Criminal Liability Under the Comprehensive Environmental Response, Compensation, and Liability Act

Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) a Superfund was created which provides funds for the cleanup of pre-existent hazardous waste sites. Although most of the litigation under CERCLA is civil in nature, criminal charges under CERCLA do exist. The potential criminal charges concern the reporting requirements for releases of hazardous substances.

Criminal Provisions

Under CERCLA it is a crime if a person in charge of a facility releases hazardous waste into the environment in a reportable quantity without a permit, fails to provide notification to the National Response Center as soon knowledge of the release exists or knowingly provides false or misleading information in a notification.

The Environmental Protection Agency (EPA) has developed a list of hazardous substances and their reportable quantities.

Penalties for Violating the CERCLA

Under CERCLA, a violation of the notification requirement is punishable by fine or by imprisonment for a term of up to three years or five years imprisonment for a subsequent offense.

Litigation Issues

One of the most difficult issues in dealing with litigation for violating CERCLA is to determine who is in charge of the facility in question. Courts have applied varying definitions of what constitutes being in charge of the facility. Some courts have a definition that includes lower level supervisory employees.

Another difficult litigation issue deals with the knowledge requirement under CERCLA. Some courts have held that the knowledge requirement only means that the defendant is aware of his or her acts and that the prosecution is not required to show that the defendant had actual knowledge of the requirements under CERCLA.