CERCLA Litigation: Hot Topics in Cost Recovery and Contribution Actions
In 1980, Congress passed the Comprehensive, Environmental, Compensation and Liability Act (“CERCLA”)1 as a means of cleaning up polluted sites throughout the country. The proposed CERCLA legislation was put together during the end of the Carter administration, bypassed the Senate conference procedures and was presented to the House as a quickly worked out compromise. As a result, CERCLA is widely regarded as a statute “riddled with inconsistencies and redundancies”2 and “not a paradigm of clarity or precision.”3 Thus, after CERCLA's initial passage many questions existed concerning issues such as the existence of private rights of action, the type of liability conferred, the availability of defenses, etc. There were many cases concerning the interpretation of the statute and, arguably, more money was spent on litigation than cleaning up polluted sites. Since that time, some of these issues were clarified during the reauthorization of CERCLA through the Superfund Amendments and Reauthorization Act in 1986 (“SARA”) and in the reported case law.4 Nonetheless, several open issues still remain under CERCLA and there are differing resolutions of these issues among the circuit courts of appeal and among different courts within the same circuit.
This paper will first provide a general overview of CERCLA's statutory scheme and the elements of a cost recovery action. Thereafter,
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