Managing Facilities, Due Diligence and Facility Transfers
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The Courts have also agreed that CERCLA authorizes the imposition
of joint and several liability. Whether or not joint and several liability
applies in a given case depends on whether the harm caused is "divisible"
or "indivisible." If the harm is indivisible, any single responsible party
may be held liable for the entire harm. Courts will not impose joint and
several liability, however, when the harm is divisible and a reasonable
basis exists for apportioning the harm. Superfund's liability provisions
are so broad that even state governments may be held liable for response
costs. The U.S. Supreme Court held that SARA's broad liability
provisions strip state governments of their traditional immunities against
lawsuit, so that states may now be
named as responsible parties and
charged with cleanup costs.
What Are the Liabilities?
Under Superfund, responsible parties are ultimately liable for:
• All costs of a removal or remedial action incurred by the federal
or state government not inconsistent with the NCP.
• Any other necessary costs incurred by any other persons
consistent with the NCP.
• Damages for injury, destruction, or loss of natural resources and
the cost of possessing such damages.
SARA also establishes responsibility for interest on the cost of
response activities. However, Superfund establishes dollar limits on
liability based on the type of "facility" involved. These limits are as
follows:
• Vessels--the greater of $300 per gross ton or $5 million.
• Motor vehicles (including aircraft)--$5 million.
• Pipelines--$50 million.
• All other facilities, including incineration vessels--all response
costs plus $50 million for any damages.
Failure to give notice of an unauthorized release waives these limitations.
Also, failure to comply with an applicable federal standard through
willful misconduct or willful negligence resulting in the release of a
hazardous material also vitiates these limitations.
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