After the Funding Ends: Legal Remedies for Contaminated Landowners Near Superfund Sites
When news circulates regarding a Superfund cleanup project winding up or winding down, many residents and property owners sigh of relief. Finally—there’s money and purpose to remediate the mess!
The federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and its Washington State analog, the Model Toxics Control Act (MTCA), provide for resources to remediate toxic sites. Indeed, the “fund” of Superfund is the operative bit. Under these laws, regulators oversee the funding of remediation projects to restore or improve contaminated sites as soon as possible; tricky questions about who must pay how much are often sorted out later.
Once a cleanup is officially “complete,” adjacent communities often assume the problem has been solved. But what happens when the funding runs out, yet contaminants remain or new problems emerge?
For landowners and commercial tenants nearby—downgrade, downstream, downwind, or downright unlucky—the end of a Superfund site’s active funding phase does not necessarily end the process that transfers money from polluter to sufferer, nor does it shutter the courts’ jurisdiction over harmful contamination.
Damage done to your property might persist, but fortunately, so might your ability to recover.
Understanding Superfund Completion
When the U.S. Environmental Protection Agency (EPA) declares a site cleanup “complete,” it means the immediate remediation goals have been met. In some cases, the site may be removed from the National Priorities List (NPL). However, this designation does not always mean that the site is fully free of contaminants. Residual pollution may remain, often capped or contained, and sites may require long-term monitoring. For property owners, this distinction matters. A completed cleanup may limit federal involvement, but it does not necessarily resolve health risks, property devaluation, or legal liabilities.
Legal Remedies After Cleanup Ends
Even after Superfund funding has been exhausted, property owners and tenants still have legal options:
– State cleanup laws (MTCA, RCW 70A.305): Washington’s Model Toxics Control Act empowers property owners to seek additional remediation and cost recovery.
– Common law claims: Nuisance, trespass, negligence, and strict liability may still be available when contamination affects use and enjoyment of property.
– Contractual remedies: Commercial tenants may invoke lease provisions if landlords failed to disclose contamination or address known hazards.
– Cost recovery from responsible parties: CERCLA and MTCA both allow private parties to pursue polluters directly for damages, even after federal involvement ends.
– Tort claims for health impacts: Individuals may bring claims if exposure leads to illness, independent of cleanup status.
Example: Lower Duwamish
The Lower Duwamish Waterway cleanup in Seattle illustrates how long-term contamination persists even after EPA and interested parties achieve formal milestones in the cleanup process. Although various cleanup efforts may be underway, and hundreds of millions of dollars have been and will continue to be funneled through the Superfund, members of local residential and business communities may be concerned about residual contamination in sediments and how to afford cleaning up their land near the river, too. As it has been reported in the Seattle Times and elsewhere, landowners and businesses along the industrial waterway continue to press for additional funding for remediation.
Example: Asarco Smelter Plume
The defunct Asarco smelter in Tacoma spewed arsenic and lead for decades, and traces of the smelter operations’ contaminants can be found throughout a . Superfund dollars helped fund cleanup of priority sites, but widespread contamination in soils persists today. Homeowners outside the initial cleanup boundaries have relied on Washington’s MTCA and nuisance law to push for testing, remediation, and compensation.
Producing Evidence of Residual Contamination
Residual risks remain long after federal cleanup projects end. Studies highlight that containment strategies—such as capping contaminated sediments—require perpetual maintenance, and many projects cover too small a footprint to adequately protect everyone in the affected communities. When caps fail, pollutants re-enter ecosystems and pose risks for land users.
Practical Advice for Landowners and Tenants
If you own or lease property near a completed Superfund site, and if you suspect the land, water, or air is contaminated, there are several things you can do to ensure your property rights may be vindicated:
1. Request records: Obtain EPA and Washington State Department of Ecology reports to understand contamination sources and related risks on your property. There may be relevant information not expressly noted in a Phase I Environmental Site Assessment.
2. Test soil and water: Independent testing may reveal contaminants not fully addressed in the Superfund site’s study.
3. Check for environmental disclosures in your deed or lease: Landowners and tenants should review these documents for provisions relevant to environmental conditions and disclosures.
4. Engage the community: Local advocacy can spur state or federal agencies to revisit incomplete cleanups.
5. Consult legal counsel: Contact Evergreen Environmental Lax to speak with a team member who can help explore claims under state, federal, or common law.
Available Remedies and Compensation
Legal claims may yield different forms of relief, including:
– Treble Damages for property damages resulting from trespass
– Reimbursement of cleanup costs
– Injunctive relief requiring additional remediation
– Lease termination or rent abatements for tenants
– Medical monitoring funds for exposed populations
Finality Requires Accountability
The federal government’s declaration that a Superfund cleanup is complete provides a sense of closure, but property owners should not equate closure with safety. Long-term contamination management requires vigilance, legal knowledge, and collective action. Polluters and responsible parties remain liable even when federal funds are no longer flowing for the initial clean-up efforts.
Conclusion
The end of Superfund funding is not the end of the story for landowners and tenants. Residual contamination, property damage, and health risks may persist for decades. Fortunately, Washington’s MTCA, CERCLA provisions, and common law remedies remain available. For property owners, understanding these tools is essential to protecting your health and the value of your land.
At Evergreen Environmental Law, we help property owners and tenants navigate the challenges of living near former Superfund sites. If your property has been impacted by residual contamination after cleanup funds were exhausted, contact us today for a free consultation. Together, we can ensure that accountability does not end when the federal funding does.
