The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) allows parties who are liable for environmental cleanup costs to seek contribution from other responsible parties. The statutory right of contribution, codified at 42 U.S.C. § 9213(f)(1), serves as the basis for allocating liability among responsible parties both in private cost recovery actions and in cost recovery actions commenced by governmental entities.

Editors' Summary: The enactment of CERCLA in 1980 sparked an explosion of contentious litigation between EPA and potentially responsible parties (PRPs) concerning the liability of PRPs under the Act. After over a decade of litigation in which EPA usually emerged victorious, the focus of CERCLA litigation has shifted to secondary suits between PRPs for cost recoupment, contribution, and insurance coverage, and, consequently, new issues have arisen. This Article examines the issues that dominate the emerging case law for secondary CERCLA suits.

Editors' Summary: The question of how to fairly apportion cleanup costs at Superfund sites is a highly debated topic in the law of hazardous substances. This Article highlights the deficiencies found in common allocation methods, and offers cost causation as a rational approach to apportioning cleanup costs. After providing a background on the CERCLA liability scheme, the authors address the various equitable factors used to apportion cleanup costs and discuss cost causation's relationship with those factors.

Editors' Summary: CERCLA §107 contains a third-party affirmative defense provision for owners of hazardous waste sites who exercised due care. Despite the abundance of CERCLA litigation, until recently no clear understanding of due care had yet emerged. But now, a series of New York federal court opinions suggest that due care turns on the owner's actions at the time the owner becomes aware of the contamination. This Article surveys the due care case law and focuses on the recent New York decisions.

Editors' Summary: This Article addresses CERCLA's language and structure as it pertains to the liability of interim landowners for passive migration of hazardous substances. The author argues that CERCLA's language, structure, and policies compel the conclusion that passive migration of hazardous substances during ownership does not trigger CERCLA liability. The author first addresses the language of CERCLA, and concludes that the CERCLA definition of "disposal" does not include the passive migration of hazardous substances.

Until the 1970s, federal and state laws did little to control the harmful water quality impacts of mining exploration, and mine wastes were regularly deposited wherever was convenient, including directly into streams. As a result, one enduring legacy of the boom and bust mining cycles in the United States from the mid-1800s to 1970 is widespread and unmitigated water pollution from inactive or abandoned mines.

The 1999 Superfund Recycling Equity Act (SREA) amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by creating an exemption from strict liability under CERCLA §107(a)(3) & (4) for persons "who arranged for recycling of [certain] recyclable materials." This exemption applies to sellers of recyclable material as well as to individuals who arrange for the recycling of qualified materials.

Are you going to hang him anyhow—and try him afterward?¹

In Blasland, Bouck & Lee, Inc. v. City of North Miami, the U.S. Court of Appeals for the Eleventh Circuit addressed two significant issues involving the interrelationship between Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery actions and contract law. These issues, and the way the court addressed them, highlight problems for drafters of both commercial contracts and partial settlement releases, which if not carefully done can frustrate the intentions of the parties and cause significant economic loss to at least one of them.

Editors' Summary: CERCLA §113(h), with some exceptions, prohibits legal challenges to response actions until the cleanup at a Superfund site is completed. While the section's sponsors hoped to prevent potentially responsible parties (PRPs) from using such challenges to delay their financial responsibilities, several federal courts have held that §113(h) also bars citizen suits brought to enforce the FWPCA, RCRA, and other environmental laws at Superfund sites.