Legal Liability Regarding the BoRit Asbestos Superfund Site Community Advisory Group Meeting dated March 3, 2010 Presenters Timothy J. Bergere, Partner, Montgomery McCracken Leo J. Mullin, Cost Recovery Expert, EPA Region III COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (“CERCLA” or SUPERFUND LAW”)

CERLCLA Liability Discussion The Superfund Law was enacted in It was established to address abandoned hazardous waste sites. Section 104 of the Statute gives EPA the authority to conduct short term and long term cleanups. Sections 106 and 107 of the Statute provide EPA with the authority to require liable parties to perform cleanup actions and to pay for the cost of the cleanup.

Superfund Liability is: Retroactive: Parties may be held liable for acts that happened before Superfund's enactment in Joint and Several: Any one potentially responsible party (PRP) may be held liable for the entire cleanup of the site (when the harm caused by multiple parties cannot be separated). Strict: A PRP cannot simply say that it was not negligent or that it was operating according to industry standards. If a PRP sent some amount of the hazardous waste found at the site, that party is liable.

Superfund liability is triggered if: Hazardous substances are present at a facility; There is a release (or a possibility of a release) of these hazardous substances. Response costs have been or will be incurred, and The defendant is a liable party.

Who is a Liable Party? the current owner and operator of a facility, a person who owned or operated a facility at the time of disposal of any hazardous substances, a person who arranged for disposal or treatment, of hazardous substances, and a person who transported hazardous substances, provided that person chose this location.

A Liable Party may be required to pay for (A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; (C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and (D) the costs of any health assessment or health effects study carried out under section 104(i).

Key Terms OwnerOperator Hazardous Substances Arranged TreatmentDisposal FacilityUseful Product

How are Liable Parties Identified? EPA looks to see if you were involved by: –Reviewing documents, –Conducting interviews, –Using "information request letters" to gather information, –Conducting title searches, and –Using information from the internet, libraries, courthouses, and government offices, –Information from PRPs.

What does EPA Look for? Do the hazardous substances relate to the facility? Does the potentially liable party still exist? Is the potentially liable party protected because of bankruptcy? Does the potentially liable party have a defense to liability? Does the potentially liable party have the ability to contribute to the cleanup?

Defenses to liability

Parties exempt from Liability

How is liability resolved? EPA Settlement Authority Judicial Settlements with the United States Private Party Settlements Settlements can be partial or complete.