The Superfund Manual: A Practitioner’s Guide to CERCLA Litigation
Peter L. Gray
ABA Section of Environment, Energy, and Resources, 2016
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund) filled a gap in the federal regulatory scheme by providing a means to clean up abandoned contaminated sites. At the time, “Congress knew it was creating a litigation behemoth,” author Peter Gray observes. “[T]here has been, and continues to be, an endless appetite to litigate the contours of CERCLA liability,” he notes.
CERCLA authorizes the U.S. Environmental Protection Agency (EPA) to use congressionally appropriated funds known as the Hazardous Substances Superfund (Superfund or the Fund) to clean up contaminated sites the EPA includes in the National Priorities List (NPL). According to Gray, “[a]n underlying principle of Superfund, however, is to shift the costs of remediation from taxpayers to the parties whose operations caused the contamination—the ‘polluters pay’ principle.” EPA may seek recovery of costs from such responsible parties, or it may order the responsible party to perform the remediation. Congress omitted the phrase “joint and several” from CERCLA, but the courts have interpreted liability to be strict, joint, and several among potentially responsible parties (PRPs).