EPA AND STATE SUPERFUND SITES

Federal law (primarily the Comprehensive Environmental Response, Compensation and Liability Act, or “CERCLA”) and state laws (e.g. PA Hazardous Sites Cleanup Act, or “HSCA”) generally impose liability for cleanup costs upon the former customers of abandoned hazardous waste landfills and recycling facilities (“Superfund Sites”).  Investigation and remediation costs often run in the millions or tens of millions of dollars. In the past, EPA frequently undertook unilateral remediation followed by cost recovery against “Potentially Responsible Parties”.  

The Superfund process ultimately evolved such that PRPs make best efforts to avoid unilateral government clean up, by putting together a group willing to negotiate a consent order with the agency.  These “Performing PRPs” are typically among those appearing to have had the largest volumetric waste contributions.  This group typically raises partial funding by giving cash out settlements with contribution protection, to PRPs having “deminimis” volumetric shares.  PRPs having moderate sized shares which are not deemed deminimis, can benefit from Environmental counsel representation to assure reasonable interim shares of contribution to the group and a timely opportunity forreasonable cash out settlement.       

Eventually, Performing PRPs issue notice letters to all parties who have not cashed out, and file suit against those who are still unwilling to do so.    Counsel for defendant companies may attempt to refute the reasonableness of costs expended by the Performing Group, or the appropriate settlement shares assigned to particular groups of defendants or individual defendants.   In some cases counsel may be able to raise liability defenses based on a particular type of waste not being truly “hazardous” per statutory definition.  There may also be critical issues of whether or not a defendant has successor liability for a former landfill customer corporate entity. 

There is also a universe of Superfund sites which were not formerly used as a landfill or recycling facility.  These are either abandoned or still operational industrial facilities listed by EPA or PADEP because of an incident-related imminent threat, or because of substantial groundwater contamination.    The PRPs for such sites  typically include the current owner or operator and any known previous owner or operator believed to have contributed to contamination.   

Selected Experience
  • Appeal before PA Environmental Hearing Board (EHB) of cost recovery assessment by PADEP after unilateral action under PA Hazardous Sites Cleanup Act (HSCA); Settlement reached after arguing that removal of potentially useful drummed material from closed facility was unreasonable and incurred excessive costs.

  • Counsel for third-party defendant waste generator in Pennsauken Landfill litigation; Key issue was liability for routine solid waste alleged to contain trace amounts of hazardous substance; Settlement reached shortly before trial;

  • Represented former customer of a reclamation facilityin Niagara Falls, NY, having intermediate-sized volumetric share; obtained eventual cash out settlement.

  • Represented long term tenant at industrial property previously designated as anEPA Superfund site, in negotiating response to EPA cleanup order resulting from a chemical storage tank spill. 
  • Represented current owner of property within boundaries of an EPA listed Superfund site.  Negotiated a consent decree resolving EPA response cost claims as well as EPA’s right to impose a future a CERCLA property lien.