Retroactive Application of a New CERCLA Defense: The Superfund Recycling Equity Act

July 2001
Citation:
31
ELR 10867
Issue
7
Author
Carol J. Miller

The 1999 Superfund Recycling Equity Act (SREA) amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by creating an exemption from strict liability under CERCLA §107(a)(3) & (4) for persons "who arranged for recycling of [certain] recyclable materials." This exemption applies to sellers of recyclable material as well as to individuals who arrange for the recycling of qualified materials. The SREA is intended "(1) to promote the reuse and recycling of scrap material in furtherance of the goals of waste minimization and natural resource conservation while protecting the human health and the environment; (2) to create greater equity in the statutory treatment of recycled versus virgin materials; and (3) to remove the disincentives and impediments to recycling created as an unintended consequence of the 1980 Superfund liability provisions."

CERCLA liability historically applies to a broad class of individuals who (1) owned or operated a vessel or facility where hazardous substances were generated, stored, or transported for disposal or treatment (from which there was a release or threatened release of a hazardous substance), or (2) transported or arranged for the transportation of such hazardous substances. The essential purpose of CERCLA is to provide "the tools necessary for a prompt and effective response to the problems of national magnitude resulting from hazardous waste disposal [and to require] those responsible for the problems caused by the disposal of chemical poisons [to] bear the cost and responsibility for remedying the harmful conditions they created." Joint and several liability, which has been imposed through case law, further enhances the liability potential of parties responsible for the pollution cleanup.

The author is an attorney and a University Fellow in Research and Professor of Business Law at Southwest Missouri State University, where she teaches environmental law. She was the 1999 recipient of a University Research Recognition Award and the 1998 recipient of the University Foundation Teaching Award.

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