In the November 1983 News & Analysis, James A. Rogers reviewed the first three years of the federal government's implementation of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).¹ Mr. Rogers was sharply critical of the government's litigation strategy. In particular, he argued that the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice have delayed the effective implementation of Superfund by adopting expansive interpretations of the reach of its liability provisions. Decrying the government's views as "extreme" and "patently unfair," Rogers states that "further progress has been blocked by EPA's counterproductive insistence on preserving maximum potential generator liability."²

I ardently disagree with Mr. Rogers' assessment. Though Rogers correctly observed that Superfund has had a "tempestuous early history," tainted by scandal and weakened by administrative inconsistency, his notion that the government's legal positions have thwarted the prompt realization of the Superfund's basic goals is entirely misguided. In fact, viewed in the context of the enormous hazardous waste site problem, with the practical difficulties of pinpointing responsibility for many releases and the inequities of not construing Superfund to create extensive generator liabilities, the government's legal posture seems not only reasonable, but also necessary for effective implementation of the Act.