Federal Environmental Remediation Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a.k.a. “the Superfund Law”

Federal Environmental Remediation Under

the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA),

a.k.a. “the Superfund Law”

August 14, 2025

Congressional Research Service

https://crsreports.congress.gov

R48630

SUMMARY

Federal Environmental Remediation Under the

Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA),

a.k.a. “the Superfund Law”

R48630

August 14, 2025

Lance N. Larson

Analyst in Environmental

Policy

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act

of 1980 (CERCLA; P.L. 96-510) in response to a growing desire for the federal government to

ensure the cleanup of the nation’s most contaminated sites to protect the public from potential harm. The Superfund

Amendments and Reauthorization Act of 1986 (P.L. 99-499) clarified the applicability of the statute’s requirements to federal

facilities and modified various response, liability, and enforcement provisions. Several other laws also have amended

CERCLA for specific purposes, including to provide relief from cleanup liability for certain categories of parties and to

authorize federal assistance for the cleanup of abandoned or idled “brownfields” where the presence or perception of

contamination may impede economic redevelopment.

CERCLA authorizes cleanup and enforcement actions to respond to actual or threatened releases of hazardous substances

into the environment but generally excludes releases of petroleum and certain other materials covered by other federal laws.

Considering that federal resources to address the many contaminated sites across the United States are limited, CERCLA

directs the Environmental Protection Agency (EPA) to maintain a National Priorities List (NPL) to identify the most

hazardous sites for the purpose of prioritizing cleanup actions. The states and the public may participate in federal cleanup

decisions at NPL sites. The states primarily are responsible for pursuing the cleanup of sites not listed on the NPL, with the

federal role at these sites limited mainly to addressing emergency situations.

CERCLA established a broad liability scheme that holds past and current owners and operators of facilities from which a

release of hazardous substances occurs financially responsible for cleanup costs, natural resource damages, and the costs of

federal public health studies. At waste disposal sites, generators of the wastes and transporters of the wastes who selected the

site for disposal also are liable under CERCLA. The liability of these “potentially responsible parties” (PRPs) has been

interpreted by the courts to be strict, joint and several, and retroactive. At contaminated federal facilities, federal agencies are

subject to liability under CERCLA as the owners and operators of those facilities on behalf of the United States. Federal

agencies also may be liable in instances in which an agency generated or transported waste for disposal at a nonfederal

facility.

CERCLA established the Hazardous Substance Superfund Trust Fund to pay for the cleanup of sites where the PRPs cannot

be found or cannot pay. A combination of special taxes on industry and general taxpayer revenues originally financed the

Superfund Trust Fund, but the authority to collect the industry taxes expired on December 31, 1995. Over time, Congress

increased the contribution of general revenues to make up for the shortfall from the expired industry taxes. Congress

reinstated two “Superfund” taxes in 2021 in P.L. 117-58, the Infrastructure Investment and Jobs Act, and P.L. 117-169,

commonly referred to as the Inflation Reduction Act, and other monies continue to contribute some revenues (i.e., cost

recoveries from PRPs, fines and penalties for violations of cleanup requirements, and interest on the trust fund balance).

Private settlement funds deposited into site-specific Special Accounts within the Superfund Trust Fund also are available to

EPA but are not subject to discretionary appropriations.

Considering the liability of the federal government at its own facilities, the cleanup of federal facilities is not funded with

Superfund Trust Fund monies under the Superfund program but with other federal monies appropriated to the agencies

responsible for administering the facilities. However, EPA and the states remain responsible for overseeing and enforcing the

implementation of CERCLA at federal facilities to ensure that applicable cleanup requirements are met.

Congressional Research Service

Federal Environmental Remediation Under CERCLA, a.k.a. “the Superfund Law”

Contents

Introduction ..................................................................................................................................... 1

Major CERCLA Amendments ......................................................................................................... 3

Federal Response Authorities .......................................................................................................... 5

Petroleum Exclusion ................................................................................................................. 6

Other Exclusions ....................................................................................................................... 7

Limitations on Response Actions .............................................................................................. 7

State and Local Governments ................................................................................................... 7

Alaska Native Villages and Native Corporations ...................................................................... 8

Prioritization and Procedures for Response Actions ................................................................. 8

Scope of Response Actions ....................................................................................................... 9

Federal-State Cost Sharing ...................................................................................................... 10

Selection of Response Actions .......................................................................................................11

Cleanup Standards ....................................................................................................................11

State Participation ................................................................................................................... 12

Public Participation ................................................................................................................. 12

Agency for Toxic Substances and Disease Registry ...................................................................... 13

Financial Liability ......................................................................................................................... 13

Categories of Potentially Responsible Parties ......................................................................... 14

Reach of Liability .................................................................................................................... 14

Defenses to Liability ............................................................................................................... 15

Limitations on Liability........................................................................................................... 15

Cleanup Contractors.......................................................................................................... 16

Fiduciaries and Financial Lenders .................................................................................... 17

Generators and Transporters of Recyclable Materials ...................................................... 17

Contributors of De Micromis and Municipal Solid Wastes............................................... 18

Bona Fide Prospective Purchasers and Innocent Landowners .......................................... 19

Hazardous Substance Superfund Trust Fund ................................................................................. 21

Original Taxing Authority ....................................................................................................... 21

Current Sources of Revenue.................................................................................................... 23

Chemical Excise Tax ......................................................................................................... 23

Petroleum Tax ................................................................................................................... 23

Special Account Funds ............................................................................................................ 24

Enforcement Mechanisms ............................................................................................................. 24

Judicial or Administrative Orders ........................................................................................... 24

Cost-Recovery Actions............................................................................................................ 25

Voluntary Settlement Agreements ........................................................................................... 26

Ability-to-Pay Considerations ................................................................................................. 26

Enforcement Discretion .......................................................................................................... 28

Citizen Suits ............................................................................................................................ 28

Federal Facilities ........................................................................................................................... 30

Facilities on the National Priorities List .................................................................................. 31

Facilities Not on the National Priorities List ........................................................................... 33

Transfer of Contaminated Federal Property ............................................................................ 34

Continuing Liability of the United States ......................................................................... 34

Transfer of Uncontaminated Parcels ................................................................................. 35

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Federal Environmental Remediation Under CERCLA, a.k.a. “the Superfund Law”

Early Transfer of Contaminated Parcels ........................................................................... 35

Cleanup Authorities Specific to Military Facilities ................................................................. 36

National Security Exemption .................................................................................................. 37

Brownfields Properties .................................................................................................................. 38

Tables

Table 1. Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA) and Major Amendments to the Statute ...................................................................... 5

Contacts

Author Information........................................................................................................................ 40

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Federal Environmental Remediation Under CERCLA, a.k.a. “the Superfund Law”

Introduction

In the late 1970s, the discovery of severely contaminated sites, such as Love Canal in New York

and Times Beach in Missouri, raised questions as to whether there should be a federal role in

cleaning up environmental contamination to protect the public from potential harm.1 By the end

of the 1970s, Congress had enacted several environmental laws to regulate sources of pollution in

the United States but had not yet addressed responsibility for contamination resulting from

releases of pollutants into the environment. Congress enacted the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980 (CERCLA; P.L. 96-510) to authorize the

federal government to clean up contaminated sites in the United States and to make the

“potentially responsible parties” connected to those sites financially liable for the cleanup costs.

CERCLA created the Superfund program to carry out these authorities. The Environmental

Protection Agency (EPA) administers the program. Subsequent amendments to CERCLA also

authorized EPA to administer a separate grant program to support the cleanup of abandoned or

idled “brownfields” properties to encourage their redevelopment.

CERCLA established a broad liability scheme that holds both past and current owners and

operators of contaminated facilities financially responsible for the costs of cleanup. At waste

disposal sites, generators of the waste sent to the site for disposal and transporters of the waste

who selected the site for disposal also are responsible for the cleanup costs. If these potentially

responsible parties cannot be found or cannot pay for the cleanup, CERCLA authorizes the

federal government to finance the cleanup to ensure the protection of human health and the

environment. These costs borne by the federal government are referred to as “orphan shares.” The

broad liability scheme of CERCLA is intended to capture all parties that may have had some

involvement in the actions that resulted in contamination of the environment in order to minimize

the burden of cleanup costs on the general taxpayer, who had no involvement. This approach to

liability is based on the principle that polluters should be required to pay for the environmental

damage that they cause, often referred to as the “polluter pays principle.”

CERCLA established the Hazardous Substance Superfund Trust Fund to finance cleanup actions

taken by the federal government at contaminated sites where the potentially responsible parties

cannot pay or cannot be found. A combination of special taxes on industry and revenues from the

General Fund of the U.S. Treasury initially financed the Superfund Trust Fund, but the authority

to collect the industry taxes expired at the end of 1995. As the remaining revenues were expended

over time, Congress increased the contribution of general Treasury revenues in an effort to make

up for the shortfall from the expired industry taxes. The availability of Superfund Trust Fund

monies to finance the cleanup of contaminated sites is subject to appropriations by Congress.

Considering the liability of the federal government as a potentially responsible party at its own

facilities, the cleanup of federal facilities is not funded with Superfund Trust Fund monies under

the Superfund program but with other federal monies appropriated for other programs

administered by the agencies responsible for these facilities. The Department of Defense (DOD)

and the Department of Energy (DOE) administer the cleanup of most contaminated federal

facilities. EPA and the states are responsible for overseeing and enforcing the implementation of

CERCLA at federal facilities to ensure that applicable requirements are met.

1 Environmental Protection Agency (EPA), Superfund’s 40th Anniversary - A Look-Back at the Decades, February 14,

2025, https://www.epa.gov/superfund/superfunds-40th-anniversary-look-back-decades.

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To prioritize cleanup actions, CERCLA directed EPA to establish and maintain a National

Priorities List (NPL) of the most contaminated sites in the United States that present the greatest

risks to human health and the environment. The NPL includes both nonfederal sites and federal

sites that are deemed to present a sufficient level of risk to warrant listing. EPA may require the

potentially responsible parties to directly perform or pay for cleanup actions themselves.

Alternatively, EPA may clean up a contaminated site with appropriated Superfund monies and

later recover those funds from the potentially responsible parties (with the exception of the

cleanup of federal facilities, which must be funded up front by the administering agencies). If the

potentially responsible parties cannot pay or cannot be found, appropriated Superfund monies

may be used to pay the orphan shares of cleanup costs at a site.

This report summarizes the major cleanup authorities of CERCLA and other relevant provisions

of the act. The topics discussed include

•

•

•

•

•

•

•

the overall scope and reach of these statutory authorities,

the process under which cleanup actions are selected and carried out at individual

sites,

the financial liability of potentially responsible parties for the costs of cleanup

actions,

the Superfund Trust Fund that may pay for cleanup actions when the potentially

responsible parties cannot pay or cannot be found,

enforcement of cleanup liability against the potentially responsible parties to

minimize the need for federal tax revenues to finance the cleanup of

contaminated sites,

the applicability of CERCLA to federal facilities, and

federal assistance for the cleanup of brownfields properties.

How and to what degree a specific contaminant at an individual site must be cleaned up under

CERCLA are not specified in the law itself. The actions required to clean up individual sites are

determined on a site-by-site basis. Although CERCLA established a general process for making

cleanup decisions, more specific direction is provided in EPA regulation and agency guidance.

Other federal agencies that administer the cleanup of federal facilities under CERCLA have

developed additional guidance documents that apply to their own respective facilities.

Although the statutory authorities upon which federal agencies have based their cleanup

regulations and guidance are discussed in this report, the content of these regulations and

guidance is outside its scope.

This report summarizes selected statutory provisions of CERCLA but does not discuss agency

regulations and guidance that may provide more detailed direction for carrying out cleanup

actions at individual sites.

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Major CERCLA Amendments

Congress has amended CERCLA on numerous occasions (1) to clarify the applicability of the

cleanup authorities of the statute and (2) to provide relief from liability for certain categories of

parties who may not have been involved in actions that led to contamination or who may have

contributed only certain quantities or types of waste to a site. Congress also has amended the

statute to authorize federal assistance for the cleanup of abandoned or idled brownfields

properties to encourage their redevelopment. Further, certain amendments have addressed unique

cleanup challenges at federal facilities, such as addressing unexploded ordnance on

decommissioned military training ranges in the United States, and responsibility for the cleanup

of contaminated federal property when it is transferred out of federal ownership.

The Superfund Amendments and Reauthorization Act of 1986 (P.L. 99-499) clarified that federal

facilities are subject to the cleanup requirements of CERCLA to the same extent as nonfederal

entities and amended various response, liability, and enforcement provisions of the law. The 1986

amendments also renewed the authorization of appropriations for EPA’s Superfund program

through FY1991 and established a separate Defense Environmental Restoration Program within

DOD to address contamination at active and decommissioned military facilities in the United

States.

Title VI of the Omnibus Budget Reconciliation Act of 1990 (P.L. 101-508) extended the

authorization of appropriations for EPA’s Superfund program through FY1994. Title XI of that

statute extended the authority to collect the special Superfund taxes on industry through

December 31, 1995. Although reauthorizing legislation has been introduced in various

Congresses, the taxing authority for the Superfund Trust Fund has not been renewed to date, nor

has the authorization of appropriations for EPA’s Superfund program been extended. Instead,

Congress has continued to fund the Superfund program primarily with general Treasury revenues

through the annual appropriations process. Congress has annually authorized and appropriated

funding for the Defense Environmental Restoration Program each year since its establishment.

Most of this funding is supported with general Treasury revenues, with the exception of some

revenues generated from the sale or lease of closed military bases that help fund their cleanup.

In 1992, the Community Environmental Response Facilitation Act (P.L. 102-426) amended the

federal facility provisions of CERCLA to facilitate the transfer of uncontaminated parcels of

surplus federal property on which hazardous substances or petroleum products were not released.

Section 334 of the National Defense Authorization Act for Fiscal Year 1997 (P.L. 104-201)

further amended CERCLA to allow the transfer of contaminated surplus federal property before

cleanup is complete if assurances are provided to guarantee that the property will be cleaned up to

a level that would be suitable for its intended use after transfer.

Other amendments have attempted to address the fairness of CERCLA’s liability scheme, by

either limiting or eliminating the liability of certain categories of parties. In 1996, the Asset

Conservation, Lender Liability, and Deposit Insurance Protection Act (P.L. 104-208, Division A,

Title II, Subtitle E) amended CERCLA to protect certain fiduciaries and financial lenders from

liability. In 1999, the Superfund Recycling Equity Act (Title VI, Appendix I, of P.L. 106-113)

exempted generators and transporters of recyclable scrap materials from cleanup liability under

CERCLA if the person who received the materials disposed of them instead and the disposal

resulted in contamination. There had been some concern that the potential liability of generators

and transporters under CERCLA could be a deterrent to recycling.

In 2002, the Small Business Liability Relief and Brownfields Revitalization Act (Brownfields

Act; P.L. 107-118) provided relief from cleanup liability for (1) persons who contributed very

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small (or de micromis) quantities of waste or only municipal solid (i.e., nonhazardous) waste to a

site, (2) owners of property that became contaminated merely as a result of migration from a

contiguous property owned by another person, and (3) “bona fide” prospective purchasers who

otherwise may be hesitant to acquire a contaminated property because of potential cleanup

liability once acquiring ownership. The 2002 act also established more specific criteria for

exempting “innocent” owners of contaminated property from cleanup liability if they purchased

the property without knowledge of the existing contamination and they had no involvement in

actions that led to contamination.

As required by the statute, persons seeking an exemption from liability as a bona fide prospective

purchaser, contiguous property owner, or innocent landowner must have performed “all

appropriate inquiry” into the prior uses of the property before acquiring ownership and must take

“reasonable steps” after acquiring ownership to prevent potentially harmful exposure to

environmental contamination. Because of these requirements, such persons still may bear some

responsibility for managing contamination on their properties, even though they may be exempt

from liability for more extensive cleanup actions that may be taken under CERCLA.

In addition to providing relief from liability for certain categories of parties, P.L. 107-118

authorized federal grants to assist in the cleanup of brownfields properties. Brownfields

properties typically are abandoned, underutilized, or idled sites where the known or suspected

presence of contamination, and the potential for cleanup liability, could be viewed as a deterrent

to buyers looking to purchase the property for redevelopment. Brownfields properties tend to be

less contaminated than sites listed on the NPL but may need some cleanup to make them suitable

for reuse. EPA originally had established a program in 1993 to provide federal assistance for the

cleanup of brownfields properties using the general cleanup authorities of CERCLA as the legal

basis for this assistance. P.L. 107-118 provided explicit statutory authority for this purpose and

established a separate Brownfields grant program within EPA, apart from the Superfund program.

In 2018, Congress amended CERCLA to reauthorize the Brownfields program with the enactment

of the Consolidated Appropriations Act, 2018 (P.L. 115-141; Division N: Brownfields Utilization,

Investment, and Local Development Act of 2018, or BUILD Act). Included in the amendments,

the BUILD Act reauthorized the authorization of appropriations through FY2023, expanded the

eligibility criteria for nonprofit organizations, and increased the maximum dollar limit for

individual remediation grants.

Also in the Consolidated Appropriations Act, 2018, Congress amended CERCLA with the Fair

Agricultural Reporting Method Act (FARM Act; Division S, Title XI), which exempted air

emissions of hazardous substances generated by farm animal wastes from federal notification

requirements under CERCLA. These amendments also have a bearing on the applicability of

requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA; P.L.

99-499) to notify state and local officials of such releases. However, EPCRA may continue to

apply to the reporting of releases of separately listed extremely hazardous substances that are not

contingent upon reporting under CERCLA, unless these releases may be covered by an

exemption under EPCRA in current law for substances used in routine agricultural operations.2

The FARM Act did not exempt releases of hazardous substances at farms from financial liability

under CERCLA.

2 For emergency planning, reporting requirements for quantities of extremely hazardous substances are codified in

federal regulation at 40 C.F.R. Part 355, Appendix A, and reporting requirements for hazardous chemicals are codified

at 40 C.F.R. Part 370.

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Table 1 provides a chronology of the passage of CERCLA and the major amendments to the law

discussed above.

Table 1. Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA) and Major Amendments to the Statute

Year

Title of Statute

Public Law Number

1980

CERCLA

P.L. 96-510

1986

Superfund Amendments and Reauthorization Act of 1986

P.L. 99-499

1990

Omnibus Budget Reconciliation Act of 1990

P.L. 101-508, Title VI, Subtitle D,

§6301, and Title XI,

Subtitle B, Part IV, §11231

1992

Community Environmental Response Facilitation Act

P.L. 102-426

1996

Asset Conservation, Lender Liability, and Deposit Insurance

Protection Act

P.L. 104-208, Division A, Title II,

Subtitle E

1996

National Defense Authorization Act for Fiscal Year 1997

P.L. 104-201, §334

1999

Superfund Recycling Equity Act

P.L. 106-113, Appendix I, Title VI

2002

Small Business Liability Relief and Brownfields Revitalization Act

P.L. 107-118

2018

Consolidated Appropriations Act, 2018: Brownfields Utilization,

Investment, and Local Development Act of 2018 (BUILD Act)

P.L. 115-141, Division N

2018

Consolidated Appropriations Act, 2018: Fair Agricultural

Reporting Method Act (FARM Act)

P.L. 115-141, Division S, Title XI

Source: CRS.

Federal Response Authorities

Section 104(a) of CERCLA specifically authorizes the President to respond to a release (or

substantial threat of a release) of a hazardous substance into the environment or of a “pollutant or

contaminant which may present an imminent and substantial danger to the public health or

welfare.”3 As authorized by Section 115 of CERCLA,4 the President delegated the response

authorities of CERCLA to EPA and other federal agencies by executive order.5 EPA may respond

to releases on land. The U.S. Coast Guard may respond to releases into inland river ports and

harbors, the Great Lakes, and U.S. coastal waters. If a release were to occur at a federal facility,

the agency that administers that facility is authorized to take response actions, subject to oversight

and enforcement by EPA and the states in which those facilities are located. Federal funding to

carry out response actions under CERCLA is subject to appropriations by Congress.

Notification of a release of a hazardous substance may trigger a federal response under CERCLA.

Section 103(a) requires the party responsible for a release to notify the National Response Center6

3 42 U.S.C. §9604(a).

4 42 U.S.C. §9615.

5 Executive Order 12580 of January 23, 1987, “Superfund Implementation,” 52 Federal Register 2923, January 29,

1987. Hereinafter, references to presidential authorities under the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (CERCLA) refer to those that have been delegated to EPA and other federal

agencies, unless noted otherwise.

6 The United States Coast Guard (USCG) is responsible for administering the National Response Center. According to

(continued...)

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if the quantity of the release exceeds the regulatory limit established for that particular substance.7

These limits are referred to as “reportable quantities,” which are specified in federal regulation.8

State or local officials, or members of the public, who observe or suspect a release of a hazardous

substance also may report the incident. Once a release is reported, the National Response Center

is to notify the appropriate federal agency that would be responsible for carrying out the

President’s response authorities under Section 104(a) and for taking any federal enforcement

actions that may be necessary against the parties responsible for the release.

Response actions taken under CERCLA most often entail cleanup activities involving the

containment, removal, or treatment of environmental contamination to prevent potentially

harmful exposure but may include the temporary or permanent relocation of potentially exposed

individuals, if warranted. Congress has excluded certain types of environmental contamination

from the response authorities of CERCLA, which may be addressed under other federal

environmental laws. These exclusions are provided within the statutory definitions of key terms

upon which the response authorities of CERCLA hinge, including hazardous substance, pollutant

or contaminant, and release. In addition to these exclusions, Congress has placed general

limitations on the extent to which response actions may be taken under CERCLA to address

releases of hazardous substances, pollutants, or contaminants in certain situations. In effect, these

exclusions and limitations may restrict the applicability or scope of the response authorities of

CERCLA at a particular contaminated site.

Petroleum Exclusion

The response authorities of CERCLA do not extend to releases of petroleum. Section 101(14) of

CERCLA generally excludes releases of petroleum, “including crude oil or any fraction thereof,”

from the definition of a hazardous substance for the purposes of the statute.9 Section 101(33)

does the same for the definition of pollutant or contaminant.10 Petroleum releases are covered by

other statutes. The Oil Pollution Act of 1990 (P.L. 101-380) is the primary federal law that

addresses releases of petroleum.11 Other federal laws also provide authorities to respond to

petroleum releases in specific situations. For example, Section 311(c) of the Clean Water Act

authorizes federal actions to respond to releases of petroleum into or on the navigable waters of

the United States and adjoining shorelines.12 Section 9003(h) of the Solid Waste Disposal Act

provides federal response authorities for petroleum leaked from underground tanks.13 In practice,

CERCLA has been applied to the cleanup of some wastes containing petroleum only if the wastes

also contained hazardous substances that were not part of the petroleum product itself.14

the USCG, “The National Response Center (NRC) is not a response agency. It serves as an emergency call center that

fields INITIAL reports for pollution and railroad incidents and forwards that information to appropriate federal/state

agencies for response.” See USCG, National Response Center, https://nrc.uscg.mil/.

7 42 U.S.C. §9603(a).

8 40 C.F.R. §302.4.

9 42 U.S.C. §9601(14).

10 42 U.S.C. §9601(33).

11 33 U.S.C. §§2701 et seq.

12 33 U.S.C. §1321(c).

13 42 U.S.C. §6991b(h).

14 For EPA’s interpretation of the statutory exclusion of releases of petroleum from the cleanup authorities of

CERCLA, see Memorandum from Francis S. Blake, General Counsel, EPA, Office of General Counsel, to J. Winston

Porter, Assistant Administrator for Solid Waste and Emergency Response, “Scope of the CERCLA Petroleum

Exclusion Under Sections 101(14) and 104(a)(2),” July 31, 1987. Note that Section 104(a)(2) of CERCLA, as

(continued...)

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Other Exclusions

Section 101(22) of CERCLA also excludes certain types of releases from the definition of

release.15 A specific category of nuclear materials is excluded from the definition of release,

including “source, byproduct, or special nuclear material” released from a nuclear incident or at

certain processing sites. The disposal and cleanup of these materials are subject to the Atomic

Energy Act of 1954 (P.L. 83-703). With the exception of these specific nuclear materials,

CERCLA generally applies to the release of radionuclides. In federal regulation, EPA has

designated several hundred radionuclides as hazardous substances that are subject to the

authorities of CERCLA.16 Section 101(22) also excludes three other types of releases from the

response authorities of CERCLA: (1) a release that would result in exposure solely within the

workplace; (2) emissions from engine exhaust of a motor vehicle, train, aircraft, vessel, or power

pumping station; and (3) “the normal application of fertilizer.” There also are certain situations

identified in CERCLA in which a party would not be subject to liability, such as the proper

application of a registered pesticide product17 or a federally permitted release of a hazardous

substance.18 However, response authority under the statute generally would remain available to

EPA in these two instances, just not the enforcement of liability.

Limitations on Response Actions

Section 104(a)(3) limits the extent to which actions may be taken under CERCLA to respond to

releases of hazardous substances, pollutants, or contaminants in certain situations. Response

actions generally may not be taken in situations involving (1) releases of naturally occurring

substances in their unaltered form; (2) releases from products (such as asbestos) that are part of a

residential, business, or community structure or building; or (3) releases into public or private

drinking water supplies resulting from deterioration of supply systems through ordinary use.19

However, if the President declares a public health or environmental emergency, CERCLA

authorizes response actions to be taken under the statute in any of these three situations if no

other person has the authority and capability to respond in a timely manner.

State and Local Governments

Prior to the enactment of the BUILD Act, states and local governments that acquired a property

involuntarily as a result of bankruptcy, tax delinquency, abandonment, or other circumstances

(regardless of the date on which the property was acquired) generally are exempt from owner

(and operator) liability under CERCLA if the state or local government did not cause or

contribute to the contamination. However, if a state or local government voluntarily acquires a

contaminated property, it may still be liable under CERCLA. Section 2 of the BUILD Act

amended the definition of owner or operator in Section 101(20)(D) of CERCLA to exempt

originally enacted in 1980, defined pollutant or contaminant. Section 101(f) of the Superfund Amendments and

Reauthorization Act of 1986 redesignated the definition of this term in Section 101(33) of CERCLA, cited above.

15 42 U.S.C. §9601(22).

16 40 C.F.R. §§302.4, Appendix B.

17

42 U.S.C. §9607(i).

18 42 U.S.C. §9607(j).

19 42 U.S.C. §9604(a)(3).

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liability to properties acquired by state and local governments voluntarily, as long as they were

not responsible for the release of the hazardous substances at the property.20

Alaska Native Villages and Native Corporations

Section 3 of the BUILD Act amended the definition of owner or operator in Section 101(20)(E)

of CERCLA21 to exclude liability for lands and properties conveyed to Alaska Native Villages

and Native Corporations under the Alaska Native Claims Settlement Act (ANCSA),22 as long as

they were not responsible for the release of the hazardous substances. In 1971, before the

enactment of CERCLA, the ANCSA conveyed approximately 45.5 million acres of U.S. federal

lands to Alaska Native Villages and Native Corporations. At that time, those lands were conveyed

without the identification or remediation of contamination from prior uses of the federal

government, including DOD. In 2016, the Bureau of Land Management (BLM) reported that 920

contaminated sites were involved in the conveyance; the status of environmental investigations

and remediations at those sites varies depending on site-specific circumstances.23 For these sites,

BLM acts as the federal entity responsible for conveying these lands and has taken the position

that it does not have the authority to compel or conduct cleanup of contaminated sites on ANCSA

lands.

Prioritization and Procedures for Response Actions

Section 105(a) of CERCLA required the President to develop a National Hazardous Substance

Response Plan to establish procedures and standards for prioritizing and responding to releases of

hazardous substances, pollutants, and contaminants into the environment. The law directed the

President to incorporate these procedures and standards into the National Oil and Hazardous

Substances Pollution Contingency Plan (referred to as the National Contingency Plan for short, or

NCP). Under the authority delegated by the President, EPA promulgated the National Hazardous

Substance Response Plan in federal regulation as part of the NCP.24 These regulations govern any

response actions taken under CERCLA.

Consistent with the purpose of the NCP, Section 105(a) of CERCLA also required the President

to develop the NPL of the most hazardous sites in the United States as an administrative

mechanism to prioritize response actions.25 The President has delegated this task to EPA. The

NPL must be updated at least once annually. Section 105(c) primarily requires the use of a Hazard

Ranking System (HRS) to determine which sites warrant placement on the NPL.26 The system

scores each site based on certain factors, such as the quantity and nature of hazardous substances;

the likelihood of the migration of contamination in groundwater, surface water, and air; and the

proximity of the contamination to human populations and sensitive environments. Because of this

range of factors, the severity of contamination alone may not necessarily be sufficient cause to list

a site on the NPL. For example, a geographically isolated site with substantial contamination still

20 42 U.S.C. §9601(20)(D).

21 42 U.S.C. §9601(20)(E).

22 43 U.S.C. Chapter 33.

23 Bureau of Land Management, Report to Congress: Hazardous Substance Contamination of Alaska Native Claim

Settlement Act Lands in Alaska, 2016, p. 7, https://www.blm.gov/sites/default/files/documents/files/

PublicRoom_Alaska_ContaminatedLands_ReporttoCongress_0.pdf.

24

40 C.F.R. Part 300.

25 42 U.S.C. §9605(a).

26 42 U.S.C. §9605(c).

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may not score highly enough on the HRS to warrant placement on the NPL if the distance from

human populations limits the likelihood of exposure.

In addition to the use of the HRS to evaluate eligibility for listing a site on the NPL, there are two

other mechanisms under which EPA also may list a site. First, Section 105(a) allowed each state

the one-time opportunity to designate a single site within its borders as the state’s highest priority

for listing on the NPL. Second, EPA may list a site for which the Agency for Toxic Substances

and Disease Registry (ATSDR) has issued a public health advisory if EPA also determines that the

contamination presents a significant public health threat and that its use of remedial authority will

be more cost effective than its sole use of removal authority without listing the site.27 As

discussed in the “Scope of Response Actions” section, a site must be listed on the NPL as a

condition for the availability of Superfund appropriations to perform remedial actions, but

removal actions are not subject to this condition.

EPA has listed more than 1,600 sites on the NPL over time, including federal facilities. EPA has

deleted over 300 of these sites after determining, in concurrence with the states, that the longterm cleanup objectives had been met. The vast majority of the sites were listed because of EPA’s

evaluation of the potential risks using the HRS, but some sites have been listed as a result of

states designating them as their top priority or as a result of an ATSDR public health advisory.28

Scope of Response Actions

CERCLA authorizes two types of response actions: removal and remedial actions. These terms

are defined in Sections 101(23)29 and 101(24)30 of CERCLA, respectively. Removal does not

necessarily mean the physical removal of contamination from the soil, surface water, or

groundwater, and remedial actions do not necessarily involve treatment of contamination. Rather,

both actions may involve various methods to prevent exposure to contamination, including the

relocation of potentially exposed individuals, if warranted. The NCP allows remedial actions to

be financed with Superfund monies only at sites listed on the NPL, whereas removal actions may

be financed with Superfund monies at non-NPL sites to address emergency situations.31 This

restriction is intended to reserve Superfund monies for costlier remedial actions at NPL sites that

are thought to present the greatest risks. This funding restriction in the regulations is based on the

statutory requirement of Section 105(a) of CERCLA for EPA to prioritize contaminated sites for

the purpose of taking remedial actions.

Removal actions tend to be shorter term actions that address more immediate risks, whereas

remedial actions tend to be longer term actions that offer more permanent solutions. Thus,

remedial actions often entail more extensive and costly measures. Because of the typically greater

extent and cost of remedial actions, they are subject to more in-depth review in the form of a

remedial investigation and feasibility study (RI/FS). An RI/FS involves an investigation of the

contamination to assess potential risks of exposure and a study of the feasibility of remedial

alternatives to address those risks. Remedial actions also are subject to public participation

requirements under Section 117 of CERCLA.32 (See the “Public Participation” section of this

27 40 C.F.R. §300.425(c)(3).

28 For information on the number and status of sites across the United States listed on the National Priorities List (NPL)

over time, see EPA, “Superfund: National Priorities List (NPL),” October 9, 2024, https://www.epa.gov/superfund/

superfund-national-priorities-list-npl.

29 42 U.S.C. §9601(23).

30

42 U.S.C. §9601(24).

31 40 C.F.R. §300.425(b)(1).

32 42 U.S.C. §9617.

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report.) Removal actions are not subject to a similar degree of review or public comment because

of the perceived need for swifter response to address more immediate risks.

Section 104(c)(1) generally restricts the timing of removal actions funded with Superfund monies

to one year and the cost to $2 million, with exceptions provided in certain situations.33 For

example, a remedial action may exceed these limitations if the continuance of the removal action

would contribute to the remedial action planned at the site. These general timing and cost

limitations on removal actions are intended to ensure that removal actions are not pursued on a

broader scale as a way to avoid the more in-depth review required of remedial actions.

However, CERCLA does not impose these limitations on a removal action funded by a

responsible party with its own funds, nor by a federal agency at a federal facility with dedicated

monies appropriated to that agency for that purpose apart from Superfund. From a practical

standpoint, imposing the above timing and cost limitations on removal actions at many federal

facilities administered by DOD and DOE could constrain the needed scope of removal actions, as

cleanup challenges are often greater at these federal facilities in comparison to nonfederal sites.

Federal-State Cost Sharing

Section 104(c)(3) of CERCLA requires the state in which a nonfederal NPL site is located to

agree to share the costs of remedial actions at that site as a condition of obligating federal

Superfund monies to finance those actions.34 States are not responsible for sharing the costs of

cleanup at sites where the potentially responsible parties pay for the cleanup, including federal

facilities that are funded by the federal agencies that administer them. Rather, the federal

government and the states are to share the costs of assuming the responsibility for the orphan

shares of the cleanup costs for which there are no viable parties to pursue.

This cost-sharing requirement in Section 104(c)(3) is intended to reduce the financial burden on

the federal taxpayer presented by the often long-term financial commitment involved in carrying

out a remedial action. Notably, CERCLA does not require states to agree to share the costs of

removal actions, which typically are less costly as a result of their smaller scope. Consequently,

federal Superfund monies may be used to finance the entire costs of removal actions.

At a site where the state must agree to share the costs of remedial actions as a condition of the

obligation of federal Superfund monies, the state first must provide certain assurances of its

financial commitments, specified in a binding contract or cooperative agreement with the federal

government. Absent such contract or agreement, federal Superfund monies are not available to

finance remedial actions at that site. For federal Superfund monies to be obligated for the

remedial actions, the state must agree to pay 10% of the costs of those actions. If the site was

owned or operated by the state, or a political subdivision of the state, at the time of disposal, the

state must agree to pay at least 50% of the costs of the remedial actions.

In addition to the above conditions, the state must agree to perform future maintenance of the

remedial actions for their expected operational life. The maintenance phase usually occurs after

any necessary construction is complete and the remedial action is operating as intended.

CERCLA authorizes a delay in the state’s responsibility for the maintenance of groundwater or

surface water remedies. Section 104(c)(6) allows a state to delay its maintenance responsibilities

for the first 10 years of the operation of such remedial actions.35 The statute allows a delay in the

33

42 U.S.C. §9604(c)(1).

34 42 U.S.C. §9604(c)(3).

35 42 U.S.C. §9604(c)(6).

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state’s maintenance responsibility specifically for these types of actions to reduce the burden of

those costs on the state, as the cleanup of groundwater or surface water tends to be more costly

than other types of remediation. During the initial 10-year period, federal Superfund monies

instead can be used to pay the maintenance costs of groundwater or surface water remedies.

Selection of Response Actions

Although CERCLA does not require EPA to respond to every release of a hazardous substance

over which it has authority, the statute imposes certain requirements where EPA may opt to

undertake a response action. Section 121(a) of CERCLA generally requires response actions

selected for contaminated sites to achieve acceptable levels of exposure that would protect human

health and the environment.36 Response actions also are to be cost effective over both the short

term and long term, including the operation and maintenance of the action. Section 121(b) states a

preference for the selection of remedial actions that involve treatment to “permanently and

significantly” reduce the “volume, toxicity or mobility” of contamination.37

Actions not involving treatment often entail the containment of wastes on site or the removal and

disposal of wastes off site. The containment of wastes on site could present lingering health and

environmental risks if the containment method were to fail over time. If the remedial action

would result in wastes being left on site, Section 121(c) requires the President to review the

performance of the remedial action every five years to determine whether that action continues to

protect human health and the environment.38 If the action is not functioning as intended, the

President may take additional remedial actions at the site to achieve the cleanup goal.

Although Section 121 includes certain requirements to govern the selection of remedial actions, it

does not specify how clean an individual site must be to protect human health and the

environment. Section 121 also does not identify the specific nature of the remedial actions that

would be required to attain a cleanup goal at an individual site. Instead, these cleanup decisions

are made on a site-by-site basis taking many factors into consideration, including the potential for

human exposure based on the anticipated land use and the technical and economic feasibility of

cleanup alternatives to prevent exposure.

Cleanup Standards

The level of cleanup that is required can vary widely from site to site depending on the

contaminants present, the cleanup standards or criteria that apply to those contaminants, and the

response actions selected to attain those standards or criteria. Rather than specify standards or

criteria for individual hazardous substances, Section 121(d) of CERCLA broadly requires that

cleanup comply with applicable, relevant, and appropriate requirements (ARARs) to protect

human health and the environment.39 ARARs can include a host of federal or state standards,

requirements, or other criteria. In this sense, CERCLA functions as an umbrella statute under

which other statutes or regulations also may be applied to the cleanup of a contaminated site.

Although CERCLA does not list specific standards that may apply to the cleanup of an individual

site, there are two sets of standards cited in Section 121(d) that broadly apply to the selection of

remedial actions at any site. First, the law requires remedial actions to achieve a level of cleanup

36 42 U.S.C. §9621(a).

37

42 U.S.C. §9621(b).

38 42 U.S.C. §9621(c).

39 42 U.S.C. §9621(d).

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that would attain maximum contaminant levels (MCLs) established for current or potential

sources of drinking water under the Safe Drinking Water Act.40 Second, remedial actions must be

consistent with other water quality criteria established under Sections 30341 and 30442 of the

Clean Water Act. However, the applicability of these sets of standards to an individual site

remains limited to circumstances in which the standards still are deemed relevant and appropriate,

consistent with the underlying premise of an ARAR.

Section 121(d)(4) authorizes the waiver of a particular standard if

•

•

•

•

•

•

the contemplated response action would be part of a larger remedial action that

would meet the standard once the larger action is completed;

compliance with the standard would result in a greater risk than the alternatives;

compliance with the standard would be technically impracticable from an

engineering perspective;

an equivalent standard of performance would be attained;

in the case of a state standard, the state has not consistently applied that standard

elsewhere within its jurisdiction; or

meeting the standard would not provide a balance between (1) the need for

protection of public health and welfare and the environment at the site under

consideration and (2) the availability of monies in the Superfund Trust Fund to

respond to more immediate risks at other sites.43

State Participation

CERCLA authorizes a broad role for states to participate in the cleanup process. States must agree

to share in the costs of remedial actions at nonfederal NPL sites as a condition of the obligation of

federal Superfund monies. Section 121(f) of CERCLA also requires that states be afforded

opportunities for “substantial and meaningful involvement” in initiating, developing, and

selecting remedial actions.44 However, there are certain limitations on the involvement of states in

cleanup decisions at federal facilities, as states do not share in the costs of cleanup at these

facilities. If a state wishes to challenge a remedial decision of a federal agency at a facility that

agency administers, Section 121(f)(3) requires that the state show that the decision of the agency

is not supported by “substantial evidence.”45

Public Participation

CERCLA also provides a role for the general public in commenting on the selection of remedial

actions at individual sites. This role is similar to that under many other federal laws that require

the opportunity for the public to comment on certain types of federal decisions. Section 117 of

CERCLA requires EPA, or another federal agency responsible for administering and funding the

cleanup of a contaminated site, to provide the public an opportunity to comment on proposals for

40 42 U.S.C. §§300f et seq.

41 33 U.S.C. §1313.

42 33 U.S.C. §1314.

43

42 U.S.C. §9621(d)(4).

44 42 U.S.C. §9621(f).

45 42 U.S.C. §9621(f)(3).

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the selection of remedial actions.46 Once a final decision is made, public notice of the decision

must be provided, with an explanation of any significant differences from the proposed action and

a response to each significant public comment on the proposed action.

The opportunity for public comment required by Section 117 of CERCLA applies only to

decisions on remedial actions. Decisions on removal actions are not subject to these requirements

because of the presumed need for expedited action to address more immediate risks. In practice,

EPA and other federal agencies typically notify the public of the selection of removal actions to

inform communities of the nature and timing of such actions. Section 117(e) of CERCLA

authorizes technical assistance grants of up to $50,000 for community groups to help the public

understand technical information presented in cleanup decision documents.47 These grants are

available only to affected communities at sites listed on the NPL.

Agency for Toxic Substances and Disease Registry

Section 104(i) of CERCLA established the ATSDR primarily to assess potential health risks at

NPL sites.48 The ATSDR assesses individual sites based on the likelihood of human exposure to

contamination through the air, soil, surface water, groundwater, and other pathways such as

consumption of contaminated food sources. The purpose of these assessments is twofold: to

inform the public of potential health hazards at a contaminated site and to aid decisionmakers in

evaluating what cleanup actions may be warranted to prevent potentially harmful exposure.

Although the findings of the ATSDR may be used to inform the selection of cleanup actions, the

agency does not have any authority to dictate cleanup decisions. In addition to site-specific

assessments, Section 104(i) directs the ATSDR to prepare toxicological profiles of hazardous

substances commonly found at NPL sites to identify potential health effects that can result from

exposure.

Section 104(i) of CERCLA also authorizes the ATSDR to carry out several other functions

intended to protect public health. For example, the agency is authorized to provide medical care

and testing to individuals during a public health emergency caused by, or believed to be caused

by, exposure to toxic substances. CERCLA does not provide any criteria as to what constitutes a

public health emergency for this purpose, presumably leaving the declaration of such an

emergency to the discretion of the ATSDR. As with other roles, the resources of the agency to

fulfill this role are subject to appropriations by Congress. To date, the ATSDR has not used its

authority under CERCLA to declare a public health emergency. In practice, the agency’s role has

focused on educating the public about known health risks from exposure to hazardous substances

and assessing potential risks at individual sites to aid in informing cleanup decisions.

Financial Liability

Section 107 of CERCLA identifies the categories of potentially responsible parties connected

with a contaminated site who are liable for the costs of response actions that EPA deems

necessary to protect human health and the environment.49 Such parties also are liable for damages

for injury to, destruction of, or loss of natural resources resulting from a release of a hazardous

substance, including the costs of assessing such injury, destruction, or loss, and the costs of public

46 42 U.S.C. §9617.

47

42 U.S.C. §9617(e).

48 42 U.S.C. §9604(i).

49 42 U.S.C. §9607.

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health assessments carried out by the ATSDR under Section 104(i) of CERCLA. The following

sections discuss the categories of parties who are liable under Section 107 of CERCLA, the reach

of liability, defenses to liability, and limitations on the liability of certain categories of parties.50

Categories of Potentially Responsible Parties

Section 107(a) identifies four categories of potentially responsible parties who are liable for the

costs of response actions, natural resource damages, and public health assessments associated

with the release or threatened release of a hazardous substance:

•

•

•

•

any person who currently owns or operates a facility or vessel from which a

hazardous substance was released;

any person who at the time of disposal of a hazardous substance owned or

operated the facility at which such disposal occurred;

any person who arranged for the disposal or treatment of a hazardous substance

(often referred to as a “generator of waste”) and any person who arranged for the

transport of a hazardous substance for disposal or treatment; and

“any person who accepts or accepted any hazardous substances for transport to

disposal or treatment facilities, incineration vessels or sites selected by such

person.”51

Financial responsibility under CERCLA for cleanup costs may extend to actions beyond a facility

boundary if a hazardous substance were to migrate (i.e., move or spread) through the

environment. Section 101(8) of CERCLA defines environment to include not only the land but

also surface water, groundwater, or ambient air.52 Consequently, cleanup actions may be

necessary not only on the facility where the initial release occurred but also anywhere the

hazardous substance may migrate through the environment. For example, hazardous substances

that migrate into groundwater or surface water can travel some distance, even miles, and can

necessitate cleanup actions across a larger area than where the release first occurred.

Reach of Liability

Liability under CERCLA requires a release or threatened release of a hazardous substance from a

facility into the environment. Over time, the courts have interpreted liability under Section 107 of

CERCLA to be strict, joint and several, and retroactive. This judicial interpretation is rooted in

case law, legislative history, and the definition of liability in Section 101(32) of CERCLA53 that

applies the same standards of liability as in Section 311 of the Clean Water Act.54

•

•

Strict liability means that a party can be held liable regardless of whether the

conduct of that party was negligent.

Joint and several liability means that one or more of the liable parties can be held

responsible for the full cost of the cleanup at a site, regardless of the degree of

involvement in the contamination. However, Section 113(f)(1) of CERCLA

50 Also see CRS In Focus IF11790, Liability Under the Comprehensive Environmental Response, Compensation, and

Liability Act (CERCLA), by Kate R. Bowers.

51 42 U.S.C. §9607(a).

52

42 U.S.C. §9601(8).

53 42 U.S.C. §9601(32).

54 33 U.S.C. §1321.

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•

allows a party to seek recovery of some of its cleanup costs from other parties at

a site through contribution claims in court.55 In deciding such claims, a court is to

base the allocation of cleanup costs on “equitable factors.” If a party can show

that the waste it sent to the site could not have contributed to the contamination,

joint and several liability does not apply to that party.

Retroactive liability means that parties are liable for the cleanup of hazardous

substances released prior to the enactment of CERCLA on December 11, 1980.

However, Section 107(f)(1) extends liability for natural resource damages only to

releases that occurred on or after the enactment of CERCLA that resulted in

injury to, destruction of, or loss of the natural resources.56

It should be emphasized that the above description of the basic liability standards of CERCLA

offers only a brief summary of the broad reach of the statute, as generally interpreted by the

courts over time. As such, this description does not examine the complexities of individual court

decisions on these matters. Determination of liability under CERCLA is a fact-intensive and sitespecific inquiry that would depend on numerous legal issues beyond the scope of this report.

Defenses to Liability

Section 107(b) of CERCLA provides defenses to liability under certain circumstances.57 A party

cannot be held liable for the release or threatened release of a hazardous substance, and resulting

injury to, destruction of, or loss of natural resources, if that party can provide evidence that the

release or threatened release was caused solely by

•

•

•

•

“an act of God”;

“an act of war”;

“an act or omission of a third party” with whom the defendant has no contractual

relationship if the defendant “exercised due care with respect to the hazardous

substance [and] took precautions against foreseeable acts or omissions” of that

third party and against the foreseeable consequences of such acts or omissions; or

any combination of these three circumstances.

The third-party defense sometimes is characterized as the “innocent landowner defense,” because

it typically pertains to property owners who had no involvement in the actions that led to the

contamination. Section 101(35) of CERCLA defines contractual relationship for the purpose of

the third-party defense and specifies the conditions that a landowner must satisfy to claim the lack

of a contractual relationship connecting the owner to the contamination.58 See the “Bona Fide

Prospective Purchasers and Innocent Landowners” section of this report.

Limitations on Liability

To address the fairness of the liability scheme of CERCLA, Congress has amended the statute at

various times to limit, or in some cases eliminate, the liability of certain categories of parties who

may not have been involved in actions that resulted in contamination, who may have contributed

55 42 U.S.C. §9613(f)(1).

56

42 U.S.C. §9607(f)(1).

57 42 U.S.C. §9607(b).

58 42 U.S.C. §9601(35).

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only very small quantities or less toxic wastes to a contaminated site, or whose conduct Congress

did not wish to discourage. These categories of parties include

•

•

•

•

•

•

•

•

•

•

response action contractors who only perform the work to clean up a

contaminated site but who did not cause or otherwise contribute to the

contamination;

state and local governments that acquired contaminated property involuntarily

through bankruptcy, tax delinquency, abandonment, or other circumstances and

did not cause or otherwise contribute to the contamination;

persons who hold a contaminated property only in a fiduciary capacity;

financial lenders who acquire financial interests or ownership of a contaminated

property through foreclosure;

generators and transporters of scrap materials intended for recycling but that

instead may have been disposed of by other persons;

persons who contributed only very small quantities of waste or only municipal

solid (i.e., nonhazardous) waste to a site;

service station dealers who only disposed of recycled oil that was not

contaminated with hazardous substances and who fully complied with federal

regulations for managing the recycled oil;

innocent landowners who purchased a property without knowledge of existing

contamination, with respect to the third-party defense noted above;

other innocent owners of property that became contaminated only through

migration from a contiguous property where the initial release occurred; and

bona fide prospective purchasers who otherwise may be hesitant to acquire a

property on which contamination is known or suspected to be present because of

the potential liability for cleanup upon acquiring ownership.

Amendments to CERCLA that provided such limitations on cleanup liability for specific

categories of parties are examined further below. As discussed in the “Other Exclusions” section

of this report, there also are certain situations identified in CERCLA in which a party would not

be subject to liability, such as the proper application of a registered pesticide product59 or a

federally permitted release of a hazardous substance.60

Cleanup Contractors

Soon after the enactment of CERCLA in 1980, it was realized that a private contractor hired to

clean up a contaminated site could be exposed to potential liability as an operator of that site or as

a person who arranged for disposal or transport of waste in instances in which the contractor

removed waste as part of the cleanup. Some viewed this exposure to potential liability as a

deterrent to private contractors being willing to clean up contaminated sites. In response to this

concern, Section 119 of the Superfund Amendments and Reauthorization Act of 1986 added

Section 119 to CERCLA to limit the liability of “response action” contractors who are hired to

perform cleanup actions.61

59

42 U.S.C. §9607(i).

60 42 U.S.C. §9607(j).

61 42 U.S.C. §9619.

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Section 119(a)(1) states that cleanup contractors shall not be liable under CERCLA, or any other

federal law, to any person for “injuries, costs, damages, expenses, or other liability” resulting

from the release or threatened release of a hazardous substance, pollutant, or contaminant.62

However, no immunity from liability under state law is conferred under CERCLA. Section

119(a)(2) states that a cleanup contractor shall not be exempt from federal liability for a release

caused by that contractor as a result of conduct that is “negligent, grossly negligent, or which

constitutes intentional misconduct.”63 Under certain circumstances, Section 119(c) authorizes the

President to indemnify a cleanup contractor for negligent conduct but not grossly negligent

conduct or intentional misconduct.64 Such indemnification is intended to cover a contractor’s

liability that cannot be covered by insurance “at a fair and reasonable price.”

Fiduciaries and Financial Lenders

Enacted in the 104th Congress, the Asset Conservation, Lender Liability, and Deposit Insurance

Protection Act of 1996 (P.L. 104-208, Division A, Title II, Subtitle E, of the Omnibus

Consolidated Appropriations Act, 1997) added Section 107(n) to CERCLA to limit the liability of

persons who hold a facility or vessel only in a fiduciary capacity for another person to the value

of the assets held on behalf of that person.65 This limitation on liability is provided if the fiduciary

did not cause or contribute to a release or threatened release of a hazardous substance from such

facility or vessel. Prior to the enactment of P.L. 104-208, fiduciaries who held an interest in a

contaminated property had been concerned that joint and several liability under CERCLA could

result in their financial liability exceeding the value of the assets held.

P.L. 104-208 also amended the definition of owner or operator in Section 101(20) of CERCLA66

to exclude financial lenders that did not participate in the management of a facility or vessel from

which there was a release or threatened release of a hazardous substance, but who held indicia of

ownership primarily to protect security interests. Lenders also were exempted from liability as

owners or operators of foreclosed properties but only if they did not participate in the

management of the facility or vessel prior to foreclosure. Lenders especially had been concerned

about becoming liable for the cleanup of contaminated properties following foreclosure, when

they become owners of the property, and hence could become liable for cleanup under Section

107.

Generators and Transporters of Recyclable Materials

Enacted in the 106th Congress, Title VI—Superfund Recycling Equity—of Appendix I of the

Consolidated Appropriations Act, 2000 (P.L. 106-113), added Section 127 to CERCLA to exempt

certain parties involved in the recycling of scrap materials from cleanup liability as generators

and transporters of wastes.67 The exemption is available to persons who “arranged” for the

recycling of scrap materials (by selling the materials or otherwise arranging for their recycling).

Recyclers involved in these activities had been concerned about being held liable as generators or

transporters of wastes if they sold or transported scrap materials to a facility that disposed of the

62 42 U.S.C. §9619(a)(1).

63 42 U.S.C. §9619(a)(2).

64 42 U.S.C. §9619(c).

65

42 U.S.C. §9607(n).

66 42 U.S.C. §9601(20).

67 42 U.S.C. §9627.

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materials instead of recycling them as intended. Some had perceived this potential liability as a

deterrent to recycling.

The exemption is available to the above persons only for materials that fall within the statutory

definition of recyclable materials in CERCLA. Section 127(b) defines recyclable materials to

include the following scrap materials: plastic, glass, textiles, rubber (other than whole tires),

metal, or spent lead-acid, spent nickel-cadmium, and other spent batteries, and “minor amounts of

material incident to or adhering to the scrap material as a result of its normal and customary use

prior to becoming scrap.”68 Two items are expressly excluded: (1) shipping containers of a certain

capacity that contained a hazardous substance or onto which a hazardous substance adhered and

(2) materials containing polychlorinated biphenyls (PCBs) in excess of federal standards.

Even if a material can be considered recyclable within the above statutory definition, the

exemption is not automatic. Section 127(c) requires the person who arranged for the recycling of

the materials to demonstrate that certain criteria were met.69 For example, the material must have

been of commercial specification grade; a market must have existed for the material; a substantial

portion of that type of material must have been made available for the manufacture of a new

saleable product; and the material could have been used to replace, or to substitute for, virgin raw

material. The person also must demonstrate that he or she exercised “reasonable care” to

determine that the receiving facility where the materials were intended to be recycled was in

compliance with federal, state, and local environmental laws.

Section 127(f) makes the exemption unavailable if the person claiming the exemption had reason

to believe that the scrap material would not be recycled by the receiving facility; that the material

would be burned as fuel or for energy recovery or incineration; that the receiving facility was not

in compliance with federal, state, and local environmental laws; or that hazardous substances had

been added to the material. The statute also makes the exemption unavailable if the person failed

to exercise “reasonable care” in managing and handling the material.70

Contributors of De Micromis and Municipal Solid Wastes

Enacted in the 107th Congress, Section 102(a) of the Small Business Liability Relief and

Brownfields Revitalization Act (P.L. 107-118) amended Section 107 of CERCLA to limit the

liability of parties who contributed only certain quantities or types of wastes to sites listed on the

NPL. The amendment did not extend these exemptions to such parties at sites not listed on the

NPL. Section 102(a) of P.L. 107-118 added Section 107(o) to CERCLA to exempt parties from

cleanup liability who generated or transported waste to a site listed on the NPL if they contributed

only de micromis amounts of hazardous substances to that site.71 To qualify for this exemption, a

party must demonstrate that it contributed less than 110 gallons of liquid materials or less than

200 pounds of solid materials containing hazardous substances. The exemption is not available to

a party who contributed such quantities of wastes to a site on or after April 1, 2001.

Section 102(a) of P.L. 107-118 also added Section 107(p) to CERCLA to exempt residential

property owners, small businesses, and small nonprofit organizations from cleanup liability if

they contributed only municipal solid waste to a site listed on the NPL.72 The exemption is

limited to municipal solid waste generated by a household or that possesses characteristics typical

68 42 U.S.C. §9627(b).

69 42 U.S.C. §9627(c).

70

42 U.S.C. §9627(f).

71 42 U.S.C. §9607(o).

72 42 U.S.C. §9607(p).

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of household waste. The exemption is available only to the generators of the waste and persons

who arranged for the transport of the waste. The exemption is not available to the owner or

operator of the disposal site where the waste was sent, such as a landfill, nor to transporters of the

waste who selected the disposal site.

Bona Fide Prospective Purchasers and Innocent Landowners

Subtitle B of Title II of P.L. 107-118 authorized exemptions from cleanup liability for two

categories of parties: (1) bona fide prospective purchasers and (2) owners whose properties

became contaminated only as a result of migration from a contiguous property owned by another

person. Subtitle B also established more specific criteria for the availability of the third-party

defense to innocent landowners who had no knowledge of existing contamination at the time of

acquiring a property and had no involvement in the actions that led to the contamination. These

exemptions are available to site owners who meet the requisite statutory criteria, regardless of

whether the site is listed on the NPL. In contrast, the above exemptions from cleanup liability for

contributors of de micromis amounts of wastes and municipal solid wastes are available only at

sites listed on the NPL.

Prior to the enactment of P.L. 107-118, EPA had used its existing authorities under Section 122 of

CERCLA73 to enter into voluntary settlement agreements with prospective purchasers who had no

involvement in the contamination as a mechanism to limit their cleanup liability upon acquiring

ownership of a contaminated property. EPA commonly referred to these agreements as

“prospective purchaser agreements.”74 This type of settlement usually capped a purchaser’s

financial responsibility for the cleanup or required less extensive cleanup work by the purchaser.

These agreements also typically included a covenant promising that the federal government

would not sue for further liability and offered protection from contribution claims by other liable

parties. (See the “Voluntary Settlement Agreements” section of this report for additional

discussion.) After the enactment of P.L. 107-118, a bona fide prospective purchaser who met the

requisite statutory criteria could become eligible for an exemption from cleanup liability without

entering into a formal settlement agreement with EPA.

Section 222 of P.L. 107-118 added Section 107(r) to CERCLA exempting bona fide prospective

purchasers of contaminated property acquired after the date of the enactment of P.L. 107-118

(January 11, 2002).75 This exemption is not available to persons who purchased a contaminated

property on or before January 11, 2002, and therefore is not retroactive. A person who knowingly

purchased a contaminated property on or before that date must have entered into a prospective

purchaser agreement with EPA under Section 122 of CERCLA to limit his or her cleanup liability

upon acquiring ownership. Section 222 of P.L. 107-118 also added Section 101(40) to CERCLA

defining bona fide prospective purchaser and specifying the criteria of eligibility for the

exemption provided in Section 107(r) of the statute.76

In addition to bona fide prospective purchasers, Section 221 of P.L. 107-118 added Section 107(q)

to CERCLA, exempting owners of contaminated property from cleanup liability if the

contamination occurred only as a result of the migration of a hazardous substance from a

73 42 U.S.C. §9622.

74 In 1989, EPA developed guidance for entering into prospective purchaser agreements with potentially responsible

parties under Section 122 of CERCLA. EPA revised its guidance in 1995 to expand the circumstances under which

such agreements would be considered. See EPA, Office of Enforcement and Compliance Assurance, Guidance on

Agreements with Prospective Purchasers of Contaminated Property, May 24, 1995.

75 42 U.S.C. §9607(r).

76 42 U.S.C. §9601(40).

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contiguous property owned by another person.77 To obtain the exemption, an owner of a

contiguous property must have had no knowledge of the presence of the hazardous substance, nor

the possibility of its migration, when acquiring ownership. Section 223 of P.L. 107-118 amended

the definition of contractual relationship in Section 101(35) of CERCLA78 to establish more

specific criteria for innocent landowners to claim the third-party defense against liability under

Section 107(b)(3) of CERCLA.79 Of importance, the exemptions for bona fide prospective

purchasers and contiguous property owners reference these criteria in the definition of contractual

relationship, making the criteria applicable to all three exemptions.

Under these criteria, an owner claiming an exemption as a bona fide prospective purchaser,

innocent landowner, or contiguous property owner must have had no association with the

activities that led to the contamination and must have had no relationship with the persons who

caused or contributed to the contamination (aside from a contractual relationship involving only

the conveyance of the property). The key difference among these exemptions is that a bona fide

prospective purchaser may know that a property is contaminated at the time of acquisition and

still be exempt from liability under CERCLA for the cleanup costs. A person claiming an

exemption as an innocent landowner or a contiguous property owner must prove that he or she

had no knowledge, or no reason to know, of the contamination at the time of acquisition.

CERCLA requires prospective purchasers to have made “all appropriate inquiries” into the

previous ownership and uses of the property to demonstrate that they made their best effort to

determine whether contamination is present.80 A person seeking to claim an exemption from

liability as a bona fide prospective purchaser, innocent landowner, or contiguous property owner

must satisfy this requirement before acquiring ownership. As directed by P.L. 107-118, EPA

promulgated regulations that identify specific measures a person must take to demonstrate that

“all appropriate inquiries” were made satisfactorily.81 The process outlined in the regulations for

making “all appropriate inquiries” is similar to a preliminary site assessment and must be

performed by an environmental professional hired at the person’s expense.

A person also must satisfy other conditions after receiving ownership of a property to maintain an

exemption from liability under CERCLA as a bona fide prospective purchaser, innocent

landowner, or contiguous property owner. The owner must take “reasonable steps” to (1) stop any

continuing release of a hazardous substance, (2) prevent any future releases, and (3) prevent or

limit exposure to any previously released hazardous substance.82 The owner also must provide

any legally required notices of the discovery of hazardous substances on the property and must

comply with any land use restrictions and institutional controls that may be put into place by

regulators to prevent potential exposure to the hazardous substances. Satisfying these criteria can

have the effect of minimizing, but not eliminating, an owner’s responsibility for managing the

contamination, even though the owner may be exempt from cleanup liability under CERCLA.

A person who discovered contamination upon conducting all appropriate inquiries must take

reasonable steps to manage the contamination once becoming the owner to maintain exemption

status as a bona fide prospective purchaser. If a person conducted all appropriate inquiries before

acquiring a property and still did not discover the contamination, that person must take these steps

once the existence of the contamination is known in order to maintain exemption status as an

77 42 U.S.C. §9607(q).

78 42 U.S.C. §9601(35).

79 42 U.S.C. §9607(b)(3).

80

42 U.S.C. §9601(35)(B).

81 40 C.F.R. Part 312.

82 42 U.S.C. §9601(35)(B)(i)(II).

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innocent landowner, or a contiguous property owner if the contamination resulted from migration.

The burden of proof is on the person seeking an exemption from liability to demonstrate that all

appropriate inquiries were made before acquiring ownership and that reasonable steps will be

taken after acquiring ownership to manage the contamination. Section 5 of the BUILD Act

amended Section 101(40) of CERCLA to make lessees of properties eligible for the bona fide

prospective purchaser liability exemption.83

Hazardous Substance Superfund Trust Fund

CERCLA established the Hazardous Substance Superfund Trust Fund to provide a source of

funds for the federal government to finance the cleanup of “orphaned” contaminated sites where

the potentially responsible parties cannot pay or cannot be identified. A combination of special

taxes on industry and general taxpayer revenues originally financed the Superfund Trust Fund;

the authority to collect the industry taxes expired on December 31, 1995. Over time, Congress

increased the contribution of general revenues to make up for the reduced revenue from the

expired industry taxes. Congress partially reinstated the taxes in 2021 with the enactment of P.L.

117-58, the Infrastructure Investment and Jobs Act (IIJA), and P.L. 117-169, commonly referred

to as the Inflation Reduction Act (IRA; discussed below).

The assumption of financial responsibility for these orphan shares of cleanup costs is intended to

ensure that the actions necessary to protect human health and the environment are carried out.

The availability of Superfund Trust Fund monies to pay for the cleanup of orphaned sites is

subject to appropriations by Congress. Once appropriated, the availability of Superfund monies

under EPA’s Superfund program to pay for remedial actions is further subject to cost-sharing

agreements with the states in which the sites are located, as discussed in the “State Participation”

section of this report.

Original Taxing Authority

The special taxing authority to finance the Superfund Trust Fund expired at the end of 1995.

Before this authority lapsed, three dedicated taxes on petroleum, chemical feedstocks (and

imported chemical derivatives), and corporate income provided most of the revenues for the

Superfund Trust Fund. Revenues from the General Fund of the U.S. Treasury also contributed to

the trust fund to augment the dedicated taxes, but these general tax revenues were a relatively

small portion of the total revenues to the trust fund during the time that the dedicated taxes were

collected through the end of 1995.

As originally enacted in 1980, Section 211(a) of CERCLA authorized the Superfund excise taxes

on petroleum84 and chemical feedstocks.85 Section 515(a) of the Superfund Amendments and

Reauthorization Act of 1986 expanded the reach of the tax on domestically manufactured

chemical feedstocks to include imported chemical derivatives.86 Taxing imported derivatives was

intended to compensate for the potential loss of revenues as overseas manufacturing of chemical

feedstocks increased. Prior to expiration at the end of 1995, the Superfund excise tax on

petroleum was 9.7 cents per barrel. The Superfund excise tax on chemical feedstocks and

imported chemical derivatives varied from $0.22 per ton to $4.87 per ton, depending on the

83 42 U.S.C. §9601(40).

84

26 U.S.C. §4611.

85 26 U.S.C. §4661.

86 26 U.S.C. §4671.

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substance (with the exception of xylene, which was taxed at a higher rate of $10.13 per ton in the

initial years of the tax until 1992). Section 516(a) of the Superfund Amendments and

Reauthorization Act of 1986 established the special tax on corporate income to provide an

additional revenue stream for the Superfund Trust Fund.87 Prior to expiration in 1995, the

Superfund tax on corporate income (formally referred to as the Corporate Environmental Income

Tax) was 0.12% of corporate alternative minimum taxable income in excess of $2 million.

Whether to reinstate Superfund taxes has been a long-standing controversy since the taxing

authority lapsed at the end of 1995. The reauthorization debate has centered around numerous

fairness issues. Supporters of the taxes maintain that dedicated tax revenues for the Superfund

program are necessary to ensure that polluters pay for the cleanup of contamination they have

caused or may cause in the future, often referred to as the “polluter pays principle.” In this sense,

some have characterized Superfund taxes as an insurance plan for the public that is intended to

provide resources for cleanup if businesses become bankrupt and cannot be pursued for their

liability. On the other hand, opponents of the taxes have observed that not all of the individual

businesses subject to the tax may have been involved in activities that resulted in contamination

and that the actual polluters are paying for the cleanup of most Superfund sites through

enforcement actions under the liability provisions of CERCLA.

The extent to which Superfund taxes may have affected innocent businesses has been a principal

question in the debate over the fairness of the tax structure. The Superfund tax on corporate

income was intended to raise additional revenues from a wide range of businesses that may have

benefitted from the use of hazardous substances in some way. However, this income tax captured

all businesses that met the income threshold, regardless of whether a business may have used or

disposed of any hazardous substances. Congress created the Superfund taxes on petroleum and

chemical feedstocks based on the broadly held assumption that much of the environmental

contamination in the United States had been caused as a result of industrial activities that

involved these substances. However, not all petroleum and chemical companies may have been

involved in actions that led to contamination.

The appropriateness of the Superfund tax on petroleum has been especially controversial in light

of the exclusion of petroleum from the cleanup authorities of CERCLA. Because of this

exclusion, monies from the Superfund Trust Fund generally have paid for the cleanup of

petroleum contamination only if the contamination includes hazardous substances that are not

part of the petroleum product itself. Congress has established other trust funds to address releases

of petroleum. Title V of the Superfund Amendments and Reauthorization of 1986 created the

Leaking Underground Storage Tank Trust Fund to pay for actions to respond to petroleum

released from underground tanks. Title VIII of the Omnibus Budget Reconciliation Act of 1986

(P.L. 99-509) created the Oil Spill Liability Trust Fund to pay for actions to respond to surface

releases of petroleum.88

Others sources of monies have continued to contribute some revenues to the Superfund Trust

Fund for appropriation by Congress. Cleanup costs borne by the federal government that are later

recouped from the potentially responsible parties are deposited into the trust fund (referred to as

“cost recoveries”). These recouped funds can be made available for the cleanup of other sites

where the potentially responsible parties cannot pay or cannot be found. Fines and penalties

assessed against potentially responsible parties for violations of CERCLA are deposited into the

trust fund as well. Interest also accrues on the trust fund balance. Collectively, these monies have

87 26 U.S.C. §59A.

88 26 U.S.C. §9509. For a discussion of the Oil Spill Liability Trust Fund, see CRS Report RL33705, Oil Spills:

Background and Governance, by Jonathan L. Ramseur.

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been relatively small compared to the amount of general Treasury revenues that now support most

of the annual discretionary appropriations from the trust fund to implement EPA’s Superfund

program. However, these other sources of monies do continue to help finance the trust fund and,

to some extent, reduce the need for general Treasury revenues at sites where the potentially

responsible parties cannot be found or cannot pay.

Current Sources of Revenue

The budgetary framework discussed above continued until the 117th Congress. In 2021, Congress

reinstated the excise tax on chemical feedstocks and imported chemical derivatives (chemical

excise tax) with the enactment of the IIJA (P.L. 117-58, as amended) and the excise tax on crude

oil and imported petroleum products (petroleum tax) with the enactment of the 2022 budget

reconciliation measure commonly referred to as the IRA (P.L. 117-169). Additionally, provisions

in the IIJA decoupled the application of the chemical excise tax from the Superfund petroleum

excise tax. Under prior law, the chemical excise tax was in effect any time that the petroleum tax

was in effect.

Chemical Excise Tax

Section 80201 of Title II of Division H of the IIJA reinstated the Superfund excise tax on

domestically produced chemical feedstocks and imported chemical derivatives through December

31, 2031.89 The Superfund tax amendments in the IIJA took effect on July 1, 2022. The chemical

tax provisions in the IIJA doubled the tax rate that applied in 1995 for each chemical feedstock.

For example, the highest tax was increased from $4.87 to $9.74 per ton for acetylene and several

other chemicals, and the lowest tax was increased from $0.22 to $0.44 per ton for potassium

hydroxide. The IIJA increased the penalty tax on importers from 5% to 10% of the value of the

substance if information on the constituency of taxable chemicals in an imported chemical

substance is not provided in a timely manner. Under prior law, the Treasury Secretary, in

consultation with the EPA Administrator and the Commissioner of U.S. Customs and Border

Protection, had authority to designate additional taxable substances for which taxable chemicals

constituted more than 50% of the weight or value of the imported substance. The IIJA reduced

this threshold to 20% of the weight or value, expanding the potential applicability of the tax to a

greater number of substances that contain a lower proportion of taxable chemicals. If information

on the composition of an imported substance is limited, identifying the proportion of taxable

chemicals may present challenges to determining the tax owed.

Division J, Title VI, Section 613, of the IIJA authorized the expenditure of future tax receipts

from the Superfund Trust Fund without further appropriation. Division J, Title VI, also provided

$3.5 billion in emergency appropriations from the Superfund Trust Fund through a transfer from

the General Fund to increase resources for Superfund remedial actions while the reinstated excise

tax ramps up. The $3.5 billion is exempt from state cost-share requirements.

Petroleum Tax

Section 13601 of the IRA permanently reinstated the petroleum tax beginning on July 1, 2022,

increased the tax rate from 9.7 cents to 16.4 cents per barrel in 2022, and provided for annual

inflation adjustments.90 The IRA authorized borrowing for the Superfund Trust Fund through

89 The chemical feedstock provisions are codified at 26 U.S.C. §4661, and imported chemical derivatives are at 26

U.S.C. §4671.

90 26 U.S.C. §4611.

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repayable advances from the General Fund until the end of 2031. Repayable advances could

initially supplement the tax receipts, but the IRA requires the full amount borrowed plus interest

to be repaid to the General Fund. This borrowing power would alter the timing of the funds but

would not increase the total amount available. The $3.5 billion in emergency appropriations

provided in the IIJA may lessen the need for advances.

Special Account Funds

Private settlement funds have been an additional source of monies for the Superfund Trust Fund.

As amended in 1986, Section 122(b)(3) of CERCLA authorizes EPA to retain funds that it

receives from private parties under voluntary settlement agreements to perform the cleanup of

sites at which those parties may be liable.91 (See the “Voluntary Settlement Agreements” section

of this report.) These private settlement funds are deposited into site-specific Special Accounts

within the Superfund Trust Fund, which are dedicated to the cleanup of the sites covered under

the settlements. These funds are available directly to EPA and are not subject to discretionary

appropriations by Congress. Once all planned future work at a site is complete, EPA may

reclassify the remaining balance of a Special Account for direct obligation to perform cleanup

work at other sites as a means to replace any appropriated funds that also may have been spent at

the site covered by the Special Account. In other instances, EPA may transfer the remaining

balance of a Special Account to the general portion of the Superfund Trust Fund, which would be

subject to subsequent appropriation by Congress.

Enforcement Mechanisms

There are three mechanisms through which the federal government can take actions to enforce

cleanup liability under CERCLA if the potentially responsible parties can be identified and have

the financial capability to pay. These mechanisms include judicial or administrative orders, costrecovery actions, and voluntary settlement agreements. Like the response authorities of

CERCLA, these enforcement authorities are presidential authorities. As discussed earlier in this

report, a 1987 executive order delegated the President’s response authorities under CERCLA to

EPA and other federal agencies.92 This order also delegated the enforcement of the statute to EPA

at sites on land and to the U.S. Coast Guard within inland river ports and harbors, the Great

Lakes, and U.S. coastal waters. References in this report to the enforcement authorities of EPA

apply equally to the U.S. Coast Guard within its delegated jurisdiction. CERCLA also authorizes

citizen suits to enforce the cleanup requirements of CERCLA, but a cleanup action first must be

completed before compliance with applicable requirements can be challenged. Each of these

enforcement mechanisms is discussed below.

Judicial or Administrative Orders

Section 106(a) of CERCLA authorizes EPA to issue an administrative order, or to pursue a

judicial order through the Department of Justice, to require a potentially responsible party to

perform cleanup actions to address “an imminent and substantial endangerment to the public

health or welfare or the environment” arising from an actual or threatened release of a hazardous

substance.93 Section 106(b)(1) authorizes fines of up to $25,000 per day for failure to comply

91 42 U.S.C. §9622(b)(3).

92 Executive Order 12580 of January 23, 1987, “Superfund Implementation,” 52 Federal Register 2923, January 29,

1987.

93 42 U.S.C. §9606(a).

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with a cleanup order.94 Section 107(c)(3) of CERCLA also allows a party that fails to comply with

a cleanup order to be held liable for punitive damages up to three times the costs incurred by the

United States out of the Superfund Trust Fund to carry out the cleanup action that the party did

not perform.95 Monies received by the United States for such punitive damages are to be

deposited into the trust fund and can be made available to finance the cleanup of other sites,

subject to appropriations by Congress.

If the party who receives and complies with a Section 106 order can prove it is not liable under

CERCLA, or that the cleanup actions required by EPA under the order were “arbitrary and

capricious or ... otherwise not in accordance with law,” Section 106(b)(2) authorizes that party to

be reimbursed from the Superfund Trust Fund.96 This provision is intended to protect an innocent

party from the costs of enforcement actions that may be imposed inappropriately upon that party

or to prevent a liable party from being required to pay for a more stringent cleanup than may be

warranted to protect human health and the environment.

Cost-Recovery Actions

At some sites, EPA may spend Superfund Trust Fund monies up front to initiate the cleanup if the

potentially responsible parties are not yet identified or if a cleanup order or settlement agreement

with the identified parties is not yet finalized. If EPA does expend Superfund monies at a site with

viable parties, reimbursement may be included in the terms of any administrative settlement

agreement that may be entered into with the parties. EPA also may pursue recovery of Superfund

monies from the parties through judicial actions in conjunction with the Department of Justice.

Section 107(a) of CERCLA specifically authorizes EPA to recover Superfund monies from the

potentially responsible parties as long as those actions are not inconsistent with the NCP.97 States

and Indian Tribes, and any other persons, who choose to perform cleanup actions also may

recover their costs from the potentially responsible parties as long as those actions are consistent

with the NCP. The costs of health effects studies carried out by the ATSDR under Section 104(i)

of CERCLA,98 and damages for injury to, destruction of, or loss of natural resources (and the

assessment of such injury, destruction, or loss), are recoverable as well.

Section 113(g)(2) of CERCLA limits the time during which a cost-recovery action may be

commenced against a potentially responsible party, which could reduce a party’s financial

liability at a site if recovery is not sought quickly enough.99 Cost-recovery actions must be filed

within three years after the completion of a removal action, except for removal actions allowed to

extend beyond the general time limit of 12 months. For these lengthier removal actions, the costs

can be sought within six years after the determination was made to extend the timing beyond 12

months. Cost-recovery actions must be commenced within six years after the initiation of the

physical construction of a remedial action. If the remedial action is initiated within three years

after the completion of the removal action that preceded it, the costs of that removal action may

be recovered as part of the recovery of the costs of the remedial action that followed.

94 42 U.S.C. §9606(b)(1).

95 42 U.S.C. §9607(c)(3).

96 42 U.S.C. §9606(b)(2).

97

42 U.S.C. §9607(a).

98 42 U.S.C. §9604(i).

99 42 U.S.C. §9613(g)(2).

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Voluntary Settlement Agreements

If a potentially responsible party is willing to resolve its liability voluntarily, Section 122 of

CERCLA100 gives EPA the discretion to enter into an administrative settlement agreement with

that party instead of pursuing an enforcement action through a judicial or administrative order

under Section 106 or a cost-recovery action under Section 107. Avoiding an enforcement action

by EPA through a voluntary settlement agreement can save a party the costs of litigation, possibly

motivating a party to agree to settle its liability.

When certain conditions are met, Section 122(f) gives EPA the discretion to include a covenant in

the agreement promising that the federal government will not sue concerning any liability

resulting from a release or threatened release of a hazardous substance addressed by a remedial

action.101 Such a covenant can provide an incentive for a party to agree to perform specific

cleanup actions or to make a monetary payment in exchange for a cap on its liability. As

discussed in the “Special Account Funds” section, Section 122(b)(3) authorizes EPA to retain the

funds received under a settlement and directly use the funds to fulfill the terms of the

settlement.102 A party who voluntarily settles its liability at a site also is afforded protection from

contribution claims by other parties at that site under Section 113(f)(2) of CERCLA.103 Such

protection is intended to offer yet another incentive for a party to settle, especially if a

contribution claim by another party appears imminent.

Whether to enter into a settlement agreement with EPA under Section 122 is entirely voluntary on

the part of the potentially responsible party. However, once finalized, the terms of the agreement

to perform specific cleanup actions or to make a monetary payment are binding on the party who

entered into the agreement. If the party fails to perform the agreed-upon cleanup actions or to pay

the agreed-upon costs of the cleanup, Section 109 of CERCLA authorizes civil penalties of up to

$25,000 each day that the violation of the agreement continues to occur.104

Ability-to-Pay Considerations

In enforcing cleanup liability under CERCLA, EPA has the discretion to consider a potentially

responsible party’s financial capability in determining that party’s share of the cleanup costs. A

party with limited financial capability that desires to reduce its share of the cleanup costs may

request a reduction in its share through the negotiation of a voluntary settlement agreement with

EPA under Section 122 of CERCLA, discussed above. In the negotiation process, the party

seeking the reduction must submit financial information to EPA for the agency’s consideration to

determine whether the party’s ability to pay the cleanup costs may in fact be limited.

In 1986, EPA issued its first guidance document on ability-to-pay considerations for use in

settlement negotiations.105 The agency supplemented, but did not supersede, its guidance in

100 42 U.S.C. §9622.

101 42 U.S.C. §9622(f).

102 42 U.S.C. §9622(b)(3).

103 42 U.S.C. §9613(f)(2).

104 42 U.S.C. §9609.

105 EPA, Office of Enforcement and Compliance Assurance, Guidance on Determining a Violator’s Ability to Pay a

Civil Penalty, December 16, 1986.

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1997106 and 2015.107 EPA formulated its guidance based on court interpretations of the reach and

intent of the cleanup liability provisions of CERCLA108 and the agency’s policy of balancing two

fundamental interests: ensuring that a potentially responsible party satisfies its liability for

cleanup while not creating an undue financial hardship on that party or on those who may be

dependent upon that party.

In 2002, Congress included provisions in Section 102(b) of Title I of P.L. 107-118 that amended

Section 122(g) of CERCLA to establish a new category of de minimis settlement that explicitly

endorsed EPA’s policy to reduce a party’s share of the cleanup costs based on that party’s ability

to pay.109 Prior to this amendment, CERCLA explicitly authorized de minimis settlements only

(1) for owners of property who were not involved in the release of hazardous substances and who

had no knowledge of any hazardous substances on the property and (2) for persons who

contributed a relatively small amount of hazardous substances that were minimally toxic in

comparison to other hazardous substances at the site. Additionally, Congress provided an

expedited settlement process for de minimis potentially responsible parties under Section

122(g)(3).

In determining whether a party satisfactorily demonstrates a limited ability to pay, EPA must

consider the ability of the person to pay for cleanup actions and “still maintain its basic business

operations, including consideration of the overall financial condition of the person and

demonstrable constraints on the ability of the person to raise revenues.”110 Consistent with earlier

EPA guidance, the amendment explicitly requires a person seeking a reduced settlement to

provide EPA with the financial information that would be necessary to determine the ability of

that person to pay for cleanup actions at the site concerned.111

If EPA were to grant a reduced settlement, the person who is the subject of the settlement must

waive all contribution claims against other potentially responsible parties at the site, unless EPA

were to determine that requiring a waiver would be an “unjust” condition.112 A reduced settlement

does not remove a party from the responsibility to provide information and access to the site in

the future that may be necessary to carry out the cleanup.113 After a reduced settlement is

finalized, EPA must notify any other potentially responsible parties at the site who have not

resolved their liability with the federal government.114

Financial capability aside, EPA still may decline a potentially responsible party’s request for a

reduced settlement if the agency determines that the party has failed to comply with any request

for access, request for information, or administrative subpoena in relation to the site or has

impeded or is impeding, through action or inaction, the performance of a cleanup action at the

site.115 If EPA were to determine that a potentially responsible party is not eligible for a reduced

106 EPA, Office of Enforcement and Compliance Assurance, General Policy on Superfund Ability to Pay

Determinations, September 30, 1997.

107 EPA, Office of Civil Enforcement, Guidance: Evaluating Ability to Pay a Civil Penalty in Administrative

Enforcement Actions, June 29, 2015.

108 For example, see United States v. Bay Area Battery, 895 F. Supp. 1524 (N.D.Fla. 1995).

109 42 U.S.C. §9622(g)(7)(A).

110 42 U.S.C. §9622(g)(7)(B).

111 42 U.S.C. §9622(g)(7)(C).

112 42 U.S.C. §9622(g)(8)(A).

113

42 U.S.C. §9622(g)(8)(C).

114 42 U.S.C. §9622(g)(12).

115 42 U.S.C. §9622(g)(8)(B).

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settlement, EPA is required to provide the reasons for the determination in writing to the

potentially responsible party who requested the reduced settlement.116

EPA’s determination of a party’s eligibility for a reduced settlement is not subject to judicial

review,117 nor is a dispute over an ability-to-pay determination of the agency within the

jurisdiction of the EPA Environmental Appeals Board.118 Consequently, EPA would appear to

have final authority to determine a party’s ability to pay its share of the cleanup costs based on the

financial information submitted by that party in the settlement negotiation process. In practice, a

party can pay only to the extent of its actual financial capability, to the point of bankruptcy.

Enforcement Discretion

CERCLA does not require EPA to use any one particular enforcement mechanism at an individual

site but allows the agency enforcement discretion to select which of the above mechanisms would

be the most effective in achieving cleanup goals. EPA typically attempts to negotiate voluntary

settlement agreements with the potentially responsible parties first and usually turns to the use of

Section 106 orders or Section 107 cost-recovery actions when a negotiated settlement appears

unlikely. At a site where there are multiple potentially responsible parties, EPA also has the

enforcement discretion to pursue the liability of all, some, or only one party. Even when taking

enforcement actions against fewer than all parties, EPA still may recover the full amount of

cleanup costs through joint and several liability. As described earlier in this report, joint and

several liability means that any liable party can be held responsible for the full cost of cleanup

regardless of the degree of involvement.

EPA usually pursues the liability of parties at a site who are thought to have contributed more

greatly to the contamination and are more capable of performing or paying for the cleanup. This

selective approach is intended to reduce the enforcement transactions’ costs to the federal

government. For the purpose of fairness, Section 113(f)(1) of CERCLA authorizes the parties that

enforcement actions have been taken against to recover some of their costs from other potentially

responsible parties whom EPA did not elect to pursue.119 Section 113(f)(3)(B) also authorizes

parties who have resolved all (or some) of their liability under settlements with EPA to seek

contributions from other parties who are not participants in the settlements.120 Once a party has

entered into a settlement with EPA to resolve its liability under Section 122 of CERCLA, Section

113(f)(2) explicitly protects parties from contribution claims for matters addressed in that

settlement.121

Citizen Suits

Although EPA is responsible for enforcing cleanup liability, Section 206 of the Superfund

Amendments and Reauthorization Act of 1986 added Section 310 to CERCLA authorizing

citizens to challenge the adequacy of a cleanup action in court.122 The timing of a citizen suit for

these purposes is limited. Section 113(h)(4) of CERCLA does not permit a citizen suit to be

116 42 U.S.C. §9622(g)(9).

117 42 U.S.C. §9622(g)(11).

118 EPA, Environmental Appeals Board, “EAB Jurisdiction,” in The Environmental Appeals Board Practice Manual,

June 2012, pp. 3-4.

119 42 U.S.C. §9613(f)(1).

120

42 U.S.C. §9613(f)(3)(B).

121 42 U.S.C. §9613(f)(2).

122 42 U.S.C. §9659.

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brought for violation of a cleanup requirement until the selected cleanup action at a site is

completed.123 Further, a citizen suit may not be brought with regard to a removal action at a site

where a remedial action is planned.

Once the cleanup actions are completed, Section 310(a)(1) authorizes a citizen to commence a

civil action against any person who is alleged still to be in violation of a “standard, regulation,

condition, requirement, or order,”124 including any provision of a federal facility cleanup

agreement issued under Section 120.125 Section 310(b)(1) requires such suits to be brought in the

district court for the district in which the violation is alleged to have occurred.126 Section 310(c)

authorizes the court to require actions to correct the violation and impose civil penalties.127

Section 310(d)(1) requires the plaintiff to notify the President, the state in which the violation is

alleged to have occurred, and the alleged violator 60 days in advance of commencing a civil

action,128 in a manner prescribed by federal regulation.129 Section 310(d)(2) prohibits citizen suits

“if the President has commenced and is diligently prosecuting” an enforcement action against the

potentially responsible party.130

Section 310(a)(2) also authorizes a citizen to commence a civil action against the President or any

other officer of the United States, including the administrators of EPA and ATSDR, for alleged

failure to perform any nondiscretionary act or duty required under CERCLA, including an act or

duty required at a federal facility.131 Section 310(b)(2) requires such suits to be brought in the

U.S. District Court for the District of Columbia.132 Section 310(c) authorizes the court to order

the President or other officer of the United States to perform the act or duty concerned.133 Section

310(e) requires the plaintiff to notify the administrator of EPA, or other department or agency, 60

days in advance of commencing a civil action for the alleged failure to perform a

nondiscretionary act or duty134 in a manner prescribed by federal regulation.135

Unlike to the authorities under Section 310, citizen suits are not available for alleged failure of

the President or an officer of the United States to perform a nondiscretionary act or duty under

Section 311 of CERCLA.136 This provision states that the Secretary of Health and Human

Services “shall establish and support” a research and training program to enhance understanding

of the potential health risks associated with exposure to hazardous substances. The program also

is to research methods and technologies that would detect hazardous substances in the

environment and reduce their amount and toxicity. The program is to be carried out through the

123 42 U.S.C. §9613(h)(4).

124 42 U.S.C. §9659(a)(1).

125 For the purpose of citizen suits, Section 310(a)(1) states that “any person” includes “the United States and any other

governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution.”

126 42 U.S.C. §9659(b)(1).

127 42 U.S.C. §9659(c).

128 42 U.S.C. §9659(d)(1).

129 40 C.F.R. Part 374.

130 42 U.S.C. §9659(d)(2).

131 42 U.S.C. §9659(a)(2).

132 42 U.S.C. §9659(b)(2).

133 42 U.S.C. §9659(c).

134

42 U.S.C. §9659(e).

135 40 C.F.R. Part 374.

136 42 U.S.C. §9659(a), 9660.

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awarding of grants, cooperative agreements, and contracts, the funding for which is subject to

annual appropriations by Congress.

Federal Facilities

After CERCLA was enacted in 1980, questions arose as to whether Congress intended federal

facilities to be subject to the cleanup authorities and liability provisions of the statute to the same

extent as nonfederal facilities. As originally enacted, Section 101(21) of CERCLA defined person

for the purposes of the statute to include the federal government,137 meaning that the reference to

persons who may be held liable under Section 107 may include the federal government. However,

the original enactment of the law did not otherwise explicitly address the liability of federal

agencies nor the applicability of other provisions of the statute to federal agencies. Section 120 of

the Superfund Amendments and Reauthorization Act of 1986 added Section 120 to CERCLA to

clarify that federal departments and agencies are subject to the requirements of CERCLA to the

same extent as other entities, including the liability and enforcement provisions of the law.138 This

provision also applies to facilities that are not currently owned or operated by the federal

government but where the federal government qualifies as a past owner, operator, or arranger

based on its previous involvement at a facility. To comply with CERCLA, the federal agency with

administrative jurisdiction over a federal facility is responsible for performing and paying for the

cleanup of contamination out of its own budget, subject to appropriations by Congress.

Section 111(e) of CERCLA explicitly prohibits the use of Superfund Trust Fund monies to clean

up federal facilities, as these monies are dedicated to paying for the cleanup of sites where the

potentially responsible parties cannot be identified or cannot pay.139 However, Section 111(e)(3)

does allow the use of Superfund Trust Fund monies at an individual federal facility to provide

alternative water supplies if groundwater contamination has migrated beyond the boundary of that

facility and there are other potentially responsible parties connected to that facility in addition to

the United States.140 In all other instances, Superfund Trust Fund monies are not available for the

cleanup of federal facilities.

Congress appropriates funding to various federal agencies to pay for the cleanup of federal

facilities. These funds generally are intended to fulfill the liability of the United States as the

owner or operator of these facilities.141 However, these accounts do not constitute a cleanup

liability fund in a broader sense. The funds are authorized to pay for the performance of the

cleanup of the federal government’s own facilities by federal agencies. However, the funds are

not explicitly authorized to pay cleanup cost-recovery or contribution claims that may be

submitted to the United States by other parties, either at federal facilities or at nonfederal sites

where a federal agency may be held liable as a generator or transporter of wastes sent to a site for

disposal. The Judgment Fund of the U.S. Treasury has been the source of payments for cleanup

claims submitted to the United States to satisfy the federal share of liability under CERCLA and

compromise settlements for such claims.142 By statute, the Judgment Fund is a permanent,

137 42 U.S.C. §9601(21).

138 42 U.S.C. §9620.

139 42 U.S.C. §9611(e).

140 42 U.S.C. §9611(e)(3).

141 The vast majority of the funds are appropriated to the Department of Defense and the Department of Energy for the

cleanup of federal facilities that served national defense purposes.

142 See General Accounting Office, The Judgment Fund and Litigative Awards Under the Comprehensive

Environmental Response, Compensation, and Liability Act, B-253179, November 29, 1993, http://archive.gao.gov/

lglpdf63/151167.pdf.

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indefinite appropriation that is intended to pay monetary claims against the United States that are

not otherwise provided by Congress through separate appropriations.143

EPA and the states play a role in overseeing and enforcing the implementation of CERCLA at

federal facilities, although the agencies that administer these facilities actually fund their cleanup.

Section 120(e) of the law requires EPA to take the lead in overseeing the cleanup of federal

facilities listed on the NPL,144 but Section 120(f) allows states and local governments to

participate in cleanup decisions.145 The states play a more prominent role in overseeing the

cleanup of federal facilities not listed on the NPL. While CERCLA authorizes EPA and the states

to oversee the cleanup of federal facilities, certain provisions of the law can limit their ability to

direct or dictate how the cleanup process may be carried out.

As discussed below, CERCLA gives EPA decisionmaking authority to select remedial actions at

federal facilities listed on the NPL but does not explicitly authorize EPA to direct the schedule of

performing those actions nor how those actions are to be operated and maintained over the long

term to ensure their performance. With respect to states, CERCLA requires the opportunity to be

involved in cleanup decisions but does not give states any decisionmaking authority. In practice,

these limitations may restrict the extent to which EPA and the states may oversee the cleanup of

federal facilities even though Section 120 of CERCLA specifically requires federal facilities to

comply with the requirements of the statute to the same extent as other entities.

Facilities on the National Priorities List

Within six months of the listing of a federal facility on the NPL, Section 120(e)(1) of CERCLA

requires the federal agency with administrative jurisdiction over the facility to consult with EPA

and the appropriate state authorities to begin an RI/FS.146 As discussed earlier in the “Scope of

Response Actions” section of this report, an RI/FS involves an investigation of contamination to

assess potential risks to human health and the environment, and a study of the feasibility of the

remedial alternatives to address those risks. While consultation with EPA and state authorities is

required, CERCLA does not give explicit decisionmaking authority to EPA or the states to dictate

precisely how a federal agency performs this investigation and study phase of the cleanup

process.

Within 180 days of the completion of the RI/FS and review by EPA, Section 120(e)(2) requires

the federal agency with administrative jurisdiction over the facility to enter into an interagency

agreement with EPA to govern the remedial actions to be taken at that facility.147 This agreement

provides an opportunity for EPA to formalize how the other federal agency will carry out the

cleanup of the facility to satisfy the requirements of CERCLA. Section 120(e)(4) identifies four

elements that are to be included in each interagency agreement: (1) a list of the remedial

alternatives considered at the facility, (2) identification of the remedial actions selected from

among the alternatives, (3) a schedule for completing each remedial action, and (4) arrangements

for any long-term operation and maintenance activities that may be necessary to ensure the

performance of the remedial actions over time.148

143 31 U.S.C. §1304.

144 42 U.S.C. §9620(e).

145 42 U.S.C. §9620(f).

146

42 U.S.C. §9620(e)(1).

147 42 U.S.C. §9620(e)(2).

148 42 U.S.C. §9620(e)(4).

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If EPA and the federal agency with administrative jurisdiction over the facility cannot agree on

the selection of the remedial actions in negotiating an interagency agreement, Section

120(e)(4)(A) authorizes the administrator of EPA to resolve the dispute and select the remedial

actions deemed most appropriate to protect human health and the environment.149 Although the

administrator may delegate this dispute-resolution authority to an officer or employee of EPA,

Section 120(g) prohibits the transfer of the administrator’s authorities under Section 120 to any

person, including any other agency, official, or employee of the United States, “by executive

order of the President or otherwise.”150

CERCLA does not provide the administrator of EPA with decisionmaking authority with respect

to other elements of an interagency agreement for a federal facility listed on the NPL, namely the

schedule for completing the remedial actions and arrangement for any long-term operation and

maintenance activities that may be necessary to ensure the performance of those actions over

time. These latter elements would appear to be subject to negotiation between EPA and the federal

agency with administrative jurisdiction over the facility. If consensus cannot be reached, and the

agreement finalized within the statutory deadline of 180 days from the completion of the RI/FS,

Section 120(e)(5) requires the federal agency with administrative jurisdiction over the facility to

report the delay to Congress.151

With respect to the timing of the cleanup, Section 120(e)(3) requires the federal agency

responsible for the facility to complete the remedial actions “as expeditiously as practicable” once

those actions are selected but does not indicate a specific time frame or deadline for their

completion.152 The timing of a remedial action ultimately depends on the technical feasibility of

that action and the availability of appropriations by Congress. Accordingly, Section 120(e)(3)

requires federal agencies to notify Congress in their annual budget requests of the amount of

funding needed to carry out the selected remedial actions at their facilities.

Notably, the lack of a final interagency agreement governing an entire facility does not preclude

individual remedial actions to address discrete contaminated sites at a facility. Further, removal

actions intended to address more immediate risks are not subject to an interagency agreement.

The main reason for this difference is that the time required to finalize an agreement may delay a

removal action needed to address an emergency situation. Because of these reasons, some

cleanup actions may proceed without an interagency agreement in place, in effect leaving EPA

with less formal means to oversee the cleanup.

States and local governments also may play a role in the cleanup of federal facilities listed on the

NPL. Section 120(f) of CERCLA authorizes states and local governments to participate in the

planning and selection of remedial actions at federal facilities.153 Participation by states and local

governments is to include review of all applicable data as it becomes available and the

development of studies, reports, and plans. Section 120(f) specifies that the opportunity for state

officials to participate in cleanup decisions at federal facilities is to be provided in accordance

with Section 121(f).

As discussed earlier in the “State Participation” section of this report, Section 121(f) requires

states to be afforded opportunities for “substantial and meaningful involvement” in initiating,

149 42 U.S.C. §9620(e)(4)(A).

150 42 U.S.C. §9620(g).

151

42 U.S.C. §9620(e)(5).

152 42 U.S.C. §9620(e)(3).

153 42 U.S.C. §9620(f).

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developing, and selecting remedial actions.154 Section 121(d) also allows state standards to be

applied to a remedial action, thereby offering additional opportunity for state participation.155

However, Section 121(f)(3) specifies that to challenge a remedial decision at a federal facility, a

state must show that the decision is not supported by “substantial evidence” that would compel

the selection of a different remedy.156 Unlike those in Section 120(f), the participation

requirements of Section 121(f) are not extended to local governments.

Facilities Not on the National Priorities List

States play a more prominent role in overseeing the cleanup of federal facilities not listed on the

NPL. In acknowledgement of this role, Section 120(a)(4) of CERCLA clarifies the reach of state

law at contaminated federal facilities that are not listed on the NPL.157 This provision stipulates

that state cleanup standards or requirements shall apply to a federal facility that is not on the NPL

only to the same extent as those standards or requirements would apply to a nonfederal site

located in that state. In practical terms, a state may not require more stringent cleanup at a federal

facility than it would require at a nonfederal site possessing comparable characteristics and

conditions under which exposure to contamination may occur.

While state cleanup laws generally can be applied to federal facilities not listed on the NPL,

CERCLA does not require federal agencies to enter into formal agreements with states to govern

cleanup requirements in a fashion similar to interagency agreements with EPA. However, states

may have other authorities to identify and enforce cleanup requirements at federal facilities that

they oversee. Most notably, federal facilities that store, treat, or dispose of hazardous waste are

subject to permits issued by states with federal authority delegated under the Solid Waste

Disposal Act.158 These permits can require “corrective action” to clean up contamination that may

result from waste management or disposal practices.159 In contemplation of such situations,

Section 120(i) of CERCLA states that nothing in CERCLA may affect or impair the obligation of

federal agencies to comply with requirements of the Solid Waste Disposal Act at the facilities that

they administer, specifically including corrective action requirements.160

A corrective action that a state may require under the Solid Waste Disposal Act can be similar in

scope to a removal or remedial action under CERCLA. This similarity can result in essentially the

same stringency of cleanup in practice, regardless of which statute is applied. Therefore, Solid

Waste Disposal Act permits at federal facilities not on the NPL can function much like CERCLA

interagency agreements at federal facilities on the NPL, specifying individual actions required to

clean up contamination. In this sense, Solid Waste Disposal Act permits can provide a means for a

state to formalize and enforce cleanup requirements at many federal facilities not listed on the

NPL for which an interagency agreement with EPA is not required.

154 42 U.S.C. §9621(f).

155 42 U.S.C. §9621(d).

156 42 U.S.C. §9621(f)(3).

157 42 U.S.C. §9620(a)(4).

158 42 U.S.C. §§6901 et seq. The Solid Waste Disposal Act is often referred to as the Resource Conservation and

Recovery Act (RCRA; P.L. 94-580), which substantially amended the Solid Waste Disposal Act in 1976 to regulate the

storage, treatment, and disposal of hazardous waste.

159 The Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616) amended the Solid Waste Disposal Act to

require operators of hazardous waste facilities to perform corrective actions to clean up environmental contamination

resulting from the improper management or disposal of hazardous wastes.

160 42 U.S.C. §9620(i).

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Transfer of Contaminated Federal Property

Section 120(h) of CERCLA generally requires the United States to clean up contaminated federal

property prior to transferring the property out of federal ownership.161 The policy premise of this

provision is that the United States should assume full responsibility for the cleanup of

contamination caused by federal activities and not shift the burden of that responsibility to the

recipient merely as a consequence of acquiring the property. Section 120(h) applies to all

contaminated federal property declared surplus to the needs of the federal government. The

agency with administrative jurisdiction over a surplus federal property usually performs and pays

for the cleanup of contamination to fulfill the financial liability of the United States.

As is the case with federal facilities that remain in federal ownership, funds available for the

cleanup of surplus federal properties are subject to appropriations by Congress and are not

eligible for Superfund monies. For example, DOD performs and pays for the cleanup of surplus

federal property on closed military installations out of funds appropriated to the Base

Realignment and Closure (BRAC) accounts.

Section 120(h) does not bind the United States to cleaning up a surplus federal property for any

one particular use. As a result, the reuse of a property is negotiated between the administering

federal agency and the recipient of the property. Disagreements over reuse can arise if the

recipient intends to use the property for a purpose that would necessitate a level of cleanup that

the federal agency may consider too costly relative to available appropriations to fund the

cleanup. The capabilities of cleanup technologies also could constrain the reuse of a surplus

federal property if it would be impractical to achieve a level of cleanup that would be needed to

make the property suitable for a use desired by the recipient.

Continuing Liability of the United States

Consistent with the policy premise of Section 120(h) and retroactive liability under Section 107,

the United States remains responsible for contamination found not to have been sufficiently

remediated after the property is transferred out of federal ownership. Section 120(h)(3) requires

the continuing liability of the United States to be specified through a “covenant” incorporated into

the deed transferring the property out of federal ownership.162 The covenant must warrant that all

remedial actions necessary to protect human health and the environment have been taken before

the date of transfer and that the United States shall conduct any additional remedial actions found

to be necessary after the date of transfer. A clause also must be included in the deed granting the

United States access to the property to perform cleanup actions for which it may be responsible.

In practice, the contents of a deed can place certain limitations on the continuing responsibility of

the United States. A deed to a transferred federal property typically warrants cleanup only to a

level suitable for the land use negotiated prior to transfer. In some cases, a deed may include a

restriction prohibiting certain uses that would be considered unsuitable relative to the level of

cleanup performed by the United States. Under such deed restrictions, the United States typically

assumes responsibility for additional cleanup only to the extent that more work is found to be

needed to make the originally agreed-upon use suitable.

If the new owner later wishes to use the property for a different purpose, the new owner typically

must assume responsibility for the additional cleanup costs to make the property suitable for that

purpose. In some instances, a deed may prohibit certain land uses even if the new owner is

161 42 U.S.C. §9620(h).

162 42 U.S.C. §9620(h)(3).

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willing to pay the cleanup costs. For example, a deed to a decommissioned military training range

may prohibit residential or other uses because of the limitations of cleanup technologies to detect

and remove unexploded ordnance. Cleanup capabilities may be especially constrained when

ordnance is located beneath the surface or concealed on the surface by dense vegetation.

Transfer of Uncontaminated Parcels

Some surplus federal properties may contain a mix of contaminated and uncontaminated parcels

of land. Although the clean parcels may be ready for reuse, the requirement to clean up the

contaminated parcels under Section 120(h) of CERCLA prior to transfer could delay the

conveyance of the property as a whole. To address such situations, the 102nd Congress enacted the

Community Environmental Response Facilitation Act (CERFA; P.L. 102-426) in 1992. This law

amended Section 120(h) by adding a new subsection (4) that authorizes the transfer of

uncontaminated parcels on a surplus federal property while cleanup continues on the

contaminated parcels.163 This parcel-by-parcel approach is intended to avoid potential delays in

the transfer of clean surplus federal lands for reuse, especially such lands on closed military

installations where economic redevelopment is desired to replace lost jobs. If previously

unknown contamination is discovered after the land is transferred out of federal ownership,

Section 120(h)(4)(D) requires that a deed to an uncontaminated parcel still include a covenant

warranting that the United States shall conduct any cleanup actions that may become necessary.164

Early Transfer of Contaminated Parcels

The cleanup of a contaminated parcel may take several years or more, depending on the type and

level of contamination, technical feasibility of cleanup actions, and availability of appropriations

to pay for the cleanup. In such situations, the requirement to complete cleanup prior to

transferring land out of federal ownership could result in delaying the transfer. Enacted in the

104th Congress, Section 334 of the National Defense Authorization Act for Fiscal Year 1997 (P.L.

104-201) amended Section 120(h)(3) of CERCLA to add a new subsection (C) that allows the

transfer of a contaminated parcel on a surplus federal property before cleanup is complete if

certain conditions are satisfied.165 Although Congress enacted this amendment in annual defense

authorization legislation, this authority applies to any surplus federal property administered by

any federal agency, not just surplus U.S. military property.

Section 120(h)(3)(C) specifically authorizes a deferral of the cleanup covenant to allow the

transfer of title to a contaminated parcel on a surplus federal property before cleanup is complete.

Federal agencies often refer to this deferral of the covenant as an “early” transfer, although the

statute does not use this term. The deed to a contaminated property transferred out of federal

ownership must contain assurances that the cleanup still will be carried out after the property

leaves federal ownership. The federal agency responsible for the performance of the cleanup also

must identify the funding needed to carry out the cleanup in its annual budget requests.

The deed also must restrict the use of the property to purposes that would protect human health

and the environment while the cleanup proceeds. For example, at the time of transfer, a property

may be suitable for industrial use because the risks of exposure to contamination may be within

an acceptable range, whereas other uses that would result in potentially harmful exposure would

be restricted until the property is cleaned up sufficiently for that purpose. Once cleanup is

163

42 U.S.C. §9620(h)(4).

164 42 U.S.C. §9620(h)(4)(D).

165 42 U.S.C. §9620(h)(3)(C).

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complete, the United States remains obligated to provide a covenant at that time, warranting that

all necessary actions to protect human health and the environment have been taken to make the

property suitable for its intended, eventual use.

The early transfer of a contaminated surplus federal property that is listed on the NPL is subject to

the concurrence of the administrator of EPA and the governor of the state in which the facility is

located. The early transfer of a contaminated surplus federal property that is not listed on the NPL

still requires the concurrence of the governor of the state in which the facility is located, but not

EPA. Federal agencies proposing an early transfer also must provide the public at least 30 days

advance notice and an opportunity to comment on the proposed transfer before it is executed.

Cleanup Authorities Specific to Military Facilities

Considering that U.S. military facilities constitute a substantial portion of the inventory of

contaminated federal facilities, Section 211 of the Superfund Amendments and Reauthorization

Act of 1986 required the Secretary of Defense to establish the Defense Environmental

Restoration Program to perform the cleanup of U.S. military facilities.166 This provision also

authorized dedicated Defense Environmental Restoration appropriations accounts to fund the

program. Section 211 requires the Secretary of Defense to perform the cleanup of U.S. military

facilities under the program in accordance with Section 120 of CERCLA, which in turn specifies

the applicability of all of the requirements of CERCLA and the liability and enforcement

provisions of the law. Section 211 also requires the Secretary to consult with EPA in

implementing the Defense Environmental Restoration Program. The provisions of Section 211

did not amend CERCLA itself but were treated as stand-alone provisions that apply strictly to

U.S. military facilities.167

The scope of the Defense Environmental Restoration Program includes the performance of the

cleanup of military facilities in the United States that are or were under the jurisdiction of the

Secretary of Defense and owned by, leased to, or otherwise possessed by the United States at the

time the contamination occurred and, thus, may include both active and decommissioned military

facilities.168 The inclusion of decommissioned facilities within the program is consistent with the

scope of liability under Section 107 of CERCLA under which DOD can be held liable for cleanup

as the past owner and operator of those facilities. The scope of the program also includes the

correction of other environmental damage that may present an imminent and substantial

endangerment to the public health or welfare or to the environment (such as the presence of

unexploded ordnance on decommissioned military training ranges) and the demolition and

removal of unsafe buildings and structures for safety purposes. The scope of the program does not

include the payment of cleanup cost-recovery or contribution claims that may be submitted to the

United States by other parties to satisfy federal liability arising from activities of DOD. As

discussed above, the Judgment Fund has been the source of federal monies for the payment of

such cleanup claims.

The Defense Environmental Restoration Program initially focused on the cleanup of hazardous

substances without a consolidated effort to address the safety risks of unexploded ordnance on

decommissioned military training ranges. In response to public concerns about these potential

166 10 U.S.C. §§2701 et seq.

167 Because of its specific applicability to U.S. military facilities, Section 211 of the Superfund Amendments and

Reauthorization Act of 1986 is codified in Title 10—“Armed Forces”—of the U.S. Code, rather than Title 42—“Public

Health and Welfare”—under which the provisions of CERCLA generally are codified.

168 10 U.S.C. §2701(c).

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safety hazards, the 107th Congress included provisions in Sections 311169 and 312170 of the

National Defense Authorization Act for Fiscal Year 2002 (P.L. 107-107) that expanded the scope

of the Defense Environmental Restoration Program to include the cleanup of unexploded

ordnance, discarded military munitions, and munitions constituents (i.e., hazardous substances

leached from munitions into the environment) on decommissioned military training ranges and

munitions disposal sites in the United States. DOD established the Military Munitions Response

Program as a sub-element of the Defense Environmental Restoration Program to carry out these

requirements.

The statutory authority of the Military Munitions Response Program extends only to

decommissioned military training ranges and munitions disposal sites in the United States but not

to operational ranges.171 Since the enactment of specific cleanup authorities for military facilities

in the 1986 amendments to CERCLA, DOD has expressed long-standing concern that the

carrying out of cleanup actions on an operational range could prevent or interrupt its active use

for training and thereby possibly impair military readiness. So far, operational ranges have been

subject to federal waste disposal regulations promulgated under the Solid Waste Disposal Act but

not cleanup under CERCLA unless the contamination migrates off range. EPA promulgated these

disposal regulations, referred to as the “Military Munitions Rule,” in 1997.172 Under this rule,

munitions on an operational range are not considered hazardous waste and therefore are not

subject to hazardous waste disposal requirements under the Solid Waste Disposal Act until they

are removed from the range. Upon removal, their disposal is subject to permit requirements for

hazardous waste disposal.

Munitions typically are removed from an operational range only to the extent necessary to ensure

safe access by military personnel for training purposes. Consequently, much of the munitions may

remain on an operational range indefinitely unless contamination from munitions were to migrate

off range and present a risk of exposure. In such situations, removal of munitions could be

pursued to eliminate the source of the contamination. Absent off-range migration, munitions

generally may be left on a range as long as the range remains in operational status. In such

circumstances, cleanup of the munitions typically is not required until the range is closed; the

range then becomes eligible for cleanup under the Military Munitions Response Program.

National Security Exemption

Although Section 120 of CERCLA clarified the applicability of the statute to federal facilities,

Section 120(j) authorized the President to exempt an individual federal facility from a

requirement of CERCLA on a case-by-case basis if the exemption would be necessary to protect

national security.173 This exemption is intended to prevent situations in which a federal facility

may become unavailable for purposes essential to protecting national security if carrying out a

specific cleanup action somehow may interfere with those purposes. Section 120(j) specifically

authorizes the President to exempt an individual facility administered by DOD or DOE from

169 10 U.S.C. §2710.

170 10 U.S.C. §2703(b).

171 10 U.S.C. §2710(d). The statutory scope of the Military Munitions Response Program also specifically excludes any

locations outside the United States, the presence of military munitions resulting from combat operations, and

operational munitions storage and manufacturing facilities. However, the operation of storage and manufacturing

facilities in the United States may be subject to regulation under other statutory authorities.

172 40 C.F.R. Part 266, Subpart M.

173 42 U.S.C. §9620(j).

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compliance with a requirement of CERCLA if the President deems such an exemption necessary

to protect national security.

The President must notify Congress within 30 days of the issuance of an exemption and explain

the reason for it. The time period of an exemption initially is limited to one year, but the President

may renew it annually with notification to Congress. To date, a national security exemption under

CERCLA has not been invoked at any facility of DOD or DOE. Instead, contaminated facilities

of both departments have been made subject to the cleanup requirements of CERCLA.

Brownfields Properties

In 1993, EPA established an element within the Superfund program to assist communities with

the cleanup of certain lower risk sites that did not warrant placement on the NPL but at which

cleanup was desired to encourage economic redevelopment. The purpose of the program was to

provide federal financial assistance for the cleanup of properties referred to as “brownfields.”

These properties typically are abandoned, idled, or underutilized, and known or suspected

contamination on these properties is perceived as a deterrent to redevelopment by prospective

purchasers who may be hesitant about becoming liable for cleanup once acquiring ownership.

EPA initially used Superfund appropriations to provide seed monies to communities in the form

of grants and loans to aid them in financing certain types of cleanup actions. Although there was

broad support for this effort, some questioned EPA’s authority under CERCLA to use Superfund

monies for the cleanup of these lower risk sites that were not listed on the NPL and that did not

appear to warrant emergency removal actions under the Superfund program. Still, in the annual

appropriations process, Congress set aside funding for brownfields cleanup assistance within the

Superfund account for several years without specifically amending CERCLA for this purpose.

In the 107th Congress, Subtitle A and Subtitle C of Title II of the Small Business Liability Relief

and Brownfields Revitalization Act amended CERCLA to provide explicit statutory authority for

EPA to administer a Brownfields program separately from the Superfund program. The

Brownfields Act authorized appropriations for this new program apart from appropriations for the

Superfund account.174 There had been some concern about the diversion of Superfund

appropriations away from addressing the greater human health and environmental risks at NPL

sites. Still, the portion of Superfund appropriations that had been spent on the cleanup of

brownfields properties was relatively small compared to the total appropriation.

The program explicitly authorized in the Brownfields Act is similar in scope to the program that

EPA had established in 1993, with the exception that the Brownfields Act allowed federal

financial assistance for the cleanup of contamination resulting from releases of petroleum. As

discussed earlier in the “Federal Response Authorities” section of this report, CERCLA otherwise

does not apply to the cleanup of petroleum. The Brownfields Act also created two separate types

of grants within the Brownfields program. One provides more direct financial assistance for the

assessment and cleanup of individual properties. The other provides financial assistance to states

and Indian Tribes to aid them in carrying out their own cleanup programs, which in turn may

assist in the cleanup of individual properties.

Specifically, Section 201 of the Brownfields Act amended Section 104 of CERCLA to add a new

subsection (k) that authorized $200 million annually for grants to fund the assessment and

174 Since the enactment of the Brownfields Act, Congress has appropriated specific levels of funding for Brownfields

grants within EPA’s State and Tribal Assistance Grants account and has appropriated funds to administer these grants

within EPA’s Environmental Programs and Management account.

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cleanup of individual brownfields properties.175 Entities generally eligible for these grants include

state and local governments, Indian Tribes,176 redevelopment agencies chartered or otherwise

sanctioned by a state government, and land clearance authorities or other “quasi-governmental”

entities operating under the supervision and control, or as an agent, of a local government. The

grants are awarded on a competitive basis. The recipients may use the grant funds to characterize,

assess, or remediate brownfields properties or to capitalize revolving loan funds that in turn may

finance the remediation of multiple brownfields properties by other entities, including loans

issued to site owners or developers.

Section 231 of the act also added Section 128 to CERCLA, authorizing an additional $50 million

annually for other grants to assist states and Indian Tribes in establishing or enhancing their own

cleanup programs.177 States and Tribes may use these monies to augment their own resources to

assist with the cleanup of brownfields properties to prepare them for reuse. They also may use

these monies to pursue the cleanup of other contaminated sites within their respective

jurisdictions, which may present potential health or environmental risks but are not addressed

under the federal Superfund program. The authorization of appropriations for both the Section

104(k) and Section 128 grants expired at the end of FY2006, but Congress has continued to fund

these grants through the annual appropriations process without enacting reauthorizing legislation.

As discussed earlier in the “Limitations on Liability” section of this report, Section 222 of the

Brownfields Act exempted bona fide prospective purchasers of contaminated properties from

liability under CERCLA if they satisfy the prerequisite statutory criteria. This exemption is

intended to work in tandem with federal grants assistance under the Brownfields program to

stimulate the economic redevelopment of contaminated properties. Accordingly, Section

104(k)(4)(B)(iii) of CERCLA178 specifically authorizes the eligibility of bona fide prospective

purchasers for brownfields grants. If a party cannot qualify for this exemption, or another

exemption from liability, that party is not eligible to receive a brownfields grant.179 This statutory

prohibition against awarding Brownfields grants to potentially responsible parties is consistent

with the policy premise of the liability scheme of CERCLA to hold the potentially responsible

parties responsible for the costs of cleanup.

Congress also has enacted certain tax incentives to encourage the cleanup of brownfields

properties through amendments to the Internal Revenue Code but not CERCLA itself. These

incentives have constituted another form of federal financial assistance to support the cleanup of

contaminated sites. Section 941(a) of the Taxpayer Relief Act of 1997 (P.L. 105-34) allowed a

taxpayer to fully deduct the costs of cleaning up a brownfields property in the year the costs were

incurred.180 This type of deduction is referred to as “expensing” as opposed to “capitalizing,” in

which the costs would be deducted over a period of years. The tax deduction has no direct

application for public sector entities, such as municipalities, which do not pay income taxes.

Enacted in the 111th Congress, Section 745 of the Tax Relief, Unemployment Insurance

Reauthorization, and Job Creation Act of 2010 (P.L. 111-312, Title VII, Subtitle C) extended this

brownfields tax incentive through December 31, 2011.

175 42 U.S.C. §9604(k).

176 In Alaska, tribal eligibility is extended specifically to the Alaska National Regional Corporation and Alaska Native

Village Corporation as defined in the Alaska Native Claims Settlement Act. The Metlakatla Indian Community also is

specifically authorized in the statute as being eligible for the grants.

177 42 U.S.C. §9628.

178

42 U.S.C. §9604(k)(4)(B)(iii).

179 42 U.S.C. §9604(k)(4)(B)(i)(IV).

180 26 U.S.C. §198.

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Congress also had authorized another federal brownfields tax incentive in Section 702 of the

American Jobs Creation Act of 2004 (P.L. 108-357, Title VII), which expired on December 31,

2009. This incentive addressed the treatment of gain or loss on the sale or exchange of certain

qualified brownfields sites181 as defined in Section 101(39) of CERCLA.182 This provision

allowed a tax-exempt entity to invest in a qualified brownfields site and not treat the gains as

taxable “unrelated business income.” To be eligible for this tax incentive, the entity must have

incurred cleanup costs exceeding the greater of $550,000 or 12% of the property’s fair market

value in a remediated condition, in addition to meeting certain other requirements. The tax

incentive was not available to parties who were potentially liable for the cleanup under Section

107 of CERCLA.

In 2018, Congress amended CERCLA to reauthorize the Brownfields program with the enactment

of the Consolidated Appropriations Act, 2018 (P.L. 115-141; Division N: BUILD Act). The

BUILD Act extended the authorization of appropriations through FY2023, expanded the

eligibility criteria for nonprofit organizations, and increased the maximum dollar limit for

individual remediation grants. Additionally, the BUILD Act amended CERCLA to include

waterfront development, renewable electricity projects, and energy efficiency improvement

projects to the list of land uses for prioritizing site assessment and remediation grants under the

Brownfields program. The BUILD Act did not authorize any federal funding to invest in or

actually build site infrastructure or other redevelopment to support these land uses. The BUILD

Act also allowed eligible entities that purchased contaminated properties prior to January 11,

2002, to receive site characterization and assessment grants, even if they do not satisfy all other

criteria for a bona fide prospective purchaser exemption from liability.

In the 117th Congress, the IIJA provided emergency supplemental appropriations totaling $1.5

billion over a five-year period for the Brownfields program, and the American Rescue Plan Act of

2021 (P.L. 117-2) provided additional emergency supplemental appropriations of $5 million for

the Brownfields program. Of the amount provided in the IIJA, $1.2 billion would be provided for

Competitive Grants, and $300 million would be provided for State and Tribal Formula Grants;

both would be disbursed in equal amounts annually over a five-year period from FY2022 through

FY2026. For up to half of the total funding for Competitive Grants under the IIJA ($600 million),

Congress increased the maximum amounts for an individual grant award for site assessment and

characterization ($10 million per grant), remediation ($5 million), revolving loan fund ($10

million), multipurpose grants ($10 million), and job training ($1 million).

Author Information

Lance N. Larson

Analyst in Environmental Policy

181 26 U.S.C. §512(b)(19).

182 42 U.S.C. §9601(39).

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Disclaimer

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