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CERCLA and Its Developing Jurisdictional Limitations: An Update of Changes and a Checklist of Major Limitations

Joseph H. Baird, Proceedings of 48th Annual Rocky Mountain Mineral Law Institute (2002)

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA),1 as amended, has had more impact on the mineral resources industries than any other single piece of legislation in several decades. As has been oft-recited, CERCLA created joint, several, and strict retroactive liability for past and present owners of facilities from which there was a release to the environment for which response costs were incurred and/or for which natural resources damages required mitigation. The liability created by CERCLA was substantially different from most prior law and legal liability concepts, since it was keyed to strict liability, instead of fault; thus, the liability CERCLA created for the mineral industries was not intuitively recognizable by senior management.

Not surprisingly, in the 10 years following passage of CERCLA, many major resource decisions were made without properly taking the new liability into account. This resulted in unexpected costs in the resources industries sufficiently large to destroy the viability not only of large mineral resource facilities and projects, but even substantial mineral resource companies. Moreover, court decisions, particularly during CERCLA's first 10 years of existence, caused the Act to create uncertainty in many previously well-settled areas of liability-limiting law that are fundamental to the functionin