Imposing individual liability as a legislative policy choice: Holmesian "intuitions" and superfund reform

Northwestern University Law Review

Volumn 93, Issue 2, 1999, Pages 389-452

  Spence, David B ^a  

^a NONE

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EID: 0346877368     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (300)

1. OLIVER WENDELL HOLMES, THE COMMON LAW I (1881).
2. A recent biography suggests that this was one of Holmes' primary motives. See G. EDWARD WHITE, JUSTICE OLIVER WENDELL HOLMES: LAW AND THE INNER SELF 181 (1993).
3. Indeed, they have expanded liability in far too many ways to list here. Professor Keeton's classic hornbook on torts contains a good description of the historical evolution of liability theories from those that focus on the defendant's blameworthiness to broader theories that focus on the defendant's failure to live up to standards of conduct "required . . . by society for the protection of others." W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 20-26 (5th ed. 1984).
4. Professor Keeton notes that one early twentieth century commentator "foresaw with trepidation" the significance of Congress's involvement in extending the reach of strict liability. Id. at 580 (citing Jeremiah Smith, Sequel to Workmen's Compensation Acts, 21 HARV. L. REV. 235 (1914)).
5. The two most prominent examples of this are the various state and federal statutes establishing strict liability workers' compensation early in this century and, more recently, products liability statutes. For comment on the earliest workers' compensation state statutes, see Eugene Wambaugh, Workmen's Compensation Acts, 25 HARV. L. REV. 129 (1911). An example of a federal workers' compensation statute is the Federal Employers' Liability Act of 1908, 45 U.S.C. § 51 et seq., covering railroad employees. Examples of products liability statutes include the warranty provisions of the Uniform Commercial Code. See U.C.C. §§ 2-313, 1-315. For additional examples of statutes imposing strict liability on individuals, see KEETON ET AL., supra note 3, at 580-83.
6. The two most prominent examples of this are the various state and federal statutes establishing strict liability workers' compensation early in this century and, more recently, products liability statutes. For comment on the earliest workers' compensation state statutes, see Eugene Wambaugh, Workmen's Compensation Acts, 25 HARV. L. REV. 129 (1911). An example of a federal workers' compensation statute is the Federal Employers' Liability Act of 1908, 45 U.S.C. § 51 et seq., covering railroad employees. Examples of products liability statutes include the warranty provisions of the Uniform Commercial Code. See U.C.C. §§ 2-313, 1-315. For additional examples of statutes imposing strict liability on individuals, see KEETON ET AL., supra note 3, at 580-83.
7. The two most prominent examples of this are the various state and federal statutes establishing strict liability workers' compensation early in this century and, more recently, products liability statutes. For comment on the earliest workers' compensation state statutes, see Eugene Wambaugh, Workmen's Compensation Acts, 25 HARV. L. REV. 129 (1911). An example of a federal workers' compensation statute is the Federal Employers' Liability Act of 1908, 45 U.S.C. § 51 et seq., covering railroad employees. Examples of products liability statutes include the warranty provisions of the Uniform Commercial Code. See U.C.C. §§ 2-313, 1-315. For additional examples of statutes imposing strict liability on individuals, see KEETON ET AL., supra note 3, at 580-83.
8. Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-72 (1997).
9. For a discussion of Superfund's liability rules and their operation, see infra Parts I and II.
10. See infra note 67.
11. Indeed, the prospects for success remain bleak. See discussion infra Part I.
12. See WHITE, supra note 2, at 143-44, 165.
13. See id. at 113.
14. In the words of Susan Bodine, Counsel with the House Transportation and Infrastructure Sub-committee on Water Resources and the Environment in 1997, "People are tired of opening [each] new Congress with Superfund reform." Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier, GOP Counsel Says, 28 Env't Rep. (BNA) 191 (May 30, 1997).
15. The tortured history of the legislative reform effort is chronicled in the trade press. For a selected chronology, see, for example, Jennifer Silverman, Smith Stands Firm on Comprehensive Bill, Sets August Goal for Senate Floor Action, 29 Env't Rep. (BNA) 116 (May 15, 1998); Superfund: 54 House Members Urge Gingrich to Pursue Full Repeal of CERCLA Retroactive Liability 26 Env't Rep. (BNA) 1275 (1995); Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier GOP Counsel Says, 28 Env't Rep. (BNA) 191 (1997); Superfund: Quick Action by 105th Congress Said Necessary Before Other Issues Eclipse Reform of Superfund, 27 Env't Rep. (BNA) 1424 (1996); Adam Clymer, Lobbying Bill Caught in Partisan Wrangle, N.Y. TIMES, Oct. 6, 1994, at A12.
16. The tortured history of the legislative reform effort is chronicled in the trade press. For a selected chronology, see, for example, Jennifer Silverman, Smith Stands Firm on Comprehensive Bill, Sets August Goal for Senate Floor Action, 29 Env't Rep. (BNA) 116 (May 15, 1998); Superfund: 54 House Members Urge Gingrich to Pursue Full Repeal of CERCLA Retroactive Liability 26 Env't Rep. (BNA) 1275 (1995); Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier GOP Counsel Says, 28 Env't Rep. (BNA) 191 (1997); Superfund: Quick Action by 105th Congress Said Necessary Before Other Issues Eclipse Reform of Superfund, 27 Env't Rep. (BNA) 1424 (1996); Adam Clymer, Lobbying Bill Caught in Partisan Wrangle, N.Y. TIMES, Oct. 6, 1994, at A12.
17. The tortured history of the legislative reform effort is chronicled in the trade press. For a selected chronology, see, for example, Jennifer Silverman, Smith Stands Firm on Comprehensive Bill, Sets August Goal for Senate Floor Action, 29 Env't Rep. (BNA) 116 (May 15, 1998); Superfund: 54 House Members Urge Gingrich to Pursue Full Repeal of CERCLA Retroactive Liability 26 Env't Rep. (BNA) 1275 (1995); Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier GOP Counsel Says, 28 Env't Rep. (BNA) 191 (1997); Superfund: Quick Action by 105th Congress Said Necessary Before Other Issues Eclipse Reform of Superfund, 27 Env't Rep. (BNA) 1424 (1996); Adam Clymer, Lobbying Bill Caught in Partisan Wrangle, N.Y. TIMES, Oct. 6, 1994, at A12.
18. The tortured history of the legislative reform effort is chronicled in the trade press. For a selected chronology, see, for example, Jennifer Silverman, Smith Stands Firm on Comprehensive Bill, Sets August Goal for Senate Floor Action, 29 Env't Rep. (BNA) 116 (May 15, 1998); Superfund: 54 House Members Urge Gingrich to Pursue Full Repeal of CERCLA Retroactive Liability 26 Env't Rep. (BNA) 1275 (1995); Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier GOP Counsel Says, 28 Env't Rep. (BNA) 191 (1997); Superfund: Quick Action by 105th Congress Said Necessary Before Other Issues Eclipse Reform of Superfund, 27 Env't Rep. (BNA) 1424 (1996); Adam Clymer, Lobbying Bill Caught in Partisan Wrangle, N.Y. TIMES, Oct. 6, 1994, at A12.
19. The tortured history of the legislative reform effort is chronicled in the trade press. For a selected chronology, see, for example, Jennifer Silverman, Smith Stands Firm on Comprehensive Bill, Sets August Goal for Senate Floor Action, 29 Env't Rep. (BNA) 116 (May 15, 1998); Superfund: 54 House Members Urge Gingrich to Pursue Full Repeal of CERCLA Retroactive Liability 26 Env't Rep. (BNA) 1275 (1995); Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier GOP Counsel Says, 28 Env't Rep. (BNA) 191 (1997); Superfund: Quick Action by 105th Congress Said Necessary Before Other Issues Eclipse Reform of Superfund, 27 Env't Rep. (BNA) 1424 (1996); Adam Clymer, Lobbying Bill Caught in Partisan Wrangle, N.Y. TIMES, Oct. 6, 1994, at A12.
20. That liability issues are at the core of the legislative conflict seems indisputable. See Superfund: Democrats CERCLA Reform Legislation; Polluters Said to Benefit at Public's Expense, 26 Env't Rep. (BNA) 1132 (1995); Superfund: Democrats Hit Liability Rebate Provisions in Republican Superfund Reform Legislation, 26 Env't Rep. (BNA) 1562 (1995); Superfund: 54 House Members Urge Gingrich to Pursue Full Repeal of CERCLA Retroactive Liability, supra note 13; Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier, GOP Counsel Says, supra note 13; Superfund: Liability Reopener in Reform Bill Draws Criticism from State, Local Officials, 28 Env't Rep. (BNA) 2521 (1998); Superfund: Proposals to Repeal Retroactive Liability Aim to Cripple Program, DOJ Official Says, 26 Env't Rep. (BNA) 946 (1995); Superfund: Small Businesses, Municipalities Line Up in Favor of Repeal of Retroactive Liability, 26 Env't Rep. (BNA) 1097 (1995); Clymer, supra note 13.
21. That liability issues are at the core of the legislative conflict seems indisputable. See Superfund: Democrats CERCLA Reform Legislation; Polluters Said to Benefit at Public's Expense, 26 Env't Rep. (BNA) 1132 (1995); Superfund: Democrats Hit Liability Rebate Provisions in Republican Superfund Reform Legislation, 26 Env't Rep. (BNA) 1562 (1995); Superfund: 54 House Members Urge Gingrich to Pursue Full Repeal of CERCLA Retroactive Liability, supra note 13; Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier, GOP Counsel Says, supra note 13; Superfund: Liability Reopener in Reform Bill Draws Criticism from State, Local Officials, 28 Env't Rep. (BNA) 2521 (1998); Superfund: Proposals to Repeal Retroactive Liability Aim to Cripple Program, DOJ Official Says, 26 Env't Rep. (BNA) 946 (1995); Superfund: Small Businesses, Municipalities Line Up in Favor of Repeal of Retroactive Liability, 26 Env't Rep. (BNA) 1097 (1995); Clymer, supra note 13.
22. That liability issues are at the core of the legislative conflict seems indisputable. See Superfund: Democrats CERCLA Reform Legislation; Polluters Said to Benefit at Public's Expense, 26 Env't Rep. (BNA) 1132 (1995); Superfund: Democrats Hit Liability Rebate Provisions in Republican Superfund Reform Legislation, 26 Env't Rep. (BNA) 1562 (1995); Superfund: 54 House Members Urge Gingrich to Pursue Full Repeal of CERCLA Retroactive Liability, supra note 13; Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier, GOP Counsel Says, supra note 13; Superfund: Liability Reopener in Reform Bill Draws Criticism from State, Local Officials, 28 Env't Rep. (BNA) 2521 (1998); Superfund: Proposals to Repeal Retroactive Liability Aim to Cripple Program, DOJ Official Says, 26 Env't Rep. (BNA) 946 (1995); Superfund: Small Businesses, Municipalities Line Up in Favor of Repeal of Retroactive Liability, 26 Env't Rep. (BNA) 1097 (1995); Clymer, supra note 13.
23. That liability issues are at the core of the legislative conflict seems indisputable. See Superfund: Democrats CERCLA Reform Legislation; Polluters Said to Benefit at Public's Expense, 26 Env't Rep. (BNA) 1132 (1995); Superfund: Democrats Hit Liability Rebate Provisions in Republican Superfund Reform Legislation, 26 Env't Rep. (BNA) 1562 (1995); Superfund: 54 House Members Urge Gingrich to Pursue Full Repeal of CERCLA Retroactive Liability, supra note 13; Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier, GOP Counsel Says, supra note 13; Superfund: Liability Reopener in Reform Bill Draws Criticism from State, Local Officials, 28 Env't Rep. (BNA) 2521 (1998); Superfund: Proposals to Repeal Retroactive Liability Aim to Cripple Program, DOJ Official Says, 26 Env't Rep. (BNA) 946 (1995); Superfund: Small Businesses, Municipalities Line Up in Favor of Repeal of Retroactive Liability, 26 Env't Rep. (BNA) 1097 (1995); Clymer, supra note 13.
24. That liability issues are at the core of the legislative conflict seems indisputable. See Superfund: Democrats CERCLA Reform Legislation; Polluters Said to Benefit at Public's Expense, 26 Env't Rep. (BNA) 1132 (1995); Superfund: Democrats Hit Liability Rebate Provisions in Republican Superfund Reform Legislation, 26 Env't Rep. (BNA) 1562 (1995); Superfund: 54 House Members Urge Gingrich to Pursue Full Repeal of CERCLA Retroactive Liability, supra note 13; Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier, GOP Counsel Says, supra note 13; Superfund: Liability Reopener in Reform Bill Draws Criticism from State, Local Officials, 28 Env't Rep. (BNA) 2521 (1998); Superfund: Proposals to Repeal Retroactive Liability Aim to Cripple Program, DOJ Official Says, 26 Env't Rep. (BNA) 946 (1995); Superfund: Small Businesses, Municipalities Line Up in Favor of Repeal of Retroactive Liability, 26 Env't Rep. (BNA) 1097 (1995); Clymer, supra note 13.
25. That liability issues are at the core of the legislative conflict seems indisputable. See Superfund: Democrats CERCLA Reform Legislation; Polluters Said to Benefit at Public's Expense, 26 Env't Rep. (BNA) 1132 (1995); Superfund: Democrats Hit Liability Rebate Provisions in Republican Superfund Reform Legislation, 26 Env't Rep. (BNA) 1562 (1995); Superfund: 54 House Members Urge Gingrich to Pursue Full Repeal of CERCLA Retroactive Liability, supra note 13; Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier, GOP Counsel Says, supra note 13; Superfund: Liability Reopener in Reform Bill Draws Criticism from State, Local Officials, 28 Env't Rep. (BNA) 2521 (1998); Superfund: Proposals to Repeal Retroactive Liability Aim to Cripple Program, DOJ Official Says, 26 Env't Rep. (BNA) 946 (1995); Superfund: Small Businesses, Municipalities Line Up in Favor of Repeal of Retroactive Liability, 26 Env't Rep. (BNA) 1097 (1995); Clymer, supra note 13.
26. For a more detailed discussion of the critique of Superfund, see infra notes 25-29 and accompanying text. For a summary of Republican legislators' public criticisms of the liability system, see infra notes 25-26 and accompanying text. A leading critic among interest groups has been the Superfund Reform Coalition, a lobbying group comprising industry and municipal potentially responsible parties. See Superfund: Small Businesses, Municipalities Line Up in Favor of Repeal of Retroactive Liability, supra note 14. The Superfund Reform Coalition operated a now-defunct web site at 〈http://www.sfreform95.com/〉 depicting the hardships of the liability system on small businesses and municipalities.
27. See Superfund: Democrats CERCLA Reform Legislation; Polluters Said to Benefit at Public's Expense, supra note 14; Superfund: Democrats Hit Liability Rebate Provisions in Republican Superfund Reform Legislation, supra note 14;
28. See Superfund: Democrats CERCLA Reform Legislation; Polluters Said to Benefit at Public's Expense, supra note 14; Superfund: Democrats Hit Liability Rebate Provisions in Republican Superfund Reform Legislation, supra note 14;
29. see also Lois J. Schiffer, Cinderella and Superfund Reform, 28 LOOKING AHEAD: ABA SEC. NAT. RESOURCES, ENERGY & ENVTL. L. NEWSL. Nov.-Dec. 1996, at 5, 6.
30. See discussion of bills infra notes 18-19 and accompanying text.
31. See H.R. REP. NO. 96-1016, at 19 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6122.
32. See H.R. REP. NO. 96-1016, at 19 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6122.
33. See H.R. REP. NO. 96-1016, at 29 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6132.
34. See H.R. REP. NO. 96-1016, at 29 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6132.
35. See CERCLA § 107(a), 42 U.S.C. §9607(a).
36. See CERCLA § 107(a), 42 U.S.C. §9607(a).
37. See United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988). For a discussion of more recent decisions addressing the retroactivity issue, see infra note 67.
38. While the statute itself does not say anything about strict liability, it defines liability with reference to provisions of the Clean Water Act that, in turn, have been interpreted by federal courts as imposing strict liability. See 42 U.S.C. § 9601(32) (referring to 33 U.S.C. § 1321); Stuart Transp. Co. v. Allied Towing Corp., 596 F.2d 609 (4th Cir. 1979) (interpreting 33 U.S.C. § 1321). Superfund has also been interpreted by courts as imposing strict liability independent of the Clean Water Act. See, e.g., Monsanto, 858 F.2d at 160.
39. While the statute itself does not say anything about strict liability, it defines liability with reference to provisions of the Clean Water Act that, in turn, have been interpreted by federal courts as imposing strict liability. See 42 U.S.C. § 9601(32) (referring to 33 U.S.C. § 1321); Stuart Transp. Co. v. Allied Towing Corp., 596 F.2d 609 (4th Cir. 1979) (interpreting 33 U.S.C. § 1321). Superfund has also been interpreted by courts as imposing strict liability independent of the Clean Water Act. See, e.g., Monsanto, 858 F.2d at 160.
40. Liability is joint and several, assuming that the harm is indivisible. In cases in which several parties have deposited wastes in a single location, the harm is generally considered to be indivisible and joint and several liability will attach. See, e.g., United States v. Alcan Aluminum Corp., 990 F.2d 711 (2d Cir. 1993); see also Akzo Coatings Inc. v. Aigner Corp., 960 F. Supp. 1354 (N.D. Ind. 1995) (holding that defendants whose contamination was "geographically distinct" are jointly liable). For commentary on this issue, see B. Todd Wetzel, Divisibility of Harm Under CERCLA: Does an Indivisible Potential or Averted Harm Warrant the Imposition of Joint and Several Liability? 81 KY L.J. 825 (1993)
41. Liability is joint and several, assuming that the harm is indivisible. In cases in which several parties have deposited wastes in a single location, the harm is generally considered to be indivisible and joint and several liability will attach. See, e.g., United States v. Alcan Aluminum Corp., 990 F.2d 711 (2d Cir. 1993); see also Akzo Coatings Inc. v. Aigner Corp., 960 F. Supp. 1354 (N.D. Ind. 1995) (holding that defendants whose contamination was "geographically distinct" are jointly liable). For commentary on this issue, see B. Todd Wetzel, Divisibility of Harm Under CERCLA: Does an Indivisible Potential or Averted Harm Warrant the Imposition of Joint and Several Liability? 81 KY L.J. 825 (1993)
42. Liability is joint and several, assuming that the harm is indivisible. In cases in which several parties have deposited wastes in a single location, the harm is generally considered to be indivisible and joint and several liability will attach. See, e.g., United States v. Alcan Aluminum Corp., 990 F.2d 711 (2d Cir. 1993); see also Akzo Coatings Inc. v. Aigner Corp., 960 F. Supp. 1354 (N.D. Ind. 1995) (holding that defendants whose contamination was "geographically distinct" are jointly liable). For commentary on this issue, see B. Todd Wetzel, Divisibility of Harm Under CERCLA: Does an Indivisible Potential or Averted Harm Warrant the Imposition of Joint and Several Liability? 81 KY L.J. 825 (1993)
43. See 42 U.S.C. § 9607(a).
44. The words of Rep. Bill Zeliff (R-NH) are illustrative: "Holding someone liable for something that was legal in the past is un-American." Oxley Reform Bill Does Not Go Far Enough For Small Businesses, House Committee Told, 26 Env't Rep. (BNA) 1132 (Oct. 27, 1995). A Republican sponsor of one Superfund reform proposal, Rep. Michael Oxley (R-OH), has echoed Zeliff's sentiment: "We believe that it is unfair for companies to be charged retroactively for taking actions that were within the law when they took place."
45. Gary Lee, Toxic Waste Dump Awaits Cleanup As Government Fights Over Tools, WASH. POST, May 25, 1996, at A3;
46. see also Superfund: 54 House Members Urge Gingrich to Pursue Full Repeal of CERCLA Retroactive Liability, supra note 13;
47. Superfund: House Dems Offer Reform Plan, Greenwire, Oct. 29, 1997 (quoting Keystone Landfill Superfund site PRP and Gettysburg, PA restaurant owner Barbara Williams' comments to CBS's Mike Wallace: "It is sad to believe that even when you've obeyed the laws . . . somehow you can end up in a mess like this.").
48. Rep. Charles Canady (R-FL) has been a critic of strict liability under Superfund: The EPA has punished numerous companies in Florida for something that is not their fault. They are being forced to pay thousands of dollars to clean up a mess they didn't make. It's simply not Steve Newborn, Bill Waives Cleanup Expenses, TAMPA TRIB., June 18, 1997 at 1 (quoting Rep. Canady).
49. This sentiment has been expressed by a federal district court: CERCLA is now viewed nearly universally as a failure. . . . In addition to its unfairness, the lability structure of CERCLA is counter-productive. [Parties] faced with disproportionate liability litigate tenaciously, . . . postponing remediation of contaminated sites and increasing dramatically the costs . . . . United States v. A & N Cleaners, 854 F. Supp. 229, 239-41 (S.D.N.Y. 1994) (opinion of Judge Sweet). The now-defunct Superfund Reform Coalition web site, supra note 15, recounted numerous additional examples of PRPs incurring excess liability. See discussion infra subpart II.C.
50. While I am aware of no systematic studies of the EPA's prosecutorial decisions under Superfund to support this contention, it is very widely accepted. See, e.g., Rick Henderson, A New Environment: Braking the Green Machine, 26 REASON 36 (1995) ("[O]lder companies with deep pockets tend to get stuck with big cleanup bills . . . ."); Dina El Boghdady, Cities May be Exempt from Superfund Cleanup Costs, State News Service, (July 2, 1992) ("EPA generally sues 'deep pockets' . . . ."); David J. Freeman, Two Recent Decisions Restrict Superfund Vicarious Liability, NAT'L L.J., Apr. 16, 1990, at 24 ("[C]an the Superfund cleanup program survive without access to . . . 'deep pockets'?"); Edward N. Polisher & Clifford S. Meyer, The Federal Claims Priority Act and the Executor's Duty, TRUSTS AND ESTATES (July 1993) ("The EPA looks for contribution from every available deep pocket . . . .").
51. While I am aware of no systematic studies of the EPA's prosecutorial decisions under Superfund to support this contention, it is very widely accepted. See, e.g., Rick Henderson, A New Environment: Braking the Green Machine, 26 REASON 36 (1995) ("[O]lder companies with deep pockets tend to get stuck with big cleanup bills . . . ."); Dina El Boghdady, Cities May be Exempt from Superfund Cleanup Costs, State News Service, (July 2, 1992) ("EPA generally sues 'deep pockets' . . . ."); David J. Freeman, Two Recent Decisions Restrict Superfund Vicarious Liability, NAT'L L.J., Apr. 16, 1990, at 24 ("[C]an the Superfund cleanup program survive without access to . . . 'deep pockets'?"); Edward N. Polisher & Clifford S. Meyer, The Federal Claims Priority Act and the Executor's Duty, TRUSTS AND ESTATES (July 1993) ("The EPA looks for contribution from every available deep pocket . . . .").
52. While I am aware of no systematic studies of the EPA's prosecutorial decisions under Superfund to support this contention, it is very widely accepted. See, e.g., Rick Henderson, A New Environment: Braking the Green Machine, 26 REASON 36 (1995) ("[O]lder companies with deep pockets tend to get stuck with big cleanup bills . . . ."); Dina El Boghdady, Cities May be Exempt from Superfund Cleanup Costs, State News Service, (July 2, 1992) ("EPA generally sues 'deep pockets' . . . ."); David J. Freeman, Two Recent Decisions Restrict Superfund Vicarious Liability, NAT'L L.J., Apr. 16, 1990, at 24 ("[C]an the Superfund cleanup program survive without access to . . . 'deep pockets'?"); Edward N. Polisher & Clifford S. Meyer, The Federal Claims Priority Act and the Executor's Duty, TRUSTS AND ESTATES (July 1993) ("The EPA looks for contribution from every available deep pocket . . . .").
53. While I am aware of no systematic studies of the EPA's prosecutorial decisions under Superfund to support this contention, it is very widely accepted. See, e.g., Rick Henderson, A New Environment: Braking the Green Machine, 26 REASON 36 (1995) ("[O]lder companies with deep pockets tend to get stuck with big cleanup bills . . . ."); Dina El Boghdady, Cities May be Exempt from Superfund Cleanup Costs, State News Service, (July 2, 1992) ("EPA generally sues 'deep pockets' . . . ."); David J. Freeman, Two Recent Decisions Restrict Superfund Vicarious Liability, NAT'L L.J., Apr. 16, 1990, at 24 ("[C]an the Superfund cleanup program survive without access to . . . 'deep pockets'?"); Edward N. Polisher & Clifford S. Meyer, The Federal Claims Priority Act and the Executor's Duty, TRUSTS AND ESTATES (July 1993) ("The EPA looks for contribution from every available deep pocket . . . .").
54. For a discussion of orphan share coverage, see infra note 129 and accompanying text.
55. See, e.g., S. 3965, 103d Cong. (1994). Some proponents of liability reform sought to eliminate pre-1980 liability for PRPs, reasoning that the passage of Superfund put parties on notice that improper disposal could form the basis of liability. See H.R. 4161, 103d Cong. (1994). Others sought to eliminate pre-1987 liability, arguing that it was not until 1987 that the full hazardous waste disposal regulation system under the Resource Conservation and Recovery Act ("RCRA") was in place. See Superfund Liability Equity and Acceleration Act, H.R. 22576, 104th Cong. (1995). Late in the second session of the 105th Congress, Senate Majority Leader Trent Lott (R-MS) proposed legislation, see S. 2180, that would exempt from liability PRPs whose liability stems from having sent waste to recycling facilities for recycling. See Chafee Calls Lott Bill 'Objectionable', 29 Env't Rep. (BNA) 1106 (1998).
56. See, e.g., H.R. 2500/S1285, 104th Cong. (1996); S. 14711, 104th Cong. (1st session) (1995); see also S. 8, 105th Cong. (1997) (imposing a liability allocation system).
57. See H.R. 3800, 105th Cong. (2d session) (1998).
58. See Clymer, supra note 13.
59. See Much Attention, Little Enactment Predicted for Environmental Legislation in Congress, 29 Env't Rep. (BNA) 1885 (1999); Extra Fiscal 1999 Superfund Money OK'd If CERCLA Reauthorized by May 15, 1998, 28 Env't Rep. (BNA) 1040 (1997); House Bill Would Provide Exemptions for Small Businesses, Homeowners, 28 Env't Rep. (BNA) 990 (1997); Interested Parties Hail Markup Delay as Talks on CERCLA Reform Resume, 28 Env't Rep. (BNA) 843 (1997); Pallone Develops Reform 'Principles' As Boehlert Prepares to Introduce Bill, 28 Env't Rep. (BNA) 1248 (1997); RCRA: Back Seat to Superfund, 28 Env't Rep. (BNA) 408 (1977); Superfund: CERCLA Reform Bill Has '60-40' Chance of Passage During 1998, Oxley Predicts, 28 Env't Rep. (BNA) 1535 (1997).
60. See Much Attention, Little Enactment Predicted for Environmental Legislation in Congress, 29 Env't Rep. (BNA) 1885 (1999); Extra Fiscal 1999 Superfund Money OK'd If CERCLA Reauthorized by May 15, 1998, 28 Env't Rep. (BNA) 1040 (1997); House Bill Would Provide Exemptions for Small Businesses, Homeowners, 28 Env't Rep. (BNA) 990 (1997); Interested Parties Hail Markup Delay as Talks on CERCLA Reform Resume, 28 Env't Rep. (BNA) 843 (1997); Pallone Develops Reform 'Principles' As Boehlert Prepares to Introduce Bill, 28 Env't Rep. (BNA) 1248 (1997); RCRA: Back Seat to Superfund, 28 Env't Rep. (BNA) 408 (1977); Superfund: CERCLA Reform Bill Has '60-40' Chance of Passage During 1998, Oxley Predicts, 28 Env't Rep. (BNA) 1535 (1997).
61. See Much Attention, Little Enactment Predicted for Environmental Legislation in Congress, 29 Env't Rep. (BNA) 1885 (1999); Extra Fiscal 1999 Superfund Money OK'd If CERCLA Reauthorized by May 15, 1998, 28 Env't Rep. (BNA) 1040 (1997); House Bill Would Provide Exemptions for Small Businesses, Homeowners, 28 Env't Rep. (BNA) 990 (1997); Interested Parties Hail Markup Delay as Talks on CERCLA Reform Resume, 28 Env't Rep. (BNA) 843 (1997); Pallone Develops Reform 'Principles' As Boehlert Prepares to Introduce Bill, 28 Env't Rep. (BNA) 1248 (1997); RCRA: Back Seat to Superfund, 28 Env't Rep. (BNA) 408 (1977); Superfund: CERCLA Reform Bill Has '60-40' Chance of Passage During 1998, Oxley Predicts, 28 Env't Rep. (BNA) 1535 (1997).
62. See Much Attention, Little Enactment Predicted for Environmental Legislation in Congress, 29 Env't Rep. (BNA) 1885 (1999); Extra Fiscal 1999 Superfund Money OK'd If CERCLA Reauthorized by May 15, 1998, 28 Env't Rep. (BNA) 1040 (1997); House Bill Would Provide Exemptions for Small Businesses, Homeowners, 28 Env't Rep. (BNA) 990 (1997); Interested Parties Hail Markup Delay as Talks on CERCLA Reform Resume, 28 Env't Rep. (BNA) 843 (1997); Pallone Develops Reform 'Principles' As Boehlert Prepares to Introduce Bill, 28 Env't Rep. (BNA) 1248 (1997); RCRA: Back Seat to Superfund, 28 Env't Rep. (BNA) 408 (1977); Superfund: CERCLA Reform Bill Has '60-40' Chance of Passage During 1998, Oxley Predicts, 28 Env't Rep. (BNA) 1535 (1997).
63. See Much Attention, Little Enactment Predicted for Environmental Legislation in Congress, 29 Env't Rep. (BNA) 1885 (1999); Extra Fiscal 1999 Superfund Money OK'd If CERCLA Reauthorized by May 15, 1998, 28 Env't Rep. (BNA) 1040 (1997); House Bill Would Provide Exemptions for Small Businesses, Homeowners, 28 Env't Rep. (BNA) 990 (1997); Interested Parties Hail Markup Delay as Talks on CERCLA Reform Resume, 28 Env't Rep. (BNA) 843 (1997); Pallone Develops Reform 'Principles' As Boehlert Prepares to Introduce Bill, 28 Env't Rep. (BNA) 1248 (1997); RCRA: Back Seat to Superfund, 28 Env't Rep. (BNA) 408 (1977); Superfund: CERCLA Reform Bill Has '60-40' Chance of Passage During 1998, Oxley Predicts, 28 Env't Rep. (BNA) 1535 (1997).
64. See Much Attention, Little Enactment Predicted for Environmental Legislation in Congress, 29 Env't Rep. (BNA) 1885 (1999); Extra Fiscal 1999 Superfund Money OK'd If CERCLA Reauthorized by May 15, 1998, 28 Env't Rep. (BNA) 1040 (1997); House Bill Would Provide Exemptions for Small Businesses, Homeowners, 28 Env't Rep. (BNA) 990 (1997); Interested Parties Hail Markup Delay as Talks on CERCLA Reform Resume, 28 Env't Rep. (BNA) 843 (1997); Pallone Develops Reform 'Principles' As Boehlert Prepares to Introduce Bill, 28 Env't Rep. (BNA) 1248 (1997); RCRA: Back Seat to Superfund, 28 Env't Rep. (BNA) 408 (1977); Superfund: CERCLA Reform Bill Has '60-40' Chance of Passage During 1998, Oxley Predicts, 28 Env't Rep. (BNA) 1535 (1997).
65. See Much Attention, Little Enactment Predicted for Environmental Legislation in Congress, 29 Env't Rep. (BNA) 1885 (1999); Extra Fiscal 1999 Superfund Money OK'd If CERCLA Reauthorized by May 15, 1998, 28 Env't Rep. (BNA) 1040 (1997); House Bill Would Provide Exemptions for Small Businesses, Homeowners, 28 Env't Rep. (BNA) 990 (1997); Interested Parties Hail Markup Delay as Talks on CERCLA Reform Resume, 28 Env't Rep. (BNA) 843 (1997); Pallone Develops Reform 'Principles' As Boehlert Prepares to Introduce Bill, 28 Env't Rep. (BNA) 1248 (1997); RCRA: Back Seat to Superfund, 28 Env't Rep. (BNA) 408 (1977); Superfund: CERCLA Reform Bill Has '60-40' Chance of Passage During 1998, Oxley Predicts, 28 Env't Rep. (BNA) 1535 (1997).
66. See Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier, GOP Counsel Says, supra note 12; see also Senator, EPA Chief in Heated Exchange over Liability Provisions of GOP Measure, 27 Env't Rep. (BNA) 2237 (1997). As of this writing, legislators are aiming for passage of a bill sometime in the second session of the 105th Congress. See U.S. ENVTL. PROTECTION AGENCY, The Clinton Administration's Superfund Legislative Reform Principles, (May 7, 1997) 〈http://www.epa.gov/superfund/oerr/whatsnew/principle.htm〉 [hereinafter Clinton Administration Principles] ("The Administration opposes . . . repeal of all or part of the current strict, retroactive, joint and several liability standards."); see also 11 FED. & ST. INS. WK. (May 12, 1997).
67. See Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier, GOP Counsel Says, supra note 12; see also Senator, EPA Chief in Heated Exchange over Liability Provisions of GOP Measure, 27 Env't Rep. (BNA) 2237 (1997). As of this writing, legislators are aiming for passage of a bill sometime in the second session of the 105th Congress. See U.S. ENVTL. PROTECTION AGENCY, The Clinton Administration's Superfund Legislative Reform Principles, (May 7, 1997) 〈http://www.epa.gov/superfund/oerr/whatsnew/principle.htm〉 [hereinafter Clinton Administration Principles] ("The Administration opposes . . . repeal of all or part of the current strict, retroactive, joint and several liability standards."); see also 11 FED. & ST. INS. WK. (May 12, 1997).
68. See Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier, GOP Counsel Says, supra note 12; see also Senator, EPA Chief in Heated Exchange over Liability Provisions of GOP Measure, 27 Env't Rep. (BNA) 2237 (1997). As of this writing, legislators are aiming for passage of a bill sometime in the second session of the 105th Congress. See U.S. ENVTL. PROTECTION AGENCY, The Clinton Administration's Superfund Legislative Reform Principles, (May 7, 1997) 〈http://www.epa.gov/superfund/oerr/whatsnew/principle.htm〉 [hereinafter Clinton Administration Principles] ("The Administration opposes . . . repeal of all or part of the current strict, retroactive, joint and several liability standards."); see also 11 FED. & ST. INS. WK. (May 12, 1997).
69. See Superfund: Goal Remains to Wrap Up Reform Effort Despite Liability Barrier, GOP Counsel Says, supra note 12; see also Senator, EPA Chief in Heated Exchange over Liability Provisions of GOP Measure, 27 Env't Rep. (BNA) 2237 (1997). As of this writing, legislators are aiming for passage of a bill sometime in the second session of the 105th Congress. See U.S. ENVTL. PROTECTION AGENCY, The Clinton Administration's Superfund Legislative Reform Principles, (May 7, 1997) 〈http://www.epa.gov/superfund/oerr/whatsnew/principle.htm〉 [hereinafter Clinton Administration Principles] ("The Administration opposes . . . repeal of all or part of the current strict, retroactive, joint and several liability standards."); see also 11 FED. & ST. INS. WK. (May 12, 1997).
70. See KATHERINE N. PROBST ET AL., FOOTING THE BILL FOR SUPERFUND CLEANUPS: WHO PAYS AND HOW? (1995).
71. See id. at 29-53.
72. The Superfund tax system has changed slightly over time and statutory taxing authority has expired on several occasions, necessitating emergency appropriations by Congress. During most of the program's existence, however, Superfund has not been part of the EPA's general budget. Rather, the trust fund has been financed by a combination of excise and other taxes imposed mostly on business and industry, with a minor contribution from individual income taxes.
73. The NPL contains approximately 1,200 sites that have been evaluated and deemed sufficiently risky to warrant listing and cleanup. See 40 C.F.R. pt. 300 (App. B) (1997). There is another, much larger list of sites that have not been evaluated. This list, called "CERCLIS," includes sites that may yet be added to the NPL. The RFF and Brookings analysis applies only to the 1,134 NPL sites making up most of the list when the study was done in the early 1990s. The study does not purport to assess the costs associated with expansion of the NPL.
74. The importance of this leverage issue is underscored by Assistant Attorney General Lois Schiffer, who calls retroactive liability, strict liability, and joint and several liability essential personnel for any version of Superfund reform. Without them, Cinderella simply cannot get to the ball. Retroactive liability is the only practicable way to pay for the many Superfund clean-ups that need to be done. Schiffer, supra note 16, at 6; see also Clinton Administration Principles, supra note 35.
75. The most important component of "transaction costs" is litigation. However, as the term is used by most analysts, transaction costs include not only litigation costs but also other costs that do not contribute directly to the cleanup process. These include things such as costs associated with negotiating a settlement among cooperating PRPs, studies that aim at something other than developing a cleanup remedy, for example records searches aimed at identifying other PRPs, and more. See generally JOHN PAUL ACTON & LLOYD DIXON, SUPERFUND AND TRANSACTION COSTS: THE EXPERIENCE OF INSURERS AND VERY LARGE INDUSTRIAL FIRMS (1992).
76. For example, Rep. Bud Shuster (R-PA) continues to seek "to eliminate as much liability as possible" and pledges "to die hard on this issue." Maximum Repeal of Retroactive Liability Should be Goal of Congress, Shuster Says, 27 Env't Rep. (BNA) 2031 (Feb. 7, 1997).
77. See supra note 16 and accompanying text.
78. My focus is on how the liability system applies retroactively, not prospectively. This is for a variety of reasons. First, others have already examined the prospective effects of these liability rules, and the prospective efficiency of Superfund has been fairly thoroughly debated. See, e.g., JOHN HIRD, SUPERFUND: THE POLITICAL ECONOMY OF ENVIRONMENTAL RISK (1994); Lewis A. Kornhauser & Richard L. Revesz, Evaluating the Effects of Alternative Superfund Liability Rules, in ANALYZING SUPERFUND: ECONOMICS, SCIENCE AND LAW 115 (Richard L. Revesz & Richard B. Stewart eds.,1995); see also Randolph T. Beard, Bankruptcy and Care Choice, 21 RAND J. ECON. 626 (1990); Bruce A. Larson, Environmental Policy Based on Strict Liability: Implications of Uncertainty and Bankruptcy, 72 LAND ECON. 33 (1996); Steven Shavell, A Model of the Optimal Use of Liability and Safety Regulation, 15 RAND J. ECON. 271 (1984). Interestingly, some scholars contend that the breadth of Superfund liability causes businesses to overinsure against it, and that it is therefore prospectively inefficient. See, e.g., HIRD, supra, at ch. 5. Second, as Percival et al. observe in their environmental law casebook, "RCRA has become the locus of Congress's prevention concerns, while CERCLA tackles the problems of cleaning up past mistakes." PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE AND POLICY 208 (1996). Thus, Superfund's prospective effects seem less important, at least to me, than its retroactive effects. Third, and most important, the overwhelming majority of PRPs facing Superfund liability acted before the passage of the statute, and it is the retroactive aspects of the liability system that provoke the most heated opposition. For my discussion of the differences between congressionally imposed retroactive liability and judicially imposed retroactive liability, see infra notes 63-64 and accompanying text.
79. My focus is on how the liability system applies retroactively, not prospectively. This is for a variety of reasons. First, others have already examined the prospective effects of these liability rules, and the prospective efficiency of Superfund has been fairly thoroughly debated. See, e.g., JOHN HIRD, SUPERFUND: THE POLITICAL ECONOMY OF ENVIRONMENTAL RISK (1994); Lewis A. Kornhauser & Richard L. Revesz, Evaluating the Effects of Alternative Superfund Liability Rules, in ANALYZING SUPERFUND: ECONOMICS, SCIENCE AND LAW 115 (Richard L. Revesz & Richard B. Stewart eds.,1995); see also Randolph T. Beard, Bankruptcy and Care Choice, 21 RAND J. ECON. 626 (1990); Bruce A. Larson, Environmental Policy Based on Strict Liability: Implications of Uncertainty and Bankruptcy, 72 LAND ECON. 33 (1996); Steven Shavell, A Model of the Optimal Use of Liability and Safety Regulation, 15 RAND J. ECON. 271 (1984). Interestingly, some scholars contend that the breadth of Superfund liability causes businesses to overinsure against it, and that it is therefore prospectively inefficient. See, e.g., HIRD, supra, at ch. 5. Second, as Percival et al. observe in their environmental law casebook, "RCRA has become the locus of Congress's prevention concerns, while CERCLA tackles the problems of cleaning up past mistakes." PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE AND POLICY 208 (1996). Thus, Superfund's prospective effects seem less important, at least to me, than its retroactive effects. Third, and most important, the overwhelming majority of PRPs facing Superfund liability acted before the passage of the statute, and it is the retroactive aspects of the liability system that provoke the most heated opposition. For my discussion of the differences between congressionally imposed retroactive liability and judicially imposed retroactive liability, see infra notes 63-64 and accompanying text.
80. My focus is on how the liability system applies retroactively, not prospectively. This is for a variety of reasons. First, others have already examined the prospective effects of these liability rules, and the prospective efficiency of Superfund has been fairly thoroughly debated. See, e.g., JOHN HIRD, SUPERFUND: THE POLITICAL ECONOMY OF ENVIRONMENTAL RISK (1994); Lewis A. Kornhauser & Richard L. Revesz, Evaluating the Effects of Alternative Superfund Liability Rules, in ANALYZING SUPERFUND: ECONOMICS, SCIENCE AND LAW 115 (Richard L. Revesz & Richard B. Stewart eds.,1995); see also Randolph T. Beard, Bankruptcy and Care Choice, 21 RAND J. ECON. 626 (1990); Bruce A. Larson, Environmental Policy Based on Strict Liability: Implications of Uncertainty and Bankruptcy, 72 LAND ECON. 33 (1996); Steven Shavell, A Model of the Optimal Use of Liability and Safety Regulation, 15 RAND J. ECON. 271 (1984). Interestingly, some scholars contend that the breadth of Superfund liability causes businesses to overinsure against it, and that it is therefore prospectively inefficient. See, e.g., HIRD, supra, at ch. 5. Second, as Percival et al. observe in their environmental law casebook, "RCRA has become the locus of Congress's prevention concerns, while CERCLA tackles the problems of cleaning up past mistakes." PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE AND POLICY 208 (1996). Thus, Superfund's prospective effects seem less important, at least to me, than its retroactive effects. Third, and most important, the overwhelming majority of PRPs facing Superfund liability acted before the passage of the statute, and it is the retroactive aspects of the liability system that provoke the most heated opposition. For my discussion of the differences between congressionally imposed retroactive liability and judicially imposed retroactive liability, see infra notes 63-64 and accompanying text.
81. My focus is on how the liability system applies retroactively, not prospectively. This is for a variety of reasons. First, others have already examined the prospective effects of these liability rules, and the prospective efficiency of Superfund has been fairly thoroughly debated. See, e.g., JOHN HIRD, SUPERFUND: THE POLITICAL ECONOMY OF ENVIRONMENTAL RISK (1994); Lewis A. Kornhauser & Richard L. Revesz, Evaluating the Effects of Alternative Superfund Liability Rules, in ANALYZING SUPERFUND: ECONOMICS, SCIENCE AND LAW 115 (Richard L. Revesz & Richard B. Stewart eds.,1995); see also Randolph T. Beard, Bankruptcy and Care Choice, 21 RAND J. ECON. 626 (1990); Bruce A. Larson, Environmental Policy Based on Strict Liability: Implications of Uncertainty and Bankruptcy, 72 LAND ECON. 33 (1996); Steven Shavell, A Model of the Optimal Use of Liability and Safety Regulation, 15 RAND J. ECON. 271 (1984). Interestingly, some scholars contend that the breadth of Superfund liability causes businesses to overinsure against it, and that it is therefore prospectively inefficient. See, e.g., HIRD, supra, at ch. 5. Second, as Percival et al. observe in their environmental law casebook, "RCRA has become the locus of Congress's prevention concerns, while CERCLA tackles the problems of cleaning up past mistakes." PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE AND POLICY 208 (1996). Thus, Superfund's prospective effects seem less important, at least to me, than its retroactive effects. Third, and most important, the overwhelming majority of PRPs facing Superfund liability acted before the passage of the statute, and it is the retroactive aspects of the liability system that provoke the most heated opposition. For my discussion of the differences between congressionally imposed retroactive liability and judicially imposed retroactive liability, see infra notes 63-64 and accompanying text.
82. My focus is on how the liability system applies retroactively, not prospectively. This is for a variety of reasons. First, others have already examined the prospective effects of these liability rules, and the prospective efficiency of Superfund has been fairly thoroughly debated. See, e.g., JOHN HIRD, SUPERFUND: THE POLITICAL ECONOMY OF ENVIRONMENTAL RISK (1994); Lewis A. Kornhauser & Richard L. Revesz, Evaluating the Effects of Alternative Superfund Liability Rules, in ANALYZING SUPERFUND: ECONOMICS, SCIENCE AND LAW 115 (Richard L. Revesz & Richard B. Stewart eds.,1995); see also Randolph T. Beard, Bankruptcy and Care Choice, 21 RAND J. ECON. 626 (1990); Bruce A. Larson, Environmental Policy Based on Strict Liability: Implications of Uncertainty and Bankruptcy, 72 LAND ECON. 33 (1996); Steven Shavell, A Model of the Optimal Use of Liability and Safety Regulation, 15 RAND J. ECON. 271 (1984). Interestingly, some scholars contend that the breadth of Superfund liability causes businesses to overinsure against it, and that it is therefore prospectively inefficient. See, e.g., HIRD, supra, at ch. 5. Second, as Percival et al. observe in their environmental law casebook, "RCRA has become the locus of Congress's prevention concerns, while CERCLA tackles the problems of cleaning up past mistakes." PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE AND POLICY 208 (1996). Thus, Superfund's prospective effects seem less important, at least to me, than its retroactive effects. Third, and most important, the overwhelming majority of PRPs facing Superfund liability acted before the passage of the statute, and it is the retroactive aspects of the liability system that provoke the most heated opposition. For my discussion of the differences between congressionally imposed retroactive liability and judicially imposed retroactive liability, see infra notes 63-64 and accompanying text.
83. My focus is on how the liability system applies retroactively, not prospectively. This is for a variety of reasons. First, others have already examined the prospective effects of these liability rules, and the prospective efficiency of Superfund has been fairly thoroughly debated. See, e.g., JOHN HIRD, SUPERFUND: THE POLITICAL ECONOMY OF ENVIRONMENTAL RISK (1994); Lewis A. Kornhauser & Richard L. Revesz, Evaluating the Effects of Alternative Superfund Liability Rules, in ANALYZING SUPERFUND: ECONOMICS, SCIENCE AND LAW 115 (Richard L. Revesz & Richard B. Stewart eds.,1995); see also Randolph T. Beard, Bankruptcy and Care Choice, 21 RAND J. ECON. 626 (1990); Bruce A. Larson, Environmental Policy Based on Strict Liability: Implications of Uncertainty and Bankruptcy, 72 LAND ECON. 33 (1996); Steven Shavell, A Model of the Optimal Use of Liability and Safety Regulation, 15 RAND J. ECON. 271 (1984). Interestingly, some scholars contend that the breadth of Superfund liability causes businesses to overinsure against it, and that it is therefore prospectively inefficient. See, e.g., HIRD, supra, at ch. 5. Second, as Percival et al. observe in their environmental law casebook, "RCRA has become the locus of Congress's prevention concerns, while CERCLA tackles the problems of cleaning up past mistakes." PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE AND POLICY 208 (1996). Thus, Superfund's prospective effects seem less important, at least to me, than its retroactive effects. Third, and most important, the overwhelming majority of PRPs facing Superfund liability acted before the passage of the statute, and it is the retroactive aspects of the liability system that provoke the most heated opposition. For my discussion of the differences between congressionally imposed retroactive liability and judicially imposed retroactive liability, see infra notes 63-64 and accompanying text.
84. I would like to acknowledge borrowing the phrase used in this heading from an article on a different environmental law topic. See Vicki Been, What's Fairness Got to Do With It?: Environmental Justice and the Siting of Locally Undesirable Land Uses, 78 CORNELL L. REV. 1001 (1993).
85. According to one leading authority, strict liability achieves "social justice" by assigning liability when neither party is at fault to the one who can "best bear the loss." See KEETON ET AL., supra note 3, at 536 (quoting Roscoe Pound, The End of Law as Developed in Legal Rules and Doctrine, 27 HARV. L. REV. 195, 233 (1914)).
86. See KEETON ET AL., supra note 3, at 324-30.
87. Assumptions about PRPs' ability to pay raise another question: whether the identity of potentially liable parties ought to play a part in our assessment of the fairness of the liability system. Consistent with Rawls, I will proceed on the assumption that a system of imposing liability is fair only if it is objectively fair - only if it imposes liability based on some sort of decision rule that treats similarly situated parties similarly without regard to their identity. See generally JOHN RAWLS, A THEORY OF JUSTICE (1971). Stated differently (and as described infra in subpart II.B), I assume that common notions of fairness require that any such decision rule be based on some sort of conduct on the part of the potentially liable party. Thus, while ability to pay may be a perfectly proper basis for requiring some taxpayers to pay more taxes than others, it alone is not a proper justification for imposing liability on one individual over another. As discussed below, Superfund's strict liability system goes well beyond common-law strict liability for imposing liability on defendants whose conduct was not abnormally dangerous or resulted in harm that was not foreseeable. See infra notes 53-54 and accompanying text.
88. See, e.g., THOMAS W. CHURCH & ROBERT T. NAKAMURA, CLEANING UP THE MESS: IMPLEMENTATION STRATEGIES IN SUPERFUND (1993); HIRD, supra note 44, at ch. 5; Jerry L. Anderson, The Hazardous Waste Land, 13 VA. ENVTL. L.J. 56 (1993); Lynda J. Oswald, New Directions in Joint and Several Liability Under CERCLA, 28 U.C. DAVIS L. REV. 299 (1995); Lynda J. Oswald, Strict Liability of Individuals Under CERCLA: A Normative Analysis, 4 B. C. ENVTL. AFF. L. REV. 579 (1993).
89. See, e.g., THOMAS W. CHURCH & ROBERT T. NAKAMURA, CLEANING UP THE MESS: IMPLEMENTATION STRATEGIES IN SUPERFUND (1993); HIRD, supra note 44, at ch. 5; Jerry L. Anderson, The Hazardous Waste Land, 13 VA. ENVTL. L.J. 56 (1993); Lynda J. Oswald, New Directions in Joint and Several Liability Under CERCLA, 28 U.C. DAVIS L. REV. 299 (1995); Lynda J. Oswald, Strict Liability of Individuals Under CERCLA: A Normative Analysis, 4 B. C. ENVTL. AFF. L. REV. 579 (1993).
90. See, e.g., THOMAS W. CHURCH & ROBERT T. NAKAMURA, CLEANING UP THE MESS: IMPLEMENTATION STRATEGIES IN SUPERFUND (1993); HIRD, supra note 44, at ch. 5; Jerry L. Anderson, The Hazardous Waste Land, 13 VA. ENVTL. L.J. 56 (1993); Lynda J. Oswald, New Directions in Joint and Several Liability Under CERCLA, 28 U.C. DAVIS L. REV. 299 (1995); Lynda J. Oswald, Strict Liability of Individuals Under CERCLA: A Normative Analysis, 4 B. C. ENVTL. AFF. L. REV. 579 (1993).
91. See, e.g., THOMAS W. CHURCH & ROBERT T. NAKAMURA, CLEANING UP THE MESS: IMPLEMENTATION STRATEGIES IN SUPERFUND (1993); HIRD, supra note 44, at ch. 5; Jerry L. Anderson, The Hazardous Waste Land, 13 VA. ENVTL. L.J. 56 (1993); Lynda J. Oswald, New Directions in Joint and Several Liability Under CERCLA, 28 U.C. DAVIS L. REV. 299 (1995); Lynda J. Oswald, Strict Liability of Individuals Under CERCLA: A Normative Analysis, 4 B. C. ENVTL. AFF. L. REV. 579 (1993).
92. Or, in more Holmesian language, fairness is synonymous with articulating an acceptable societal interest in imposing liability. Note that this definition implies a challenge to Holmes' conclusion that liability rules reflect "unconscious" societal "intuitions" and "prejudices." As others have noted, however, that explanation is not really an explanation at all. Rather, it is an observation that these rules exist because society deems them to be fair or best. See WHITE, supra note 2, at 154. All of which begs the question of why society has reached that conclusion. Part of my argument is that there are insights to be gained by addressing that question.
93. On this point generally, see Tom Kuhnle, The Rebirth of Common Law Actions for Addressing Hazardous Waste Contamination, 15 STAN. ENVTL. L.J. 187 (1996).
94. RESTATEMENT (SECOND) OF TORTS §§ 519-520; see also William B. Johnson, Annotation, Common Law Strict Liability in Tort of Prior Landowner or Lessee to Subsequent Owner for Contamination of Land with Hazardous Waste Resulting from Prior Owner's or Lessee's Abnormally Dangerous or Ultrahazardous Activity, 13 A.L.R. 5th 600 (1994). According to Professor Keeton, when abnormally dangerous activities risk damage to land, the rationale for imposing strict liability is that "the defendant's enterprise . . . must pay its way." KEETON ET AL., supra note 3, at 536; see also
95. William B. Johnson, Liability of Generators Pursuant to § 107(A)(3) of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C.S. § 9607(A)(3)), 126 A.L.R. Fed 265 (1995).
96. This argument really subsumes several points. First, strict liability in tort requires the plaintiff to prove that the defendant's activity was ultrahazardous or abnormally dangerous, whereas Superfund liability can be imposed without any such showing. See RESTATEMENT (SECOND) OF TORTS §§ 519-520. Second, unlike a common-law defendant, a Superfund PRP can be liable for remediation costs without any showing that her conduct caused the environmental damage at issue. See, e.g., Tanglewood E. Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568 (5th Cir. 1988) (developer-owner of land on which a wood treating facility had previously operated and on which highly toxic creosote had accumulated was liable as a PRP notwithstanding the fact that the hazardous waste was discharged by the wood treating facility). Third, the statutory definition of "hazardous substance" is a broad one and arguably includes substances that are not ultrahazardous or abnormally dangerous. See 42 U.S.C. § 9601(14); 40 C.F.R. Pt. 302. Cf. Ann M. Burkhart, Lender/Owners and CERCLA: Title and Liability, 25 HARV. J. ON LEGIS. 317 (1988) (contending that Superfund merely codifies owner liability under common law). Clearly, however, Superfund liability touches defendants including owners, who would not be liable under common-law strict liability rules.
97. This argument really subsumes several points. First, strict liability in tort requires the plaintiff to prove that the defendant's activity was ultrahazardous or abnormally dangerous, whereas Superfund liability can be imposed without any such showing. See RESTATEMENT (SECOND) OF TORTS §§ 519-520. Second, unlike a common-law defendant, a Superfund PRP can be liable for remediation costs without any showing that her conduct caused the environmental damage at issue. See, e.g., Tanglewood E. Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568 (5th Cir. 1988) (developer-owner of land on which a wood treating facility had previously operated and on which highly toxic creosote had accumulated was liable as a PRP notwithstanding the fact that the hazardous waste was discharged by the wood treating facility). Third, the statutory definition of "hazardous substance" is a broad one and arguably includes substances that are not ultrahazardous or abnormally dangerous. See 42 U.S.C. § 9601(14); 40 C.F.R. Pt. 302. Cf. Ann M. Burkhart, Lender/Owners and CERCLA: Title and Liability, 25 HARV. J. ON LEGIS. 317 (1988) (contending that Superfund merely codifies owner liability under
98. This argument really subsumes several points. First, strict liability in tort requires the plaintiff to prove that the defendant's activity was ultrahazardous or abnormally dangerous, whereas Superfund liability can be imposed without any such showing. See RESTATEMENT (SECOND) OF TORTS §§ 519-520. Second, unlike a common-law defendant, a Superfund PRP can be liable for remediation costs without any showing that her conduct caused the environmental damage at issue. See, e.g., Tanglewood E. Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568 (5th Cir. 1988) (developer-owner of land on which a wood treating facility had previously operated and on which highly toxic creosote had accumulated was liable as a PRP notwithstanding the fact that the hazardous waste was discharged by the wood treating facility). Third, the statutory definition of "hazardous substance" is a broad one and arguably includes substances that are not ultrahazardous or abnormally dangerous. See 42 U.S.C. § 9601(14); 40 C.F.R. Pt. 302. Cf. Ann M. Burkhart, Lender/Owners and CERCLA: Title and Liability, 25 HARV. J. ON LEGIS. 317 (1988) (contending that Superfund merely codifies owner liability under common law). Clearly, however, Superfund liability touches defendants including owners, who would not be liable under common-law strict liability rules.
99. This argument really subsumes several points. First, strict liability in tort requires the plaintiff to prove that the defendant's activity was ultrahazardous or abnormally dangerous, whereas Superfund liability can be imposed without any such showing. See RESTATEMENT (SECOND) OF TORTS §§ 519-520. Second, unlike a common-law defendant, a Superfund PRP can be liable for remediation costs without any showing that her conduct caused the environmental damage at issue. See, e.g., Tanglewood E. Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568 (5th Cir. 1988) (developer-owner of land on which a wood treating facility had previously operated and on which highly toxic creosote had accumulated was liable as a PRP notwithstanding the fact that the hazardous waste was discharged by the wood treating facility). Third, the statutory definition of "hazardous substance" is a broad one and arguably includes substances that are not ultrahazardous or abnormally dangerous. See 42 U.S.C. § 9601(14); 40 C.F.R. Pt. 302. Cf. Ann M. Burkhart, Lender/Owners and CERCLA: Title and Liability, 25 HARV. J. ON LEGIS. 317 (1988) (contending that Superfund merely codifies owner liability under common law). Clearly, however, Superfund liability touches defendants including owners, who would not be liable under common-law strict liability rules.
100. RESTATEMENT (SECOND) OF TORTS, supra note 52; KEETON ET AL., supra note 3, at 536. The other primary justification for imposing strict liability on firms in connection with hazardous substances is that doing so deters accidents. See, e.g., William K. Jones, Strict Liability for Hazardous Enterprise, 92 COLUM. L. REV. 1705 (1992) (arguing for a broader application of strict liability than that called for by the Restatement). Cf. Joseph H. King, Jr., A Goals-Oriented Approach to Strict Tort Liability for Abnormally Dangerous Activities, 48 BAYLOR L. REV. 341, 374 (1996) (defending the limitation of liability to situations in which the defendant has "introduced something different - something abnormally dangerous - that has significantly changed the risk equation . . . ."); supra note 44 and accompanying text. For a discussion of the compensatory and deterrent rationales of strict liability, see Virginia E. Nolan & Edmund Ursin, The Revitalization of Hazardous Activity Strict Liability, 65 N.C. L. REV. 257 (1987).
101. RESTATEMENT (SECOND) OF TORTS, supra note 52; KEETON ET AL., supra note 3, at 536. The other primary justification for imposing strict liability on firms in connection with hazardous substances is that doing so deters accidents. See, e.g., William K. Jones, Strict Liability for Hazardous Enterprise, 92 COLUM. L. REV. 1705 (1992) (arguing for a broader application of strict liability than that called for by the Restatement). Cf. Joseph H. King, Jr., A Goals-Oriented Approach to Strict Tort Liability for Abnormally Dangerous Activities, 48 BAYLOR L. REV. 341, 374 (1996) (defending the limitation of liability to situations in which the defendant has "introduced something different - something abnormally dangerous - that has significantly changed the risk equation . . . ."); supra note 44 and accompanying text. For a discussion of the compensatory and deterrent rationales of strict liability, see Virginia E. Nolan & Edmund Ursin, The Revitalization of Hazardous Activity Strict Liability, 65 N.C. L. REV. 257 (1987).
102. RESTATEMENT (SECOND) OF TORTS, supra note 52; KEETON ET AL., supra note 3, at 536. The other primary justification for imposing strict liability on firms in connection with hazardous substances is that doing so deters accidents. See, e.g., William K. Jones, Strict Liability for Hazardous Enterprise, 92 COLUM. L. REV. 1705 (1992) (arguing for a broader application of strict liability than that called for by the Restatement). Cf. Joseph H. King, Jr., A Goals-Oriented Approach to Strict Tort Liability for Abnormally Dangerous Activities, 48 BAYLOR L. REV. 341, 374 (1996) (defending the limitation of liability to situations in which the defendant has "introduced something different - something abnormally dangerous - that has significantly changed the risk equation . . . ."); supra note 44 and accompanying text. For a discussion of the compensatory and deterrent rationales of strict liability, see Virginia E. Nolan & Edmund Ursin, The Revitalization of Hazardous Activity Strict Liability, 65 N.C. L. REV. 257 (1987).
103. KEETON ET AL., supra note 3, at 328; see also RESTATEMENT (SECOND) OF TORTS § 886A (1979).
104. See id. 57 See KEETON ET AL., supra note 3, at 354-55.
105. See infra Part II.
106. See RESTATEMENT (SECOND) OF TORTS § 402(A) cmt. g (1965); see also RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY §§ 1, 2, 15, 16 (Proposed Final Draft, 1997).
107. See RESTATEMENT (SECOND) OF TORTS § 402(A) cmt. h (1965); see also RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 17(a) cmt. c (Proposed Final Draft, 1997).
108. See, e.g., United States v. Stringfellow, 661 F. Supp. 1053, 1060-61 (C.D. Cal. 1987). Superfund does provide a defense to liability for contamination caused by an act or omission of a third party other than an agent of the PRP "or one whose act or omission occurs in connection with a contractual relationship . . . with the [PRP]." 42 U.S.C. § 9607(b)(3) (1984). The last clause means that PRPs whose wastes are connected to a site by the actions of a contractor, or a contractor's contractor, cannot avail themselves of this defense.
109. See KEETON ET AL., supra note 3, at 536.
110. Indeed, arguments about Superfund's prospective effects often cloud the reform debate. None would argue with the assertion that Superfund has had powerful effects on business' waste management techniques. Because Congress is free to retain current liability rules for post-1980 behavior, these prospective effects are irrelevant to the question of whether Superfund's retroactive liability rules ought to be changed.
111. This is, of course, one of the supreme virtues of the common law in the eyes of its admirers. See, e.g., BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921); HOLMES, supra note 1; WALTER L. MURPHY, ELEMENTS OF JUDICIAL STRATEGY (1964). Indeed, because Superfund liability is legislatively imposed and retroactive, tort statutes of limitation or other common law doctrines that effectively limit liability in the judicial context are unavailable to Superfund PRPs.
112. This is, of course, one of the supreme virtues of the common law in the eyes of its admirers. See, e.g., BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921); HOLMES, supra note 1; WALTER L. MURPHY, ELEMENTS OF JUDICIAL STRATEGY (1964). Indeed, because Superfund liability is legislatively imposed and retroactive, tort statutes of limitation or other common law doctrines that effectively limit liability in the judicial context are unavailable to Superfund PRPs.
113. William H. Rodgers, The Seven Statutory Wonders of U.S. Environmental Law: Origins and Morphology, 27 LOY. L.A. L. REV. 1009, 1015 (1994).
114. See supra note 25 and accompanying text.
115. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
116. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
117. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
118. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
119. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
120. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
121. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
122. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
123. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
124. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
125. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
126. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
127. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
128. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
129. Article I, § 9 of the Constitution does prohibit Congress from enacting "ex post facto laws." Nevertheless, federal courts have upheld the constitutionality of Superfund's imposition of retroactive liability. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (1988). Interestingly, since these rulings, the Supreme Court has contracted its definition of permissible retroactive civil liability somewhat. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). It remains to be seen whether Superfund liability will ultimately survive the new Landgraf test, though almost every lower federal court to consider the question has concluded that Superfund's liability system is not inconsistent with Landgraf. See Cooper Indus. v. Agway, Inc., 987 F. Supp. 92 (N.D.N.Y. 1997); Continental Title Co. v. Peoples Gas Light & Coke Co., Raytheon Co. v. MacGraw-Edison Co., 979 F. Supp. 92 (E.D. Wis. 1997); 959 F. Supp. 893 (N.D. Ill. 1997); Ninth Ave. Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996); Nova Chem., Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996); Gould Inc. v. A&M Battery & Tire Serv., 933 F. Supp. 431 (M.D. Pa. 1996); Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996). As of this writing, only one federal district court has found Superfund's retroactive liability scheme to be inconsistent with the Supreme Court's Landgraf decision, see United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), and that decision has been overruled on appeal. See United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997). Nevertheless, the issue of Landgraf's implications for the future of Superfund's retroactivity has sparked considerable commentary. See John N. Bean, To Be or Not To Be: CERCLA Retroactivity Under Landgraf v. USI Film Products, 27 U. MEM. L. REV. 987 (1997); Nancy K. Kubasek et al., Retroactive Liability Under Superfund: Time to Settle the Issue, 13 J. LAND USE & ENVTL. L. 197 (1997); Comment, Much Ado About Nothing?: Retroactive CERCLA Liability After Landgraf, 15 TEMP. ENVTL. L. & TECH. J. 209 (1996); David Seidman, Questioning the Retroactivity of CERCLA in Light of Landgraf v. USI Film Products, 52 WASH. U. J. URB. & CONTEMP. L. 437 (1997); Greg B. Taylor, A Review of the Constitutionality of CERCLA in the Wake of United States v. Olin Corp., 6 S.C. ENVTL. L.J. 61 (1997).
130. See, e.g., KATHERINE N. PROBST & PAUL R. PORTNEY, ASSIGNING LIABILITY FOR SUPERFUND CLEANUPS: AN ANALYSIS OF POLICY OPTIONS (1992).
131. See Hazardous and Toxic Waste Disposal, Pt. 1, Before the Senate Comm. on Environment and Public Works, 96th Cong. (1979); see also Schiffer, supra note 16, at 5 (claiming that "liability for cleaning up hazardous wastes is not really 'retroactive' at all" because polluters were being prosecuted for cleanup costs before Superfund's passage under federal statutes like the Clean Water Act and the Rivers and Harbors Act of 1899).
132. See, e.g., comments of legislators, supra notes 25-26.
133. See 126 CONG. REC. H7020 (daily ed. Nov. 24, 1980).
134. See discussion infra Part III.
135. See supra notes 25-26. One newspaper reporter put it this way in 1995: [F]airness is not part of the equation when it comes to Superfund. The law's liability scheme is simply a convenient - and highly effective - way to raise money for cleanups. That goes against the grain of most Americans' sense of justice . . . . Gunter Booth, Superfund: A Machine Runs Amok, TAMPA TRIB., Sept. 17, 1995, at 1.
136. See, e.g., Clean Air Act § 120 (authorizing the assessment of civil penalties in an amount equal to the "economic value" of noncompliance or delayed compliance); 42 U.S.C. § 7420(a)(2)(A)(iii), (d)(2) (1996); see also
137. RCRA Civil Penalty Policy (Oct. 1990), § VIII, at 25-30 〈http://es.epa.gov/oeca/ore/red/rcra.pdf〉; Interim Clean Water Act Settlement Penalty Policy, at 4-5 (March 1, 1995) 〈http://es.epa.gov/oeca/water/cwapol.pdf〉. As I note, see supra note 52, it is also one rationale for imposing strict liability.
138. RCRA Civil Penalty Policy (Oct. 1990), § VIII, at 25-30 〈http://es.epa.gov/oeca/ore/red/rcra.pdf〉; Interim Clean Water Act Settlement Penalty Policy, at 4-5 (March 1, 1995) 〈http://es.epa.gov/oeca/water/cwapol.pdf〉. As I note, see supra note 52, it is also one rationale for imposing strict liability.
139. This literature, which goes back at least as far as Pigou's The Economics of Welfare, is too large to summarize here. A.C. PIGOU, THE ECONOMICS OF WELFARE (1922). For a general discussion, see WILLIAM J. BAUMOL & WALLACE E. OATES, THE THEORY OF ENVIRONMENTAL POLICY, Chs. 1-2 (1988).
140. This literature, which goes back at least as far as Pigou's The Economics of Welfare, is too large to summarize here. A.C. PIGOU, THE ECONOMICS OF WELFARE (1922). For a general discussion, see WILLIAM J. BAUMOL & WALLACE E. OATES, THE THEORY OF ENVIRONMENTAL POLICY, Chs. 1-2 (1988).
141. Of course, that intermediary may or may not be a PRP at the site, depending on whether the intermediary is available and solvent. As I explain in subpart II.D, infra, even if the intermediary is a PRP, that fact will not absolve the first PRP of liability.
142. PROBST ET AL., supra note 36, at 66; see also PROBST & PORTNEY, supra note 68;
143. Don Fullerton & Seng-Su Tsang, Should Environmental Costs Be Paid by the Polluter or the Beneficiary?, 85 PUB. ECON. R. 5 (1996). This is because all waste generators pay the depressed market rate for disposal services. The cost savings, then, is passed on to consumers. Fullerton and Tsang note that under not uncommon competitive conditions, consumers capture all the benefits of these externalities. See Fullerton & Tsang, supra, at 6. Probst et al. go on to note another dimension of this fairness problem -that Superfund always imposes liability on current shareholders, successors in interest to the shareholders at the time disposal occurred: To the extent that retroactive liability collects from new shareholders rather than from the former managers or shareholders that are responsible for the pollution, it does not really follow the polluter pays principle. And to the extent that it collects from shareholders rather than from consumers, retroactive liability does not follow the beneficiary pays principle either. PROBST ET AL., supra note 36, at 67. One possible rejoinder to this argument is that shareholders assume this risk when they invest. I will not address this argument here. See HIRD, supra note 44, at 120-21.
144. I use the term "innocent" to describe PRPs to which none of the three liability rationales apply. Because the discussion focuses on civil rather than criminal liability, it is perhaps a misnomer. But I will use it here for the lack of a better alternative.
145. There are several hundred former landfills on the NPL. For an interesting, if somewhat dated, discussion of the liability of municipal owners of once state-of-the-art landfills under Superfund, see Speakers at ABA Meeting Warn Municipalities of Increased Involvement in Superfund Suits, 17 Env't Rep. (BNA) 617 (1986). Of course, other landfills on the Superfund site list lie outside this category, either because their owners did not comply with those regulations or because no rules existed at the time of disposal. Of course, most real cases are not so clear, and the problem of determining a sender's negligence will often be difficult. I address problems of proof in Part IV.
146. Of course, it is possible for the disposal plan to be both safe and legal and for the wastes to end up in a Superfund site. The most well conceived disposal plans can go awry, and even state-of-the-art landfills eventually leak. There are several sites on the NPL that were state-of-the-art facilities when built. See infra notes 85-86 and accompanying text.
147. See supra note 77 and accompanying text.
148. The EPA identifies the site as Stringfellow Superfund Site, EPA-ID: CAT080012826.
149. See HIRD, supra note 44, at 122. Similarly, Superfund sites that were formerly legally operating waste recycling operations may involve PRPs, customers of the recycler, who fall into this category because their conduct was legal and careful, and they likely paid the market rate for recycling services only to find themselves liable for cleanup. Examples of such facilities include the Peak Oil Co./Bay Drum Co. Superfund site in Florida, EPA-ID: FLD004091807, and the Missouri Electric Works site in Missouri, EPA-ID: MOD980965982. Each site involves sender PRPs who followed specific regulatory instructions in sending their waste to the site for recycling. For a discussion of the proposed Lott bill, which would exempt sender PRPs from liability under these circumstances, see supra note 30.
150. See HIRD, supra note 44, at 122.
151. It should be noted that the Superfund statute includes a so-called "innocent landowner defense." The term used in the statute is actually "innocent purchaser" and the defense is contained in 42 U.S.C. § 9607(b). This defense ostensibly exempts from Superfund liability certain owners who acquired Superfund sites without actual knowledge of the presence of wastes on the site. However as interpreted by the courts, the innocent landowner defense does not exempt from liability all of the parties represented by Box 03. To the contrary, according to one commentator, the innocent landowner defense "is now being eviscerated by the courts." Court Finds Failure to Remediate Site Equitable Consideration in Cost Allocation, 27 Env't Rep. (BNA) 1586 (1996). Certainly, several courts have rejected the innocent landowner defense in cases in which there was no evidence offered that the landowners in question had actual knowledge of the waste problem at the time the property was purchased. See, e.g., Idylwoods v. Mader Capital, 956 F. Supp. 410 (W.D.N.Y. 1997) (owners and operators cannot assert an innocent landowner defense unless they exercise due care; owner or operator must take affirmative steps to address the contamination problem in order to avail itself of the defense); Foster v. United States, 922 F. Supp. 642 (D. D.C. 1996) (owner of contaminated property who did not conduct a pre-purchase environmental investigation and took no precautions after the contamination cannot assert innocent land- owner defense); Farmland Indus. v. Colorado & Eastern R.R. Co., 922 F. Supp. 437 (D. D.C 1996) (a property owner's failure to clean up contaminated debris released on to its property by another exacerbated Superfund response costs and justified allocating most of the associated costs to the owner); North Carolina v. Howes, 889 F. Supp. 849 (E.D.N.C. 1995) (defendant not entitled to raise innocent purchaser defense if release continued during his ownership). In contrast to these cases stand Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (if PRP landowner alleges that it did not contribute to the disposal of hazardous substances, it may sue other PRPs for cost recovery under § 107); New York v. Lashins Arcade Co., 91 F.3d 353 (2d Cir. 1996) (present owner is not liable for contamination caused by lessee of prior owner); Goe Eng'g Co. v. Physicians Formula Cosmetics, Inc., No. 94-3576-WDK, (D.C. Cal. June 3, 1997) (owner who was unaware of contamination at time of purchase and exercised due care after the purchase can assert the innocent landowner defense).
152. It should be noted that the Superfund statute includes a so-called "innocent landowner defense." The term used in the statute is actually "innocent purchaser" and the defense is contained in 42 U.S.C. § 9607(b). This defense ostensibly exempts from Superfund liability certain owners who acquired Superfund sites without actual knowledge of the presence of wastes on the site. However as interpreted by the courts, the innocent landowner defense does not exempt from liability all of the parties represented by Box 03. To the contrary, according to one commentator, the innocent landowner defense "is now being eviscerated by the courts." Court Finds Failure to Remediate Site Equitable Consideration in Cost Allocation, 27 Env't Rep. (BNA) 1586 (1996). Certainly, several courts have rejected the innocent landowner defense in cases in which there was no evidence offered that the landowners in question had actual knowledge of the waste problem at the time the property was purchased. See, e.g., Idylwoods v. Mader Capital, 956 F. Supp. 410 (W.D.N.Y. 1997) (owners and operators cannot assert an innocent landowner defense unless they exercise due care; owner or operator must take affirmative steps to address the contamination problem in order to avail itself of the defense); Foster v. United States, 922 F. Supp. 642 (D. D.C. 1996) (owner of contaminated property who did not conduct a pre-purchase environmental investigation and took no precautions after the contamination cannot assert innocent land- owner defense); Farmland Indus. v. Colorado & Eastern R.R. Co., 922 F. Supp. 437 (D. D.C 1996) (a property owner's failure to clean up contaminated debris released on to its property by another exacerbated Superfund response costs and justified allocating most of the associated costs to the owner); North Carolina v. Howes, 889 F. Supp. 849 (E.D.N.C. 1995) (defendant not entitled to raise innocent purchaser defense if release continued during his ownership). In contrast to these cases stand Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (if PRP landowner alleges that it did not contribute to the disposal of hazardous substances, it may sue other PRPs for cost recovery under § 107); New York v. Lashins Arcade Co., 91 F.3d 353 (2d Cir. 1996) (present owner is not liable for contamination caused by lessee of prior owner); Goe Eng'g Co. v. Physicians Formula Cosmetics, Inc., No. 94-3576-WDK, (D.C. Cal. June 3, 1997) (owner who was unaware of contamination at time of purchase and exercised due care after the purchase can assert the innocent landowner defense).
153. It should be noted that the Superfund statute includes a so-called "innocent landowner defense." The term used in the statute is actually "innocent purchaser" and the defense is contained in 42 U.S.C. § 9607(b). This defense ostensibly exempts from Superfund liability certain owners who acquired Superfund sites without actual knowledge of the presence of wastes on the site. However as interpreted by the courts, the innocent landowner defense does not exempt from liability all of the parties represented by Box 03. To the contrary, according to one commentator, the innocent landowner defense "is now being eviscerated by the courts." Court Finds Failure to Remediate Site Equitable Consideration in Cost Allocation, 27 Env't Rep. (BNA) 1586 (1996). Certainly, several courts have rejected the innocent landowner defense in cases in which there was no evidence offered that the landowners in question had actual knowledge of the waste problem at the time the property was purchased. See, e.g., Idylwoods v. Mader Capital, 956 F. Supp. 410 (W.D.N.Y. 1997) (owners and operators cannot assert an innocent landowner defense unless they exercise due care; owner or operator must take affirmative steps to address the contamination problem in order to avail itself of the defense); Foster v. United States, 922 F. Supp. 642 (D. D.C. 1996) (owner of contaminated property who did not conduct a pre-purchase environmental investigation and took no precautions after the contamination cannot assert innocent land-owner defense); Farmland Indus. v. Colorado & Eastern R.R. Co., 922 F. Supp. 437 (D. D.C 1996) (a property owner's failure to clean up contaminated debris released on to its property by another exacerbated Superfund response costs and justified allocating most of the associated costs to the owner); North Carolina v. Howes, 889 F. Supp. 849 (E.D.N.C. 1995) (defendant not entitled to raise innocent purchaser defense if release continued during his ownership). In contrast to these cases stand Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (if PRP landowner alleges that it did not contribute to the disposal of hazardous substances, it may sue other PRPs for cost recovery under § 107); New York v. Lashins Arcade Co., 91 F.3d 353 (2d Cir. 1996) (present owner is not liable for contamination caused by lessee of prior owner); Goe Eng'g Co. v. Physicians Formula Cosmetics, Inc., No. 94-3576-WDK, (D.C. Cal. June 3, 1997) (owner who was unaware of contamination at time of purchase and exercised due care after the purchase can assert the innocent landowner defense).
154. It should be noted that the Superfund statute includes a so-called "innocent landowner defense." The term used in the statute is actually "innocent purchaser" and the defense is contained in 42 U.S.C. § 9607(b). This defense ostensibly exempts from Superfund liability certain owners who acquired Superfund sites without actual knowledge of the presence of wastes on the site. However as interpreted by the courts, the innocent landowner defense does not exempt from liability all of the parties represented by Box 03. To the contrary, according to one commentator, the innocent landowner defense "is now being eviscerated by the courts." Court Finds Failure to Remediate Site Equitable Consideration in Cost Allocation, 27 Env't Rep. (BNA) 1586 (1996). Certainly, several courts have rejected the innocent landowner defense in cases in which there was no evidence offered that the landowners in question had actual knowledge of the waste problem at the time the property was
155. It should be noted that the Superfund statute includes a so-called "innocent landowner defense." The term used in the statute is actually "innocent purchaser" and the defense is contained in 42 U.S.C. § 9607(b). This defense ostensibly exempts from Superfund liability certain owners who acquired Superfund sites without actual knowledge of the presence of wastes on the site. However as interpreted by the courts, the innocent landowner defense does not exempt from liability all of the parties represented by Box 03. To the contrary, according to one commentator, the innocent landowner defense "is now being eviscerated by the courts." Court Finds Failure to Remediate Site Equitable Consideration in Cost Allocation, 27 Env't Rep. (BNA) 1586 (1996). Certainly, several courts have rejected the innocent landowner defense in cases in which there was no evidence offered that the landowners in question had actual knowledge of the waste problem at the time the property was purchased. See, e.g., Idylwoods v. Mader Capital, 956 F. Supp. 410 (W.D.N.Y. 1997) (owners and operators cannot assert an innocent landowner defense unless they exercise due care; owner or operator must take affirmative steps to address the contamination problem in order to avail itself of the defense); Foster v. United States, 922 F. Supp. 642 (D. D.C. 1996) (owner of contaminated property who did not conduct a pre-purchase environmental investigation and took no precautions after the contamination cannot assert innocent land- owner defense); Farmland Indus. v. Colorado & Eastern R.R. Co., 922 F. Supp. 437 (D. D.C 1996) (a property owner's failure to clean up contaminated debris released on to its property by another exacerbated Superfund response costs and justified allocating most of the associated costs to the owner); North Carolina v. Howes, 889 F. Supp. 849 (E.D.N.C. 1995) (defendant not entitled to raise innocent purchaser defense if release continued during his ownership). In contrast to these cases stand Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (if PRP landowner alleges that it did not contribute to the disposal of hazardous substances, it may sue other PRPs for cost recovery under § 107); New York v. Lashins Arcade Co., 91 F.3d 353 (2d Cir. 1996) (present owner is not liable for contamination caused by lessee of prior owner); Goe Eng'g Co. v. Physicians Formula Cosmetics, Inc., No. 94-3576-WDK, (D.C. Cal. June 3, 1997) (owner who was unaware of contamination at time of purchase and exercised due care after the purchase can assert the innocent landowner defense).
156. It should be noted that the Superfund statute includes a so-called "innocent landowner defense." The term used in the statute is actually "innocent purchaser" and the defense is contained in 42 U.S.C. § 9607(b). This defense ostensibly exempts from Superfund liability certain owners who acquired Superfund sites without actual knowledge of the presence of wastes on the site. However as interpreted by the courts, the innocent landowner defense does not exempt from liability all of the parties represented by Box 03. To the contrary, according to one commentator, the innocent landowner defense "is now being eviscerated by the courts." Court Finds Failure to Remediate Site Equitable Consideration in Cost Allocation, 27 Env't Rep. (BNA) 1586 (1996). Certainly, several courts have rejected the innocent landowner defense in cases in which there was no evidence offered that the landowners in question had actual knowledge of the waste problem at the time the property was purchased. See, e.g., Idylwoods v. Mader Capital, 956 F. Supp. 410 (W.D.N.Y. 1997) (owners and operators cannot assert an innocent landowner defense unless they exercise due care; owner or operator must take affirmative steps to address the contamination problem in order to avail itself of the defense); Foster v. United States, 922 F. Supp. 642 (D. D.C. 1996) (owner of contaminated property who did not conduct a pre-purchase environmental investigation and took no precautions after the contamination cannot assert innocent land- owner defense); Farmland Indus. v. Colorado & Eastern R.R. Co., 922 F. Supp. 437 (D. D.C 1996) (a property owner's failure to clean up contaminated debris released on to its property by another exacerbated Superfund response costs and justified allocating most of the associated costs to the owner); North Carolina v. Howes, 889 F. Supp. 849 (E.D.N.C. 1995) (defendant not entitled to raise innocent purchaser defense if release continued during his ownership). In contrast to these cases stand Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (if PRP landowner alleges that it did not contribute to the disposal of hazardous substances, it may sue other PRPs for cost recovery under § 107); New York v. Lashins Arcade Co., 91 F.3d 353 (2d Cir. 1996) (present owner is not liable for contamination caused by lessee of prior owner); Goe Eng'g Co. v. Physicians Formula Cosmetics, Inc., No. 94-3576-WDK, (D.C. Cal. June 3, 1997) (owner who was unaware of contamination at time of purchase and exercised due care after the purchase can assert the innocent landowner defense).
157. It should be noted that the Superfund statute includes a so-called "innocent landowner defense." The term used in the statute is actually "innocent purchaser" and the defense is contained in 42 U.S.C. § 9607(b). This defense ostensibly exempts from Superfund liability certain owners who acquired Superfund sites without actual knowledge of the presence of wastes on the site. However as interpreted by the courts, the innocent landowner defense does not exempt from liability all of the parties represented by Box 03. To the contrary, according to one commentator, the innocent landowner defense "is now being eviscerated by the courts." Court Finds Failure to Remediate Site Equitable Consideration in Cost Allocation, 27 Env't Rep. (BNA) 1586 (1996). Certainly, several courts have rejected the innocent landowner defense in cases in which there was no evidence offered that the landowners in question had actual knowledge of the waste problem at the time the property was purchased. See, e.g., Idylwoods v. Mader Capital, 956 F. Supp. 410 (W.D.N.Y. 1997) (owners and operators cannot assert an innocent landowner defense unless they exercise due care; owner or operator must take affirmative steps to address the contamination problem in order to avail itself of the defense); Foster v. United States, 922 F. Supp. 642 (D. D.C. 1996) (owner of contaminated property who did not conduct a pre-purchase environmental investigation and took no precautions after the contamination cannot assert innocent land- owner defense); Farmland Indus. v. Colorado & Eastern R.R. Co., 922 F. Supp. 437 (D. D.C 1996) (a property owner's failure to clean up contaminated debris released on to its property by another exacerbated Superfund response costs and justified allocating most of the associated costs to the owner); North Carolina v. Howes, 889 F. Supp. 849 (E.D.N.C. 1995) (defendant not entitled to raise innocent purchaser defense if release continued during his ownership). In contrast to these cases stand Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (if PRP landowner alleges that it did not contribute to the disposal of hazardous substances, it may sue other PRPs for cost recovery under § 107); New York v. Lashins Arcade Co., 91 F.3d 353 (2d Cir. 1996) (present owner is not liable for contamination caused by lessee of prior owner); Goe Eng'g Co. v. Physicians Formula Cosmetics, Inc., No. 94-3576-WDK, (D.C. Cal. June 3, 1997) (owner who was unaware of contamination at time of purchase and exercised due care after the purchase can assert the innocent landowner defense).
158. It should be noted that the Superfund statute includes a so-called "innocent landowner defense." The term used in the statute is actually "innocent purchaser" and the defense is contained in 42 U.S.C. § 9607(b). This defense ostensibly exempts from Superfund liability certain owners who acquired Superfund sites without actual knowledge of the presence of wastes on the site. However as interpreted by the courts, the innocent landowner defense does not exempt from liability all of the parties represented by Box 03. To the contrary, according to one commentator, the innocent landowner defense "is now being eviscerated by the courts." Court Finds Failure to Remediate Site Equitable Consideration in Cost Allocation, 27 Env't Rep. (BNA) 1586 (1996). Certainly, several courts have rejected the innocent landowner defense in cases in which there was no evidence offered that the landowners in question had actual knowledge of the waste problem at the time the property was purchased. See, e.g., Idylwoods v. Mader Capital, 956 F. Supp. 410 (W.D.N.Y. 1997) (owners and operators cannot assert an innocent landowner defense unless they exercise due care; owner or operator must take affirmative steps to address the contamination problem in order to avail itself of the defense); Foster v. United States, 922 F. Supp. 642 (D. D.C. 1996) (owner of contaminated property who did not conduct a pre-purchase environmental investigation and took no precautions after the contamination cannot assert innocent land- owner defense); Farmland Indus. v. Colorado & Eastern R.R. Co., 922 F. Supp. 437 (D. D.C 1996) (a property owner's failure to clean up contaminated debris released on to its property by another exacerbated Superfund response costs and justified allocating most of the associated costs to the owner); North Carolina v. Howes, 889 F. Supp. 849 (E.D.N.C. 1995) (defendant not entitled to raise innocent purchaser defense if release continued during his ownership). In contrast to these cases stand Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (if PRP landowner alleges that it did not contribute to the disposal of hazardous substances, it may sue other PRPs for cost recovery under § 107); New York v. Lashins Arcade Co., 91 F.3d 353 (2d Cir. 1996) (present owner is not liable for contamination caused by lessee of prior owner); Goe Eng'g Co. v. Physicians Formula Cosmetics, Inc., No. 94-3576-WDK, (D.C. Cal. June 3, 1997) (owner who was unaware of contamination at time of purchase and exercised due care after the purchase can assert the innocent landowner defense).
159. Interestingly, the Second Circuit has indicated that owners in this situation may raise Superfund's third-party defense, discussed supra note 61, unless the contract between owner and tenant concerned the handling of hazardous substances. See Westwood Pharms., Inc., v. National Fuel Gas Distribution Corp., 964 F.2d 85 (2d Cir. 1992); see also
160. Lashins, 91 F.3d at 353.
161. A landowner who transfers property knowing of the contamination problem on site, without disclosing its existence, is liable as a Superfund owner, according to the District Court for the Western District of Kentucky in Anhaeuser Busch, Inc. v. Ford Motor Co., No. 93-526 1997 U.S. Dist. LEXIS 3556 (W.D. Ky. Feb. 11, 1997).
162. This assumes that the lease transaction is an arms-length transaction. That is, I assume that the owner will not be able to charge a premium to the tenant reflecting the tenant's higher rate of return due to improper disposal.
163. As described at infra note 101 and accompanying text, these cases are usually so-called "contribution actions," brought under § 113 of the statute or, less commonly, "cost recovery actions" brought under § 107 of the statute. See 42 U.S.C. §§ 9607, 9613; see also discussion infra Part III and Appendix B.
164. Suits by the EPA for cleanup costs are brought under either of two statutory sections. The EPA "cost recovery" actions are brought under § 107 for reimbursement of the trust fund after a cleanup financed by the EPA. 42 U.S.C. § 9607. Alternatively, the EPA can sue to force a court-ordered, PRP-financed cleanup under § 106 of the statute. 42 U.S.C. § 9606.
165. I also use the terms "PRP-led" and "fund-led" to describe cleanups that are financed, in the first instance, by PRPs or the trust fund, respectively. Of course, even fund-led cleanups are PRP-financed to the extent the EPA can secure reimbursement of the fund through cost-recovery litigation after cleanup.
166. For a good summary of the kinds of factors that go into allocation formulae, see Frank L. Mink et al., Superfund Site Contamination: Apportionment of Liability, 12 NAT. RES. & ENV'T J. 68, 68-69 (1997).
167. For a discussion of the distribution of transaction costs between the trust fund and PRPs, see PROBST ET AL., supra note 36, at 21-23.
168. For the EPA estimate, see PROBST ET AL., supra note 36, at 33.
169. See infra note 111 and accompanying text.
170. See supra notes 92-93.
171. See id.
172. For some time now, the circuits have been split on the question of whether cooperating PRPs can sue noncooperating PRPs for cost recovery under § 107. A strong majority says no. See, e.g., Newcastle County v. Haliburton, 11 F.3d 1116 (3rd Cir. 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998); Klein v. Grand Union Co., 91 CIV. 8459 (CLB), 1997 U.S. Dist. LEXIS 6149 (S.D.N.Y. Feb. 25, 1997) (PRP seeking contribution must establish each defendant PRP's equitable share of liability); Carter-Jones Lumber Co. v. LTV Steel Co., No. C2-92-1161, 1997 U.S. Dist. LEXIS 4174 (S.D. Ohio 1997); SC Holdings v. AAA Realty Co., No. 95-0947, 1996 U.S. Dist. Lexis 12428 (D.N.J. Aug. 19, 1996). While this is the clear majority interpretation of the statute among the circuits, some courts have permitted PRPs who voluntarily agree to clean up waste at a site to bring cost recovery actions under certain circumstances. See, e.g., Crofton Ventures Ltd. Partnership v. G & H Partnership, No. MJG-96-1378, 1997 U.S. Dist. LEXIS 8067 (D. Md. Jan. 31, 1997) (a potentially responsible party who voluntarily initiates a clean up can sue other PRPs for direct cost recovery); see also Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (PRP land- owner who alleges that it did not contribute to the disposal of hazardous substances may sue other PRPs for direct cost recovery). On the other hand, in at least one case, a settling PRP was denied the right to bring a contribution action when the defendant's share of liability would be "far less than the costs of litigation." Acushnet Co. v. Coaters, Inc., No. 93-11219-Rex., 1997 U.S. Dist. LEXIS 12725 (D. Mass. July 30, 1997). For a fuller discussion of this issue, see, for example, William D. Araiza, Text, Purpose and Facts: The Relationship Between CERCLA Sections 107 and 113, 72 NOTRE DAME L. REV. 193 (1996); Michael V. Hernandez, Cost Recovery or Contribution?: Resolving the Controversy Over CERCLA Claims Brought By Potentially Responsible Parties, 21 HARV. ENVTL. L. REV. 83 (1997).
173. For some time now, the circuits have been split on the question of whether cooperating PRPs can sue noncooperating PRPs for cost recovery under § 107. A strong majority says no. See, e.g., Newcastle County v. Haliburton, 11 F.3d 1116 (3rd Cir. 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998); Klein v. Grand Union Co., 91 CIV. 8459 (CLB), 1997 U.S. Dist. LEXIS 6149 (S.D.N.Y. Feb. 25, 1997) (PRP seeking contribution must establish each defendant PRP's equitable share of liability); Carter-Jones Lumber Co. v. LTV Steel Co., No. C2-92-1161, 1997 U.S. Dist. LEXIS 4174 (S.D. Ohio 1997); SC Holdings v. AAA Realty Co., No. 95-0947, 1996 U.S. Dist. Lexis 12428 (D.N.J. Aug. 19, 1996). While this is the clear majority interpretation of the statute among the circuits, some courts have permitted PRPs who voluntarily agree to clean up waste at a site to bring cost recovery actions under certain circumstances. See, e.g., Crofton Ventures Ltd. Partnership v. G & H Partnership, No. MJG-96-1378, 1997 U.S. Dist. LEXIS 8067 (D. Md. Jan. 31, 1997) (a potentially responsible party who voluntarily initiates a clean up can sue other PRPs for direct cost recovery); see also Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (PRP land- owner who alleges that it did not contribute to the disposal of hazardous substances may sue other PRPs for direct cost recovery). On the other hand, in at least one case, a settling PRP was denied the right to bring a contribution action when the defendant's share of liability would be "far less than the costs of litigation." Acushnet Co. v. Coaters, Inc., No. 93-11219-Rex., 1997 U.S. Dist. LEXIS 12725 (D. Mass. July 30, 1997). For a fuller discussion of this issue, see, for example, William D. Araiza, Text, Purpose and Facts: The Relationship Between CERCLA Sections 107 and 113, 72 NOTRE DAME L. REV. 193 (1996); Michael V. Hernandez, Cost Recovery or Contribution?: Resolving the Controversy Over CERCLA Claims Brought By Potentially Responsible Parties, 21 HARV. ENVTL. L. REV. 83 (1997).
174. For some time now, the circuits have been split on the question of whether cooperating PRPs can sue noncooperating PRPs for cost recovery under § 107. A strong majority says no. See, e.g., Newcastle County v. Haliburton, 11 F.3d 1116 (3rd Cir. 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998); Klein v. Grand Union Co., 91 CIV. 8459 (CLB), 1997 U.S. Dist. LEXIS 6149 (S.D.N.Y. Feb. 25, 1997) (PRP seeking contribution must establish each defendant PRP's equitable share of liability); Carter-Jones Lumber Co. v. LTV Steel Co., No. C2-92-1161, 1997 U.S. Dist. LEXIS 4174 (S.D. Ohio 1997); SC Holdings v. AAA Realty Co., No. 95-0947, 1996 U.S. Dist. Lexis 12428 (D.N.J. Aug. 19, 1996). While this is the clear majority interpretation of the statute among the circuits, some courts have permitted PRPs who voluntarily agree to clean up waste at a site to bring cost recovery actions under certain circumstances. See, e.g., Crofton Ventures Ltd. Partnership v. G & H Partnership, No. MJG-96-1378, 1997 U.S. Dist. LEXIS 8067 (D. Md. Jan. 31, 1997) (a potentially responsible party who voluntarily initiates a clean up can sue other PRPs for direct cost recovery); see also Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (PRP land- owner who alleges that it did not contribute to the disposal of hazardous substances may sue other PRPs for direct cost recovery). On the other hand, in at least one case, a settling PRP was denied the right to bring a contribution action when the defendant's share of liability would be "far less than the costs of litigation." Acushnet Co. v. Coaters, Inc., No. 93-11219-Rex., 1997 U.S. Dist. LEXIS 12725 (D. Mass. July 30, 1997). For a fuller discussion of this issue, see, for example, William D. Araiza, Text, Purpose and Facts: The Relationship Between CERCLA Sections 107 and 113, 72 NOTRE DAME L. REV. 193 (1996); Michael V. Hernandez, Cost Recovery or Contribution?: Resolving the Controversy Over CERCLA Claims Brought By Potentially Responsible Parties, 21 HARV. ENVTL. L. REV. 83 (1997).
175. For some time now, the circuits have been split on the question of whether cooperating PRPs can sue noncooperating PRPs for cost recovery under § 107. A strong majority says no. See, e.g., Newcastle County v. Haliburton, 11 F.3d 1116 (3rd Cir. 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998); Klein v. Grand Union Co., 91 CIV. 8459 (CLB), 1997 U.S. Dist. LEXIS 6149 (S.D.N.Y. Feb. 25, 1997) (PRP seeking contribution must establish each defendant PRP's equitable share of liability); Carter-Jones Lumber Co. v. LTV Steel Co., No. C2-92-1161, 1997 U.S. Dist. LEXIS 4174 (S.D. Ohio 1997); SC Holdings v. AAA Realty Co., No. 95-0947, 1996 U.S. Dist. Lexis 12428 (D.N.J. Aug. 19, 1996). While this is the clear majority interpretation of the statute among the circuits, some courts have permitted PRPs who voluntarily agree to clean up waste at a site to bring cost recovery actions under certain circumstances. See, e.g., Crofton Ventures Ltd. Partnership v. G & H Partnership, No. MJG-96-1378, 1997 U.S. Dist. LEXIS 8067 (D. Md. Jan. 31, 1997) (a potentially responsible party who voluntarily initiates a clean up can sue other PRPs for direct cost recovery); see also Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (PRP land- owner who alleges that it did not contribute to the disposal of hazardous substances may sue other PRPs for direct cost recovery). On the other hand, in at least one case, a settling PRP was denied the right to bring a contribution action when the defendant's share of liability would be "far less than the costs of litigation." Acushnet Co. v. Coaters, Inc., No. 93-11219-Rex., 1997 U.S. Dist. LEXIS 12725 (D. Mass. July 30, 1997). For a fuller discussion of this issue, see, for example, William D. Araiza, Text, Purpose and Facts: The Relationship Between CERCLA Sections 107 and 113, 72 NOTRE DAME L. REV. 193 (1996); Michael V. Hernandez, Cost Recovery or Contribution?: Resolving the Controversy Over CERCLA Claims Brought By Potentially Responsible Parties, 21 HARV. ENVTL. L. REV. 83 (1997).
176. For some time now, the circuits have been split on the question of whether cooperating PRPs can sue noncooperating PRPs for cost recovery under § 107. A strong majority says no. See, e.g., Newcastle County v. Haliburton, 11 F.3d 1116 (3rd Cir. 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998); Klein v. Grand Union Co., 91 CIV. 8459 (CLB), 1997 U.S. Dist. LEXIS 6149 (S.D.N.Y. Feb. 25, 1997) (PRP seeking contribution must establish each defendant PRP's equitable share of liability); Carter-Jones Lumber Co. v. LTV Steel Co., No. C2-92-1161, 1997 U.S. Dist. LEXIS 4174 (S.D. Ohio 1997); SC Holdings v. AAA Realty Co., No. 95-0947, 1996 U.S. Dist. Lexis 12428 (D.N.J. Aug. 19, 1996). While this is the clear majority interpretation of the statute among the circuits, some courts have permitted PRPs who voluntarily agree to clean up waste at a site to bring cost recovery actions under certain circumstances. See, e.g., Crofton Ventures Ltd. Partnership v. G & H Partnership, No. MJG-96-1378, 1997 U.S. Dist. LEXIS 8067 (D. Md. Jan. 31, 1997) (a potentially responsible party who voluntarily initiates a clean up can sue other PRPs for direct cost recovery); see also Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (PRP land- owner who alleges that it did not contribute to the disposal of hazardous substances may sue other PRPs for direct cost recovery). On the other hand, in at least one case, a settling PRP was denied the right to bring a contribution action when the defendant's share of liability would be "far less than the costs of litigation." Acushnet Co. v. Coaters, Inc., No. 93-11219-Rex., 1997 U.S. Dist. LEXIS 12725 (D. Mass. July 30, 1997). For a fuller discussion of this issue, see, for example, William D. Araiza, Text, Purpose and Facts: The Relationship Between CERCLA Sections 107 and 113, 72 NOTRE DAME L. REV. 193 (1996); Michael V. Hernandez, Cost Recovery or Contribution?: Resolving the Controversy Over CERCLA Claims Brought By Potentially Responsible Parties, 21 HARV. ENVTL. L. REV. 83 (1997).
177. For some time now, the circuits have been split on the question of whether cooperating PRPs can sue noncooperating PRPs for cost recovery under § 107. A strong majority says no. See, e.g., Newcastle County v. Haliburton, 11 F.3d 1116 (3rd Cir. 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998); Klein v. Grand Union Co., 91 CIV. 8459 (CLB), 1997 U.S. Dist. LEXIS 6149 (S.D.N.Y. Feb. 25, 1997) (PRP seeking contribution must establish each defendant PRP's equitable share of liability); Carter-Jones Lumber Co. v. LTV Steel Co., No. C2-92-1161, 1997 U.S. Dist. LEXIS 4174 (S.D. Ohio 1997); SC Holdings v. AAA Realty Co., No. 95-0947, 1996 U.S. Dist. Lexis 12428 (D.N.J. Aug. 19, 1996). While this is the clear majority interpretation of the statute among the circuits, some courts have permitted PRPs who voluntarily agree to clean up waste at a site to bring cost recovery actions under certain circumstances. See, e.g., Crofton Ventures Ltd. Partnership v. G & H Partnership, No. MJG-96-1378, 1997 U.S. Dist. LEXIS 8067 (D. Md. Jan. 31, 1997) (a potentially responsible party who voluntarily initiates a clean up can sue other PRPs for direct cost recovery); see also Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (PRP land- owner who alleges that it did not contribute to the disposal of hazardous substances may sue other PRPs for direct cost recovery). On the other hand, in at least one case, a settling PRP was denied the right to bring a contribution action when the defendant's share of liability would be "far less than the costs of litigation." Acushnet Co. v. Coaters, Inc., No. 93-11219-Rex., 1997 U.S. Dist. LEXIS 12725 (D. Mass. July 30, 1997). For a fuller discussion of this issue, see, for example, William D. Araiza, Text, Purpose and Facts: The Relationship Between CERCLA Sections 107 and 113, 72 NOTRE DAME L. REV. 193 (1996); Michael V. Hernandez, Cost Recovery or Contribution?: Resolving the Controversy Over CERCLA Claims Brought By Potentially Responsible Parties, 21 HARV. ENVTL. L. REV. 83 (1997).
178. For some time now, the circuits have been split on the question of whether cooperating PRPs can sue noncooperating PRPs for cost recovery under § 107. A strong majority says no. See, e.g., Newcastle County v. Haliburton, 11 F.3d 1116 (3rd Cir. 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998); Klein v. Grand Union Co., 91 CIV. 8459 (CLB), 1997 U.S. Dist. LEXIS 6149 (S.D.N.Y. Feb. 25, 1997) (PRP seeking contribution must establish each defendant PRP's equitable share of liability); Carter-Jones Lumber Co. v. LTV Steel Co., No. C2-92-1161, 1997 U.S. Dist. LEXIS 4174 (S.D. Ohio 1997); SC Holdings v. AAA Realty Co., No. 95-0947, 1996 U.S. Dist. Lexis 12428 (D.N.J. Aug. 19, 1996). While this is the clear majority interpretation of the statute among the circuits, some courts have permitted PRPs who voluntarily agree to clean up waste at a site to bring cost recovery actions under certain circumstances. See, e.g., Crofton Ventures Ltd. Partnership v. G & H Partnership, No. MJG-96-1378, 1997 U.S. Dist. LEXIS 8067 (D. Md. Jan. 31, 1997) (a potentially responsible party who voluntarily initiates a clean up can sue other PRPs for direct cost recovery); see also Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (PRP land- owner who alleges that it did not contribute to the disposal of hazardous substances may sue other PRPs for direct cost recovery). On the other hand, in at least one case, a settling PRP was denied the right to bring a contribution action when the defendant's share of liability would be "far less than the costs of litigation." Acushnet Co. v. Coaters, Inc., No. 93-11219-Rex., 1997 U.S. Dist. LEXIS 12725 (D. Mass. July 30, 1997). For a fuller discussion of this issue, see, for example, William D. Araiza, Text, Purpose and Facts: The Relationship Between CERCLA Sections 107 and 113, 72 NOTRE DAME L. REV. 193 (1996); Michael V. Hernandez, Cost Recovery or Contribution?: Resolving the Controversy Over CERCLA Claims Brought By Potentially Responsible Parties, 21 HARV. ENVTL. L. REV. 83 (1997).
179. For some time now, the circuits have been split on the question of whether cooperating PRPs can sue noncooperating PRPs for cost recovery under § 107. A strong majority says no. See, e.g., Newcastle County v. Haliburton, 11 F.3d 1116 (3rd Cir. 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998); Klein v. Grand Union Co., 91 CIV. 8459 (CLB), 1997 U.S. Dist. LEXIS 6149 (S.D.N.Y. Feb. 25, 1997) (PRP seeking contribution must establish each defendant PRP's equitable share of liability); Carter-Jones Lumber Co. v. LTV Steel Co., No. C2-92-1161, 1997 U.S. Dist. LEXIS 4174 (S.D. Ohio 1997); SC Holdings v. AAA Realty Co., No. 95-0947, 1996 U.S. Dist. Lexis 12428 (D.N.J. Aug. 19, 1996). While this is the clear majority interpretation of the statute among the circuits, some courts have permitted PRPs who voluntarily agree to clean up waste at a site to bring cost recovery actions under certain circumstances. See, e.g., Crofton Ventures Ltd. Partnership v. G & H Partnership, No. MJG-96-1378, 1997 U.S. Dist. LEXIS 8067 (D. Md. Jan. 31, 1997) (a potentially responsible party who voluntarily initiates a clean up can sue other PRPs for direct cost recovery); see also Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (PRP land-owner who alleges that it did not contribute to the disposal of hazardous substances may sue other PRPs for direct cost recovery). On the other hand, in at least one case, a settling PRP was denied the right to bring a contribution action when the defendant's share of liability would be "far less than the costs of litigation." Acushnet Co. v. Coaters, Inc., No. 93-11219-Rex., 1997 U.S. Dist. LEXIS 12725 (D. Mass. July 30, 1997). For a fuller discussion of this issue, see, for example, William D. Araiza, Text, Purpose and Facts: The Relationship Between CERCLA Sections 107 and 113, 72 NOTRE DAME L. REV. 193 (1996); Michael V. Hernandez, Cost Recovery or Contribution?: Resolving the Controversy Over CERCLA Claims Brought By Potentially Responsible Parties, 21 HARV. ENVTL. L. REV. 83 (1997).
180. For some time now, the circuits have been split on the question of whether cooperating PRPs can sue noncooperating PRPs for cost recovery under § 107. A strong majority says no. See, e.g., Newcastle County v. Haliburton, 11 F.3d 1116 (3rd Cir. 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998); Klein v. Grand Union Co., 91 CIV. 8459 (CLB), 1997 U.S. Dist. LEXIS 6149 (S.D.N.Y. Feb. 25, 1997) (PRP seeking contribution must establish each defendant PRP's equitable share of liability); Carter-Jones Lumber Co. v. LTV Steel Co., No. C2-92-1161, 1997 U.S. Dist. LEXIS 4174 (S.D. Ohio 1997); SC Holdings v. AAA Realty Co., No. 95-0947, 1996 U.S. Dist. Lexis 12428 (D.N.J. Aug. 19, 1996). While this is the clear majority interpretation of the statute among the circuits, some courts have permitted PRPs who voluntarily agree to clean up waste at a site to bring cost recovery actions under certain circumstances. See, e.g., Crofton Ventures Ltd. Partnership v. G & H Partnership, No. MJG-96-1378, 1997 U.S. Dist. LEXIS 8067 (D. Md. Jan. 31, 1997) (a potentially responsible party who voluntarily initiates a clean up can sue other PRPs for direct cost recovery); see also Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (PRP land- owner who alleges that it did not contribute to the disposal of hazardous substances may sue other PRPs for direct cost recovery). On the other hand, in at least one case, a settling PRP was denied the right to bring a contribution action when the defendant's share of liability would be "far less than the costs of litigation." Acushnet Co. v. Coaters, Inc., No. 93-11219-Rex., 1997 U.S. Dist. LEXIS 12725 (D. Mass. July 30, 1997). For a fuller discussion of this issue, see, for example, William D. Araiza, Text, Purpose and Facts: The Relationship Between CERCLA Sections 107 and 113, 72 NOTRE DAME L. REV. 193 (1996); Michael V. Hernandez, Cost Recovery or Contribution?: Resolving the Controversy Over CERCLA Claims Brought By Potentially Responsible Parties, 21 HARV. ENVTL. L. REV. 83 (1997).
181. For some time now, the circuits have been split on the question of whether cooperating PRPs can sue noncooperating PRPs for cost recovery under § 107. A strong majority says no. See, e.g., Newcastle County v. Haliburton, 11 F.3d 1116 (3rd Cir. 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998); Klein v. Grand Union Co., 91 CIV. 8459 (CLB), 1997 U.S. Dist. LEXIS 6149 (S.D.N.Y. Feb. 25, 1997) (PRP seeking contribution must establish each defendant PRP's equitable share of liability); Carter-Jones Lumber Co. v. LTV Steel Co., No. C2-92-1161, 1997 U.S. Dist. LEXIS 4174 (S.D. Ohio 1997); SC Holdings v. AAA Realty Co., No. 95-0947, 1996 U.S. Dist. Lexis 12428 (D.N.J. Aug. 19, 1996). While this is the clear majority interpretation of the statute among the circuits, some courts have permitted PRPs who voluntarily agree to clean up waste at a site to bring cost recovery actions under certain circumstances. See, e.g., Crofton Ventures Ltd. Partnership v. G & H Partnership, No. MJG-96-1378, 1997 U.S. Dist. LEXIS 8067 (D. Md. Jan. 31, 1997) (a potentially responsible party who voluntarily initiates a clean up can sue other PRPs for direct cost recovery); see also Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (PRP land- owner who alleges that it did not contribute to the disposal of hazardous substances may sue other PRPs for direct cost recovery). On the other hand, in at least one case, a settling PRP was denied the right to bring a contribution action when the defendant's share of liability would be "far less than the costs of litigation." Acushnet Co. v. Coaters, Inc., No. 93-11219-Rex., 1997 U.S. Dist. LEXIS 12725 (D. Mass. July 30, 1997). For a fuller discussion of this issue, see, for example, William D. Araiza, Text, Purpose and Facts: The Relationship Between CERCLA Sections 107 and 113, 72 NOTRE DAME L. REV. 193 (1996); Michael V. Hernandez, Cost Recovery or Contribution?: Resolving the Controversy Over CERCLA Claims Brought By Potentially Responsible Parties, 21 HARV. ENVTL. L. REV. 83 (1997).
182. For some time now, the circuits have been split on the question of whether cooperating PRPs can sue noncooperating PRPs for cost recovery under § 107. A strong majority says no. See, e.g., Newcastle County v. Haliburton, 11 F.3d 1116 (3rd Cir. 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998); Klein v. Grand Union Co., 91 CIV. 8459 (CLB), 1997 U.S. Dist. LEXIS 6149 (S.D.N.Y. Feb. 25, 1997) (PRP seeking contribution must establish each defendant PRP's equitable share of liability); Carter-Jones Lumber Co. v. LTV Steel Co., No. C2-92-1161, 1997 U.S. Dist. LEXIS 4174 (S.D. Ohio 1997); SC Holdings v. AAA Realty Co., No. 95-0947, 1996 U.S. Dist. Lexis 12428 (D.N.J. Aug. 19, 1996). While this is the clear majority interpretation of the statute among the circuits, some courts have permitted PRPs who voluntarily agree to clean up waste at a site to bring cost recovery actions under certain circumstances. See, e.g., Crofton Ventures Ltd. Partnership v. G & H Partnership, No. MJG-96-1378, 1997 U.S. Dist. LEXIS 8067 (D. Md. Jan. 31, 1997) (a potentially responsible party who voluntarily initiates a clean up can sue other PRPs for direct cost recovery); see also Rumpke v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997) (PRP land- owner who alleges that it did not contribute to the disposal of hazardous substances may sue other PRPs for direct cost recovery). On the other hand, in at least one case, a settling PRP was denied the right to bring a contribution action when the defendant's share of liability would be "far less than the costs of litigation." Acushnet Co. v. Coaters, Inc., No. 93-11219-Rex., 1997 U.S. Dist. LEXIS 12725 (D. Mass. July 30, 1997). For a fuller discussion of this issue, see, for example, William D. Araiza, Text, Purpose and Facts: The Relationship Between CERCLA Sections 107 and 113, 72 NOTRE DAME L. REV. 193 (1996); Michael V. Hernandez, Cost Recovery or Contribution?: Resolving the Controversy Over CERCLA Claims Brought By Potentially Responsible Parties, 21 HARV. ENVTL. L. REV. 83 (1997).
183. One interesting example of how orphan share liability can be unfairly allocated is the case of In re Eagle-Picher Indus., No. MS-1-96-228, 197 B.R. 260 (Bankr. S.D. Ohio 1996). In that case, settling PRPs brought their contribution actions against a bankrupt PRP. Meanwhile, the EPA settled with the bankrupt PRP on a number of claims, including Superfund liability claims, promising contribution protection as part of the settlement. The settlement between the EPA and the bankrupt PRP effectively insulated the PRP from paying any portion of the orphan shares, leaving those shares to be covered by settling PRPs who voluntarily cleaned the site.
184. See CHURCH & NAKAMURA, supra note 49, at 13-18.
185. Mixed funding arrangements, which are described infra notes 105-06 and accompanying text, are specifically authorized by the statute. See 42 U.S.C. § 9622(b)(1).
186. The EPA's policy on orphan shares limits trust fund coverage of orphan shares to 25% of the costs of the remediation work, excluding studies and other preliminary costs. See Steven A. Herman, Memorandum on Interim Guidance on Orphan Share Compensation for Settlors of Remedial Design/Remedial Action and Non-time Critical Removals, June 3, 1996, available in ELCD (Federal Environmental Reporter on CD).
187. The term "mixed funding" is sometimes used to refer to other situations in which the trust fund and PRPs share costs, but this is the most important type of mixed funding situation for PRPs faced with the "cooperate or fight" decision. The EPA's mixed funding policy, which is now 10 years old, is itself illustrative of the agency's ambivalence about mixed funding in that it encourages mixed funding as a general matter but discourages its use when the risk to the trust fund of incurring excess costs is significant. See J. Winston Porter, Memorandum on Evaluating Mixed Funding Settlements Under CERCLA 53 Fed. Reg. 8279 (Mar. 14, 1988).
188. See William W. Balcke, Superfund Settlements: The Failed Promise of the 1986 Amendments, 74 VA. L. REV. 123 (1988);
189. Industry Criticism Leads EPA to Study Ways to Increase Use of Mixed Funding, 23 Env't Rep. (BNA) 2068 (Dec. 18, 1992);
190. New Emphasis on Settlements Encouraging, GAO Official Tells Subcommittee Hearing, 24 Env't Rep. (BNA) 415 (July 9, 1993). In 1993, the EPA's director of waste programs attributed the agency's underuse of mixed funding to the statutory policy in favor of maximizing recoveries from PRPs. See
191. Changing, Eliminating Some Requirements Could Streamline Settlements, Official Says, 24 Env't Rep. (BNA) 729 (Aug. 20, 1993).
192. The statute limits the EPA's use of 106 orders to situations involving "imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance . . . ." 42 U.S.C. § 9606. However, the EPA defines the term "imminent and substantial endangerment" broadly, and 106 orders remain an important part of the EPA tool kit. See Guidance on the Use and Issuance of Administrative Orders Under Section 106, Sept. 8, 1983, Section II.D., at 7-8 〈http://es.epa.gov/oeca/osre/830908.html〉. In fact, the EPA is sometimes accused of ignoring the statutory limits on their use. See, e.g., California Mining Company Tells EAB Agency Abused Section 106 Coercive Powers, 26 Env't Rep. (BNA) 602 (1995).
193. The statute limits the EPA's use of 106 orders to situations involving "imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance . . . ." 42 U.S.C. § 9606. However, the EPA defines the term "imminent and substantial endangerment" broadly, and 106 orders remain an important part of the EPA tool kit. See Guidance on the Use and Issuance of Administrative Orders Under Section 106, Sept. 8, 1983, Section II.D., at 7-8 〈http://es.epa.gov/oeca/osre/830908.html〉. In fact, the EPA is sometimes accused of ignoring the statutory limits on their use. See, e.g., California Mining Company Tells EAB Agency Abused Section 106 Coercive Powers, 26 Env't Rep. (BNA) 602 (1995).
194. Section 106 of the statute imposes a fine of $25,000 a day on anyone who disobeys a 106 order without demonstrating "sufficient cause" to do so. 42 U.S.C. § 9606(b)(1). In addition, § 107 of the statute provides that if a PRP ignores a 106 order and the EPA cleans up the site, the recipient of the order is subject to punitive damages of up to three times the remediation costs. 42 U.S.C. § 9607(c)(3).
195. See Appendix A, supra notes 162-65.
196. For a discussion of this issue, see supra note 88.
197. For another analysis of the risks of settling generally, see EPA's Model Superfund Consent Decree Presents Major Risks for Settling Party, 22 Env't Rep. (BNA) 2314 (1992); John C. Martin, Encouraging Superfund Settlements: the Need to Sanction Free Riders, 18 Env't Rep. (BNA) 1798 (1987).
198. For another analysis of the risks of settling generally, see EPA's Model Superfund Consent Decree Presents Major Risks for Settling Party, 22 Env't Rep. (BNA) 2314 (1992); John C. Martin, Encouraging Superfund Settlements: the Need to Sanction Free Riders, 18 Env't Rep. (BNA) 1798 (1987).
199. Of course, in this scenario nonsettlers are much more likely to face litigation with the EPA if the EPA has entered into a mixed funding arrangement with the settling PRPs.
200. See discussion supra notes 108-09.
201. In a survey of an especially prominent set of PRPs - Fortune 500 companies involved with Superfund sites - respondents attributed their high legal expenses in part to the EPA's failure to take action against other identified PRPs. See U.S. GENERAL ACCOUNTING OFFICE, GAO/RCED-95-46, Superfund: Legal Expenses for Cleanup Related Activities of Major U.S. Corporations (1994); see also infra note 163, in Appendix A (discussing of the relationship between this enforcement practice and the prevalence of PRP-led cleanups when deep-pocketed PRPs are present).
202. See CHURCH & NAKAMURA, supra note 49;
203. see also Thomas A. Rhoads & Jason F. Shogren, Current Issues in Superfund Amendment and Reauthorization: How is the Clinton Administration Handling Hazardous Waste?, 8 DUKE ENVTL. L. & POL'Y F. 245, 246 (1998); remarks of Judge Sweet, supra note 27.
204. As explained infra note 125, the EPA has become somewhat more willing in recent years to use mixed funding to bear the costs associated with pursuing noncooperative PRPs and to cover orphan shares. In addition, the EPA recently entered into a settlement with cooperating PRPs that left nonsettlors with more liability than they believed they deserved; nevertheless, the settlement was upheld by the District Court. See United States v. BASF Corp., 990 F. Supp. 907 (E.D. Mich. 1998); United States v. Akzo Nobel Coatings, Inc., 990 F. Supp. 897 (E.D. Mich. 1998). To the extent that courts will uphold settlements leaving nonsettlors with more than their fair share, that practice offers an incentive to settle. In addition, the EPA has gone to great lengths to encourage settlements by small contributors - so called de minimis parties. See, e.g., Interim Guidance on Settlements with De Minimis Waste Contributors, Memorandum of Thomas L. Adams & J. Winston Porter, June 19, 1987, OSWER Directive #9834.7, 52 Fed. Reg. 24,333 (1987); Streamlined Approach for Settlements With De Minimis Waste Contributors under CERCLA Section 122(g)(1)(A), Memorandum of Bruce Diamond & William A. White, June 30, 1993, OSWER Directive #9834.7-1D 〈http://es.epa.gov/oeca/osre/930730-1.html〉; Model CERCLA Section 122(g)(4) De Minimis Administrative Order on Consent, and Model CERCLA Sections 122(g)(4) De Minimis Contributor Consent Decree, Sept. 29, 1995, 60 Fed. Reg. 62,849 (1995). The EPA's efforts to enhance settlements seem to be motivated, at least in part, by the recognition that (1) joint and several liability can sometimes lead to extremely unfair outcomes and (2) perceived unfairness can provoke resistance on the part of PRPs and slow the cleanup process. See infra note 134.
205. As explained infra note 125, the EPA has become somewhat more willing in recent years to use mixed funding to bear the costs associated with pursuing noncooperative PRPs and to cover orphan shares. In addition, the EPA recently entered into a settlement with cooperating PRPs that left nonsettlors with more liability than they believed they deserved; nevertheless, the settlement was upheld by the District Court. See United States v. BASF Corp., 990 F. Supp. 907 (E.D. Mich. 1998); United States v. Akzo Nobel Coatings, Inc., 990 F. Supp. 897 (E.D. Mich. 1998). To the extent that courts will uphold settlements leaving nonsettlors with more than their fair share, that practice offers an incentive to settle. In addition, the EPA has gone to great lengths to encourage settlements by small contributors - so called de minimis parties. See, e.g., Interim Guidance on Settlements with De Minimis Waste Contributors, Memorandum of Thomas L. Adams & J. Winston Porter, June 19, 1987, OSWER Directive #9834.7, 52 Fed. Reg. 24,333 (1987); Streamlined Approach for Settlements With De Minimis Waste Contributors under CERCLA Section 122(g)(1)(A), Memorandum of Bruce Diamond & William A. White, June 30, 1993, OSWER Directive #9834.7-1D 〈http://es.epa.gov/oeca/osre/930730-1.html〉; Model CERCLA Section 122(g)(4) De Minimis Administrative Order on Consent, and Model CERCLA Sections 122(g)(4) De Minimis Contributor Consent Decree, Sept. 29, 1995, 60 Fed. Reg. 62,849 (1995). The EPA's efforts to enhance settlements seem to be motivated, at least in part, by the recognition that (1) joint and several liability can sometimes lead to extremely unfair outcomes and (2) perceived unfairness can provoke resistance on the part of PRPs and slow the cleanup process. See infra note 134.
206. As explained infra note 125, the EPA has become somewhat more willing in recent years to use mixed funding to bear the costs associated with pursuing noncooperative PRPs and to cover orphan shares. In addition, the EPA recently entered into a settlement with cooperating PRPs that left nonsettlors with more liability than they believed they deserved; nevertheless, the settlement was upheld by the District Court. See United States v. BASF Corp., 990 F. Supp. 907 (E.D. Mich. 1998); United States v. Akzo Nobel Coatings, Inc., 990 F. Supp. 897 (E.D. Mich. 1998). To the extent that courts will uphold settlements leaving nonsettlors with more than their fair share, that practice offers an incentive to settle. In addition, the EPA has gone to great lengths to encourage settlements by small contributors - so called de minimis parties. See, e.g., Interim Guidance on Settlements with De Minimis Waste Contributors, Memorandum of Thomas L. Adams & J. Winston Porter, June 19, 1987, OSWER Directive #9834.7, 52 Fed. Reg. 24,333 (1987); Streamlined Approach for Settlements With De Minimis Waste Contributors under CERCLA Section 122(g)(1)(A), Memorandum of Bruce Diamond & William A. White, June 30, 1993, OSWER Directive #9834.7-1D 〈http://es.epa.gov/oeca/osre/930730-1.html〉; Model CERCLA Section 122(g)(4) De Minimis Administrative Order on Consent, and Model CERCLA Sections 122(g)(4) De Minimis Contributor Consent Decree, Sept. 29, 1995, 60 Fed. Reg. 62,849 (1995). The EPA's efforts to enhance settlements seem to be motivated, at least in part, by the recognition that (1) joint and several liability can sometimes lead to extremely unfair outcomes and (2) perceived unfairness can provoke resistance on the part of PRPs and slow the cleanup process. See infra note 134.
207. As explained infra note 125, the EPA has become somewhat more willing in recent years to use mixed funding to bear the costs associated with pursuing noncooperative PRPs and to cover orphan shares. In addition, the EPA recently entered into a settlement with cooperating PRPs that left nonsettlors with more liability than they believed they deserved; nevertheless, the settlement was upheld by the District Court. See United States v. BASF Corp., 990 F. Supp. 907 (E.D. Mich. 1998); United States v. Akzo Nobel Coatings, Inc., 990 F. Supp. 897 (E.D. Mich. 1998). To the extent that courts will uphold settlements leaving nonsettlors with more than their fair share, that practice offers an incentive to settle. In addition, the EPA has gone to great lengths to encourage settlements by small contributors - so called de minimis parties. See, e.g., Interim Guidance on Settlements with De Minimis Waste Contributors, Memorandum of Thomas L. Adams & J. Winston Porter, June 19, 1987, OSWER Directive #9834.7, 52 Fed. Reg. 24,333 (1987); Streamlined Approach for Settlements With De Minimis Waste Contributors under CERCLA Section 122(g)(1)(A), Memorandum of Bruce Diamond & William A. White, June 30, 1993, OSWER Directive #9834.7-1D 〈http://es.epa.gov/oeca/osre/930730-1.html〉; Model CERCLA Section 122(g)(4) De Minimis Administrative Order on Consent, and Model CERCLA Sections 122(g)(4) De Minimis Contributor Consent Decree, Sept. 29, 1995, 60 Fed. Reg. 62,849 (1995). The EPA's efforts to enhance settlements seem to be motivated, at least in part, by the recognition that (1) joint and several liability can sometimes lead to extremely unfair outcomes and (2) perceived unfairness can provoke resistance on the part of PRPs and slow the cleanup process. See infra note 134.
208. As explained infra note 125, the EPA has become somewhat more willing in recent years to use mixed funding to bear the costs associated with pursuing noncooperative PRPs and to cover orphan shares. In addition, the EPA recently entered into a settlement with cooperating PRPs that left nonsettlors with more liability than they believed they deserved; nevertheless, the settlement was upheld by the District Court. See United States v. BASF Corp., 990 F. Supp. 907 (E.D. Mich. 1998); United States v. Akzo Nobel Coatings, Inc., 990 F. Supp. 897 (E.D. Mich. 1998). To the extent that courts will uphold settlements leaving nonsettlors with more than their fair share, that practice offers an incentive to settle. In addition, the EPA has gone to great lengths to encourage settlements by small contributors - so called de minimis parties. See, e.g., Interim Guidance on Settlements with De Minimis Waste Contributors, Memorandum of Thomas L. Adams & J. Winston Porter, June 19, 1987, OSWER Directive #9834.7, 52 Fed. Reg. 24,333 (1987); Streamlined Approach for Settlements With De Minimis Waste Contributors under CERCLA Section 122(g)(1)(A), Memorandum of Bruce Diamond & William A. White, June 30, 1993, OSWER Directive #9834.7-1D 〈http://es.epa.gov/oeca/osre/930730-1.html〉; Model CERCLA Section 122(g)(4) De Minimis Administrative Order on Consent, and Model CERCLA Sections 122(g)(4) De Minimis Contributor Consent Decree, Sept. 29, 1995, 60 Fed. Reg. 62,849 (1995). The EPA's efforts to enhance settlements seem to be motivated, at least in part, by the recognition that (1) joint and several liability can sometimes lead to extremely unfair outcomes and (2) perceived unfairness can provoke resistance on the part of PRPs and slow the cleanup process. See infra note 134.
209. There is also an argument that imposing excess liability on corporations is less troubling than imposing excess liability on others, because shareholders undertake the risk of loss when they invest in corporations, and that the existence of multiple shareholders spreads the loss more evenly. Of course, all PRPs face the risk of extensive liability, and it is worth noting that a great many PRPs are not corporations or large businesses. See S. Richard Heymann, Superfund and the Generator of Non-Industrial Waste: Sauce for the Gander . . . and His Vet, His Country Club, His Barber, His Dentist, His Home Town . . ., 4 WIS. ENVTL. L.J. 131 (1997) (discussing the emergence of individuals and small businesses as targets in Superfund litigation); David A. Rich, Personal Liability for Hazardous Waste Cleanup: An Examination of CERCLA Section 107, 13 B.C. ENVTL. AFF. L. REV. 643 (1986) (supporting the imposition of liability on individuals).
210. There is also an argument that imposing excess liability on corporations is less troubling than imposing excess liability on others, because shareholders undertake the risk of loss when they invest in corporations, and that the existence of multiple shareholders spreads the loss more evenly. Of course, all PRPs face the risk of extensive liability, and it is worth noting that a great many PRPs are not corporations or large businesses. See S. Richard Heymann, Superfund and the Generator of Non-Industrial Waste: Sauce for the Gander . . . and His Vet, His Country Club, His Barber, His Dentist, His Home Town . . ., 4 WIS. ENVTL. L.J. 131 (1997) (discussing the emergence of individuals and small businesses as targets in Superfund litigation); David A. Rich, Personal Liability for Hazardous Waste Cleanup: An Examination of CERCLA Section 107, 13 B.C. ENVTL. AFF. L. REV. 643 (1986) (supporting the imposition of liability on individuals).
211. See supra note 48 and accompanying text.
212. Cleanup costs typically range in the tens of millions of dollars, and the allocation of excess costs to individual PRPs can constitute a significant burden. See PERRY BEIDER, CONGRESS OF THE U.S., CONGRESSIONAL BUDGET OFFICE, THE TOTAL COSTS OF CLEANING UP NONFEDERAL SUPERFUND SITES (1994). Assuming (1) a typical Superfund cleanup cost of $35,000,000, (2) the EPA's estimate of the percentage of liability comprising orphan shares (18%), and that (3) the estimate of transaction costs offered by ACTON & DIXON, supra note 41 (ranging from approximately 20 to 40% excess costs from those two sources alone can range from $13.3 million to $20.3 million, even assuming settling or targeted PRPs are able to secure perfect contribution from the available and solvent remainder. Even for well-heeled PRPs, that excess liability is significant.
213. This discussion assumes a continuing federal commitment to clean up Superfund sites. Of course, one way to relieve PRPs of excess liability is to eliminate the Superfund program, an option that seems so unacceptable politically that I will ignore it.
214. See discussion supra notes 36-39 and accompanying text.
215. Not everyone accepts the premise of the RFF and Brookings analysis that shifting some liability from PRPs to the trust fund implies increases in the taxes that feed the fund, all else equal. Susan Bodine, Counsel to the House Committee on Transportation and Infrastructure, states that important liability reforms, including increased orphan share coverage and mixed funding, can be implemented at current taxing levels, due in part to underuse of those revenues historically by the EPA, potential reductions in administrative costs, and more. Interview with Susan Bodine, Counsel to the House Committee on Transportation and Infrastructure (Nov. 17, 1997).
216. See PROBST ET AL., supra note 36.
217. For a discussion of the EPA's gradual increase in the use of mixed funding, orphan share coverage, and de minimis buyouts, see supra notes 117-18; see also infra notes 156-58 (discussing the ongoing administrative reforms).
218. For a discussion of why PRPs may not be able to recover these costs under the current system, see supra note 101.
219. This represents about 23% of total costs, because PRPs bear all the transaction costs under Probst et al.'s status quo option. It is not clear whether these figures, which are based on historical information provided by the EPA, represent costs borne by the EPA in administering the program only or include some costs associated with those rare instances in which the agency did use mixed funding prior to the early 1990s.
220. See ACTON & DIXON, supra note 41, at 41-42.
221. This analysis assumes a continuing group of nonsettling PRPs. It is, however, possible that increased use of mixed funding would induce near 100% settlements, in which case transaction costs would decrease because fewer costs would need to be recovered through litigation. For a fuller explanation of why these assumptions are conservative ones, see Appendix B.
222. See PROBST ET AL., supra note 36, at 41.
223. See, e.g., S. 8, 105th Cong. (1997).
224. Superfund Amendments and Reauthorization Act of 1986 § 122, 42 U.S.C § 9622(e)(3) (1994).
225. See CHURCH & NAKAMURA, supra note 49, at 112; Patrick E. Donovan, Serving Multiple Masters: Confronting the Conflicting Interests that Arise in Superfund Disputes, 17 B.C. ENVTL. AFF. L. REV. 371, 388 n.112 (1990) ("NBARs have considerable influence, however, on a large group of PRPs.").
226. See CHURCH & NAKAMURA, supra note 49, at 112; Patrick E. Donovan, Serving Multiple Masters: Confronting the Conflicting Interests that Arise in Superfund Disputes, 17 B.C. ENVTL. AFF. L. REV. 371, 388 n.112 (1990) ("NBARs have considerable influence, however, on a large group of PRPs.").
227. See Michael P. Healy, The Effectiveness and Fairness of Superfund's Judicial Review Preclusion Provision, 15 VA. ENVTL. L.J. 271, 330 (1995-1996) ("[T]he EPA has generally refrained from significant use of the settlement tools provided and encouraged by Congress in 1986 and endorsed by PRPs - de minims settlements and nonbinding allocations of responsibility (NBARs)."); New Emphasis on Settlements Encouraging, GAO Official Tells Subcommittee Hearing, 24 Env't Rep. (BNA) 415 (July 9, 1993).
228. See Michael P. Healy, The Effectiveness and Fairness of Superfund's Judicial Review Preclusion Provision, 15 VA. ENVTL. L.J. 271, 330 (1995-1996) ("[T]he EPA has generally refrained from significant use of the settlement tools provided and encouraged by Congress in 1986 and endorsed by PRPs - de minims settlements and nonbinding allocations of responsibility (NBARs)."); New Emphasis on Settlements Encouraging, GAO Official Tells Subcommittee Hearing, 24 Env't Rep. (BNA) 415 (July 9, 1993).
229. See supra note 95.
230. This element is "new" in that these costs have never been borne by the trust fund.
231. See supra note 38 and accompanying text.
232. The Administrative Procedure Act ("APA") expressly contemplates this possibility. See Administrative Procedure Act, 5 U.S.C. § 701(a)(2) (excluding actions "committed to agency discretion by law" from the APA's judicial review provisions). Of course, any statutory preclusion of review would be subject to Constitutional due process limitations. For a good discussion of statutory preclusion of judicial review of agency action, see KENNETH CULP DAVIS, ADMINISTRATIVE LAW TEXT §§ 28.04-05, 513-18 (1972). For a more up-to-date discussion, see JERRY L. MASHAW ET AL., ADMINISTRATIVE LAW: THE AMERICAN PUBLIC LAW SYSTEM: CASES AND MATERIALS 789-800 (1992).
233. See supra notes 13-20, 30-35 and accompanying text.
234. One particularly good illustration of the evidentiary problems at Superfund sites is provided by Anderson, who argues that sketchy information about PRPs' connections to sites exacerbates the fairness problems associated with the joint and several liability scheme. He calls this the "liability lottery." See Anderson, supra note 49, at 7, 12-17; see also CHURCH & NAKAMURA, supra note 49, at 49-56 (discussing this issue).
235. It is not clear how the Clinton Administration would view this kind of approach. The Administration has consistently opposed GOP attempts to alter the PRP liability regime "by site." But see supra note 35 (discussing the Administration's earlier position). It seems doubtful that the Administration would consider the approach suggested here, given its apparent definition of the polluter pays principle. See Keep Strict, Joint, Several Liability Scheme: Administration Says in Principles for Reform 28 Env't Rep. (BNA) 45 (1997).
236. Of course, in those rare instances in which all the PRPs at a site can meet the burden of proving their innocence or when the remainder lack the resources to pay for cleanup, this change would shift costs to the trust fund.
237. See PROBST ET AL., supra note 36, at 140.
238. See id. at 41.
239. See Waste Control Act of 1975: Hearing Before the Subcomm. On Transp. and Commerce of the House Comm. On Interstate and Foreign Commerce, 94th Cong. 1975 (1975); see also Schiffer, supra note 16, at 6.
240. See supra notes 88, 90.
241. The Congressional Budget Office recently provided an informal estimate of the cost of the Lott bill, see discussion supra note 30, exempting PRPs whose liability is based on sending waste to recycling facilities for recycling. The CBO estimated that $700 million in costs would shift to the fund if the exempt PRP shares were allocated to the fund because exempt shares would be covered by remaining PRPs. CBO noted, however, that the because the Lott bill does not mandate fair share liability, it would have no impact on the trust fund. See Senate Panel Will Not Mark Up Lott Bill; Congressional Cost Estimates Challenged, 29 Env't Rep. (BNA) 1105 (1998).
242. All of which raises another question: why consider such a change if relatively few PRPs will be able to prove their innocence under the revised system? The answer is that the nominal fairness of the system is important in its own right. See discussion infra Part V; infra note 158 and accompanying text.
243. For a discussion of the incentives that lead to this conclusion, see Appendix A.
244. For an analysis that reaches similar conclusions, see Rhoads & Shogren, supra note 116, at 270 (arguing that liability "should be based on actions, not status," and favoring tax-funded cleanups in place of retroactive liability).
245. See supra note 1. Indeed, the Senate committee report recommending the original Superfund legislation in 1980 stated that the legislation was designed to hold "the factually responsible person liable . . . ." S. REP. NO. 848, at 33 (1980).
246. At least one Democratic Congressional staffer claims that Congress knew the system was unfair all along: "Of course it isn't fair. We did not want the taxpayers to have to pay for it." Congress Industry, Regulators Gearing Up for Head Start on Upcoming Reauthorization, 23 Env't Rep. (BNA) 1579, 1580 (Oct. 15, 1992) (quoting Randolph Deitz, House Public Works and Transportation Committee staff member). While the second sentence of this quotation rings true, the implication that Congress knew it was creating a system that would impose liability on the innocent is at least debatable.
247. While Holmes apparently disclaimed normative goals in this work, one biographer disputes that claim. See WHITE, supra note 2, at ch. 5.
248. The need for a legislative remedy is also a product of the courts' conclusion that this unfairness implies no constitutional defect. Taken separately, each element of the Superfund liability system - retroactive liability, joint and several liability, and strict liability - is unremarkable and constitutionally permissible. As this analysis has shown, however, the whole is greater than the sum of its parts. There is no evidence that the Supreme Court would use the interaction of these separate elements of the liability system to overturn the statute. To date, most discussion of Superfund's constitutionality has centered on real and potential challenges under the Ex Post Facto Clause, described supra note 67. Justice Thomas's recent expression of willingness to revisit the scope of the application of that clause in Eastern Enters. v. Apfel, 118 S. Ct. 2131 (1998), may enliven that discussion. Commentators have also challenged Superfund's validity under the Takings Clause and the Bills of Attainder Clause. See, e.g., WILLIAM N. RODGERS, ENVIRONMENTAL LAW 685 nn. 16-19 (1996);
249. The need for a legislative remedy is also a product of the courts' conclusion that this unfairness implies no constitutional defect. Taken separately, each element of the Superfund liability system - retroactive liability, joint and several liability, and strict liability - is unremarkable and constitutionally permissible. As this analysis has shown, however, the whole is greater than the sum of its parts. There is no evidence that the Supreme Court would use the interaction of these separate elements of the liability system to overturn the statute. To date, most discussion of Superfund's constitutionality has centered on real and potential challenges under the Ex Post Facto Clause, described supra note 67. Justice Thomas's recent expression of willingness to revisit the scope of the application of that clause in Eastern Enters. v. Apfel, 118 S. Ct. 2131 (1998), may enliven that discussion. Commentators have also challenged Superfund's validity under the Takings Clause and the Bills of Attainder Clause. See, e.g., WILLIAM N. RODGERS, ENVIRONMENTAL LAW 685 nn. 16-19 (1996); Glenn Willett Clark, How the Superfund Congress Crafted a Bill of Attainder: Misappropriation of the Judicial Power of the United States - Of Unbounded Civil Liabilities. Retroactive Taxes, and Legislative Adjudication, 4 SETON HALL CONST. L.J. 3, 29 (1993). While the statute's constitutionality does not seem to be in doubt, the unfairness created by its three-pronged liability scheme continues to feed the persistent reform impulse in Congress.
250. See Senator, EPA Chief in Heated Exchange Over Liability Provisions of GOP Measure, Env't Rep. (BNA) 2237 (Mar. 14, 1997). This same sentiment lies behind one commentator's description of the Superfund liability system as "everybody-but-the-taxpayer-pays." Hila J. Alderman, The Ghost of Progress Past: A Comparison of Approaches to Hazardous Waste Liability in the European Community and the United States, 16 HOUS. J. INT'L. L. 311, 322 (1993). Other Republicans have expressed similar frustration. Senator Christopher Bond (R-MO) called opponents of one Republican-sponsored reform bill "green socialists." See Superfund: Bill Opponents are 'Green Socialists,' GREENWIRE, June 6, 1998.
251. See Senator, EPA Chief in Heated Exchange Over Liability Provisions of GOP Measure, Env't Rep. (BNA) 2237 (Mar. 14, 1997). This same sentiment lies behind one commentator's description of the Superfund liability system as "everybody-but-the-taxpayer-pays." Hila J. Alderman, The Ghost of Progress Past: A Comparison of Approaches to Hazardous Waste Liability in the European Community and the United States, 16 HOUS. J. INT'L. L. 311, 322 (1993). Other Republicans have expressed similar frustration. Senator Christopher Bond (R-MO) called opponents of one Republican-sponsored reform bill "green socialists." See Superfund: Bill Opponents are 'Green Socialists,' GREENWIRE, June 6, 1998.
252. See Senator, EPA Chief in Heated Exchange Over Liability Provisions of GOP Measure, Env't Rep. (BNA) 2237 (Mar. 14, 1997). This same sentiment lies behind one commentator's description of the Superfund liability system as "everybody-but-the-taxpayer-pays." Hila J. Alderman, The Ghost of Progress Past: A Comparison of Approaches to Hazardous Waste Liability in the European Community and the United States, 16 HOUS. J. INT'L. L. 311, 322 (1993). Other Republicans have expressed similar frustration. Senator Christopher Bond (R-MO) called opponents of one Republican-sponsored reform bill "green socialists." See Superfund: Bill Opponents are 'Green Socialists,' GREENWIRE, June 6, 1998.
253. Indeed, the EPA and the Department of Justice have gone to great lengths to draw attention to the EPA's administrative reforms, especially those aimed at making enforcement fairer. See, e.g., U.S. Envtl. Protection Agency: Fact Sheet, Progress on Superfund Reforms (June 4, 1996) (describing the agency's progress in implementing reforms that address the fairness of the liability system in practice); Carol M. Browner, Administrator, U.S. Envtl. Protection Agency, Statement Before the Committee on Environment and Public Works, U.S. Senate (Sept. 4, 1997) (including a section entitled "Promoting Fairness in Enforcement") 〈http://es.epa.gov/oeca/osre/970930-3.html〉; Steven A. Herman, A Fundamentally Different Superfund Program, 12 NAT. RESOURCES & ENV'T. 196 (1998). A December 1997 press release announcing a recent Superfund settlement is illustrative of the Administration's current public tone on Superfund: "This settlement is another example of how Superfund is working to get our nation's worst toxic dumps cleaned up, protecting the health and well being of citizens nationwide," said Lois Schiffer, Assistant Attorney General in charge of the Justice Department's Environment and Natural Resources Division. "Communities in North Carolina and all across America are benefiting from the Superfund program, because it ensures that polluters clean up their own mess, and not the American taxpayer." "Superfund is hard at work protecting the environment and the taxpayers," said Steve Herman, Assistant Administrator for Enforcement and Compliance Assurance. "And in the last four years, we have worked to do this more fairly and more efficiently than ever before." "This important settlement underscores EPA's commitment to a reformed Superfund enforcement process that is fairer, more efficient, and cost effective for all concerned," said John H. Hankinson, Jr., EPA Regional Administrator in Atlanta. Nine Corporations to Pay More Than $60 Million to Clean Up Aberdeen, North Carolina Superfund Site, U.S. Dep't of Justice Press Release, Dec. 9, 1997 (emphasis added).
254. Indeed, the EPA and the Department of Justice have gone to great lengths to draw attention to the EPA's administrative reforms, especially those aimed at making enforcement fairer. See, e.g., U.S. Envtl. Protection Agency: Fact Sheet, Progress on Superfund Reforms (June 4, 1996) (describing the agency's progress in implementing reforms that address the fairness of the liability system in practice); Carol M. Browner, Administrator, U.S. Envtl. Protection Agency, Statement Before the Committee on Environment and Public Works, U.S. Senate (Sept. 4, 1997) (including a section entitled "Promoting Fairness in Enforcement") 〈http://es.epa.gov/oeca/osre/970930-3.html〉; Steven A. Herman, A Fundamentally Different Superfund Program, 12 NAT. RESOURCES & ENV'T. 196 (1998). A December 1997 press release announcing a recent Superfund settlement is illustrative of the Administration's current public tone on Superfund: "This settlement is another example of how Superfund is working to get our nation's worst toxic dumps cleaned up, protecting the health and well being of citizens nationwide," said Lois Schiffer, Assistant Attorney General in charge of the Justice Department's Environment and Natural Resources Division. "Communities in North Carolina and all across America are benefiting from the Superfund program, because it ensures that polluters clean up their own mess, and not the American taxpayer." "Superfund is hard at work protecting the environment and the taxpayers," said Steve Herman, Assistant Administrator for Enforcement and Compliance Assurance. "And in the last four years, we have worked to do this more fairly and more efficiently than ever before." "This important settlement underscores EPA's commitment to a reformed Superfund enforcement process that is fairer, more efficient, and cost effective for all concerned," said John H. Hankinson, Jr., EPA Regional Administrator in Atlanta. Nine Corporations to Pay More Than $60 Million to Clean Up Aberdeen, North Carolina Superfund Site, U.S. Dep't of Justice Press Release, Dec. 9, 1997 (emphasis added).
255. Indeed, the EPA and the Department of Justice have gone to great lengths to draw attention to the EPA's administrative reforms, especially those aimed at making enforcement fairer. See, e.g., U.S. Envtl. Protection Agency: Fact Sheet, Progress on Superfund Reforms (June 4, 1996) (describing the agency's progress in implementing reforms that address the fairness of the liability system in practice); Carol M. Browner, Administrator, U.S. Envtl. Protection Agency, Statement Before the Committee on Environment and Public Works, U.S. Senate (Sept. 4, 1997) (including a section entitled "Promoting Fairness in Enforcement") 〈http://es.epa.gov/oeca/osre/970930-3.html〉; Steven A. Herman, A Fundamentally Different Superfund Program, 12 NAT. RESOURCES & ENV'T. 196 (1998). A December 1997 press release announcing a recent Superfund settlement is illustrative of the Administration's current public tone on Superfund: "This settlement is another example of how Superfund is working to get our nation's worst toxic dumps cleaned up, protecting the health and well being of citizens nationwide," said Lois Schiffer, Assistant Attorney General in charge of the Justice Department's Environment and Natural Resources Division. "Communities in North Carolina and all across America are benefiting from the Superfund program, because it ensures that polluters clean up their own mess, and not the American taxpayer." "Superfund is hard at work protecting the environment and the taxpayers," said Steve Herman, Assistant Administrator for Enforcement and Compliance Assurance. "And in the last four years, we have worked to do this more fairly and more efficiently than ever before." "This important settlement underscores EPA's commitment to a reformed Superfund enforcement process that is fairer, more efficient, and cost effective for all concerned," said John H. Hankinson, Jr., EPA Regional Administrator in Atlanta. Nine Corporations to Pay More Than $60 Million to Clean Up Aberdeen, North Carolina Superfund Site, U.S. Dep't of Justice Press Release, Dec. 9, 1997 (emphasis added).
256. Indeed, the EPA and the Department of Justice have gone to great lengths to draw attention to the EPA's administrative reforms, especially those aimed at making enforcement fairer. See, e.g., U.S. Envtl. Protection Agency: Fact Sheet, Progress on Superfund Reforms (June 4, 1996) (describing the agency's progress in implementing reforms that address the fairness of the liability system in practice); Carol M. Browner, Administrator, U.S. Envtl. Protection Agency, Statement Before the Committee on Environment and Public Works, U.S. Senate (Sept. 4, 1997) (including a section entitled "Promoting Fairness in Enforcement") 〈http://es.epa.gov/oeca/osre/970930-3.html〉; Steven A. Herman, A Fundamentally Different Superfund Program, 12 NAT. RESOURCES & ENV'T. 196 (1998). A December 1997 press release announcing a recent Superfund settlement is illustrative of the Administration's current public tone on Superfund: "This settlement is another example of how Superfund is working to get our nation's worst toxic dumps cleaned up, protecting the health and well being of citizens nationwide," said Lois Schiffer, Assistant Attorney General in charge of the Justice Department's Environment and Natural Resources Division. "Communities in North Carolina and all across America are benefiting from the Superfund program, because it ensures that polluters clean up their own mess, and not the American taxpayer." "Superfund is hard at work protecting the environment and the taxpayers," said Steve Herman, Assistant Administrator for Enforcement and Compliance Assurance. "And in the last four years, we have worked to do this more fairly and more efficiently than ever before." "This important settlement underscores EPA's commitment to a reformed Superfund enforcement process that is fairer, more efficient, and cost effective for all concerned," said John H. Hankinson, Jr., EPA Regional Administrator in Atlanta. Nine Corporations to Pay More Than $60 Million to Clean Up Aberdeen, North Carolina Superfund Site, U.S. Dep't of Justice Press Release, Dec. 9, 1997 (emphasis added).
257. See Memorandum of Steven A. Herman, Orphan Share Compensation for Settlors of Remedial Design/Remedial Action and Non-Time Critical Removals, Interim Guidance (June 3, 1996), 〈http://es.epa.gov/oeca/osre/deminim.html〉.
258. De micromis settlements are simply a subset of de minimis settlements and are entered under the de minimis contributor settlement authority of CERCLA § 122(g)(1)(A), 42 U.S.C. § 9622(g)(1)(A). De micromis settlements may be available to parties who generated or transported a miniscule amount of waste to a Superfund site, an amount less than the minimal amount normally contributed by the de minimis waste contributors. The June 1996 expansion of the de micromis exemption increased the maximum amounts of waste a PRP could contribute and still qualify for the exemption and clarified that the EPA would provide additional protection for de micromis parties against contribution actions by other PRPs. See Memorandum of Jerry Clifford, Revised Guidance on CERCLA Settlements with De Micromis Waste Contributors, 62 Fed. Reg. 36,424 (1997), OSWER Directive #9834.17.
259. See Memorandum of Barry Breen, Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities (1997); see also Policy Statement to Clarify Lender Liability, 62 Fed. Reg. 36,424 (1997); Proposed Methodology for Resolving the Potential Liability of Owner/Operators, Generators, and Transporters at Codisposal Superfund Sites, 62 Fed. Reg. 37,231 (1997).
260. See Memorandum of Barry Breen, Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities (1997); see also Policy Statement to Clarify Lender Liability, 62 Fed. Reg. 36,424 (1997); Proposed Methodology for Resolving the Potential Liability of Owner/Operators, Generators, and Transporters at Codisposal Superfund Sites, 62 Fed. Reg. 37,231 (1997).
261. Stated differently, the nominal or procedural fairness of the system is important in its own right. Psychologists have demonstrated the importance people place on procedural fairness in policymaking, and its key importance in assuring the legitimacy, or public acceptance of outcomes. Perhaps the most oft-cited example is the work of Tom R. Tyler. See E. ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988); TOM R. TYLER, WHY PEOPLE OBEY THE LAW (1990). Thus, even if the changes I propose here permit only a subset of the truly innocent to escape Superfund liability, the opportunity to try may well reduce PRPs' resistance to paying and thereby induce more settlements and forestall more litigation.
262. Stated differently, the nominal or procedural fairness of the system is important in its own right. Psychologists have demonstrated the importance people place on procedural fairness in policymaking, and its key importance in assuring the legitimacy, or public acceptance of outcomes. Perhaps the most oft-cited example is the work of Tom R. Tyler. See E. ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988); TOM R. TYLER, WHY PEOPLE OBEY THE LAW (1990). Thus, even if the changes I propose here permit only a subset of the truly innocent to escape Superfund liability, the opportunity to try may well reduce PRPs' resistance to paying and thereby induce more settlements and forestall more litigation.
263. It is often stated that PRP-led cleanups are less costly than fund-led cleanups, either because PRPs are more efficient or because PRP-led cleanups are less stringent. The extent of this difference has never been calculated, though informal estimates range from 10 to 40 %. See PROBST ET AL., supra note 36, at 36 (estimating the difference at 15-20%); Frederick R. Anderson, Negotiation and Informal Agency Action: The Case of Superfund, 1985 DUKE L.J. 261, 301-02 (cleanup costs by the EPA might average 30-40 percent more than those incurred by PRPs). For purposes of this analysis, I will assume that PRP-led cleanups are 25 % less expensive than fund-led cleanups.
264. This number comes from PROBST ET AL., supra note 36, at 144, and represents an estimate of orphan shares at non-orphan sites assuming an 18 % total orphan share at orphan and non-orphan sites combined.
265. This formulation omits one additional category of excess costs: namely, unrecoverable shares properly attributable to available solvent parties. Some of these costs may be unrecoverable in contribution litigation because of the higher burden of proof the PRP plaintiff must meet (compared to the EPA) in contribution actions. See discussion supra notes 92-93, 101.
266. This number represents a midpoint estimate between the estimates of transaction cost percent-ages for large and small firms. See ACTON & DIXON, supra note 41, at 22.
267. In this expression I have assumed that the cooperating PRPs divide these excess costs according to their respective fair shares of liability. Of course, cooperating PRPs may choose to divide these costs any way they wish, and that division may have little or nothing to do with their fair shares of liability. Information about how PRPs actually divide these costs is private and unavailable.
268. I assume here the average case.
269. See CHURCH & NAKAMURA, supra note 49, at 134-35.
270. See U.S. GENERAL ACCOUNTING OFFICE, GAO/RCED-97-66. State voluntary programs provide incentives to encourage cleanups.
271. However, there is considerable variation around those averages, particularly with respect to orphan shares. If there are no orphan shares at a given multiparty site, the incentives change and the incentive to cooperate in order to avoid a higher total cost of a fund-led cleanup - a 33% increase in costs - dominates the cost increases associated with a fund-led cleanup - a 25% increase in costs.
272. This may be the reason that PRP-led cleanups are more common at sites where at least some PRPs have deep pockets. See Hilary Sigman, Liability Funding and Superfund Cleanup Remedies, 35 J. ENVTL. ECON. & MGMT. 205,222 (1998).
273. See CONGRESSIONAL BUDGET OFFICE, Analyzing the Duration of Cleanups at Sites on Superfund's National Priorities List (1994).
274. c takes on a value of either 0 or 1, and the first term inside the brackets 176 See PROBST ET AL., supra note 36, at 130 tbl.A-4.
275. See id. at 37.
276. See id., at 147 tbl.B-6.
277. See id. at 41. PRP efficiency cost savings is greatest under this alternative ($4.6 billion); hence, the projected remaining cleanup expenditures are the least ($21.4 billion).
278. See id.
279. See id. at 41. The increased costs to the trust fund in dollar terms under elimination of retroactive liability is actually greater than the increase in percentage terms, because the total costs of cleanup increase when retroactive liability is eliminated. The cost savings attributable to the efficiency of PRP-led cleanups here is only $2.5 billion, and projected remaining cleanup costs are $23.6 billion.
280. See id. at 41. The cost saving attributable to the efficiency of PRP-led cleanups here is only $1.8 billion, and projected remaining cleanup costs are $24.2 billion.
281. Consistent with the discussion supra note 163, I will assume that the former are one-third less expensive than the latter.
282. This analysis assumes that requiring the use of mixed funding will not change the allocation of orphan share costs at nonorphan sites and, therefore, will not cause a shift of ultimate cleanup liability.
283. See ACTON & DIXON, supra note 41.
284. This represents a conservative point estimate of the range of percentages discussed in the RAND study. See id. at 47-54.
285. See discussion supra note 163.
286. Arguably, the EPA's costs of cost recovery should be considerably less, given its superior legal leverage over nonsettling PRPs.
287. Under Probst et al.'s methodology, shifts of transaction costs have no impact on cost savings attributable to PRP-led cleanups. See PROBST ET AL., supra note 36, at 147. However, a shift of this type would likely increase the number of more efficient, PRP-led cleanups, even though it would not redistribute cleanup liability. Furthermore, the Clinton Administration bill would also promote settlements by increasing the use of nonbinding allocations of responsibility. Hence, the assumption that total costs will not decrease under mixed funding is a conservative one.
288. It should be noted that I have ignored cash flow timing issues for the trust fund under this analysis - the potential problem associated with the fact that mixed funding requires the trust fund to pay out money early in the process, and recover it from PRPs later in the process.
289. See PROBST ET AL., supra note 36, at 33.
290. See id. at 144.
291. See id. at 144-46.
292. See id. at 136.
293. See id. at 138.
294. See id. at 135-47.
295. See id.
296. See id. at 136-38.
297. This, too, is a conservative assumption because I am ruling out the possibility that this system could impose more liability on PRPs than the status quo.
298. This is consistent with the approach taken in the RFF and Brookings analysis. See PROBST ET AL., supra note 36, at 139-44.
299. See id. at 41.
300. See id. at 136.