AuthorAllison Rumsey/Michael Daneker
Page xi
It has been more than 30 years since the enactment of the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980, 42 U.S.C. §§9601–9675, as amended (Appendix 1), aectionately
known as CERCLA or “Superfund.” While the early years were notable for litigation over the breadth and
meaning of CERCLA’s often obtuse provisions, many of the key issues that dominated the rst 20 years
have been resolved either through statutory amendments or through the vast body of case law that has been
developed by courts grappling with issues raised by the statute. In the eyes of some practitioners, CERCLA
is now a mature area of law. In the last few years, however, some of the old legal issues that appeared to have
been resolved have been reopened, in pa rt due to new decisions from the Supreme Court. ese recently
reopened issues include the extent to which liability among responsible parties is joint and several, the facts
required to make an entity liable for arranging for the disposal of hazardous substances, and the dierences
between cost recovery and contribution actions.
At its core, CERCLA is a “polluter-pays” statute intended to place both the nancial and physical
responsibilities for cleaning up contaminated sites on those who caused the contamination. e statute
does this by rst identif ying general types of “potentially responsible pa rties” (PRPs) who, absent being
able to sustain one of a very limited number of defenses, are liable for cleanup costs, and then grafting this
liability framework onto common-law principles like contribution and allocation among tortfea sors and
successor liability.
In doing so, CERCLA has produced a continuing dialogue a nd debate—among regulators, elected
ocials, environmentalists, industry, a nd academic s—over whether the statute fairly allocates the costs
of pollution. Some argue t hat CERCLA fails to captu re and impose the full range of costs arising f rom
pollution on the polluters. Others argue that CERCLA’s liability scheme merely reassigns the costs of pol-
lution from the shareholders in yesterday’s polluters to the shareholders of today’s companies and, given the
numerous defunct companies that should be PRPs, in a share disproportionate to their actual contribution
to the problem.
In some cases, one might posit that the statutory scheme provides a reasonable match between legal
liability for cleanup costs and equitable apportionment of those costs. One might posit such a match in
which C ompany A constructed and operated a fac tory for 40 years on a previously clean piece of land
before closing and is now being required under CERCLA to clean up the pollution on that land from that
factory. But in other instances, CERCLA’s liability scheme arguably creates some tension with underlying
views of the equitable distribution of the costs of pollution. In “mega-sites” like rivers or bays with histories
of industrial pollution that reach back 100 years or more and involve hundreds of defunct entities that can-
not contribute to the cleanup, CERCLA’s liability scheme often places burdens on contemporary industry
and governmental entities that had little to do with past pollution.
ese tensions—bet ween CERCLA’s sometimes skeletal statutory liability provisions and the underly-
ing common-law principles, and between CERCLA’s liability scheme and a continuing societal debate
about equitable allocation of the costs of pollution—are likely to require CERCLA and corresponding case
law to continue to evolve in the years to come.
e passage of CERCLA in 1980 and the subsequent adoption of i mplementing regulations created a
uniform, step-by-step process for the invest igation, assessment, and remediation of contam inated sites. In
most cases, this process requires site investigation to understand site conditions, assessment of relative risks,
selection of remediation goals, a nalysis of cleanup alternatives, and then selection and implementation
of a particular cleanup approach. is approach has been applied at numerous contam inated sites under
CERCLA and has been adopted, often with minor procedural tweaks, by virtually every state in the nation
through analogous state laws.
One of the results of the development of CERCLA regulations governing the cleanup process has been
to spur explosive growth in the elds of environmental science, risk a ssessment, and remediation technol-
ogy. Parties engaged in remediation of contaminated sites have much more sophisticated scientic tools
available today than they d id in 1980.

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