September 01, 2016

Superfund—still going strong after 35 years

Peter L. Gray

“Why write a book about a dead statute like Superfund?” a friend recently asked me. To paraphrase the immortal words of Mark Twain, the reports of Superfund’s death have been greatly exaggerated. Thirty-five years have passed since the enactment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as Superfund). Although the pace of litigation over the law’s innumerable ambiguities has slowed somewhat, Superfund litigation remains an important element of many, if not most, environmental law practices. Every year, EPA adds new sites to the National Priorities List (NPL, a list of the nation’s most hazardous sites) and queues them up for federal response activity under CERCLA. In addition, EPA frequently identifies new threats (such as “vapor intrusion”) at previously remediated NPL sites, leading to a new round of cleanup—and the potential for conflict among potentially responsible parties (PRPs). Finally, some of the most complex and expensive NPL sites have yet to be cleaned up, in some cases two or three decades after the sites were first added to the NPL. The contaminated sediment “mega-sites”—such as the Passaic River, a 25-year resident of the NPL for which cleanup is estimated to cost nearly $1.4 billion—exemplify this situation.

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