In September of last year the Fourth Circuit handed down its decision in United States v. Monsanto Co.¹ The court affirmed the imposition of joint and several liability under the Comprehensive Environmental Response, Compensation, and Liability Act² (CERCLA) on site owners and waste generators for governmental response costs incurred at the Bluff Road site in South Carolina. Liability was imposed despite the site owners' lack of involvement in the waste disposal operations carried out by their lessees, and despite the government's failure to offer proof that the generators' substances sent to the site actually were at the site when the response costs were incurred. In holding that the defendants' liability was joint and several, the court found the burden of establishing a basis for apportioning liability to be on the defendants, despite the fact that the federal and South Carolina governments also generated wastes at the site.

The Monsanto case came up in discussion at a conference last fall at which Hank Habicht, former Assistant Attorney General for the Department of Justice's Lands Division, spoke. Habicht noted that the decision had been issued on September 7—the very date that George Bush, as candidate for the Presidency, had confusedly identified as Pearl Harbor Day. According to Habicht, Monsanto was a devastating "Pearl Harbor" for defendants and so, at least in the Superfund context, Bush had been correct.