Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Compliance and Defense - Federal Lawyer
WSJ logo
Forbes logo
Fox News logo
CNN logo
Bloomberg logo
Los Angeles Times logo
Washington Post logo
The Epoch Times logo
Telemundo logo
New York Times
NY Post logo
NBC logo
Daily Beast logo
USA Today logo
Miami Herald logo
CNBC logo
Dallas News logo

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Compliance and Defense

Experienced Outside EPA Counsel for All CERCLA (Superfund) Matters

Carlton S. Patton
Carlton S. Patton
Comprehensive Environmental Response, Compensation and Liability Act Team Lead
Former EPA CID Special Agent
Nick Oberheiden
Attorney Nick Oberheiden
Comprehensive Environmental Response, Compensation and Liability Act Team Lead
envelope icon Contact Nick

Enacted in 1980 the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) remains one of the most important pieces of environmental legislation in the United States. Congress enacted CERCLA to protect human health by reducing exposure to hazardous substances. The U.S. Environmental Protection Agency (EPA) leverages CERCLA to compel (and, in some cases, conduct) cleanup operations after companies violate other environmental statutes.

As the Legal Information Institute (LII) explains, “CERCLA permits the EPA to go and find potentially responsible parties (PRP) for environmental contamination and compel them to perform adequate cleanup or pay damages for the cleanup of contaminated sites.” Under CERCLA, the EPA also has the authority to fund the cleanup of contaminated sites through the Hazardous Substance Superfund (often simply referred to as “Superfund”), engaging private companies to perform remediation and removal activities in compliance with CERLA (among other applicable federal laws and regulations).

Understanding the Importance of CERCLA (Superfund) Compliance

For all companies engaging in cleanup, remediation, and removal efforts under CERCLA, compliance is essential. While working with the EPA under CERCLA provides an opportunity to mitigate companies’ environmental risk while conducting profitable operations, noncompliance—even if inadvertent—can expose companies to substantial penalties. Like many other federal statutes, CERCLA includes both civil and criminal enforcement provisions, and the EPA pursues both civil and criminal enforcement actions as warranted.

You Received a CERCLA Letter from the EPA—What Now?

Companies typically find out that they have been identified as a PRP (or are at risk of being identified as a PRP) when they receive a letter from the EPA. These letters typically take one of three forms:

  • Superfund Information Request Letter – As the EPA explains, information request letters, “are used for information gathering purposes and do not designate an entity as a PRP.” Even so, companies that receive these letters from the EPA need to proceed cautiously, and they need to ensure that they make informed and strategic decisions in communicating with the EPA. While information request letters may not designate entities as PRPs themselves, they often lead to designation, and both improperly withholding information and providing information unnecessarily can raise red flags and lead to further scrutiny.
  • Superfund General Notice Letter – If your company has received a general notice letter under CERCLA, this means that the EPA has designated your company as a PRP for a Superfund site. An immediate response is required, and you will want to discuss your company’s response with experienced EPA counsel promptly.
  • Superfund Special Notice Letter – The EPA sends a special notice letter when it, “is ready to negotiate with [a] PRP[] to clean up a site.” As the EPA goes on to explain, “[a] special notice letter gives PRPs information on why EPA thinks they are liable and EPA’s plans for the cleanup of the site . . . [and] invites [the recipient] to participate in negotiations with EPA to conduct future cleanup work and pay EPA for any site-related costs already incurred.” Here, too, an immediate response is required, as the issuance of a special notice letter opens a limited time window during which the EPA will negotiate without pursuing enforcement in parallel.

While each type of Superfund letter is very different (and has different immediate implications), all three types present risks that companies must work with their EPA counsel to address as efficiently as possible. At Oberheiden P.C., our lawyers and consultants have extensive Superfund experience—including experience inside the EPA and U.S. Department of Justice (DOJ)—and we rely on this experience to help our clients deal with the EPA effectively.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Our CERCLA (Superfund) Compliance and Defense Services

While compliance and defense are often separate matters, for companies dealing with the EPA under CERCLA, compliance and defense go hand-in-hand. Whether companies need to dispute their designations as PRPs or they need to conduct cleanup operations under the EPA’s oversight, effectively managing statutory and regulatory compliance is essential for avoiding EPA (and possibly DOJ) enforcement. With this in mind, when we represent PRPs and Superfund contractors, our representation generally includes:

  • Ensuring that Our Clients Have a Comprehensive Understanding of Their Obligations Under CERCLA – CERCLA is an extraordinarily complex statute, and companies’ obligations under the statute can vary widely from one scenario to the next. We ensure that our clients have a clear and comprehensive understanding of their specific obligations so that they can confidently make decisions with their best interests (and their shareholders’ best interests) in mind.
  • Helping Our Clients Implement Effective CERCLA Compliance Policies and Procedures – Based on our clients’ specific statutory obligations, we help them implement effective CERCLA compliance policies and procedures. Here, too, we take a comprehensive approach that focuses on all pertinent environmental, contracting, and other issues.
  • Managing CERCLA Compliance on an Ongoing Basis – For companies involved in Superfund operations, CERCLA compliance is not a one-time event. When working on Superfund sites, companies need to maintain strict compliance with CERCLA on an ongoing basis—and, just as important, they need to be prepared to demonstrate compliance to the EPA when necessary.
  • Advising Our Clients on Complex Cleanup, Remediation, and Removal Issues – Due to the complexity of CERCLA, and the complexity of environmental compliance in general, companies can encounter numerous challenging issues during cleanup, remediation, and removal operations. Our lawyers and consultants rely on their EPA experience to advise clients on these issues when they arise, placing particular emphasis on helping our clients make informed decisions as efficiently as possible.
  • Interacting with the EPA on Behalf of Our Clients as Necessary – We also interact with the EPA on behalf of our clients as necessary. We do this at all stages of the process—from responding to information request letters and notice letters to managing Superfund site inspections and investigations. We work to help our clients secure amicable resolutions that maintain a good working relationship with the EPA whenever possible, though we are also highly experienced federal litigators who do not hesitate to advocate for our clients in court when necessary.

Whether your company is facing enforcement under CERCLA, your company is working with (or seeking to work with) the EPA to clean up a Superfund site, or the EPA is investigating your company for noncompliance, our lawyers and consultants can guide you forward. We can provide advice that is custom-tailored to your company’s specific circumstances; and, if desired, we can work with you and your company’s key stakeholders to manage your company’s risk under CERCLA.

FAQs: What Companies Need to Know About CERCLA (Superfund) Compliance

What Do I Need to Do if I Received a Superfund Information Request Letter from the EPA?

If your company has received a Superfund information request letter from the EPA, one of the first things you need to do is figure out why. Is the EPA seeking to designate your company as a potentially responsible party (PRP)? Or, is the EPA seeking to gather information in support of its investigation into another business? These are very different scenarios that require very different approaches—although all recipients must ensure that they respond appropriately and in a timely manner.

What Do I Need to Do if I Received a Superfund Notice Letter from the EPA?

If your company has received a Superfund notice letter from the EPA, this means that the EPA has designated your company as a potentially responsible party (PRP) for a Superfund site. Superfund sites are deemed to be hazardous waste sites, or sites that have been found to have hazardous substances releases and are in need of clean up. This has enormous legal and financial implications, so it is imperative that you engage experienced EPA counsel promptly. Beyond engaging experienced EPA counsel, your company’s next steps will depend on the specific facts and circumstances at hand.

What If I Disagree with the EPA’s Designation of My Company As a PRP?

If you disagree with the EPA’s designation of your company as a potentially responsible party (PRP) under CERCLA, you will need to engage experienced EPA counsel to communicate with the agency on your company’s behalf. Once the EPA makes a PRP designation, time is of the essence, and any unnecessary delays can lead to unnecessary liability exposure.

How Does the EPA Enforce CERCLA (Superfund) Compliance?

The EPA enforces CERCLA (Superfund) compliance through various means. The primary way it enforces compliance is by designating companies as potentially responsible parties (PRPs) and compelling remediation at Superfund sites. However, the EPA has authority to investigate suspected CERCLA violations at Superfund sites (both before and during remediation operations), and these investigations can lead to civil or criminal penalties.

What Are the Penalties for CERCLA (Superfund) Violations?

Civil violations of CERCLA can lead to substantial fines—and the EPA can impose these fines on a per-day basis until a violation has been resolved. If the EPA pursues enforcement under CERCLA’s criminal provisions, targeted companies can face substantial fines, while targeted individuals can face both fines and federal imprisonment.


Contact the CERCLA Compliance and Defense Lawyers at Oberheiden P.C.

If you have questions about your company’s rights or obligations under CERCLA, or if your company is facing scrutiny from the EPA related to a Superfund site, we encourage you to contact us promptly for more information. To speak with a senior lawyer at Oberheiden P.C. in confidence, please call 888-680-1745 or request a complimentary consultation online today.

WordPress Lightbox