Superfund Cost Recovery Litigation

Parties who either owned or operated sites where hazardous substances were released, transporters who hauled wastes to these sites and persons who generated hazardous substances may all be found to be liable for the payment of response costs.  Parties who may be liable at Superfund sites are often referred to as “potentially responsible parties” (PRPs).

Before initiating an administrative action or court proceeding, federal or state authorities may order private parties to respond to Requests for Information (RFI), conduct investigations or even complete remedial or response actions.  If a party refuses to respond or take the requested actions, the U. S. Environmental Protection Agency (EPA) or an authorized state may conduct the work and seek recovery of the EPA’s Superfund costs or costs incurred by a state through an administrative or judicial process.

A variety of types of facilities may be named as Superfund sites. Landfills or dumps that accepted barrels of hazardous materials or other toxic waste may be listed as Superfund sites. If hazardous substances were disposed of at a manufacturing facility – at an on-site dump or in a dry well - that operation may be named as a Superfund site. A warehouse, where barrels or tanks of hazardous substances were stored and later abandoned, may also be classified as a Superfund site.

Federal and state Superfund laws also permit private parties to complete an investigation and remediation of a Superfund site and to later seek cost recovery. A private party seeking to recover its costs from other parties must take care to follow certain procedures before initiating a cost recovery action. Private parties should consult with counsel before conducting any work.

Because of the volume of hazardous substances that may have been disposed at Superfund sites, the soil and groundwater contamination can be widespread. In some cases contaminants may enter groundwater and a plume of contamination may have spread underground to adjacent properties. If neighbors or communities are using the water as a drinking water source, alternative water supplies may need to be provided.

The purpose of a remedial investigation is to determine the vertical and lateral extent of contamination at a Superfund site. Often a feasibility study is conducted and the technical merits of various remedial alternatives are discussed in great detail. If the EPA or state is involved in the process, the governmental authorities may comment on the work or ask for revisions to address concerns. The public may be advised of the particular issues associated with the contamination at a Superfund site at a public information meeting.

A critical step in the cleanup or remediation of a Superfund site is the selection of the remedial action. At sites where the EPA or the state is the lead agency, a formal Record of Decision (ROD) may be issued that documents the choice of a remedy. Given the highly technical nature and scope of the environmental issues encountered at Superfund sites, implementation of the remedial action may take months or even years. Often there is a long-term operation and maintenance plan in place to ensure that the remedy operates effectively over time.

The cost of a Superfund investigation and cleanup varies widely depending upon multiple factors including but not limited to: 1) the type and quantity of hazardous substances that were disposed at the site, 2) the number of PRPs that have been identified at the site, 3) the physical and hydrogeological conditions at the site, and 4) the amount of time that has passed since the hazardous substances were released. The cost of response actions can be quite significant. It is not uncommon to hear of investigation and cleanups totaling multimillions of dollars. If hundreds or thousands of parties or PRPs share in the liability at such a site, then the costs to an individual PRP may be far less. Nonetheless, depending upon the specific circumstances at a site, the costs to an individual PRP may be quite significant. Any party who may face the prospect of liability at a Superfund site should seek the advice of qualified legal counsel.

As environmental litigation attorneys, we have been involved in the representation of PRPs at multiple Superfund sites in Minnesota, Wisconsin, Illinois, Indiana and in other states across the country.  We have represented owners and operators of sites where hazardous wastes were disposed, transporters involved with hauling waste to sites, as well as generators whose hazardous substances were disposed on a third party’s property. We have extensive experience with the both the administrative and court proceedings in these matters.

At many Superfund sites, numerous companies can be named as PRPs. Because federal and state Superfund laws impose strict, joint and several liability, each of the companies whose wastes may have been hauled to and disposed of at the facility may be named as a PRP. In the case of landfills were hazardous substances were received from thousands of companies, it is possible that thousands of these companies – each of whom are classified as generators of hazardous substances – may be named as PRPs.

Often PRPs find that it may be in their best interests to join a group of PRPs at a specific site. PRP Groups may hire environmental consultants and common counsel, experienced environmental lawyers with litigation experience, to represent the interests of the PRP Group in negotiating with federal or state governmental authorities or private parties who are seeking cost recovery.  Moss & Barnett’s attorneys have been named as Common Counsel at Superfund sites. We have assisted our clients in resolving their liability through settlements and in some cases through litigation. If a PRP’s relative share of contribution of hazardous substances was small in comparison to that of other parties, it may be possible to settle as a de minimis party and resolve liability at an early stage and avoid the transaction costs associated with Superfund matters.

These materials have been prepared by Joseph G. Maternowski of Moss & Barnett P.A. for informational purposes only and are not legal advice.  Please read the Disclaimer that appears at the bottom of this page.