Congress will be returning to Washington about the time this Dialogue is published. The Superfund reauthorization bill that did not pass in the last Congress is the natural starting point for the renewed discussion in this Congress of Superfund's reauthorization. This Dialogue is about that upcoming reauthorization and has two purposes.

Since the enactment of Superfund in 1980, critics of the statute's liability regime have been relentless in their attempts to convince courts that Superfund liability is so unfair as to be unconstitutional. While their persistence has produced only minor changes in the liability regime, their cause may have been given a lift by the U.S. Supreme Court's 1998 decision in Eastern Enterprises v. Apfel.

Editors' Summary: During congressional debate on CERCLA reauthorization, attention has focused on the role of states in executing the Act. Some observers of these debates have questioned the constitutionality of delegating EPA cleanup and enforcement authorities to states. In contrast, this Article argues that such delegation is permissible under the U.S. Constitution and constitutional jurisprudence. The author asserts that under the Appointments Clause, the delegation of CERCLA authorities to states would not usurp Executive Branch functions.

The federal courts are in agreement that an action by a potentially responsible party (PRP) against another PRP to recover privately incurred response costs is a claim for contribution in which the plaintiff is limited to the relief that is available under §113(f)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) allows parties who are liable for environmental cleanup costs to seek contribution from other responsible parties. The statutory right of contribution, codified at 42 U.S.C. § 9213(f)(1), serves as the basis for allocating liability among responsible parties both in private cost recovery actions and in cost recovery actions commenced by governmental entities.

Editors' Summary: The enactment of CERCLA in 1980 sparked an explosion of contentious litigation between EPA and potentially responsible parties (PRPs) concerning the liability of PRPs under the Act. After over a decade of litigation in which EPA usually emerged victorious, the focus of CERCLA litigation has shifted to secondary suits between PRPs for cost recoupment, contribution, and insurance coverage, and, consequently, new issues have arisen. This Article examines the issues that dominate the emerging case law for secondary CERCLA suits.

Editors' Summary: The question of how to fairly apportion cleanup costs at Superfund sites is a highly debated topic in the law of hazardous substances. This Article highlights the deficiencies found in common allocation methods, and offers cost causation as a rational approach to apportioning cleanup costs. After providing a background on the CERCLA liability scheme, the authors address the various equitable factors used to apportion cleanup costs and discuss cost causation's relationship with those factors.

Editors' Summary: CERCLA §107 contains a third-party affirmative defense provision for owners of hazardous waste sites who exercised due care. Despite the abundance of CERCLA litigation, until recently no clear understanding of due care had yet emerged. But now, a series of New York federal court opinions suggest that due care turns on the owner's actions at the time the owner becomes aware of the contamination. This Article surveys the due care case law and focuses on the recent New York decisions.

Editors' Summary: This Article addresses CERCLA's language and structure as it pertains to the liability of interim landowners for passive migration of hazardous substances. The author argues that CERCLA's language, structure, and policies compel the conclusion that passive migration of hazardous substances during ownership does not trigger CERCLA liability. The author first addresses the language of CERCLA, and concludes that the CERCLA definition of "disposal" does not include the passive migration of hazardous substances.

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.