U.S. Supreme Court Alters Superfund Liability

May 8, 2009 | Roger McEowen

It is probably safe to say that there isn’t any industry that is more dependent upon the environment than is agriculture.  Agriculture depends upon fertile soil as well as access to clean and abundant water and air.  At the state level, agriculture has taken steps to protect the environment from farming practices that could be damaging.  Millions of miles of terraces have been constructed, and over hundreds of thousands of farm ponds have been built.  In addition, millions of trees have been planted as wind breaks and to preserve soil.  Agriculture is also a heavily regulated industry, particularly when it comes to the environment.  At the state level, laws and regulations govern chemical application, pesticide and herbicide use, application and disposal, above and below ground storage tanks, livestock feedlots and confinement operations, manure disposal, solid waste disposal, and disposal of dead animals, among other regulated activities.  There also exists a federal level of regulation and statutory law that governs agricultural activity as it impacts the environment.  The most important federal environmental protection laws that have an impact on agriculture include the Federal Insecticide, Fungicide and Rodenticide Act, the Federal Water Pollution Prevention and Control Act (Clean Water Act), the Safe Drinking Water Act, the Resource Conservation and Recovery Act, the Endangered Species Act and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as the “Superfund” law). 

The Superfund law was enacted in late 1980 and set as a goal the initiation and establishment of a comprehensive response and financing mechanism to abate and control problems associated with abandoned and inactive hazardous waste disposal sites.  In many instances, Superfund’s application to agriculture is limited, but the potential application of the law to agricultural land and agricultural landowner’s requires individuals to understand the potential liability reach of the law.  That is particularly the case when agricultural land is purchased.  Superfund liability can be imposed on not only the party that created the hazardous waste problem, but also upon subsequent purchasers.  In addition, if liability is imposed, it is strict, joint and several.  At least it has been until recently.  The U.S. Supreme Court has now ruled (in what will likely become a landmark case) that Superfund liability is not joint and several where a reasonable basis exists for apportionment of liability.

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