March 08, 2011



Comprehensive Environment Response, Compensaton and Liability Act

American Bar Association
Standing Committee on Environmental Law
Section of Business Law
Section of Tort and Insurance Practice
Section of Real Property, Probate and Trust Law
Section of Science and Technology
Senior Lawyers Division
Kansas City Metropolitan Bar Association

RESOLVED , that the American Bar Association recommends that the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "Superfund") be amended based on the following principles:

  1. Allocation of Responsibility should be amended to reflect that:

    A. New liability not be imposed retroactively on persons who at the time they acted reasonably did not know, or reasonably would not have known, that responsibility for cleanup would arise.
    B. New strict liability not be imposed based on status.
    C. Liability be allocated to responsible parties based on each party's contribution to the harm.
    D. Responsibility be allocated prior to required payment through alternative methods of dispute resolution or other procedures that encourage prompt and efficient compliance.
    E. Responsibility not feasibly or equitably allocated to liable parties be paid through broader-based financing approaches, including taxes which garner revenues from those who benefit or have benefited from activities which produced hazardous waste.

  2. Cleanup Procedures should be amended to reflect that:

    A. Sites be selected and cleanup conducted through rational and consistent determinations based on realistic estimates of risks posed to human health and to ecosystems.
    B. Cleanup guidelines consider economic and technical feasibility and such factors as geography, geology, climate and land use, be specific enough to allow a voluntary cleanup to proceed with reasonable certainty that will satisfy appropriate requirements, yet be flexible enough to assure that remedies selected for a given site are appropriate for that site.
    C. Elimination of unnecessary intergovernmental requirements and creation of incentives for States to hasten cleanup. Only one governmental entity should be responsible for any site. States should be authorized to obtain delegation of Superfund authorities, similar to existing environmental permit programs, and should be given the same flexibility in selecting applicable and appropriate standards that EPA presently has under Superfund.
    D. Innovative public participation and shared decision-making models be encouraged.
    E. Consideration of natural resource damages occur at the same time and in the same proceeding as other cleanup issues. Any damages recovered should be based solely on the reasonable costs of restoration, rehabilitation or replacement in kind of the resource and used only for those purposes. Damages imposed should not be punitive in effect.

    Adopted by the ABA House of Delegates, February 1994, Kansas City, MO.

     For a copy of the complete report, contact Carrie Coleman at .