Key CERCLA and CWA/OPA Enforcement Authorities
Both CERCLA and CWA/OPA promote identification of the responsible party (RP) for the incident and provide the Federal Government with the authority to either make that party clean up the spill, or to pay for the costs of cleanup.
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Process of Determining RP Liability
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Each law defines which costs the RP is liable for:

  • CERCLA – response costs, natural resource damage assessment and restoration
  • CWA/OPA – response costs, certain damages including natural resource damage assessment and restoration

Three defenses to liability:

  1.  Act of God
  2.  Act of War
  3.  Act or omission of third party (no relationship)
  • In some cases, the RP may voluntarily perform or pay for the cleanup, and in others, the Federal Government may have to order them to perform the cleanup or go to court to compel them to perform or pay for the cleanup.
  • Under both laws, the RP is liable for paying for response costs, as those costs are defined under each law. Under CWA/OPA, the RP is also liable for certain types of “damages,” such as property damage and loss of income. The Environmental Protection Agency (EPA) leads the cost recovery process for CERCLA responses and United States Coast Guard (USCG) leads the cost recovery process for CWA/OPA responses.
  • Under CERCLA and CWA/OPA, the Federal Government can recover triple their costs under certain circumstances when the Federal Government undertakes the cleanup.
  • In addition, both laws provide for civil and criminal penalties for non-compliance with requirements as specified in CERCLA and CWA/OPA.
  • Under both laws, the RP is liable for paying for damages to natural resources and can be required to implement natural resource restoration activities. This is managed through a separate process reviewed in more detail later.
  • Both laws provide three defenses to liability for payment: Act of God; Act of War; and Act or Omission of a Third Party, as long as there was no relationship (contractual, employee, agent) between the RP and the third party.
  • A few points to keep in mind: 
    1. For some incidents, it may not be possible, or easily possible, to identify the RP;
    2. In some cases, the RP may be unable to perform or pay for the cleanup – they may not have the technical expertise to conduct the cleanup, and/or may not be able to perform or pay for the cleanup; and
    3. In emergency situations, if the RP is not already adequately responding or if a viable RP cannot be quickly identified, the Federal Government will typically undertake a federal response and follow up with RP identification and cost recovery later.
Full description (alt text) of the key CERCLA and CWA/OPA enforcement authorities process flow.

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*Responsible Party (RP): The responsible party is responsible for cleaning up the spill, paying for the response, paying for certain damages as a result of the spill, and environmental restoration following the response.