Allocation and Uncertainty in the Age of Superfund: A Critique of the Redistribution of CERCLA Liability

Abstract

The federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Superfund law, forces a massive reallocation of private wealth. According to congressional testimony, the fair allocation of clean-up costs among responsible parties at waste sites is among the most difficult problems in the administration of the nation's hazardous waste laws. The difficulty is rooted in the fact that hundreds of billions of dollars are at stake. With 36,000 hazardous waste sites identified and awaiting federal evaluation and response, the overall national clean-up bill will be in the trillions of dollars.

The absence of definitive guidance from Congress spurred federal courts to invent from whole cloth disparate theories of allocation. In allocating liability under CERCLA, courts have resorted to two state uniform tort statutes: the Uniform Contribution Among Tort-feasors Act (UCATA) and the Uniform Comparative Fault Act (UCFA). These theories cause radically different outcomes for the tens of thousands of businesses and persons caught in the Superfund net. Often, the plaintiff PRPs themselves fail to recognize the differences between suing under section 107 and suing under section 113 of CERCLA.

This is the first article in the nation to provide a comprehensive study of the approaches

that courts have taken in allocating liability for the cleanup of CERCLA sites. Most of these approaches do not give attention to the existence of the distinction between the liability

imposed under section 107 and that imposed under section 113. In some cases, courts have gone so far as actually to convert section 107 claims into less advantageous section 113 actions.

This article will start continuing coverage of this evolving trillion dollar liability allocation by Professor Ferrey over the next decades (see his later articles).