, for example, via groundwater plumes After the RI/FS, the EPA mandates response actions under a Section 106 Administrative Order on Consent. A Section 122 settlement agreement describes the government's covenant not to sue, allowing responsible parties to pay for response costs that could potentially cover large geographic areas earlier in the process avoiding prolonged exposure to litigation and further widening of geographic boundaries. - An expedited settlement clears responsible parties of liability, avoiding prolonged costly litigation. Once a settlement agreement is signed, responsible parties are cleared of liability via the government's covenant not to sue. Responsible parties must be aware that the government retains its right to sue if liability arises out of conditions which are unknown at the time of settlement, but the settlement offers responsible parties the opportunity to settle liability from past historic releases and get on with current operations. Facility properties become more appealing for sale when settlement agreements are in place.
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