The Birth of Superfund (continued)

Congress wanted to minimize the time spent in litigation -- and instead concentrate those resources in actually cleaning up toxic waste sites. That is why CERCLA contains strong enforcement provisions and why liability under CERCLA is "strict," "retroactive," and "joint and several." Here is a short explanation of these legal terms:

Strict Liability -- In many cases, a plaintiff in an injury suit needs to prove that the defendant is "at fault" before a court will award damages (e.g., that the defendant is negligent or acted in bad faith). This would be difficult in many Superfund cases because (as in the Love Canal example) wastes may have been deposited decades ago, and the records and memories of witnesses are often old and sketchy. In CERCLA, the plaintiff only needs to prove that the defendant is one (or more) of the four entities defined as liable by the statute. Those entities are:

• Former owners and operators of a vessel or facility;
• Current owners and operators of a vessel or facility;
• Persons who arranged for the disposal or treatment of hazardous substances; or
• Transporters of hazardous substances who selected the site for disposal or treatment.

Therefore, under CERCLA strict liability, the government only needs to prove that the defendant falls within one of these four categories -- not that the defendant acted incorrectly. The reasoning is that the release caused injury to human health or the environment -- and the entities that created the hazardous wastes or conditions should pay for cleaning up the release. Otherwise, the cost would be borne by the taxpayers.

Retroactive Liability -- To use the Love Canal example again, all the waste was dumped long before CERCLA was passed in 1980 -- but the "release" of that waste was current and causing injury after the statute was enacted. Retroactive liability means that parties found responsible for causing a release are liable even if their actions occurred prior to CERCLA's enactment. Congress intended that the parties who were responsible for creating the problem should also be the parties who pay for cleaning it up -- whether those actions occurred before CERCLA or not.

Joint and Several Liability -- At Love Canal, Hooker Chemical and Plastics (now Occidental Chemical Corporation) owned the site in the 1940s and early 1950s, and was responsible for a large portion of the wastes. However, the landfill was also used by other parties (e.g., the City of Niagara Falls). As with most Superfund sites, the wastes came from different sources and resulted in an indivisible "toxic soup." Under joint and several liability, each PRP is potentially liable for the whole cost of cleanup, and it is the responsibility of the PRPs to allocate "shares" of liability among themselves. This assures that the PRPs, not the innocent public, will bear the risk of any uncertainty over who was responsible for which part of the harm.