The Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. section 9601 et sec. (known as “CERCLA” or the “Superfund” Act, as amended and supplemented by the Superfund Amendments and Reauthorization Act of 1986 (SARA), P.L. 99-499, provides for the filing of environmental protection liens for the cost of cleaning up hazardous materials on real property. Although the CERCLA lien arises at the time that cleanup is commenced, the lien is subordinate to all liens which have been perfected under state law prior to the recordation of a Notice of Lien in the appropriate public records. Many states have passed legislation which requires the lien be recorded in the same public records in which the state requires real property documents to be recorded. Much of this legislation is similar to the Uniform Federal Lien Registration Act, which applies to all federal liens including CERCLA liens. In the absence of such state legislation, however, the lien may be filed with the clerk of the U.S. District Court having jurisdiction where the land is located and the priority of the lien is established upon such filing. Agents and examiners must be familiar with the laws of the applicable state and, if necessary, search the records of the U.S. District Court to determine if a CERCLA lien has been filed. If uncertainty exists relating to the individual state’s law relating to recording requirements, contact your local state or regional counsel to determine the records required to be examined.
Many states have passed similar environmental legislation modeled after CERCLA. However, several states have laws that provide for a “super-lien” which establishes the priority of the environmental protection lien to be superior to all other liens and encumbrances. Contact your local state or regional counsel if you are unsure of the filing requirements for state environmental liens and whether or not super lien priority applies in your state.