Introduction

• Author: Allison Rumsey/Michael Daneker
• Pages: 11-12

Page xi

Introduction

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 part 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 identifying general types of “potentially responsible parties” (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 tortfeasors and

successor liability.

In doing so, CERCLA has produced a continuing dialogue a nd debate—among regulators, elected

ocials, environmentalists, industry, and academics—over whether the statute fairly allocates the costs

of pollution. Some argue that CERCLA fails to capture and impose the full range of costs arising from

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 Company A constructed and operated a factory 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—between 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 implementing regulations created a

uniform, step-by-step process for the investigation, assessment, and remediation of contaminated sites. In

most cases, this process requires site investigation to understand site conditions, assessment of relative risks,

selection of remediation goals, analysis of cleanup alternatives, and then selection and implementation

of a particular cleanup approach. is approach has been applied at numerous contaminated 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 did in 1980.