Until the 1970s, federal and state laws did little to control the harmful water quality impacts of mining exploration, and mine wastes were regularly deposited wherever was convenient, including directly into streams. As a result, one enduring legacy of the boom and bust mining cycles in the United States from the mid-1800s to 1970 is widespread and unmitigated water pollution from inactive or abandoned mines.

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.

Are you going to hang him anyhow—and try him afterward?¹

In Blasland, Bouck & Lee, Inc. v. City of North Miami, the U.S. Court of Appeals for the Eleventh Circuit addressed two significant issues involving the interrelationship between Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery actions and contract law. These issues, and the way the court addressed them, highlight problems for drafters of both commercial contracts and partial settlement releases, which if not carefully done can frustrate the intentions of the parties and cause significant economic loss to at least one of them.

Editors' Summary: CERCLA §113(h), with some exceptions, prohibits legal challenges to response actions until the cleanup at a Superfund site is completed. While the section's sponsors hoped to prevent potentially responsible parties (PRPs) from using such challenges to delay their financial responsibilities, several federal courts have held that §113(h) also bars citizen suits brought to enforce the FWPCA, RCRA, and other environmental laws at Superfund sites.

Editors' Summary: In 1986, in an effort to expedite cleanups at Superfund sites, Congress enacted SARA, which among other things added §113(h) to CERCLA. Section §113(h) bars "preenforcement" challenges to response actions under §104 and cleanup orders issued under §106. SARA also amended CERCLA by adding §120, which provides for cleanup at federal facilities. Although §113(h) does not explicitly apply to §120 cleanups, the question has arisen whether it nevertheless does apply to them.

Editors' Summary: The Municipal Settlement Policy, an EPA guidance that addresses CERCLA settlements with municipalities that owned co-disposal landfills or were generators or transporters of waste disposed of at such sites, has been the subject of considerable opposition from industry groups. Although a federal district court rejected a facial challenge to the policy based on EPA's statements that it did not intend to apply it inflexibly, in the first decision examining the policy "as applied" a district court recently rejected the proposed settlement.

Editors' Summary: For over three years, Congress has been trying to reauthorize and revise CERCLA. Reauthorization bills introduced in the 103d, 104th, and 105th Congresses have proposed extensive changes intended to "fix" a program that many people consider to be "broken." In this Article, an Assistant Attorney General for Natural Resources in the New Mexico Office of the Attorney General suggests that the Superfund program is not as flawed as its critics charge. He argues that the statute only needs some fine-tuning.

The Sad State of the Policy Debate

Since its creation in 1980, the Superfund program has overcome a number of obstacles. It survived embarrassing political scandals in its first few years. It endured a failure to reauthorize the underlying statute in 1985, a lapse that led to widespread disruptions at the U.S. Environmental Protection Agency (EPA) and set the program back significantly. It has persevered in the face of attacks from many sides.