A Defense Counsel's Perspective on Superfund

Alfred R. Light

Editors' Summary: In April 1985, ELR published an article by Thomas Ulen, Mark Hester, and Gary Johnson arguing that the Minnesota state version of Superfund and similar laws embodied responsible, cost-effective approaches to hazardous waste problems and that liabilities under such laws should be insurable. This dialogue, though not written in response, presents a contrasting view: that the federal Superfund Act as implemented is inequitable and inefficient and that its expansive, unexpected liabilities coupled with enormous litigation costs are forcing insurers from the market. The author argues that the government's litigation-oriented implementation strategy tends to delay remedial action, that litigation is burning up funds better devoted to cleanup or prevention, and that the liability scheme is inherently unfair.

Alfred R. Light practices with the Richmond, Virginia office of Hunton & Williams. This dialogue is adapted from a speech presented at the Annual Meeting of the American Bar Association, Program on "Hazardous Wastes and Toxic Torts: Developments in Legislation and Insurance," July 9, 1985, Washington,D.C. The author thanks Mark G. Weisshaur for his help in preparation of this dialogue.

[15 ELR 10203]

The litigation system in the United States has become so arbitrary and unpredictable that both English and American insurers have begun to constrict drastically the liabilities and the circumstances they are willing to insure in this county. This withdrawal began with the disappearance of coverage for gradual releases of pollution in environmental impairment liability policies, has recently extended to the exclusion of all pollution coverage for both gradual and sudden releases, and now threatens to expand into other important areas such as coverage for certain professionals.¹

The continuing erosion in traditional limitations on tort recoveries in personal injury cases has played a substantial role in accelerating this withdrawal, particularly in light of the Bhopal tragedy. However, the "new" factor which precipitated the insurers' withdrawal from the pollution insurance market over the past year appears to have been the sobering realization that an unanticipated, and potentially enormous, new liability threatened — the liability to pay insured's cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act² (CERCLA or Superfund) and similar state environmental statutes.³ Insurers woke up to the realization that policies written prior to Superfund's enactment were being looked to by the insured and the government to pay for the cleanup of the nation's abandoned hazardous waste sites.⁴

The expansiveness of the government's interpretation of liability and recoverable costs and damages under this statute and the incredible costs associated with lawsuits in which these claims are asserted, coupled with the erosion of coverage limitations and policy defenses, has precipitated the present insurance availability crisis regarding environmental matters.

The Superfund Litigation Process

As a direct result of deliberate congressional equivocation on key liability issues in the "lane duck" 1980 Congress which passed Superfund, the country now has four years of painful experience under the statute. The CERCLA cleanup liability scheme has proven to be a failure. It has interfered with, and substantially delayed, both Fund-financed and privately-funded cleanup. During this period, EPA has tried three different approaches to force-fit the litigation scheme to the basic cleanup program. None has proven to be successful and each has led to further delays in tangible cleanup activity.

Under its most recent administrative system, EPA classifies federal activities at sites on its National Priorities List (NPL) of sites needing cleanup into Category I (Fund-financed cleanup with cost recovery), Category II (civil enforcement only), and Category III (administrative order followed by Fund-financed response, where needed). Due in part to EPA's perception that the Fund has not been large enough to pay for the significant number of needed cleanups, there has been a strong preference to place NPL sites into the two "litigation-first" classifications,⁵ with 325 sites classified in Categories II and III in late 1984 compared to only 76 sites in Category I.

The civil enforcement alternative, in 1984 accounting for 175 sites, is the slowest means of delivering cleanup to hazardous waste sites. This is tacitly admitted by EPA's statement in its § 301(a) Study prepared for Congress in December of last year that civil enforcement will not be used when there is a prompt need for cleanup action.⁶ It is not surprising that civil enforcement delays physical progress. Prior to the commencement of litigation under this alternative, EPAmust engage in extensive and time-consuming activities, including the identification and documentation of potentially responsible parties, preparation of a case [15 ELR 10204] development plan, completion of an endangerment assessment, preparation of a draft consent decree, negotiation with EPA-selected parties, and filing of numerous reports. Often, this extensive administrative preparation will culminate in litigation. In fact, to date, the most notable result of the CERCLA program has been the proliferation of complicated, multi-party litigation.

In enforcement actions, actual cleanup must await a judicial decision on the troublesome legal issue of liability and on the technically complex issue of the appropriate remedy. Expert witnesses must be examined, third parties may be joined, and appropriate discovery and trial procedures must be determined and followed. It can often take years before such litigation is concluded and cleanup can commence.⁷ All the while, no tangible cleanup activity occurs at sites which EPA claims are "imminently and substantially dangerous." In fact, to date only two U.S. Superfund cases have trial court judgments and these in simple cases,⁸ and in the first of the numerous complex Superfund cases, a year long trial on liability issues only recently concluded with resolution of the case apparently years away.⁹

The Category III or administrative order alternative, accounting for another 150 sites in 1984, also slows down cleanup. Before EPA will consider any use of Fund monies for cleanup under this alternative, EPA must first follow the time-consuming procedure of issuing administrative orders to selected responsible parties and awaiting their response. Since administrative orders are based on the same legal standards as civil enforcement litigation, EPA must engage in a similar level of administrative preparation and documentation before such orders are even issued and may then face additional delays due to substantial litigation over the allocation of duties among multiple defendants.¹⁰ Consequently, the pursuit of this litigation-enforced alternative diverts substantial administrative resources and inevitably defers the day on which the Fund can begin cleanup. This is underscored by those cases, mentioned in the § 301(a)(1)(A) study, where EPA has issued administrative orders with no expectation of private party response and has sacrificed a more expeditious cleanup to the elusive goal of developing judicial precedent.¹¹

Finally, under the administrative system developed by EPA, the liability scheme has acted as a drag even upon the 79 Fund-financed cleanups falling into Category I in 1984. In order to preserve the possibility of filing a subsequent cost recovery action, EPA has issued elaborate guidance with which the EPA regions must comply before initiating Fund-financed cleanups. This guidance requires regional officials to prepare detailed field notebooks linking various parties to the site; obtain deeds, affidavits, and business records from neighbors and former employees who identify potentially liable parties and their contribution; prepare memoranda attempting to demonstrate consistency with the National Contingency Plan; produce cost documentation according to uniform accounting procedures; and prepare for and document negotiations with some or all of the potentially responsible parties. A simple listing of the necessary documents fills 46 pages in an appendix to EPA's Cost Recovery Guidance.In addition, EPA must engage in delicate negotiations to ensure that its cost recovery action does not interfere with an independent action filed by a state. When this guidance is combined with the procedures and paperwork required by the Settlement Policy, the pace of even a Fund-financed cleanup is substantially encumbered by the prospect of litigation.

The Costs of Superfund Litigation

The cleanup liability scheme also exacts social and governmental costs unique to litigation which would not be imposed under a pure administrative system. Consciousness of the enormity of these costs is only beginning to emerge. There are basically two phases of litigation caused by CERCLA: an action by the government against responsible parties, and the actions by responsible parties against one another and against their insurers. For the most part, the CERCLA litigation process has been so complex and cumbersome that experience has been gained primarily with regard to the first phase of litigation. Nevertheless, it is manifest that this first phase has proven to be enormously costly for private parties.

A generator in the Conservation Chemical case¹² has filed papers elaborating on the costs to private parties. According to these papers, the cost of the cleanup sought by the government at this particular site is expected to be $6 million, whereas the attorneys fees borne by the private party defendants for only the pre-trial portion of the case is estimated to range from $5 million to $11 million. Naturally, the trial of the case and the appeal of important legal issues had the case not settled would have further increased the attorneys fees and other transaction costs imposed on private parties. This case, which is not particularly complex or unusual by CERCLA standards, unmistakably underscores that the cleanup liability scheme has become an enormous burden to all types of defendants, from municipalities¹³ and small business to major domestic [15 ELR 10205] companies, and that the only beneficiaries of the system are this nation's lawyers.

The first phase of CERCLA cleanup litigation is also imposing substantial costs on the government. Numerous engineers, scientists, accountants and attorneys in EPA regional offices are involved in the development of enforcement and cost recovery cases. The Lands Division of the Justice Department is devoting a large share of its budget to the preparation and trial of these cases rather than the enforcement of Resource Conservation and Recovery Act¹⁴ (RCRA) standards or those under other environmental statutes. In the RCRA/CERCLA Case Management Handbook, the Interim CERCLA Settlement Policy, and many other guidance documents, the federal government has established elaborate procedures and enormous paperwork requirements for developing cost recovery and enforcement cases.¹⁵ This vast array of procedures and requirements not only delays the pace of cleanup, as explained earlier, but also imposes great and unnecessary expense upon the government.¹⁶ Each dollar spent on these substantial transaction costs is a dollar which is not available to achieve the primary mission of CERCLA: expeditious cleanup of waste sites. Moreover, each dollar spent provides only marginal social benefit in the form of employment and enhanced compensation to lawyers and expert witnesses inside and outside the government. The government seeks recovery of all its enforcement costs from "responsible parties" as "response costs" under CERCLA.¹⁷

The enormous demands of CERCLA-inspired litigation have also depleted the government resources which could otherwise be used for vigorous enforcement of RCRA regulatory provisions and other environmental requirements. As is commonly recognized, there has been no widespread and thorough investigation of RCRA interim status and permitted facilities and no concerted enforcement against violators of RCRA design, monitoring, and administrative requirements. Yet, adherence to RCRA standards, which is assured by vigorous monitoring and enforcement, is the primary bulwark against the creation of new CERCLA sites. Thus, the concentration of the government's technical and legal resources on establishing retroactive CERCLA liability for past conduct has neglected the truly pressing need of enforcing RCRA standards against present, active violators. This will inevitably lead to an endless cycle of new CERCLA sites and an indefinite perpetuation of the CERCLA program.

The litigation scheme also consumes substantial technical resources which could be put to more beneficial use, such as research and development on innovative technologies for permanent disposition of hazardous wastes. For example, agency engineers and scientists are presently needed to prepare or oversee the development of litigation documents, like endangerment assessments, and are called upon as witnesses to present testimony in court. With a substantial curtailment of litigation, these agency resources could be rechanneled into the important task of pursuing the new technologies needed for permanent waste disposal. Thus, reform of the first phase of the cleanup liability system would provide a sound basis for the technological reforms proposed by the Office of Technology Assessment.¹⁸

Based on early indications, the second phase of CERCLA litigation over cleanup will be at least as costly to society as the first. If cleanup liability is imposed on the defendants selected by the Justice Department, these defendants will attempt to sue each other or non-joined responsible parties for a fair apportionment of the liability. This can only result in massive, multi-party lawsuits arising under principles of contribution and indemnification which must be developed in an incremental, common law fashion in the federal district courts and state courts throughout this nation. In addition, many defendants will also sue their insurers, requesting that insurance companies defend the CERCLA cleanup case and claiming indemnification for their losses under this retroactive liability scheme.

The tremendous increase in transaction costs associated with increased insurance company involvement in CERCLA will not end at the negotiation and trial court stage. Because of the enormous stakes associated with resolution of the legal issues posed, litigation will continue into the appellate courts and will be spread through every jurisdiction in the country. It will take an enormous expenditure or legal fees to resolve these conflicts. Thus, the second phase of CERCLA can be expected to saddle the nation with transaction costs far more extraordinary than the first phase.

Earlier this year, Putnam, Hayes, and Bartlett, Inc. (PHB) prepared estimates of the costs of Superfund litigation for the American Insurance Association. PHB estimated that "transaction costs" would prove to be 55 percent of cleanup costs if present trends continue and would probably end up exceeding 34 percent even if litigation became more "efficient" over time.

Developments in Superfund Litigation

There is no end in sight to either phase of this burdensome CERCLA litigation.The first phase will increase dramatically in the coming years if the statute is not amended because the cleanup liability scheme is ambiguous, and the government's attempted imposition of absolute, joint and several liability is widely recognized to be fundamentally unfair. It will be years before the judicial system consistently answers basic questions concerning joint and several liability, punitive damages, and private rights of action [15 ELR 10206] under the statute. Moreover, these legal questions, many of which were not specifically addressed in the original act, will surely be litigated vigorously because defendants perceive the retroactive imposition of massive liability for previously lawful conduct as inherently inequitable.¹⁹

The second phase of CERCLA litigation is also destined to increase dramatically because very few defendants can afford to ultimately bear the large and completely unexpected liabilities imposed by CERCLA. Various defendants, such as municipalities, small businesses, and plant managers, must look to other parties to share or assume adjudicated liability. In many cases, failure in such efforts will leave them no alternative but bankruptcy — a draconian measure which the Supreme Court recently held still to be available. The need to shift liability drives virtually all concerned to continue to litigate, whatever the odds. Moreover,this litigation imperative is especially great for those defendants with insurance policies who, despite the plain language of the pollution exclusion, have little choice but to claim that policy coverage extends to cleanup liability. Each such defendant will look to his insurer, in the hope of shifting at least a portion of his liability. Thus, the difficult and hard-fought CERCLA litigation of today may only be a pale shadow of the innumerable, complex, and bitter CERCLA-related lawsuits of tomorrow.

Besides imposing enormous transaction costs on society, the CERCLA liability system for cleanup has evolved into an unfair set of rules which undermine the notions of equity and fair play at the heart of American jurisprudence. Several examples of the government's litigation position on key CERCLA issues illustrate this fundamental unfairness.

The foundation of the government's litigation strategy is the imposition of joint and several liability for the entire cleanup cost on any party enumerated in section 107,²⁰ even if that party is a de minimis contributor to the site and the liability is out of all proportion to the party's status or conduct. The government formally insists on this in terrorem liability, even though it remains unclear whether a contribution action is available to apportion the liability among non-joined parties.²¹ Moreover, the government has not used the substantial resources provided by Congress to effect a fair apportionment of the cleanup obligations by having the Fund pay for the share of insolvent parties, the share of states which may be protected by sovereign immunity, or the share at sites which have been subject to federal control. Courts have rightly worried that the harshness of this rule, if unmitigated, contravenes the congressional intent to establish a fair liability system.²²

Joint and several liability applied to a few select parties, however, is only one of several elements which erode the principles of our legal system. The government, for example, will bring a lawsuit against a company if it contributed any compound or mixture which has a single "hazardous substance" as one of its constituents even if the company's contribution cannot be shown to present any actual hazard.²³ Under the government's theory, a "hazardous substance" need only be present in trace amounts, even if those fall far below the reportable quantity established under § 103 and any cognizable threshold of harm.²⁴ Thus, under the government's theory, a manufacturer of vitamins could be liable for all of the cleanup costs under CERCLA because vitamins contain trace elements of copper or zinc.

The government's undermining of traditional notions of fairness goes much further. It has been standard practice for the agency to issue an administrative order, backed by potentially ruinous treble damages, but to urge that judicial review be denied over the validity of the order.²⁵ In numerous cases, the government has argued that the historic "cause in fact" requirement must be abrogated, so that a generator may be liable for all cleanup costs even if none of the substances for which he was responsible have been released or are threatened to be released from the site.²⁶ The government's search for defendants, however, does not end with the corporation generating a substance or owning a site but extends to every person ever having any arguable control over the substance.²⁷ Finally, in all these cases, the government does not shrink from seeking [15 ELR 10207] to impose this enormous liability in a completely retroactive fashion upon a person whose conduct was completely reasonable, legal, and non-actionable at the time.²⁸ It even has argued successfully that no statute of limitations whatsoever applies to CERCLA cases.²⁹

There seems but a single justification behind this erosion of fundamental fairness: the government wants to have the widest array of potential defendants, each liable for all cleanup costs, ensuring that parties can be tapped to pay for the entire cleanup whenever the government decides — on whatever basis it decides — to pick them. In essence, this amounts to a headlong rush after the deep pocket, without particular regard for degree of involvement or for any earlier payment of CERCLA taxes. This strategy does not lead to a result where the "polluter pays"; instead, depending on the vagaries of insolvencies and prosecutorial discretion, this strategy can lead to the purely arbitrary result that the deepest pocket pays, along with its customers, employees, and shareholders. The end seldom justifies such means, and, in the case of CERCLA where a Fund has already been established to bear social costs, the need for cleanup is not served by so straining the notions of fundamental fairness. Obviously, incentives for good behavior are dissipated by a system which punishes on the basis of financial resources rather than improper conduct.

In short, the CERCLA system has led to a result which would hold a manufacturer or its plant manager³⁰ completely liable for all costs of an improperly managed industrial landfill even though the manufacturer or manager used due care and followed all existing regulations and even though none of the trace elements contained in the manufacturer's byproducts has been released from the landfill. Where a present polluter does not have a strong balance sheet, he has little incentive to cease polluting because the Government will sue the financially stronger company. Inevitably, the perpetuation of such a fundamentally unfair liability regime will divert an increasing amount of public and private resources away from the Act's basic mission. In the long run, the enromity of the threatened retroactive change in the rules of doing business in this country will also pose a substantial obstacle to the continued investment in the vital industries of this country.

1. A recently published study concluded, "The current property/casualty underwriting cycle is dramatically different from any cycle the industry has experienced in the past." INSURANCE SERVICES OFFICE, INC. & NATIONAL ASSOCIATION OF INDEPENDENT INSURERS, 1985: A CRITICAL YEAR: A STUDY OF THE PROPERTY/CASUALTY INSURANCE INDUSTRY at 4 (May 1985).

2. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941.

3. See ELR STATE SUPERFUND STATUTES 1984; see generally Comment, State Hazardous Waste Superfunds and CERCLA: Conflict or Complement?, 13 ELR 10348 (1983).

4. The government recently filed its first direct action against insurers. See United States v. Continental Insurance Co., No. 85-3069-CV-S-4 (W.D. Mo., June 26, 1985) (judgment against U.S.).

5. EPA OFFICE OF EMERGENCY AND REMEDIAL RESPONSE, THE EFFECTIVENESS OF THE SUPERFUND PROGRAM: CERCLA SECTION 301(a)(1)(A) STUDY at 4-2 (1984) [hereinafter cited as SECTION 301(a)(1)(A) STUDY].

6. Id. at 4-14.

7. In a related context, EPA assumes that cost recovery litigation will result in a three-year time lag. EPA OFFICE OF SOLID WASTE & EMERGENCY RESPONSE, EXTENT OF THE HAZARDOUS RELEASE PROBLEM AND FUTURE FUNDING NEEDS: CERCLA SECTION 301(a)(1)(C) STUDY at 4-7 (1984) [hereinafter cited as SECTION 301(a)(1)(C) STUDY]. In the words of the judge overseeing negotiations over a remedy at the Hyde Park Landfill, "the court's decision is based upon its view that this and other like cases will be before it for many years." United States v. Hooker Chemicals & Plastics Corp., No. CIV 79-985C (W.D.N.Y. Nov. 28, 1984) (denial of order prohibiting disclosure of settlement proposals).

8. United States v. Hardage, No. CIV-80-1031-W (W.D. Okla. Aug. 19, 1983); United States v. Northeastern Pharmaceutical & Chemical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984).

9. United States v. Ottati & Goss, No. C80-225-L (D.N.H.).

10. Earthline Co. v. Kin-Buc Inc., 15 ELR 20313 (D.N.J. Apr. 13, 1984).

11. SECTION 301(a)(1)(A) STUDY, supra note 5, at 4-20.

12. United States v. Conservation Chemical Co., No 80-0883-CV-W-5 (W.D. Mo.). Selected papers in the case are summarized at ELR PEND. LIT. 65785, 65791, 65830. Major rulings of the trial court appear at 523 F. Supp. 125, 12 ELR 20238 (Aug. 19, 1981); 589 F. Supp. 59, 14 ELR 20207 (Feb. 3, 1984); 14 ELR 20809 (July 20, 1984). A tentative $12 million settlement was reportedly reached on May 24 in this case between the government and major defendants. Legal Times, June 3, 1985, at 5.Based on recent experience with United States v. Chem-Dyne Corp., No. C-1-82-840 (S.D. Ohio, proposed settlement filed June 13, 1985) (see 50 Fed. Reg. 25797 (June 21, 1985)) EPA is likely to try to exploit resolution of this case in its attempts to politically parry the thrust of the insurance industry's arguments that litigation does not lead to expeditious cleanup. Conservation Chemical, however, proves just the converse.

13. Of the approximately 786 sites contained on the National Priorities List and proposed in the second update, municipal landfills account for 163 sites or 20 percent of the total. SECTION 301(a)(1)(C) STUDY, supra note 7, at 5-6.

14. 42 U.S.C. §§ 6901-6991i, ELR STAT. 42001.

15. The fact that many of these guidance documents are contrary to the regulations promulgated under CERCLA, and that the guidances have never gone through the notice and comment procedures required by the Administrative Procedure Act, make the entire Superfund program subject to numerous other judicial challenges. Frederick R. Anderson actually warned the agency about these problems in a 1984 report for the Administrative Conference of the United States, but EPA has not heeded these warnings.

16. In the SECTION 301(a)(1)(C) STUDY, supra note 7, EPA has made some estimates about the transaction costs and administrative expenses that will be incurred over the next 10 years. EPA has not separately identified all of the transaction costs in this total, but if private party costs are any indication, they are likely to be large. Despite frequent requests by key representatives and senators, including Symms, Simpson, and Domenici, EPA and Justice have essentially avoided providing any statistics on theircosts of litigation. EPA also expresses total ignorance or lack of interest in the costs of litigation borne by private parties.

17. See United States v. Northeastern Pharmaceutical & Chemical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984).

18. OFFICE OF TECHNOLOGY ASSESSMENT, SUPERFUND STRATEGY (1985).

19. The government claimed in 1984 to have received $310 million in settlements over the four-year life of Superfund, implying that a similar or higher rate of settlement will be achieved in the future.SECTION 301(a)(1)(A) STUDY, supra note 5, at 4-12. It is not possible to draw any conclusions about cleanup based on these settlements. In the first place, the study does not distinguish between CERCLA and RCRA cases, so a significant number of settlements are actually attributable to RCRA § 7003 cases originally brought before CERCLA was even enacted. Moreover, quick settlements obviously take place in cases quite favorable to the government. Since most of these straightforward cases have already been settled, this leaves for the future mainly those cases which will result in full-scale litigation. Finally, the signing of settlements does not necessarily translate into cleanup. In the Hyde Park Landfill, which alone accounts for 15 percent of the 1980-84 total, the parties were in 1984 still negotating about the type of remedy to be performed at the site. United States V. Hooker Chemicals & Plastics Corp., No. CIV 79-985C (W.D.N.Y. Nov. 28, 1984). It is interesting to note, moreover, that breakthrough in the Chem-Dyne settlements came about only after EPA began to perceive political pressure about the unfairness of its "joint and several" advocacy. Complete releases and apportioned liability became possible in that settlement concurrently with the insurance industry's attacks on the slowness and unfairness of the Superfund liability system in delivering cleanup.

20. E.g., United States v. Chem-Dyne Corp., 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1983). Assistant Attorney General Henry Habicht has testified before Congress several times this year that he does not believe courts would impose joint and several liability on small contributors. Nevertheless, I have found no Superfund complaint which fails to allege joint and several liability. In addition, the government argues that joint and several liability never applies under CERCLA where the United States is a defendant, not plaintiff. See Mola Development Corp. v. United States, No. CV 82-0819-RMT (JRx), Opposition to Five Motions Filed by Plaintiff on December 4, 1984 (C.D. Cal.), reprinted in HAZARDOUS WASTE LIT. REP. 6782 (Jan. 7, 1985).

21. In Congress, however, the Justice Department argues that defendants can rely on "prosecutorial discretion" to protect them from the unfairness in the legal regime it advances.

22. United States v. A & F Materials Co., 578 F. Supp. 1249, 14 ELR 20105 (S.D. Ill. 1984).

23. United States v. Carolawn Co., 14 ELR 20696 (D.S.C. June 15, 1984).

24. United States v. Wade, 577 F. Supp. 1326, 14 ELR 20096 (E.D. Pa. 1983).

25. Aminoil, Inc. v. United States Environmental Protection Agency, 599 F. Supp. 69, 14 ELR 20801 (C.D. Cal. 1984).

26. United States v. South Carolina Recycling & Disposal, Inc., 14 ELR 20272 (D.S.C. Feb. 23, 1984). See also United States v. Cauffman, 15 ELR 20161 (C.D. Cal. Oct. 23, 1984) (government argues for abrogation of proximate cause).

27. United States v. Mottolo, 14 ELR 20497 (D.N.H. Mar. 27, 1984). Probably the most expansive opinion thus far is Missouri v. Independent Petrochemical Corp., 15 ELR 20161 (E.D. Mo. Jan. 8, 1985), which requires generators to clean up sites even though they were not involved in the arrangements leading to disposal at the site needing cleanup. The district judge in this case recently certified his opinion for appeal, but the Eighth Circuit declined to hear it.

28. United States v. Northeastern Pharmaceutical & Chemical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984).

29. United States v. Mottolo, 605 F. Supp. 898, 15 ELR 20444 (D.N.H. 1985).

30. United States v. Mottolo, 14 ELR 20497 (D.N.H. Mar. 27, 1984); United States. v. Northeastern Pharmaceutical & Chemical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984).