Superfund & Hazardous Waste Law

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, 1980) — commonly known as Superfund — is the federal law that requires cleanup of contaminated sites where hazardous substances have been released into the environment, and assigns liability for those cleanups to the parties responsible for the contamination. Under 42 U.S.C. §§ 9601–9675, EPA maintains the National Priorities List (NPL) — approximately 1,300+ active Superfund sites deemed the nation's most seriously contaminated locations, with about 450 cleaned up and removed since the program began. CERCLA's most consequential feature is its liability standard: strict, joint and several liability — meaning any responsible party (current owner, past owner, or entity that arranged for hazardous waste disposal) can be held fully liable for all cleanup costs, regardless of fault or the existence of other responsible parties. One party can be required to pay 100% of costs and then seek contribution from others. The Superfund Trust Fund — funded by excise taxes on chemical and petroleum manufacturers (reinstated in 2022 via the Inflation Reduction Act after expiring in 1995) — finances cleanups where responsible parties cannot be found or are insolvent. For anyone buying, selling, or developing commercial or industrial property, CERCLA's strict liability standard is why environmental due diligence (Phase I and Phase II site assessments) is standard practice in real estate transactions.

Current Law (2026)

Legal Authority

CERCLA / Superfund (42 U.S.C. §§ 9601-9675)

• 42 U.S.C. § 9601 — Definitions (hazardous substance, release, facility, environment, removal, remedial action, responsible party — broad definitions that cast a wide net)
• 42 U.S.C. § 9604 — Response authorities (President/EPA authority to respond to releases or threatened releases of hazardous substances; removal actions for imminent threats; remedial actions for long-term cleanup)
• 42 U.S.C. § 9605 — National Contingency Plan and National Priorities List (NCP establishes procedures for responding to releases; NPL identifies the most serious sites requiring long-term remedial action; Hazard Ranking System scores)
• 42 U.S.C. § 9606 — Abatement actions (EPA can issue administrative orders requiring responsible parties to clean up; emergency response authority; penalties for noncompliance)
• 42 U.S.C. § 9607 — Liability (four categories of potentially responsible parties: current owners/operators, past owners/operators at time of disposal, arrangers who sent waste, and transporters who selected the disposal site; strict, joint and several liability; liable for cleanup costs, natural resource damages, health assessment costs)
• 42 U.S.C. § 9611 — Superfund Trust Fund (finances government-led cleanups when responsible parties cannot be found or are unable to pay; funded by chemical industry excise taxes reinstated in 2022)
• 42 U.S.C. § 9613 — Civil proceedings (judicial review of cleanup decisions; contribution actions among responsible parties; citizen suits)
• 42 U.S.C. § 9620 — Federal facilities (federal government facilities are subject to CERCLA just like private sites; EPA can list federal facilities on the NPL)
• 42 U.S.C. § 9621 — Cleanup standards (remedial actions must be protective of human health and the environment; must comply with applicable or relevant and appropriate requirements / ARARs; preference for treatment over containment)
• 42 U.S.C. § 9622 — Settlements (EPA can enter consent decrees and administrative orders on consent with responsible parties; de minimis and de micromis settlements for minor contributors)
• 42 U.S.C. § 9658 — State statute of limitations (federal statute of limitations begins running when plaintiff knew or should have known of contamination, overriding shorter state periods)
• 42 U.S.C. § 9659 — Citizen suits (any person may sue to compel cleanup or enforcement; 60-day notice requirement)

RCRA — Resource Conservation and Recovery Act (42 U.S.C. §§ 6901-6992)

• 42 U.S.C. § 6901 — Congressional findings (see also RCRA; improper waste disposal creates health hazards; land disposal of waste should be the last alternative; waste minimization and recycling preferred)
• 42 U.S.C. § 6902 — Objectives (protect health and environment from hazardous waste; conserve resources; reduce or eliminate waste generation)
• 42 U.S.C. § 6921 — Identification and listing of hazardous waste (EPA identifies characteristics — ignitability, corrosivity, reactivity, toxicity — and lists specific hazardous wastes)
• 42 U.S.C. § 6922-6925 — "Cradle to grave" requirements (generators must characterize, label, manifest, and track waste; transporters must comply with DOT and EPA rules; treatment/storage/disposal facilities need permits with technical standards)
• 42 U.S.C. § 6926 — Authorized State programs (states can run their own RCRA programs if at least as stringent as federal)
• 42 U.S.C. § 6928 — Federal enforcement (compliance orders, civil penalties up to $70,117/day, criminal penalties including imprisonment for knowing violations)
• 42 U.S.C. § 6941-6949 — Solid waste management (federal guidelines for state solid waste plans; criteria for sanitary landfills; closure of open dumps)
• 42 U.S.C. § 6991-6991e — Underground storage tanks (USTs) (registration, leak detection, financial responsibility, corrective action for petroleum and hazardous substance USTs; state UST programs; Leaking Underground Storage Tank Trust Fund)

Implementing Regulations (CFR)

• 40 CFR Part 116 — Designation of Hazardous Substances under the Clean Water Act: implements CWA § 311(b)(2)(A), which authorizes EPA to designate specific substances as "hazardous" for purposes of the spill notification and penalty provisions of CWA § 311. Key provisions:

  • § 116.1 — Applicability: the designation applies to discharges of any of the substances listed in Table 116.4 into navigable waters, the contiguous zone, or the ocean; note this is the CWA hazardous substances list, which is distinct from the CERCLA hazardous substances list at 40 CFR § 302.4 (though there is substantial overlap)
  • § 116.3 — Definitions: "discharge" includes spilling, leaking, pumping, pouring, emitting, emptying, or dumping; "hazardous substance" means any substance listed in Table 116.4 at or above its reportable quantity; "aquatic animals" means gill-breathing organisms (the toxicity basis for most designations)
  • § 116.4 — The designation table (Table 116.4) lists approximately 300+ chemical substances by common name and CAS number — including acetaldehyde, acrolein, acrylonitrile, ammonia, benzene, chlorine, cyanides, DDT, dieldrin, endrin, heptachlor, mercury compounds, PCBs, toluene, xylene, and dozens of acid chlorides, metals, and pesticides; the table includes isomers and hydrates, as well as solutions and mixtures containing the listed substances; common names control in case of disparity with CAS numbers

  The CWA Part 116 designation list works in tandem with 40 CFR Part 117, which assigns a specific reportable quantity (RQ) to each listed substance (ranging from 1 lb to 5,000 lbs). A discharge of a Part 116 substance at or above its Part 117 RQ triggers mandatory immediate notification to the National Response Center (NRC) at 1-800-424-8802. The CWA designation list predates CERCLA (1980) — when CERCLA was enacted, Congress adopted all existing CWA § 311 hazardous substances automatically as CERCLA hazardous substances, then expanded the CERCLA list; today, CERCLA's RQ table at 40 CFR § 302.4 is the more comprehensive reference, but both lists remain independently operative for their respective statutes.

• 40 CFR Part 117 — Determination of Reportable Quantities for Hazardous Substances: for each of the ~300+ hazardous substances designated in 40 CFR Part 116, this Part assigns a reportable quantity (RQ) — the amount whose release in any 24-hour period triggers mandatory immediate reporting to the federal government under CWA § 311(b)(3). Key provisions:

  • § 117.3 — RQ table: each designated substance is assigned one of five RQ levels — 1 lb, 10 lb, 100 lb, 1,000 lb, or 5,000 lb per 24-hour period; the 1 lb RQ (the most stringent) applies to highly toxic or persistent substances; the 5,000 lb RQ applies to less hazardous materials; the RQ table cross-references 40 CFR Part 302.4 (CERCLA's comprehensive RQ table), making both CERCLA and CWA triggers coordinate
  • § 117.11 — Scope: applies to discharges to navigable waters of the United States, adjoining shorelines, the contiguous zone, and the ocean floor; includes discharges from vessels, onshore facilities, and offshore facilities
  • § 117.12 — NPDES permit holders exempt: facilities with valid NPDES permits are not required to report discharges that are in compliance with their permit conditions or that result from circumstances disclosed in the permit record — preventing double-regulation for permitted dischargers
  • § 117.21 — Reporting trigger: "any person in charge" of a vessel or facility who has knowledge of a discharge equal to or exceeding the RQ must immediately notify the appropriate federal agency — in practice, the National Response Center (NRC) at 1-800-424-8802; failure to notify is a criminal violation of CWA § 311(b)(5)
  • § 117.23 — Removal liability: the owner, operator, or person in charge of the discharging facility is liable to the U.S. government for the actual costs of federal removal actions prompted by the discharge — the financial backstop that makes the reporting obligation consequential

  The RQ framework works together with the CERCLA RQ table at 40 CFR Part 302 to create a comprehensive trigger system: any release of a hazardous substance at or above its RQ — whether to water (CWA/Part 117) or to the environment generally (CERCLA/Part 302) — requires immediate NRC notification. The integration means the same toll-free number (1-800-424-8802) and the same report handle both spills to waterways and terrestrial hazardous substance releases. Industrial facilities routinely train personnel on RQ thresholds for materials they handle, since missing an RQ report is a separate federal violation independent of the underlying spill.

• 40 CFR Part 300 — National Oil and Hazardous Substances Pollution Contingency Plan (NCP) (79 sections — the master federal regulatory framework, required by CERCLA § 105 and CWA § 311, that governs the entire federal response to oil spills and hazardous substance releases: the organizational structure, planning requirements, response procedures, and funding mechanisms that activate whenever a significant release occurs anywhere in the United States). Key subparts:

  • Subpart A — Introduction: § 300.1 — the NCP provides the organizational structure and procedures for preparing for and responding to discharges of oil and releases of hazardous substances, pollutants, or contaminants; § 300.2 — authority flows from CERCLA § 105 (hazardous substance response) and CWA § 311 (oil spill response); § 300.3 — applicability extends to all oil discharges into navigable waters and adjacent shorelines, the contiguous zone, and the exclusive economic zone, and to all releases of CERCLA hazardous substances wherever they occur
  • Subpart B — Responsibility and Organization: § 300.100 — Presidential response duties are delegated to EPA (inland zone) and USCG (coastal zone) via Executive Order; § 300.110 — the National Response Team (NRT) coordinates national planning; NRT members include 15 agencies including EPA, USCG, DOT, DOE, DOD, FEMA, NOAA, and HHS; § 300.115 — Regional Response Teams (RRTs) coordinate preparedness and response in each of the 10 EPA regions; § 300.120 — the On-Scene Coordinator (OSC) or Remedial Project Manager (RPM) directs response operations — the OSC is the federal official with authority at the scene to direct immediate removal actions
  • Subpart C — Planning and Preparedness: § 300.200 — three levels of contingency plans nest under the NCP: Area Contingency Plans (ACPs) for local coordination, Regional Contingency Plans (RCPs), and the NCP itself; § 300.211 — vessels carrying oil and certain onshore facilities must maintain facility response plans (FRPs) describing equipment, personnel, and procedures for responding to a worst-case discharge; § 300.212 — OSCs must periodically conduct unannounced drills to test removal capability including fish and wildlife response
  • Subpart D — Operational Response for Oil Removal (§§ 300.300–300.335 — the sequential four-phase oil spill response framework):
    • Phase I — Discovery (§ 300.300): discovery through self-reporting by responsible party, observations by USCG/EPA patrols, or public reports; all significant oil discharges must be reported to the National Response Center (1-800-424-8802) within 24 hours
    • Phase II — Preliminary Assessment (§ 300.305): the OSC assesses the spill's source, magnitude, and threat to public health and the environment; the assessment triggers a removal action or determines that no federal response is needed
    • Phase III — Containment, Countermeasures, Cleanup (§ 300.310): defensive actions begin as soon as practicable; the OSC may direct cleanup operations, authorize the responsible party to conduct cleanup, or take federal removal action; for a worst-case discharge (§ 300.324), the OSC may escalate to full federal response under the National Strike Force
    • Phase IV — Documentation and Cost Recovery (§ 300.315): all costs incurred using the Oil Spill Liability Trust Fund (OSLTF) must be documented for recovery from the responsible party; OSLTF draws require prior OSC certification that costs are necessary and not inconsistent with the NCP; § 300.335 — the OSLTF is available for authorized removal costs when the responsible party cannot or will not perform
  • Subpart E — Hazardous Substance Response (§§ 300.400–300.440 — CERCLA removal and remedial actions): § 300.415 — removal actions address immediate threats from a release (abandoned drums, imminent migration of contamination to drinking water); § 300.430 — the remedial investigation/feasibility study (RI/FS) process evaluates the nature and extent of contamination and identifies cleanup alternatives; remedy selection must be protective of human health and the environment, comply with applicable or relevant and appropriate requirements (ARARs), be cost-effective, and maximize use of permanent solutions
  • Subpart J — Use of Dispersants and Other Chemicals: § 300.910 — EPA maintains a Product Schedule of dispersants, surface washing agents, and other cleanup chemicals pre-authorized for oil spill response; use of unlisted chemicals requires OSC approval; Area Contingency Plans specify where pre-authorized dispersants may be used without additional approval (typically offshore; restricted in nearshore areas and sensitive ecosystems)

  The NCP is the regulatory backbone of the entire U.S. oil spill and hazardous substance response system — it is the reason that when an oil tanker runs aground or an industrial chemical plant releases a toxic plume, there is a defined chain of command, a roster of responsible agencies, and a pre-established framework for who pays. The "NCP-consistent" requirement for CERCLA cost recovery (§ 300.160) is legally significant: a party seeking reimbursement from the government or from a responsible party must show its cleanup actions were consistent with the NCP, or it loses the cost-recovery protection.

• 40 CFR Part 302 — Designation, reportable quantities, and notification:

  • 40 CFR 302.4 — Designation of hazardous substances (CERCLA hazardous substances list with reportable quantities; releases at or above the reportable quantity must be reported to the National Response Center)
  • 40 CFR 302.6 — Notification requirements (immediate notification to the National Response Center when a reportable quantity of a hazardous substance is released)

• 40 CFR Part 355 — Emergency planning and notification:

  • 40 CFR 355.20 — Threshold planning quantities for extremely hazardous substances (EHS) (establishes trigger quantities — facilities with EHS above the threshold must notify their State Emergency Response Commission and Local Emergency Planning Committee)
  • 40 CFR 355.31 — Aggregation rules (how to determine whether threshold planning quantities are met when multiple EHS forms or mixtures are present at a single facility)

• 40 CFR Part 267 — Standards for Owners and Operators of Hazardous Waste Facilities Operating Under a Standardized Permit: a parallel RCRA facility standard that applies to treatment, storage, and disposal facilities (TSDFs) that qualify for a standardized permit rather than a full RCRA Part B facility permit. Standardized permits are available to facilities that store or non-thermally treat hazardous waste in tanks, containers, or containment buildings — a streamlined alternative for facilities whose operations are straightforward enough to be governed by a standardized template. Part 267 mirrors Part 264 (full facility standards) but is scaled for simpler operations:

  • § 267.1 — Scope: applies to facilities treating or storing hazardous waste under a Part 270 standardized permit; does not apply to facilities with full Part B permits or facilities exempt from RCRA permitting
  • § 267.10–267.11 — General facility standards: facility must obtain an EPA identification number; must comply with general standards covering site security, preparedness, and personnel training
  • § 267.101 — Corrective action: facilities must address releases from solid waste management units on their property; may be required to conduct corrective action investigations and remediation even under a standardized permit
  • § 267.110–267.111 — Tank systems (Subpart J, 15 sections): detailed design and operating standards for hazardous waste storage tanks — secondary containment, leak detection, inspection requirements, and closure procedures when tanks are taken out of service
  • § 267.1100–267.1108 — Containment buildings (Subpart DD, 9 sections): design standards for structures used to contain hazardous waste; must provide secondary containment with a leak detection system; if liquids are managed inside, enhanced containment standards apply; operator must respond immediately to detected releases
  • §§ 267.50–267.59 — Containers (Subpart I, 8 sections): containers holding hazardous waste must be in good condition, compatible with the waste, kept closed except when adding or removing waste, inspected weekly, and stored to prevent releases
  • §§ 267.140–267.147 — Financial requirements (Subpart H): operators must demonstrate financial assurance for closure and post-closure care — using a trust fund, insurance, corporate guarantee, or other approved mechanism — ensuring that cleanup funds exist even if the facility owner goes bankrupt
  • §§ 267.110–267.115 — Closure (Subpart G): when a facility closes, the operator must remove or decontaminate all hazardous waste and residues and certify completion to EPA; if clean closure is not achievable, post-closure care requirements apply for up to 30 years

  The standardized permit pathway (which Part 267 governs) was created to reduce the administrative burden on TSDFs with simpler operations while maintaining the core RCRA safeguards: secondary containment, financial assurance, corrective action authority, and closure requirements. Facilities eligible for standardized permits include container storage facilities and tank storage/treatment facilities — but not incinerators, surface impoundments, waste piles, landfills, or land treatment facilities, which require full Part B permits under Part 264/265.

• 40 CFR Part 258 — Criteria for Municipal Solid Waste Landfills (41 sections — the national minimum design, operating, groundwater monitoring, and closure standards for municipal solid waste landfills (MSWLFs) under RCRA Subtitle D; these are federal floor standards — states that receive EPA approval may impose stricter requirements; most of the nation's ~1,250 active MSWLFs operate under EPA-approved state programs that meet or exceed these standards):

  • §§ 258.10–258.15 — Location restrictions: MSWLFs may not be sited in airport hazard areas (within 10,000 feet of a runway end used by turbine aircraft, or 5,000 feet for piston aircraft) due to bird-strike hazards; may not be sited in 100-year floodplains unless the operator demonstrates the landfill won't restrict flood flows or itself flood; may not be sited in wetlands unless specific alternatives analysis and mitigation demonstrations are made; may not be sited within 200 feet of a fault that has had Holocene displacement; and may not be sited in seismic impact zones without engineering justification
  • §§ 258.20–258.22 — Operating criteria: all MSWLFs must implement a program to detect and prevent disposal of hazardous waste — this is the key interaction with RCRA Subtitle C; inspectors at the gate must be alert to drums and containers that may contain regulated hazardous waste; operators must cover disposed waste with at least 6 inches of earthen material at the end of each operating day (or more frequently if there is a fire, vermin, or litter problem); operators must prevent or control disease vectors (rodents, birds, insects) using appropriate techniques; landfill gas generated during decomposition must be monitored and managed — if methane concentrations exceed 25% of the lower explosive limit at the facility boundary, corrective action is required
  • § 258.23 — Explosive gases: methane monitoring in structures at or near the landfill boundary; action levels (25% of LEL) triggering immediate notification to relevant authorities and remediation
  • §§ 258.40–258.49 — Design standards: new MSWLFs and lateral expansions must install a composite liner system (top layer of at least 2 feet of compacted low-permeability soil plus a flexible membrane liner on top) and a leachate collection and removal system directly above the liner; the composite liner prevents leachate (the liquid that drains through decomposing waste) from contaminating groundwater; in some areas, states may approve alternative designs that are demonstrated to achieve equivalent environmental protection, including natural attenuation of leachate in soils
  • §§ 258.50–258.58 — Groundwater monitoring: MSWLFs must install a network of groundwater monitoring wells — at least one upgradient well (establishing background water quality) and at least three downgradient wells (detecting any contamination from the landfill); detection monitoring tracks 62 indicator parameters; if exceedances are found, assessment monitoring with a full list of constituents begins; if contamination is confirmed, corrective action is required to restore groundwater to background levels or applicable groundwater protection standards
  • §§ 258.60–258.64 — Closure and post-closure care: when an MSWLF stops receiving waste, the operator must install a final cover system (a vegetated cap with a low-permeability layer to minimize infiltration and direct precipitation away from the waste); post-closure care — maintaining the cover, groundwater monitoring, methane monitoring, and leachate management — must continue for at least 30 years after closure (the Director may shorten or extend the post-closure period based on site conditions)
  • §§ 258.70–258.74 — Financial assurance: owners and operators must demonstrate financial ability to pay for closure and post-closure care before they can accept waste; acceptable mechanisms include trust funds, surety bonds, letters of credit, insurance, state financial assurance funds, and corporate financial tests; the financial assurance requirement prevents "midnight dumping" operators from walking away from sites without funding closure

  The MSWLF criteria reflect the lesson of the 1970s-era open dumps and unlined landfills — the thousands of contaminated sites that became Superfund priorities. Part 258 is implemented almost entirely through state programs; EPA retains backstop enforcement authority but rarely acts directly against landfills when approved state programs are in place. The methane collection and flaring requirements also interact with EPA's greenhouse gas regulations — large landfills are significant methane sources and must comply with New Source Performance Standards (NSPS) for landfill gas under the Clean Air Act.

• 43 CFR Part 11 — Natural Resource Damage Assessments (the Department of the Interior's framework for quantifying and recovering damages to publicly owned natural resources under CERCLA § 107(f) and CWA § 311(f)): When a hazardous substance release or oil spill injures natural resources — fish, wildlife, vegetation, groundwater, air — federal and state trustees can sue for restoration costs and the economic value of lost services. Part 11 governs how those damages are assessed, creating a rebuttable presumption in court if trustees follow its procedures. Key phases and provisions:

  • § 11.15 — What trustees may recover: costs of restoring, rehabilitating, replacing, or acquiring the equivalent of damaged natural resources; costs of assessing the damages; lost use value of resources from the time of injury until restoration is complete (the "interim loss" that accumulated while the ecosystem was degraded)
  • §§ 11.20-11.25 — Pre-Assessment Phase: trustees receive notification of a release (CERCLA § 104(b)(2)); conduct an emergency restoration if resources face imminent further damage; take samples before contaminants disperse; conduct a preassessment screen that checks whether (1) a release occurred, (2) natural resources were exposed, (3) injury is plausible, and (4) damage recovery appears to exceed assessment costs — if not, trustees stop and document why no further assessment is warranted
  • § 11.33 — Type A vs. Type B assessments: trustees choose between two approaches: Type A (simplified, computer-model-based procedures for small releases, primarily using the NRDAM/Coastal and Marine Environments model or the Great Lakes Environments model; § 11.40); Type B (full field assessment for larger or more complex incidents; §§ 11.60-11.73); both types receive the same legal presumption if properly documented
  • §§ 11.61-11.64 — Injury Determination Phase (Type B): trustees must document that (1) a release occurred, (2) the natural resource was exposed to the oil or hazardous substance, and (3) the resource is in a worse condition than baseline as a result; "injury" is defined specifically for each resource type — fish/wildlife (physiological effect, behavioral change, reproductive failure), surface water (water quality standard violation), groundwater (contaminant exceeding MCLs or background), air (exceedance of standards or injury to nearby resources), geologic resources (alteration from baseline)
  • §§ 11.70-11.73 — Quantification Phase (Type B): trustees measure service reductions — the decline in services the resource provides to humans and ecosystems (fishing days lost, wildlife habitat acres degraded, recreational visitor days lost); calculate how long until the resource recovers to baseline; the combination of service reduction magnitude and recovery duration determines the total resource "injury units" that must be compensated
  • §§ 11.80-11.84 — Damage Determination Phase: trustees develop a Restoration and Compensation Determination Plan evaluating alternatives (primary restoration at the site, replacement at another site, resource equivalency); determine the dollar amount of damages using (1) the cost of the preferred restoration alternative, or (2) if restoration is not technically or economically feasible, use-value methodologies (market price, appraisal, travel cost, contingent valuation, hedonic pricing)
  • §§ 11.90-11.93 — Post-Assessment Phase: trustees prepare a Report of Assessment summarizing methods and findings; present a demand to potentially responsible parties (who may settle voluntarily); file suit under CERCLA § 107(f) if settlement fails; all recovered funds must be placed in a restoration account (not general revenues) and used only to restore the specific injured resources

  The legal presumption in court is the key incentive for trustees to follow Part 11: a trustee who uses the Part 11 procedures gets a presumption that its assessment is correct — the responsible party must rebut it. Trustees who conduct assessments outside Part 11 receive no such presumption and must prove their methodology independently. This framework underpins major natural resource damage settlements: Exxon Valdez ($1.025 billion NRD), Deepwater Horizon ($8.8 billion NRD), and dozens of smaller CERCLA site settlements.

• 40 CFR Part 373 — Reporting Hazardous Substance Activity When Selling or Transferring Federal Real Property: EPA's implementing regulation for CERCLA § 120(h) (42 U.S.C. § 9620(h)), which requires federal agencies to disclose the history of hazardous substance storage, release, and disposal on any federal real property they sell or transfer. This is the government-property analog to the Phase I environmental assessment requirements that govern private transactions — except the disclosure is mandatory by regulation, not just standard market practice. Key provisions:

  • § 373.1 — General requirement: any federal department, agency, or instrumentality entering into a contract for the sale or other transfer of real property that is owned by the United States and on which any hazardous substance was stored, released, or disposed of must include a notice of that activity in the contract; the requirement applies to all federal real property sales and transfers executed after April 16, 1990 (six months after the SARA 1986 regulation effective date)
  • § 373.2 — Applicability: the notice requirement applies to any federally owned real property on which any hazardous substance was (a) stored for one year or more; (b) known to have been released; or (c) disposed of; it applies regardless of whether the contamination has been cleaned up — past activity triggers disclosure even if the property is now clean; transfers between federal agencies are covered as well as sales to private parties
  • § 373.3 — Content of notice: the disclosure in the contract must include for each hazardous substance: (1) the name of the substance and its Chemical Abstracts Service Registry Number (CASRN); (2) the regulatory synonym; (3) the quantities stored, released, or disposed of; (4) the time periods during which storage, release, or disposal occurred; (5) the location on the property where activity occurred; (6) known releases to soil or groundwater; and (7) the method of storage (underground tanks, surface impoundments, piles)
  • § 373.4 — Definitions: "hazardous substances" for Part 373 purposes means substances on the CERCLA § 101(14) list — including the substances designated at 40 CFR § 302.4; "release" has the same meaning as under CERCLA § 101(22) — any spilling, leaking, emitting, or disposing into the environment

  Part 373's disclosure requirement exists because federal property historically has been the site of industrial operations, military activities, and waste disposal practices — sometimes for decades — that can leave substantial contamination. Purchasers of former military installations, government factories, or federal research facilities need reliable information about what was stored and released to evaluate cleanup costs and residual liability. The CERCLA § 120(h)(3) covenant provisions — requiring the federal government to covenant in any deed that all remedial action necessary has been taken before transfer, or that the government will take all remaining action — work in tandem with the Part 373 disclosure requirement to protect purchasers. No major rulemakings since the 1990 implementing regulation — the disclosure requirement has been stable since its initial promulgation.

• 40 CFR Part 310 — Reimbursement to Local Governments for Emergency Response to Hazardous Substance Releases (EPA, 24 sections): a direct financial assistance program that reimburses local governments — fire departments, county emergency management agencies, hazmat teams — for costs incurred responding to hazardous substance releases, implemented under CERCLA § 123 (42 U.S.C. § 9611). This is the program most local responders don't know exists until after they've already spent money at a hazmat incident:

  • § 310.1 — Purpose and cap: local governments may receive up to $25,000 per incident for emergency response to hazardous substance releases; the cap reflects that this program is intended to offset extraordinary costs at a specific incident, not to fund routine emergency response operations
  • § 310.10 — What constitutes temporary emergency measures: allowable responses include site security, controlling the contamination source, containing the release, neutralizing the hazardous substance, and preventing imminent threats to human health and the environment; these are the boots-on-the-ground responses — booms, absorbents, evacuation barriers, decontamination of responders — not the long-term remediation that CERCLA's main cleanup programs address
  • § 310.11 — Allowable costs: disposable materials used in the response, rental of response equipment, rental of personal protective equipment (PPE), contractor services for hazmat disposal and decontamination at the specific incident; costs must be beyond what the local government normally provides — the program does not pay for routine firefighting, regular equipment replacement, or baseline hazmat capabilities
  • § 310.12 — Non-allowable costs: routine firefighting and emergency response activities the local government would normally perform; contingency planning and training; response drills and exercises; permanent equipment purchases; costs not directly related to the specific hazardous substance release
  • § 310.14 — Prior recovery attempt required: before applying for EPA reimbursement, the local government must attempt to recover costs from all known Potentially Responsible Parties (PRPs); the local government must give PRPs at least 60 days to pay or acknowledge the obligation before EPA will process a reimbursement request; EPA's payment does not waive the government's right to subsequently recover costs from PRPs
  • § 310.15 — Application deadline: applications must be submitted within one year of completing the emergency response on EPA Form 9310-1; late applications may be considered if a reasonable explanation for the delay is included; regional EPA offices review applications and make reimbursement determinations

  The Part 310 program is one of CERCLA's less-visible provisions — local hazmat teams and fire departments often exhaust their budgets on an unexpected hazardous materials incident (an overturned tanker, an illegal waste dump, an abandoned chemical plant igniting) without realizing federal reimbursement is available. The $25,000 ceiling is modest compared to the costs of major incidents, but for smaller municipalities without dedicated hazmat budgets it can make a meaningful difference. EPA Regional Offices (not headquarters) administer the program; contact information for the regional office covering your incident location is in Part 310's appendix. No significant rulemakings since 2004 — the program's framework has been stable.

• 40 CFR Part 304 — Arbitration Procedures for Small Superfund Cost Recovery Claims (16 sections — an alternative dispute resolution process for EPA's cost recovery claims under CERCLA § 107(a) where total response costs at a facility do not exceed $500,000):

  • § 304.10 — Purpose: establishes voluntary arbitration as an alternative to litigation for resolving EPA Superfund cost recovery claims; designed to reduce the costs and delays associated with federal court litigation for smaller cleanup sites where the disputed amount is modest relative to the legal costs of full litigation
  • § 304.11 — Scope: applies to EPA claims under CERCLA § 107(a) for response costs incurred at or in connection with a facility; the $500,000 ceiling (excluding interest) is based on total past and projected response costs for the entire facility — not just the amount disputed; this means the arbitration track is unavailable for even partial cost recovery at a larger site; most small industrial sites, abandoned gas stations, and minor illegal dump sites with costs below the threshold qualify
  • § 304.20 — Jurisdiction of Arbitrator: the arbitrator may arbitrate one or more issues when the total response costs do not exceed $500,000; the arbitrator may accept jurisdiction when all parties to the claim agree in writing to arbitrate; EPA cannot compel arbitration — all potentially responsible parties (PRPs) must voluntarily consent
  • § 304.21 — Referral of claims: EPA notifies all identified PRPs for the facility and provides an opportunity to discuss referral to arbitration; if EPA believes arbitration is appropriate, it offers the option; PRPs who prefer litigation may decline
  • § 304.22 — Selection of arbitrator: the parties jointly select an arbitrator from EPA's approved list, or EPA selects if they cannot agree within the specified timeframe; arbitrators are environmental law specialists with expertise in CERCLA liability
  • § 304.30 — Discovery: arbitration proceedings allow limited discovery — document production and depositions may be authorized by the arbitrator where the arbitrator determines they are necessary for a fair resolution; the discovery process is intentionally more streamlined than federal court discovery to preserve the cost savings of arbitration
  • § 304.40 — Arbitration award: the arbitrator issues a written decision with findings of fact and conclusions of law; the award is binding on all parties who consented to arbitration; the award has the same force and effect as a consent decree entered by a federal district court; parties retain the right to challenge the award on limited grounds (arbitrator exceeded authority, fraud, or misconduct) in federal court

  The Part 304 arbitration program represents Congress's recognition that the CERCLA liability framework — extraordinarily powerful at large sites — was an expensive and slow mechanism for recovering cleanup costs at small sites where the total exposure is modest. A PRP defending a $200,000 cost recovery claim in federal court faces legal costs that can easily exceed the disputed amount; the arbitration process is designed to resolve these smaller disputes faster and at lower transaction cost for both EPA and PRPs. No major rulemakings since the 1989 promulgation — the program has been stable, though it is relatively infrequently used in practice because most small site PRPs settle rather than arbitrate.

How It Works

Federal hazardous waste law operates through two complementary frameworks: RCRA prevents future contamination through "cradle to grave" waste management, while CERCLA/Superfund addresses contamination that has already occurred.

When hazardous substances are released into the environment, EPA can take two types of CERCLA action: removal actions (short-term responses to immediate threats — capping a leaking drum, providing alternate water supplies per the Safe Drinking Water Act, evacuating an area) and remedial actions (long-term, permanent cleanups that can take years or decades and cost tens of millions of dollars, with the most serious sites placed on the National Priorities List after scoring by the Hazard Ranking System). CERCLA's liability scheme is among the most powerful in American law: potentially responsible parties include current owners/operators, past owners/operators at the time of disposal, companies that arranged for disposal, and transporters who selected the disposal site. Liability is strict (no need to prove fault), joint and several (each party can be held responsible for the entire cost), and retroactive (applying to disposal before CERCLA's 1980 enactment). A current property owner can be liable for contamination caused decades earlier by someone else; limited defenses exist for innocent landowners, bona fide prospective purchasers, contiguous property owners, and the "third party" defense. A typical Superfund cleanup follows a prescribed sequence: preliminary assessment → site investigation → remedial investigation/feasibility study (RI/FS) → record of decision (ROD) → remedial design → remedial action → long-term monitoring. Community involvement is required at each stage, and cleanups must meet "applicable or relevant and appropriate requirements" (ARARs).

RCRA Subtitle C prevents future contamination through a cradle-to-grave tracking system: generators must determine if waste is hazardous, use proper containers and labels, prepare uniform hazardous waste manifests for every shipment, and report to EPA/states. Treatment, storage, and disposal facilities (TSDFs) need RCRA permits with detailed technical standards for tank systems, surface impoundments, waste piles, landfills, and incinerators. RCRA Subtitle D governs nonhazardous solid waste through state-implemented plans for municipal landfills. RCRA Subtitle I separately regulates the estimated 550,000+ active underground storage tanks (USTs) storing petroleum and hazardous substances at gas stations and other facilities — requiring leak detection, corrosion protection, spill and overfill prevention, and financial responsibility for cleanup. The Leaking Underground Storage Tank (LUST) Trust Fund, funded by a 0.1¢/gallon motor fuel tax, helps pay for cleanups when responsible parties cannot.

How It Affects You

State Variations

Pending Legislation

• HR 7595 — Superfund Area Facts and Exposure Act: directs GAO to count homes within one mile of each NPL site. Status: Introduced.

Recent Developments

• The Inflation Reduction Act (2022) reinstated Superfund excise taxes on chemical and petroleum manufacturers, providing dedicated funding for the first time since 1995
• EPA has been adding PFAS ("forever chemicals") contamination sites to the Superfund program after designating PFOA and PFOS as CERCLA hazardous substances (2024)
• Environmental justice considerations are increasingly integrated into Superfund cleanup prioritization and community engagement
• EPA reviews hazardous waste combustor emission standards (November 2025): EPA proposed revisions to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Hazardous Waste Combustors — covering hazardous waste incinerators, cement kilns burning hazardous waste, and lightweight aggregate kilns. The proposal withdrew prior amendments and conducted a fresh residual risk and technology review, reflecting the Trump administration's approach to revisiting Biden-era emission standard tightening. Hazardous waste combustors handle about 14% of all hazardous waste generated in the U.S.; emission standards directly affect communities located near these facilities.