Superfund at Square One: Promising Statutory Framework Requires Forceful EPA Implemetation

Over the last several years public attention has focused increasingly on the risks associated with hazardous wastes and other toxic substances. Incidents of environmental contamination at locales such as Love Canal, New York, Toone, Tennessee, and Gray, Maine have fueled the controversy and have led to claims that releases of toxic substances and hazardous wastes constitute a serious threat to public health and the environment. Indeed, as reports of such incidents have mounted,¹ so have the estimated costs of addressing the problem. The Council on Environmental Quality (CEQ), for example, has suggested that cleanup costs alone for abandoned hazardous waste sites could run well into the billions of dollars.² Moreover, the cleanup costs resulting from the improper [11 ELR 10102] disposal of hazardous substances represent only one facet of the larger and more general problem of environmental pollution and damages to private citizens caused by toxic chemicals.

During the last decade, Congress sought to reduce or prevent the risks associated with environmental contamination by enacting a variety of statutes regulating the manufacture, use, and disposal of toxic chemicals. These include the Toxic Substances Control Act,³ the Clean Water Act,⁴ the Occupational Safety and Health Act,⁵ the Federal Environmental Pesticide Control Act,⁶ the Safe Drinking Water Act,⁷ and the Consumer Product Safety Act.⁸

Unfortunately, recent regulatory history suggests that the emergence of new environmental problems may be outpacing regulation.⁹ In addition, while these recent statutes offer ways to control existing or new hazards, they provide few remedies for victims of the hazards. Congress, therefore, has considered compensation as a means of both redressing injuries and complementating the regulatory approach to risk reduction.

During the last few sessions of Congress, a growing number of legislative proposals have been advanced to address the problem of pollution-related injuries. This situation peaked during the 96th Congress, which considered more than 20 bills involving liability and compensation for toxic substances pollution and other forms of environmental contamination.¹⁰ After a series of fits and starts, the 96th Congress enacted the "Superfund" in the closing hours of the legislative session.¹¹

CERCLA

The new law is formally called the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and applies to hazardous waste sites and other sources of hazardous substances pollution. Under the Act, and pursuant to an executive order issued by President Carter, various agencies will assist in implementing CERCLA, including the Council on Environmental Quality and the Environmental Protection Agency (EPA).¹²

The concept of a "release" of a hazardous substance is critical to the operation and implementation of many provisions of CERCLA.¹³ Essentially, CERCLA authorizes governmental responses to actual and threatened releases of a wide range of harmful substances. Parties causing releases of such substances may then be held liable without regard to fault for certain damages resulting from the release, which primarily include government-incurred costs for cleanup, removal, and resource restoration. To ensure that such injuries are redressed, the law establishes a $1.6 billion Hazardous Substances Response Fund, financed jointly by injustry and the federal government over five years. When polluters are unknown, or are unable or unwilling to provide recompense, a claim for specified damages may be filed against the fund. Payment of claims by the fund then subrogates the fund to the rights of the claimant. Thus, fund representatives can attempt to recover claim payments from the party responsible for the hazardous substance release. Within this broad statutory framework, the new law establishes various procedures and principles governing notification, response authority, liability, and the filing of claims.

Notification

Section 102¹⁴ of CERCLA requires the government to designate hazardous substances and establish reportable quantities for such substances. Until such quantities are developed specifically by EPA, releases of more than one pound of a hazardous substance must be reported except those for which reportable quantities have been established under § 311(b)(4) of the Federal Water Pollution Control Act.¹⁵

Section 103¹⁶ of the Act requires that in the event of a reportable release from a vessel or facility, "any person in charge of" that vessel or facility must "immediately [11 ELR 10103] notify the National Response Center established under the Clean Water Act of such release," and must do so, "as soon as he has knowledge of any release …." Additionally, under § 103(c) certain individuals and governmental entities are required to notify EPA in order to assist the agency in locating waste treatment, storage, or disposal facilities at which hazardous waste is still present. On April 15, 1981, EPA proposed rules implementing this section of CERCLA.¹⁷

Response Authority

Section 104¹⁸ of the Act provides the federal and state governments with a fairly sweeping mandate to mitigate and respond to pollution and requires the President to broaden the scope of the National Contingency Plan for oil and hazardous materials spills under the Clean Water Act.¹⁹ Unless the President or his delegates determine that the party responsible for an actual or threatened pollution release will take appropriate remedial action, the President may arrange for pollution removal and remedial operations whenever:

any hazardous substance is released or there is a substantial threat of such a release into the environment, or

there is a release or substantial threat of release into the environment of any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare ….²⁰

However, except in certain emergencies and in cases where the states are cooperating in alleviating the pollution, the President's principal response actions are limited to a period of six months or to the expenditure of $1 million in response costs, whichever occurs first.²¹

Liability

The liability scheme under § 107²² of CERCLA for governmental pollution response costs, other necessary costs of response to pollution under the National Contingency Plan, and demages to natural resources reflects a complex legislative evolution. Under legislation originally considered by the Senate, owners and operators of polluting vessels or facilities, as well as those engaged in the disposal, treatment, and generation of hazardous wastes were to be held jointly, severally, and strictly liable for certain pollution-related damages.²³ These provisions were intended "to induce potentially liable persons to voluntarily mitigate damages" while preventing persons from either "contracting away" responsibility for hazardous substances or alleging that third parties caused the pollution.²⁴ However, largely because of industry objections,²⁵ particularly with respect to the liability of hazardous waste generators, specific references to joint and several liability were eventually dropped.²⁶

Furthermore, while the term "strict liability" is not used in the Act, CERCLA indirectly provides for strict liability by its failure to contain general defenses based on the exercise of due care.²⁷ In other words, responsible parties cannot escape liability for their actions by alleging that they exercised due care. In this sense then, responsible parties remain strictly liable for the consequences of releases that they caused. However, CERCLA provides for [11 ELR 10104] defenses based on acts of war or acts of God. In addition, the Act authorizes a defendant to avoid liability if he or she shows that the pollution was caused by an independent third party (one not related by contract or employment) and that the defendant has exercised due care with respect to that party and that polluting substance.²⁸ However, since this defense does not apply to employees of the defendant or to most other third parties directly or indirectly related by contract with the defendant, as may often be the case between generators, transporters, and disposers, this provision should not restrict those state courts that otherwise might impose joint and several liability on such parties under state law.²⁹

Section 107(c) provides limits on liability. However, these do not apply where the polluter fails to cooperate in cleanup efforts, where knowing violation of certain regulations is the primary cause of pollution, or where willful negligence or misconduct has occurred. In such instances, unlimited liability may be imposed for specified types of damages, including damages for natural resource injuries.³⁰ Such damages are paid generally to the United States and to the state in which the resources are located, owned, or managed. Under § 107(f), however, liability for such damages may not be imposed if they occurred wholly prior to CERCLA's enactment.³¹

Interestingly, while CERCLA purportedly precludes awards of compensation for private injuries,³² the Act explicitly allows recovery for "any other necessary costs of response incurred by any other person consistent with the National Contingency Plan."³³ On its face, this language would seem to permit a private cause of action for damages under CERCLA if a person acts in a manner "consistent" with the National Contingency Plan (NCP). Thus, for example, the existing NCP developed under the Clean Water Act authorizes a wide range of actions to prevent pollution from threatening "the public health or welfare,"³⁴ which is defined as:

all factors affecting human health and welfare, including, but not limited to, human health, the natural environment, fish, shellfish, wildlife, and public and private property, shorelines and beaches.³⁵

If similarly broad authority is incorporated in the NCP as revised under CERCLA, private parties harmed or threatened by pollution may be able to engage in a wide variety of pollution mitigation and response activities and may recover their costs under CERCLA.

While this may unexpectedly expand the scope of CERCLA's liability provisions, the Act also contains certain potentially significant qualifications to and exemptions from liability. It does not cover damages from releases of pollutants pursuant to federal permits,³⁶ or from the application of a registered pesticide;³⁷ nor does it cover damages resulting from activities which were previously determined in an environmental impact statement to involve an "irreversible and irretrievable" commitment of natural resources.³⁸ In addition, a special $200 million Post Closure Fund assumes liability for hazardous waste sites that have been issued permits under the Resource Conservation and Recovery Act (RCRA) and that have been closed in compliance with such permits.³⁹ Monies for this fund come from a tax on the receipt of hazardous wastes at facilities that have been issued RCRA permits or that have been accorded interim status under that act.⁴⁰

Fund Uses and Claims

Approximately § 1.38 billion of the $1.6 billion fund is derived from a tax on oil, specified organic chemicals, and certain heavy metals. The remainder comes from governmental expenditures. The fund may be used for the following purposes: (1) payment of governmental response costs incurred under the Act's response authority provisions; (2) payment of other necessary response costs under the National Contingency Plan established under § 311 of the Clean Water Act (to be revised under CERCLA); (3) payment of claims asserted and compensable but unsatisfied under § 311 of the Clean Water Act; and (4) payment for certain other purposes, including monitoring resource losses, restoring, replacing, rehabilitating, or acquiring the substantial equivalent of damaged resources, conducting epidemiological studies, and purchasing cleanup equipment.⁴¹

Claims may include necessary response costs incurred under the National Contingency Plan and damages arising out of injury to natural resources.⁴² Under § 112,⁴³ claims may be asserted against the fund after being presented to the party responsible for the facility or vessel from which a hazardous substance has been released or to any other known, potentially liable person. Claims for resource damages may be asserted only for those resources belonging to, managed by, or protected by state or federal governments.⁴⁴ Funds are not available, however, for resource injuries occurring wholly before the enactment of CERCLA⁴⁵ or for claims resulting from multiplesource, [11 ELR 10105] long-term exposures to ambient concentrations of air pollutants.⁴⁶

If a claim has not been satisfied by a known, potentially liable party within 60 days, the claimant has the option of initiating an action in court against that party or presenting the claim to the fund.⁴⁷ If the claim is presented to the fund, the President must attempt to promote and arrange a settlement between the claimant and the alleged polluter.⁴⁸ Where a settlement is not reached within 45 days, the President may either make an award or decline to make an award.⁴⁹ If the President makes an award and the claimant is dissatisfied with the amount, he may appeal the President's determination to the federal courts.⁵⁰ If the President declines to make an award, appeals to arbitrators and the courts may follow.⁵¹

Once a claim is paid, the fund or the party paying the claim is subrogated to the rights of the claimant.⁵² This entitles such parties to seek recovery of claim payments in another proceeding. Thus, the Act is intended to redress injuries, and where possible, to encourage the eventual assignment of liability for statutorily compensable damages. These principles are potentially valuable in both deterring pollution and preventing excessive depletion of fund resources.⁵³

Other Provisions

In addition to the provisions discussed above, CERCLA has several other interesting features. It confers upon the federal government broad authority to abate imminent and substantial dangers to the public health and welfare.⁵⁴

Sunset language is incorporated in the fund taxation provisions of the Act, so that tax collection will cease in 1985.⁵⁵ A legislative veto of certain regulatory decisions is also authorized under CERCLA.⁵⁶ Various legal and technical studies must be conducted under the terms of the Act, and an Agency for Toxic Substances and Disease Registry must be established to provide assistance in matters pertaining to hazardous substances and health protection.⁵⁷

Preemption may become an important issue under CERCLA. Under § 114, no one may be required to pay into any state or other fund for compensating claimants who could recover under CERCLA.⁵⁸ This preemption language will be especially significant to states such as New Jersey and Florida, both of which have pollution spillfunds.

Implementation

EPA's efforts to implement CERCLA naturally will be critical to the prevention and mitigation of environmental contamination from the release of hazardous substances and pollutants.Because of limitations on fund monies and resources, EPA must establish priorities for addressing such releases. An attempt to improve risk assessments and other information on the location, magnitude, and severity of incidents of toxic substances pollution should play an important role in developing regulatory and enforcement strategies under the Act.

Approximately 9,200 waste sites have been identified for assessment by EPA under CERCLA, with an additional 200-400 being added to this list every month.⁵⁹ Approximately 2,000 sites have been evaluated thus far; of these, approximately 350 have been determined to require enforcement or remedial action.⁶⁰ EPA is expected to focus its energies on encouraging privately financed cleanup efforts, thus conserving fund resources for situations where this is not possible.⁶¹

No CERCLA suits have yet been filed by the federal government; however, the City of Philadelphia has initiated a lawsuit under CERCLA to recover damages from several hazardous waste generators.⁶² One reason for the minimal federal response action to date is that in order for certain fund monies to be used, congressional appropriations are necessary.⁶³ Such funds have not been appropriated rapidly, thus leaving EPA with insufficient resources to initiate major cleanup actions.⁶⁴

Conclusion

Superfund started out as an ambitious attempt to use liability as a complement to regulatory intervention in reducing the risks from toxic substances. By facilitating the [11 ELR 10106] process by which polluters are held liable for the damages they cause, it was hoped, such injuries would be redressed and an added measure of pollution deterrence would be achieved.As enacted, the current Comprehensive Environmental Response, Compensation and Liability Act does not wholly abandon these principles, but it incorporates them in a law of more limited scope and impact. For one thing, oil spills are generally not covered. In addition, by restricting the primary coverage of the law to governmental cleanup, resource restoration, and pollution response costs, Congress has indicated its reluctance to modify legal principles traditionally relegated to state control. Thus, private citizens injured by toxic substances generally must continue to litigate such claims in state court according to the common law and other legal rules applied in that particular jurisdiction.⁶⁵

1. See, e.g., CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS, SENATE COMM. ON ENVIRONMENT AND PUBLIC WORKS, 96TH CONG., 2D SESS., A BRIEF REVIEW OF SELECTED ENVIRONMENTAL CONTAMINATION INCIDENTS WITH A POTENTIAL FOR HEALTH EFFECTS (No. 96-15) (Comm. Print 1980) (prepared by U.S. Surgeon General); CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS, SENATE COMM. ON ENVIRONMENT AND PUBLIC WORKS, 96TH CONG., 2D SESS., RESOURCE LOSSES FROM SURFACE WATER, GROUNDWATER, AND ATMOSPHERIC CONTAMINATION: A CATALOG (No. 96-9) (Comm. Print 1980); ENVIRONMENTAL PROTECTION AGENCY, DAMAGES AND THREATS CAUSED BY HAZARDOUS MATERIAL SITES (EPA/430/9-80/0045 (Jan. 1980); CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS, HOUSE COMM. ON PUBLIC WORKS AND TRANSPORTATION, 96TH CONG., 1ST SESS., COMPENSATION FOR VICTIMS OF WATER POLLUTION, (No. 96-4) (Comm. Print 1979).

2. See COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY-1979 182-183 (1979) (citing estimates in study conducted for EPA); but see Chemical Manufacturers Association's Review of EPA's "Everybody's Problem: Hazardous Waste," p. 2 (1980) (disputing estimates presented to EPA) (on file at ELR).

3. 15 U.S.C. § 2601 et seq., ELR STAT. & REG. 41335.

4. 33 U.S.C. § 1251 et seq., ELR STAT. & REG. 42101.

5. 29 U.S.C. § 651 et seq.

6. 7 U.S.C. § 135 et seq., ELR STAT. & REG. 42301.

7. 42 U.S.C. § 300f et seq., ELR STAT. & REG. 41101

8. 15 U.S.C. § 2051 et seq.

9. See, e.g., Sen. Rep. No. 96-848 "Environmental Emergency Response Act," at 10-12 (1980); Soble, A Proposal for the Administrative Compensation of Victims of Toxic Substance Pollution: A Model Act, 14 HARV. J. LEGIS. 683, 727 (1977). A 1977 General Accounting Office (GAO) study of delays in setting workplace standards for hazardous substances estimated that, at the current rate, it would take more than a century to establish standards for known hazards. GENERAL ACCOUNTING OFFICE, DELAYS IN SETTING WORKPLACE STANDARDS FOR CANCER-CAUSING DANGEROUS SUBSTANCES at 9 (1977). A more recent GAO study indicates that four years after enactment of the Toxic Substances Control Act, "neither the public nor the environment are much better protected." See, GENERAL ACCOUNTING OFFICE, EPA IS SLOW TO CARRY OUT ITS RESPONSIBILITY TO CONTROL HARMFUL CHEMICALS, at i (1980). Furthermore, all of these observations predate the Reagan Administration's initiatives toward reducing the overall role of the federal regulatory agencies.

10. See, e.g., H.R. 29, 85, 1048, 1049, 3441, 3797, 3798, 4548, 4566, 4571, 5074, 5290, 5291, 6931, 7020; S.684, 953, 1046, 1325, 1341, 1480, 96th Cong., 2d Sess. (1980).

11. Pub. L. 96-510, 42 U.S.C. § 9601 et seq., ELR STAT. & REG. 41941.

12. See Exec. Order 12286, 46 Fed. Reg. 9901 (January 30, 1981). Other agencies with responsibility for administering the Act include the Treasury Department, the Department of Transportation (especially the coast Guard), the Department of Labor, the Department of Justice, the Department of Health and Human Services, and the Federal Maritime Commission. Apparently, the Reagan Administration is preparing its own executive order for implementing CERCLA, but fundamental alterations in the existing delegations of responsibility are not expected. See Mank, "Prospects for the Implementation of Superfund" (remarks made to the American Bar Association Conference on Toxic Substances and Hazardous Wastes) at p. 4 (May 9, 1981) (on file at ELR) [hereinafter cited as ABA Address].

13. "Release" is broadly defined in the Act at § 101(22), as "… any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment …." 42 U.S.C. § 9601(22), ELR STAT. & REG. 41943. However, the definition of "release" specifically excludes those exposures resulting from specified discharges of nuclear materials, workplace emissions, most engine exhausts, and "normal" fertilizer applications. Id.

14. 42 U.S.C. § 9602, ELR STAT. & REG. 41944.

15. 33 U.S.C. § 1321(b)(4), ELR STAT. & REG. 42133.

16. 42 U.S.C. § 9603, ELR STAT. & REG. 41944-45.

17. 46 Fed. Reg. 22143 (April 15, 1981).

18. 42 U.S.C. § 9604, ELR STAT. & REG. 41945-46.

19. The National Contingency Plan developed under § 311(c) of the Clean Water Act, 33 U.S.C. § 1321(c), ELR STAT. & REG. 42133-34, currently is designed to provide a coordinated response to oil and hazardous substances spills. See 40 C.F.R. § 1510; Exec. Order 11735, 38 Fed. Reg. 21243 (August 3, 1973) (delegating responsibility for development and implementation of the National Contingency Plan). See also note 12, supra, regarding responsibilities for revising the Plan under CERCLA.

20. CERCLA § 104(a)(1). A hazardous substance is defined as:

… (A) any substance designated pursuant to section 311(b)(2)(A) of the Federal Water Pollution Control Act, (B) any element, compound, mixture, solution, or substance designated pursuant to section 102 of this Act, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act (but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by Act of Congress), (D) any toxic pollutant listed under section 307(a) of the Federal Water Pollution Control Act, (E) any hazardous air pollutant listed under section 112 of the Clean Air Act, and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 7 of the Toxic Substances Control Act. The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas);

Id. § 101(14).A pollutant or contaminant includes:

… any element, substance, compound, or mixture, including disease-causing agents, which after release into the environment and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring.

Id., § 104(a)(2).

21. CERCLA § 104(b) & (c). The Act distinguishes between pollution "removal" and "remedial action." Removal refers generally to cleanup and short-term relief. Id. § 101(23). Remedial actions are those that are "consistent with permanent remedy taken instead of or in addition to removal." Id. § 101(24). "Response" is broadly defined under the Act to include both removal and remedial action. Id. § 101(25).

22. 42 U.S.C. § 9607, ELR STAT. & REG. 41947-49.

23. See S.1480 § 4(a), 96th Cong., 2d Sess. (1980).

24. SEN. REP. NO. 96-848 at 31 (1980).

25. See, e.g., The Environmental Emergency Response Act: Hearing Before the Senate Committee on Finance, 96th Cong., 2d Sess. 207-208 (1980).

26. Although specific reference to joint and several liability was not included in the legislation, it is possible that state courts will still impose joint and several liability on statutorily covered parties for so-called "indivisible" injuries. See, e.g., CONG. REC. H11787-89 (daily ed. Dec. 3, 1980) (statement and submission of Rep. Florio).

27. CERCLA § 107. This approach is similar to that taken under § 311(f) of the Clean Water Act, which essentially imposes strict liability on parties deemed to have caused pollution. See, e.g., CONG. REC. H11787-89 (daily ed. Dec. 3, 1980) (statement and submissions of Rep. Florio); Note, Liability Without Fault Under the Federal Water Pollution Control Act, 19 NAT. RES. J. 687 (1979).

28. CERCLA § 107(b)(3).

29. See note 26, supra.

30. CERCLA § 107(c)(2).

31. CERCLA § 107(f).

32. See, e.g., Note, Allocating the Costs of Hazardous Waste Disposal, 94 HARV. L. REV. 584, 589 (1981). See also CONG. REC. S.14973-74 (daily ed. Nov. 24, 1980) (remarks of Sen. Mitchell).

33. CERCLA § 107(a)(4)(B) [emphasis added].

34. See, e.g., 40 C.F.R. § 1510.21 (1980).

35. 40 C.F.R. § 1510.5(p) (1980) [emphasis added].

36. CERCLA § 107(j).

37. Id. § 107(i).

38. Id. § 107(f).

39. Id. §§ 107(k), 111(j).

40. Id. §§ 231(a), 232. "Facility" is defined in CERCLA at § 101(9).

41. CERCLA § 111(a)(1)-(4), (b), (c). Claims may be filed up to three years after discovery of the loss or the date of the Act's enactment, whichever is later. Id. § 112(d).

42. 42 U.S.C. § 9611, ELR STAT. & REG. 41950-51.

43. 42 U.S.C. § 9612, ELR STAT. & REG. 41951-52.

44. Id. § 111(b). Federal claims are filed by the President as trustee for the damaged natural resources. Id. In evaluating claims the President or his delegate is also responsible for an initial determination of resource damages, which triggers a rebuttable presumption on behalf of claimants in adjudicatory or regulatory proceedings.

45. Id. § 111(d)(1).

46. Id. § 111(d)(2).

47. Id. § 112(a).

48. Id. § 112(b)(2)(A). Where the potentially liable party is unknown or cannot be determined, the claimant and the President are encouraged to arrive at a settlement of the claim against the fund. Id. § 112(b)(2)(B).

49. Id. § 112(b)(3).

50. Id. § 112(b)(3), (4)(G).

51. Id. § 112(b)(4). Implementation of the claims procedures is intended to be accomplished by using the facilities of private resource and claims adjusting organizations; only in special circumstances may federal personnel be used for this purpose. Id. § 112(b)(2)(C), (D).

52. Id. § 112(c)(1), (2). Upon request of the President, the Attorney General shall maintain an action to recover claim payments. In attempting to recover such amounts, the Attorney General is not limited to invoking the provisions of CERCLA, but may base his action on any law under which the polluter could be held liable to the fund or the compensated claimant. Id. § 112(c)(3).

53. If a harmed party maintains a claim under the Act, the party does not waive any other right to recover damages for injuries not covered by the Act. Id. § 112(e).

54. Id. § 106.

55. Id. § 303.

56. Id. § 305.

57. Id. § 104(i).

58. Id. § 114(d). Furthermore, multiple recoveries for the same injuries are prohibited under § 114(b).

59. ABA Address, supra note 12, at 11.

60. Id. Revision of the National Contingency Plan is expected within the next few months. Id. at 8.

61. Id. at 6.

62. See Philadelphia v. Stepan Chemical Co., No. 81-0851 (E.D. Pa., Mar. 5, 1981). The pleadings in this case are summarized in ELR PEND. LIT. 65685.

63. CERCLA §§ 111(c)(3), (5) & (6), 221, 232.

64. Approximately $6.7 million from the Clean Water Act's § 311 fund, however, has been available to EPA under CERCLA, ABA Address, supra note 12, at 5. All but $1.6 million of this has been spent since the enactment of CERCLA for emergency responses at 24 waste and spill sites. Id. In addition, EPA has announced "tentative" allocations of $3.8 million, available from sources other than CERCLA, for remedial engineering studies at 17 hazardous waste sites. Id.

65. Whether barriers to recovery under state law allow for adequate compensation for such injuries has been the subject of considerable debate. See, e.g., U.S. SENATE, 96TH CONG., 2D SESS. SIX CASE STUDIES OF COMPENSATION FOR TOXIC SUBSTANCES POLLUTION (Comm. Print June 1980); U.S. SENATE, 96TH CONG., 2D SESS., THE ENVIRONMENTAL EMERGENCY RESPONSE ACT, pp. 243-248, 669-679 (1980). See also Pfennig-storf, Environment, Damages, and Compensation, 2 AM. BAR FOUNDATION RES. J. 347, 444-448 (1979); TOXIC TORTS (Rheingold, Landau & Canavan eds. 1977).