Editors' Summary: Defining the scope of parent corporation liability under CERCLA has been a source of disagreement between appellate courts for years. This Article examines this disagreement and how it led to the U.S. Supreme Court decision in United States v. Bestfoods. First, the Article examines the two contradictory lines of cases that spawned the disagreement. Courts using the remedial purpose doctrine have held parent corporations directly liable under CERCLA based on general involvement with the business and not due to specific involvement in the polluting activities.

One of the more daunting tasks facing environmental practitioners over the past decade or two has been the recovery of cleanup costs and related relief at sites contaminated with petroleum substances. Parties seeking relief face significant hurdles under the federal environmental statutes. The key federal environmental cost-recovery statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) often provides little help because of its petroleum exclusion.

Buried deep within the several thousand page Omnibus Consolidated Appropriations Act signed by President Clinton in the waning days of the 104th Congress are the first significant amendments in a decade to the much-debated Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). CERCLA is the federal law that creates a broad class of parties potentially liable for expenses incurred in cleaning up sites contaminated with hazardous substances.

Congress will be returning to Washington about the time this Dialogue is published. The Superfund reauthorization bill that did not pass in the last Congress is the natural starting point for the renewed discussion in this Congress of Superfund's reauthorization. This Dialogue is about that upcoming reauthorization and has two purposes.

Editors' Summary: During congressional debate on CERCLA reauthorization, attention has focused on the role of states in executing the Act. Some observers of these debates have questioned the constitutionality of delegating EPA cleanup and enforcement authorities to states. In contrast, this Article argues that such delegation is permissible under the U.S. Constitution and constitutional jurisprudence. The author asserts that under the Appointments Clause, the delegation of CERCLA authorities to states would not usurp Executive Branch functions.

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: 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.

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