13 ELR 10348 | Environmental Law Reporter | copyright © 1983 | All rights reserved

State Hazardous Waste Superfunds and CERCLA: Conflict or Complement?

Elaine C. Warren

Editors' Summary: In the past few years, many states have enacted legislation that closely parallels the fund and liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).States have been spurred to adopt their own superfund legislation by the financial requirements and response action opportunities presented them by CERCLA as well as by gaps in the federal Act. The author analyzes the role of the states in the federal program, reviews the state superfund legislation, and assesses the relationship between the federal and state programs. The author concludes that some state superfund legislation complements the federal Act, while other state statutes raise preemption issues and doubts about the ability of the states to meet CERCLA matching grant and response authority requirements. On the other hand, several states have gone beyond CERCLA, tackling difficult hazardous waste liability and victim compensation issues and perhaps providing models for future federal legislation.

[13 ELR 10348]

State statutes establishing dedicated funds and providing legal authority to clean up dangerous inactive hazardous waste disposal sites have proliferated in recent years. Following enactment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),1 the federal "Superfund" statute, many states passed or amended hazardous waste funds of their own. But the flood of new state statutes is not just a response to federal leadership. Many state superfunds differ from the federal model and in some instances states are leading the way in developing new approaches to the hazardous waste cleanup problem. It remains to be seen whether the complex and diverse new body of state law will mesh smoothly with CERCLA, but a preliminary review exposes several areas of potential conflict.

Some states enacted superfund statutes simply to participate in the federal cleanup scheme. The federal Act both conditions federal cleanup expenditures on the guarantee of state matching grants and encourages states to have their own response authority with the promise of reimbursement from the federal Superfund.State superfund statutes can provide the matching grants and response authority necessary for full state participation in the federal program.

Some states have passed their own laws to supplement the federal Act, which falls short of the comprehensive scheme initially envisioned by its sponsors.Passed in the waning days of the 96th Congress, CERCLA is much narrower than originally proposed.2 Its remedial fund, slashed to $1.6 billion from a proposal of $4.1 billion, can only begin to finance the estimated $10 to $40 billion nationwide cost of cleaning up abandoned sites.3 Provisions for third-party victim compensation and broad rules of liability for waste cleanup and damages were deleted. Not only is CERCLA inadequate to clean up all hazardous waste sites, but it gives states broad latitude to shape their own programs. Unlike other federal environmental laws, CERCLA does not establish comprehensive mandatory requirements for state programs.4 The only apparent limitation on state programs in the federal Act is preemption of certain state hazardous waste cleanup tax-financed funds, but even that preemption provision exempts other state funds.

With the door left open by CERCLA, states have adopted many variations on the superfund theme. Some states have only gone far enough to guarantee their participation in the federal program; others adopted statutes [13 ELR 10349] so duplicative of CERCLA that they raise preemption questions. In a few states, the statutes surpass CERCLA, for example, by providing for personal injury compensation.

This growing body of state law is of great importance in hazardous waste cleanup. State statutes strengthen the national program established by Congress, but also create potential conflicts among the states and between federal and state law. The wide variety of state approaches cannot but make life confusing for companies with facilities in several states and raise policy questions about the best nationwide system for the cleanup of abandoned hazardous waste sites. This comment outlines the opportunities and obligations CERCLA presents to the states, describes the state superfund programs, and analyzes their relationship to the federal statute.

The Role for State Superfunds Under CERCLA

Like most other federal pollution control statutes, CERCLA envisions cooperative state and federal implementation, but unlike the others, also leaves the states great flexibility in developing their own superfunds. CERCLA directs the Environmental Protection Agency (EPA) to consult with the states concerning cleanup standards and plans for federal action to abate pollution from hazardous waste disposal sites. A state's failure to contribute to federal actions to clean up old chemical dumps handcuffs EPA, preventing it from using its broad power to undertake permanent site cleanup efforts. In addition, CERCLA invites states willing to submit to varying degrees of federal guidance or control to use CERCLA authority to take over federal cleanup actions or to conduct their own response actions. States can recover their cleanup costs from private parties "responsible" for the hazardous waste pollution or from the federal Superfund. CERCLA also expressly preempts certain types of state programs and expressly saves others. Because of the savings clause and the fact that the preemption provision is subject to a narrow interpretation, CERCLA appears to leave the states opportunities to fashion superfund programs either similar to or different from the federal scheme.

State Obligations and Opportunities Under CERCLA

CERCLA has three basic substantive programs, each of which involves the states.5 In § 104, it provides the federal or state governments with "response" authority to step in and clean up hazardous waste sites,6 and in § 105 mandates development of a national contingency plan (NCP) by EPA, in consultation with the states, to provide standards governing response actions.7 In § 107, CERCLA makes certain categories of persons liable for response costs and damages and suggests standards governing the scope and apportionment of that liability.8 Finally, in § 221, CERCLA creates a large "Hazardous Substance Response Trust Fund,"9 from which the popular name "Superfund" is derived, to finance federal response actions; to compensate others, including states, who take appropriate response measures; and to pay for damages to natural resources under federal or state control. To a considerable degree, the state superfund statutes demonstrate the extent to which states are able to handle the obligations and take advantage of the opportunities presented by the response, liability, and fund provisions of CERCLA.

* Response Actions. The response activities authorized by CERCLA § 104 require state cooperation with EPA.CERCLA § 104 requires state-federal consultation, makes state action and financial contribution a prerequisite to some federal response actions, and allows states to use federal response authority if they will satisfy all the conditions for federal action.

Under the NCP,10 EPA may take limited, "immediate removal actions" on its own, but must have state support for "planned removal" actions and "remedial actions." While the states have no power to force federal expenditures, they can in theory prevent EPA from acting if they fail to provide their share of the necessary funds. Under § 104(c)(1), the President may not expend more than $1 million or continue response actions at a site beyond six months unless the state has met several obligations or the President determines that an emergency exists and timely assistance is otherwise not available.11 Before EPA will carry out a remedial action in a state the latter must enter a cooperative agreement or contract with the President assuring that it will (1) maintain removal and remedial actions for their expected life, (2) provide acceptable disposal facilities for hazardous substances removed from the site, and (3) assure payment of 10 percent of the costs of the remedial actions, including all future maintenance, or at least 50 percent of the costs of remedial actions taken at sites owned by the state or its political subdivisions.12 The matching requirement also applies to EPA planned removal actions.13

[13 ELR 10350]

The states also may assume the response powers conferred on the federal government by CERCLA. States that wish to act in EPA's stead in removal or remedial actions must demonstrate to EPA's satisfaction "the capability to undertake such action," must act in accord with the NCP, and must enter a contract or cooperative agreement with EPA.14 These contracts or agreements may include state authority to obligate federal funds and to settle claims against the fund.15 Superfund also allows political subdivisions of the state to recover their own response costs, including natural resource damages, from responsible parties16 and from the fund.17 States and localities in turn can be held liable, as responsible parties, for releases triggering federal response actions at state or municipally owned sites.18

* Liability. CERCLA's liability provisions have four basic components that address questions most easily summarized as what, who, how, and how much. The what portion of the liability puzzle is found in § 107(a); responsible parties are liable for response costs and natural resource damages.19 CERCLA § 107(a) also indicates who may be liable, defining "responsible parties" broadly to include persons who owned or operated waste dumps now releasing hazardous substances either at the time of disposal or at the time of release; as well as those who generated the wastes or transported them to the leaking site.20 The question of how liability attaches is not specified in § 107, but "liability" is defined in § 101(32)21 as the standard of liability under § 311 of the Federal Water Pollution Control Act (FWPCA),22 which apparently imposes strict liability, that is, liability without fault.23 The final question, how much a responsible party may be liable for, is not clearly answered by CERCLA, but the heated debate on the issue may be headed for a conclusion that liability is joint and several24 where the injury cannot be divided among the responsible parties.25

The liability provisions of CERCLA envision a two-sided role for the states. States may be responsible parties under § 107.26 On the other hand, other responsible parties may be liable for response costs incurred by a state,27 and the state does not have as heavy a burden of consistency with CERCLA provisions as it does in acting in EPA's stead under § 104, or seeking to recover the expenses from the fund.28

* The Fund. CERCLA's third major substantive program is the "superfund" itself. The fund can be used to finance or reimburse federal or state response costs under § 104 to compensate for natural resource damages and for limited other purposes.29 Procedures for collecting claims against the fund are specified in § 112.30 The fund is authorized to a level of $1.6 billion: $1.38 billion from taxes on crude oil, certain petroleum products, and 42 chemical feedstocks31 with the remainder coming from federal appropriations. A sunset clause prohibits the collection of taxes after September 30, 1985.32 The Act also establishes [13 ELR 10351] a second fund, the Post-Closure Liability Trust Fund.33

States may recover response costs and natural resource damages from the fund under CERCLA. In order to recoup response costs, the state must obtain EPA approval and certification that the costs are incurred in "carrying out" the NCP.34

Thus, CERCLA has a part for the states in each of its basic programs. Critical among these is the matching grant requirement for major federal response actions, for without state contribution, there will be no action. With regard to state use of CERCLA response and liability provisions or recovery from the federal fund, state involvement is voluntary, though dependent upon compliance with federal standards such as the NCP guidelines for response actions.

Preemption and Independent State Superfunds

The relationship of state and federal superfunds is discussed in CERCLA § 114, which expressly saves certain types of state programs and expressly preempts others. CERCLA preserves state laws that impose liability beyond that imposed by the federal statute as well as other types of state remedies for costs or damages incurred as a result of hazardous substance releases. However, § 114 preempts states from imposing additional financial responsibility requirements beyond those spelled out in § 108 of CERCLA,35 and from allowing double recovery for claims compensable under state law or the federal fund.36 States also are preempted under § 114(c) from using tax-generated funds for purposes that duplicate CERCLA.37

The preemption clause in § 114(c) is the most important restriction on state laws found in CERCLA. It forbids the states from requiring anyone to "contribute to a fund the purpose of which is to pay compensation for claims for costs of response or damages which may be compensated under this title."38 But, the subsection also specifically allows states to use taxes or fees to finance preparations for responding to hazardous substance releases and to use general revenues to finance a response or damage fund.39 The crucial question is whether a state fund that allows payments for response costs or damages from hazardous substance releases, which could but will not necessarily be compensated by CERCLA, is rendered invalid by § 114(c).40

While the issue is debatable, the better reading of § 114(c) is a narrow one preserving state superfund taxes so long as their uses do not duplicate those of the federal fund. On the surface § 114(c) appears to impose a broader limitation on the states. It bars a state from requiring "anyone" to contribute to a fund that will pay response costs and damages, suggesting a general ban on state funds fed by special taxes. One might argue that the premption clause, coupled with the allowance in § 114(c) of state funds financed by general revenues, indicates Congress' desire to limit to $1.38 billion the generalized cleanup burden imposed on the easy-target petroleum and chemical industries. However, the overal language of the Act, its purpose, and legislative history support a different reading.41 In addition, unlike other environmental legislation that has been held to preempt state laws, CERCLA expressly preserves them, both in § 114(c), which allows state tax schemes to pay for equipment and other response preparation costs, and in § 114(a), which allows states to impose additional liability standards.42

No federal court has rule on the preemptive effect of § 114(c), although the State of New Jersey and corporate entities taxed by New Jersey filed suits in federal court seeking resolution of the validity of the New Jersey Spill Compensation and Control Act. In New Jersey v. United States,43 the District Court for the District of Columbia found no controversy ripe for review in New Jersey's request [13 ELR 10352] for a declaratory judgment that the tax be permitted to be used for purposes not covered by CERCLA. In Lesniak v. United States,44 New Jersey again sought a declaratory judgment, this time in the District Court for New Jersey, that § 114(c) violated the Tenth Amendment and was unconstitutional. New Jersey and the United States entered a settlement agreement allowing New Jersey to use its tax funds for all expenditures not actually compensated for by CERCLA. In Exxon Corp. v. Hunt,45 corporations challenging the validity of the New Jersey tax were denied standing by the Third Circuit, which held that under the federal Tax Injunction Act46 plaintiffs did not have standing in federal court because they had an efficient and effective remedy in state court. Thus, the truce in Lesniak is the closest thing to federal law on the CERCLA preemption issue and seems to preserve against federal challenges those state superfund taxes that are not used for purposes duplicating those for which the federal fund actually is used.

While the federal courts have not reached the preemption issue, the New Jersey Tax Court did rule on the question when plaintiffs in Exxon Corp. v. Hunt47 refiled their suit in state court. The state court upheld a narrow construction of the preemption clause, thus preserving the tax scheme.48 The court pointed out that Senator Randolph, cosponsor of CERCLA, had viewed the clause narrowly, as "preventing double taxation" and preempting state funds "only for efforts which are in fact paid for by the federal fund."49 The court found this narrow interpretation of the preemption clause to be consistent with CERCLA's allowance of some tax schemes, its dependence on state participation to accomplish its goals, and its inability to clean up all hazardous waste sites.50 The court also stated that in the alternative it would have upheld the tax scheme because the statute contained an express severability clause and allowed fund expenditures for many purposes not provided for at all by CERCLA. Thus, the court found it could sever uses of the fund that potentially duplicated CERCLA but uphold the tax scheme itself and allow tax revenues to be used for purposes that could not be compensated for by CERCLA.51

In addition to the legal arguments, compelling policy reasons support a narrow reading of § 114(c). A narrow interpretation does not render the clause meaningless. While not preventing the target industries from contributing both to federal and state hazardous waste cleanup funds, the clause should prevent wasteful, duplicative use of those funds. And it would encourage more state involvement in the cleanup and control of hazardous waste sites and provide states with greater flexibility in meeting their matching grant and other obligations under CERCLA.

If the courts continue to construe CERCLA preemption as did the New Jersey Tax Courp, the states will have a relatively free hand in developing their own superfund programs. They are expressly allowed to go beyond CERCLA in imposing liability for hazardous pollution damages and cleanup costs. In addition, they will be able to raise money through convenient "front-end" taxes on chemical manufacturers to clean up waste sites or compensate damages not actually covered by CERCLA. The cost of this freedom will be the national complexity of a balkanized hazardous waste cleanup and compensation system.

Description of State Superfund Laws

Thirty-six states have a total of 50 statutory funds or fee systems that can be used to respond to or prevent releases of hazardous substances.52 The funds are dedicated to abandoned site cleanup, emergency responses to discharges of hazardous substances, and perpetual care of disposal sites. Roughly half of the states enacted their superfund statutes after the passage of CERCLA. Some but not all of the states that had similar statutes prior to CERCLA subsequently amended them for greater consistency with CERCLA.53

The state superfund statutes range from simple to complex and serve different purposes. Some states have enacted comprehensive legislation that requires preparation of contingency plans similar to the NCP, describes the sources and uses of the fund, imposes inventory requirements, calls for identification of priority cleanup sites, and establishes liability standards. Fund statutes in other states simply state the sources and uses of the fund.

In analyzing the relationship of these varied state programs to CERCLA, three features are of particular interest. The revenue-generating provisions indicate the adequacy of funding and risk of preemption. The uses of the state funds indicate whether they overlap with or extend CERCLA's coverage. All the state superfund statutes specify funding sources and uses. About one-third of the statutes also specify liability standards, which are of special interest because of the controversy over liability standards under CERCLA.

[13 ELR 10353]

Revenue Sources

The state superfunds draw on six sources of financing. They are (1) "front-end" taxes on industries providing inputs to chemical manufacturers, (2) "back-end" taxes or fees on waste generation, transportation, or disposal, (3) appropriations from general revenues, (4) bond forfeitures, (5) recoveries from parties found liable for the costs or damages paid by the fund, and (6) penalties and fines. Most funds are comprised of revenues from several of these sources.

Most state superfund tax or fee mechanisms are of the back-end variety.54 One state uses the CERCLA approach or a front-end tax on manufacturers or importers of raw materials.55 In total, 35 funds rely on taxes or fees on disposal facility owners or operators, or transporters or generators of hazardous substances. Some states tax both waste generators and off-site disposal facility operators if the waste has not been previously taxed.56 Such a tax scheme allows the state to reach both in-state and out-of-state generators. The state taxes or fees typically are calculated on a waste volume or weight basis, and sometimes are scaled so that tax rates differ according to the type of waste or the disposal method used.57

Like CERCLA, 19 funds receive appropriations from general revenues. An alternative form of generalized public financing is exemplified by Rhode Island's fund which is financed by a voter-approved bond issue.58 Bond revenues drawn from waste disposers also are used to finance five perpetual care funds. Bonds forfeited by facility operators or owners are deposited in these funds. Twenty state funds receive costs recovered from responsible parties. A few states collect revenues from responsible parties by authorizing punitive damages assessments. New Jersey and Massachusetts, like CERCLA, allow treble damages.59 Missouri allows treble damages, but only for a willful failure to clean up.60 California supplements response cost recoveries with a 10 percent surcharge; Connecticut allows punitive damages of one and one-half times response costs if the responsible party was negligent.61 Finally, some state funds receive penalties and fines. Several states with comprehensive statutes specify penalties for failure to abate releases that require state responses. Quite a few other states impose penalties for violations of hazardous waste laws and funnel the penalties into the response action fund.62

Fund Uses

State superfund uses can be broadly divided into two categories: response actions and miscellaneous, which encompasses a variety of other uses.Response actions permitted by state statutes vary significantly, but can be grouped into: emergency actions, remedial actions, perpetual care, and monitoring and maintenance. The miscellaneous category of state superfund uses includes natural resources damages, research, site inventories, and private property or victim compensation.

Thirty-seven state superfunds may be used to respond to hazardous substance releases. Their response authority is triggered either by a general need to remedy conditions at a waste disposal site or is limited to emergency situations where a release causes an imminent and substantial danger to public health or the environment. An example of general response authority is Connecticut's statute, which allows the fund to be used whenever there is a discharge, spillage, uncontrolled loss, seepage or filtration of oil or hazardous wastes which may cause pollution or may create an emergency.63 In contrast, Kansas allows its fund to be used only "when … hazardous waste is found to pose an imminent and substantial risk to the public health or safety of the environment."64 Nevada's fund may only be used in the event of "substantial threat to life or property."65 Statutes of the imminent danger type are narrower than CERCLA, which allows immediate response actions when there is a substantial threat of a release regardless of the existence of an imminent and substantial danger to public health or the environment.66

Of the 37 response funds, 28 may be used for some or all of the remedial actions authorized by CERCLA. The exceptions are state statutes with very narrow emergency response language that does not specifically permit remedial actions. Some of the state statutes limited to imminent danger responses nonetheless authorize broad remedial action. The Kansas statute, for example, may be used for "investigation, engineering and construction related to the removal, treatment and disposal of hazardous waste disposed of in any hazardous waste disposal facility closed prior to the date of this act."67 Other statutes not limited to imminent danger situations provide broad response authority. For example, the Illinois fund can be used for whatever "preventive or corrective action is necessary or appropriate at sites which will or may cause an immediate or long-term danger to the environment, [13 ELR 10354] public health or welfare," and is arguably broad enough to encompass all CERCLA remedial responses.68 Statutes like California's dispel any doubts about the remedial action uses of the state fund. California permits its fund to be used for all removal and remedial actions not reimbursed by the federal government.69 Ten states indirectly allow their funds to be used for CERCLA response actions through matching grants to EPA.70

Another important category of response action uses of state funds is perpetual care or site maintenance. Thirteen state superfund statutes provide for perpetual care of presently operational sites, and seven can be used to provide for the operation and maintenance of state-owned facilities or the monitoring of privately owned facilities. States with perpetual care funds, although they may allow the fund to be used for "detoxification, removal and disposal of hazardous waste and reclamation facilities," as is true of Georgia, are principally created to be used in the future after sites presently in use are closed.71 Often they are financed with bonds forfeited by a facility; the bonds or fees that the facility must pay are tailored to match the state's estimate of perpetual care costs. Thus, these funds may not be available for use at sites closed prior to their enactment. Funds that can be used specifically for site monitoring and maintenance also have a primarily prospective emphasis. The perpetual care provisions play an important role in the state-federal relationship dictated by CERCLA, because a state commitment to oversight of cleaned-up sites is a prerequisite to federal remedial action.

Response actions are not the only use of state funds. Natural resources damages, which are compensated under CERCLA, are covered by state funds in California, Maryland, Massachusetts, Minnesota, New Jersey, North Carolina, and South Carolina.72 California, Illinois, Louisiana, and Minnesota allow their funds to be used for research into hazardous waste problems.73 States that direct fund revenues to be used for identification of hazardous waste disposal sites include Connecticut, Louisiana, Missouri, New York, and Ohio.74

Four states go beyond CERCLA and authorize compensation of third-party losses and injuries. These states are California, Florida, New Jersey, and South Carolina.75 In California, 100 percent of uninsured medical expenses up to three years from the onset of treatment, and 80 percent of lost wages or business income up to $15,000 per year for three years are compensable if no liable party can be found or a judgment cannot be satisfied. A statute of limitations applies from three years of the date of discovery or the passage of the act, whichever is later.76 South Carolina allows payments to victims of "preexisting abandoned" sites up to $500,000 or 10 percent of the fund, if a judgment that is obtained cannot be enforced.77 Florida allows compensation for "all provable property damages which are the proximate results of hazardous wastes released into the environment after the effective date of the act."78 New Jersey will compensate "all direct and indirect damages," making its fund one of the broadest. According to the statute, this phrase included damages to real and personal property, lost income due to property damage, reductions in property value, natural resources damages, and loss of income or earning capacity if caused by property or natural resources damages and the loss exceeds 10 percent of income from the property or natural resource-related activities.79 As the debate on federal victim compensation rages, these provisions illustrate alternative approaches and will, over time, produce useful data on the costs and benefits of victim compensation statutes.

Liability Provisions

Liability is the third aspect of state superfund statutes that is of special interest in assessing their relationship to the federal Act. More than a third of the states with superfunds address one or more of four components to liability established by CERCLA: for what damages may one be liable, who among the actors in the series of events leading up to a release of a hazardous substance may be liable, how must they have acted for liability to attach, and for how much of the resulting harm and expense is each liable person responsible. The states answer the question for what costs and damages is liability imposed in a variety of ways. Most impose liability only for state response action costs.80 Fewer states impose liability for [13 ELR 10355] natural resources damages.81 These are the two types of costs and damages for which liability is imposed in the federal Act. But unlike CERCLA, some state superfunds impose liability for personal injuries or private property damages.

Among the states with private damage liability standards, Minnesota has the most elaborate. Its statutory liability standards cover both personal injuries and economic losses. Damages that can be recovered for the release of hazardous substances include a variety of economic losses, death, and personal injury or disease.82 Massachusetts allows third-party actions for damages to any person's real or personal property that is incurred due to a release or threatened release of a hazardous substance.83 North Carolina allows private damage claims for personal injury or private property losses but only if the damages are caused by a hazardous substance that enters the waters of the state.84 Other states that also allow third-party claims are Maine, New Hampshire, and Rhode Island.85

In contrast to CERCLA, which delineates four groups of responsible parties, most states do not specifically identify responsible parties. Many states simply impose liability on persons who "cause"86 or "directly or indirectly cause"87 the pollution. Other states impose liability on anyone with custody or control of the hazardous waste or the property from which the waste is released.88 New Jersey's statute provides that anyone who discharges or who is in any way responsible for the hazardous substance is liable.89 New York imposes liability on the owner or operator of the site where the release occurred and "any person responsible for the disposal."90 Under these statutes, past owners of the site and past generators might be liable as they are under the federal Act, depending probably on causation standards in state tort law.

Two states list responsible parties, but define them somewhat differently from CERCLA. Massachusetts imposes liability on anyone who "directly or indirectly arranged for the transport, disposal, storage or treatment of hazardous waste to a site where the release occurred." Transporters are not limited as they are under CERCLA to those that selected the disposal site but rather any transporter that "directly or indirectly" transported the waste is liable.The statute preserves existing liability standards by additionally imposing liability on anyone who "otherwise caused or is legally responsible" for a release.91 Minnesota follows CERCLA except that it allows innocent land purchasers to be exempt from liability and it limits transporter liability to those who knew or should have known the waste was hazardous.92

A number of states address how liability attaches by imposing statutory strict liability. Among the states with express strict liability provisions are Maine, Massachusetts, Minnesota, Missouri, New Hampshire, and New Jersey.93 In addition, California incorporates the CERCLA definition of liability, which has been interpreted to impose strict liability.94 Most states applying an express strict liability standard provide defenses that closely parallel the three CERCLA defenses: an act of God, war, or third party and the exercise of due care by the responsible party.95

Other states do not expressly impose strict liability but such a standard might be implied because only enumerated defenses are exempt. Florida, for example, imposes liability on anyone who causes harmful pollution unless it is the result of a permitted releases.96 North Carolina imposes liability unless the release was authorized by regulation or resulted from an act of God, war, sabotage, negligence on the part of the government or was an act or omission by or at the direction of a law-enforcement officer or fireman.97 While in most states the same liability [13 ELR 10356] standards apply for all allowed costs and damages, at least one state allows different defenses for third-party private claims than are allowed for government response costs.98

Six states answer the question of how much of the costs or damages a responsible party is liable for in their superfund statutes. Four states, Connecticut, Florida, Massachusetts, and Minnesota, impose joint and several liability.99 In Connecticut and Massachusetts, liability is to be apportioned pro rata.100 In Florida, liability must be apportioned if it is divisible.101 Minnesota takes a unique approach by apportioning liability according to specified factors. Any uncollected amounts are then allocated pro rata.102 California allows each liable party the opportunity to establish by a preponderance of the evidence that only a portion of the state's costs is attributable to its actions. In the absence of the parties' ability to establish their share, the court has discretion to apportion costs among liable parties. The fund will pay any unallocated amounts.103 These liability allocating provisions are of great interest because of the controversy over whether CERCLA, which is silent on the issue, allows joint and several liability. The fact that five of the six states which address the issue impose joint and several liability, at least when the injury is indivisible, provides some support for the position taken by the federal government in litigation on CERCLA liability that state law is moving in this direction.104

In sum, state fund sources and uses, and state liability provisions parallel CERCLA in some respects, but often take divergent paths. How well the state schemes mesh with the federal Act can be determined by testing the state provisions against the preemption clause of CERCLA § 114, the state obligations and opportunities posed by CERCLA § 104, § 105, and § 107, and comparing the state provisions to the hazardous waste response, compensation, and liability gaps left by CERCLA.

Analysis of State Funds

Whether a state superfund statute meshes well with the federal Act can be determined by the responses to three questions. Does it avoid a preemption problem? Does it enable the state to raise sufficient funds to meet matching grant and other financial requirements of CERCLA? Does it allow the state to undertake broad response actions? A separate, but related question is whether a state has taken the opportunity left open by Congress to go beyond the requirements of CERCLA.

Preemption

A state superfund that may be used for response costs, damages, and other claims compensable under CERCLA, and is financed by tax or fee "contributions" to the fund, invites a preemption challenge unless it is used only for site preparation. Eleven states with remedial or emergency response funds do not use taxes or fees and therefore avoid the risk. These states are Arizona, Colorado, Louisiana, Michigan, Nevada, New Mexico, Oklahoma, Rhode Island, Tennessee, Texas, and Wisconsin.105 They obtain fund revenues from general appropriations, which is specifically allowed by CERCLA, as well as reimbursements, penalties, and fines.

States that finance CERCLA-type response actions out of a superfund built from tax or fee systems still may be able to withstand a preemption challenge. They can expressly prohibit the use of state funds for any action compensable under CERCLA or they can rely on a severability clause, as suggested by the Exxon Corp. v. Hunt court.106 The express prohibition approach is used by at least eight states: California, Colorado, Florida, Kentucky, Maine, Minnesota, New Hampshire, and New York.107 It has an advantage over the severability clause approach used in New Jersey108 because it preserves the state's ability to finance some response actions with state superfund monies.

CERCLA Financial Requirements

Assuming a state superfund provision avoids preemption, the next issue is whether the state will be able to comply with CERCLA contribution requirements for remedial [13 ELR 10357] actions. Two possible constraints on the states' ability to meet matching grant and remedial site operating and maintenance obligations are insufficient funds and inability to carry out all CERCLA remedial actions.

Insufficient state revenues to make the financial contributions required by CERCLA threatens the success of the superfund effort.An EPA official has estimated that cleanup of the hypothetical average site costs $6.5 million.109 A state's minimum matching grant share at such a site, assuming the state did not own the site, would be 10 percent, or $650,000. Operating and maintenance expenses after the site is restored would be a substantial additional financial burden. As of July 1982, EPA estimated that only three states could meet 100 percent of their matching grant requirements: California, Louisiana, and Rhode Island.110 It does not appear that adequacy of funds is related to the source of funds; California has raised its revenues through a tax system, Louisiana through appropriations and fines, and Rhode Island through a voter-approved bond issue. An additional 18 states had sufficient revenues to meet one-quarter or more of their matching grant requirements. As of December 1982, EPA estimated that a total of 97 priority sites were ineligible for CERCLA remedial action funds because states could not satisfy the matching grant requirements.111 At that time, total matching grant requirements for the 418 sites on the interim priority list were estimated to be $736 million.112 In an effort to buy time, EPA is now allowing states to waive the 10-percent matching requirement during the design phase of cleanup work, meaning that states need not actually meet the matching grant requirements until the cleanup process begins.113

State funding schemes may be inadequate because of low fund limits or fixed fees which provide a fixed revenue stream that cannot keep up with growing costs.114 Some states address these problems with floating fees. The California statute, although it has a fund limit of $10 million, provides that the tax rate is to be adjusted annually to ensure that a $10-million balance remains in the fund each year.115 A few states, such as Massachusetts, Minnesota, and Ohio do not have an overall fund limit and allow for fee adjustments according to expenditure levels.116

The extent to which the states' funds allow expenditures on the full range of CERCLA remedial actions also may measure their ability to provide the necessary state support for federal response actions. Ten states specifically allow their funds to be used for CERCLA matching grants. The absence of such a provision might preclude state transfers of revenues to EPA for response actions, but even so a state could make up its matching share by directly paying for a portion of the response action, provided its own response authority was broad enough to allow it to participate in the EPA cleanup. Thus a state with only emergency response authority might be unable to participate in the cleanup of a site from which releases were threatened but had not yet occurred.

Independent State Response, Compensation, and Liability Provisions

State funds that can both withstand preemption and enable the state to meet its CERCLA financial requirements will provide the minimum level of state support needed to carry out the federal scheme. CERCLA encourages states to do more, however, by assuming federal response authority, expanding compensation provisions, and adopting state liability rules broader than those of CERCLA.

The states most clearly capable of assuming federal response authority are those whose response authority is as broad as that of the federal Act, and whose superfund statutes make reference to the NCP as the source of standards governing response actions.117 Many states do not meet these criteria and will at most be able to take over CERCLA § 104 response authority in a limited range of cases.

States may initiate their own response actions without federal authorization, but this review of state superfunds suggests that the potential for state supplementation of CERCLA cleanup actions is limited. The widespread lack of sufficient state funds even to meet CERCLA matching grant requirements suggests that many state superfunds are inadequate to finance substantial response actions. Strong liability provisions may be the key to making effective use of small state superfunds. State liability rules that expand the concept of responsible parties and impose strict liability and joint and several liability will make it easier for states to replenish their funds by recovery costs from private parties.

The federal Superfund is not only inadequate to clean up all sites needing response action, but it does not provide relief for private persons harmed by hazardous waste releases. Some states with superfund statutes have taken two approaches to aid private victims. A few allow their funds to be used to compensate either personal injuries, property damages, or both. Other states have statutory [13 ELR 10358] liability provisions applicable to third-party claims. These two approaches, while employed by only a handful of states, do show a state willingness to tackle a large gap left in the federal scheme.

Conclusions

CERCLA grants the states an active role in the nationwide effort to clean up hazardous waste sites. In response both to the opportunities offered the states by CERCLA and the inability of CERCLA to cope with the enormity of the hazardous waste disposal problem, states have enacted their own superfund legislation. The combined federal-state statutory scheme can ensure a successful federal program only if the state statutes withstand preemption challenges, enable the states to meet CERCLA financial obligations, and authorize state-initiated actions consistent with CERCLA. A preemption challenge is possible in some states although many have avoided the problem by relying on revenues from sources other than federally proscribed taxes and fees and by prohibiting state superfund expenditures that duplicate federal efforts. Few states have raised sufficient revenues to meet CERCLA matching grant requirements and state superfund use restrictions could hamper the use of available revenues for this purpose. Techniques employed by some states to overcome these problems are broad grants of state response authority, flexible fees or tax rates imposed on waste handlers, and statutory liability provisions that facilitate state cost recoveries. Signs of state attempts not only to carry out the federal hazardous waste cleanup program but also to pick up where the federal effort ends can be seen in state statutes providing broad response authority, imposing strict, joint and several liability, and allowing victim compensation from state superfunds. >100"> >101">

*5*APPENDIX1
STATE N2*4*FUND SOURCES
Facility FeesGenerator FeesTransporter FeesAppropriations
AZ-1V
AZ-2V
CAVV
CO-1V
CO-2V
CO-3
CT-1V
CT-2V
FLVV
GAV
ILVV
IN-1V
IN-2V
IN-3V
KSV
KYV
LA-1V
LA-2V
LA-3V
MEVV
MDVV
MAV
MI-1V
MI-2V
MNVV
MSV
MOVV
NV-1V
NV-2V
NHVV
NJV
NMV
NYVVV
NC-1V
NC-2VV
OHV
OKV
ORV
PAV
RI
SCVV
TN-1V
TN-2
TX-1V
TX-2V
VT
VAV
WAV
WI-1V
WI-2V
*5*APPENDIX1
STATE n2*4*FUND SOURCES
ReimbursementsPenalties/FinesBondsOther
AZ-1V
AZ-2
CAVV
CO-1
CO-2V
CO-3VV
CT-1
CT-2V
FLV
GAVV
IL
IN-1
IN-2V
IN-3
KSVV
KYV
LA-1VVV
LA-2VV
LA-3V
MEV
MDVV
MAV
MI-1
MI-2
MNVV
MS
MOVVV
NV-1VV
NV-2
NHV
NJV
NMV
NYVV
NC-1
NC-2VV
OHVVV
OK
OR
PAVV
RIV
SC
TN-1
TN-2V
TX-1
TX-2VV
VTVV
VAV
WA
WI-1V
WI-2V
*6*APPENDIX1
STATE n2*5*FUND USES
EmergencyRemedial
ResponseActionPerpetual CareSite MonitoringCERCLA Match
AZ-1VVV
AZ-2V
CAVVV
CO-1V
CO-2V
CO-3V
CT-1VV
CT-2VVV
FLVV
GAV
ILVV
IN-1VVV
IN-2V
IN-3
KSVVV
KYVVV
LA-1V
LA-2VVV
LA-3VV
MEVV
MDVV
MAVV
MI-1V
MI-2V
MNVVV
MSV
MOVVV
NV-1V
NV-2V
NHVV
NJVV
NMV
NYVVV
NC-1V
NC-2VV
OHVVV
OKV
ORV
PAVVV
RIVV
SCVV
TN-1VVV
TN-2VVVV
TX-1VVV
TX-2VV
VTVV
VAV
WAV
WI-1VVV
WI-2V
*6*APPENDIX1
STATE n2*5*FUND USES
Natural
ResourcesVictimSite
DamagesCompensationStudiesInventoriesEquipment/Training
AZ-1
AZ-2
CAVVVV
CO-1
CO-2
CO-3V
CT-1
CT-2V
FLV
GA
ILV
IN-1
IN-2
IN-3V
KSV
KY
LA-1V
LA-2
LA-3
MEVV
MDV
MAV
MI-1
MI-2
MNVV
MS
MOVV
NV-1
NV-2
NHV
NJVVV
NM
NYV
NC-1
NC-2V
OHV
OKV
OR
PA
RIVV
SCV
TN-1
TN-2
TX-1
TX-2V
VT
VA
WA
WI-1V
WI-2V
*3*APPENDIX1
STATE n2*2*OTHER
Fund LimitLiability Standards
AZ-1
AZ-2
CAVV
CO-1
CO-2
CO-3
CT-1V
CT-2V
FLVV
GA
IL
IN-1V
IN-2
IN-3
KSV
KYVV
LA-1V
LA-2
LA-3
MEVV
MD
MAVV
MI-1VV
MI-2
MNV
MS
MOV
NV-1
NV-2
NHVV
NJVV
NM
NYVV
NC-1
NC-2V
OHV
OK
ORV
PA
RIVV
SCVV
TN-1
TN-2
TX-1
TX-2V
VT
VA
WA
WI-1V
WI-2
[13 ELR 10359]

ARIZONA

AZ-1. Water quality assurance revolving fund, ARIZ. REV. STAT. ANN. § 36-1854.01, -1856, -1864.01 (West 1982 Supp.).

AZ-2. Hazardous waste trust fund, ARIZ. REV. STAT. ANN. § 36-2805 (West 1982 Supp.).

CALIFORNIA

CA. Carpenter-Presley-Tanner hazardous substance account, CAL. HEALTH & SAFETY CODE § 25300-395 (Deering 1983 Supp.).

COLORADO

CO-1. Hazardous waste service fund, COLO. REV. STAT. §§ 25-15-303, -304 (1982).

CO-2.Hazardous waste disposal site funds, COLO. REV. STAT. §§ 25-15-213, -214 (1982).

CO-3. Emergency response cash fund, COLO. REV. STAT. §§ 29-22-101 to -106 (1982).

CONNECTICUT

CT-1. Disposal facility trust fund, CONN. GEN. STAT. ANN. § 22a-126 (West 1982 Supp.).

CT-2. Emergency spill response fund, CONN. GEN. STAT. ANN. §§ 22a-132, -133, -451, -452 (West 1982 Supp.).

FLORIDA

FL. Hazardous waste management trust fund, FLA. STAT. ANN. §§ 403.141, .161, .725, .726; 208.001 to .005 (West 1982 Supp.).

GEORGIA

GA. Hazardous waste trust fund, GA. CODE ANN. §§ 12-8-68, -81 (1982).

ILLINOIS

IL. Hazardous waste trust fund, ILL. ANN. STAT. ch. 111 1/2 § 1022.2 (Smith-Hurd 1983 Supp.).

[13 ELR 10360]

INDIANA

IN-1. Hazardous substances emergency response trust fund, IND. CODE ANN. §§ 13-7-8.7-1 to -6; 6-6-6.6-1 to -3 (West 1983).

IN-2. Environmental management special fund, IND. CODE ANN. §§ 13-7-8.6-4; 13-7-12-3; 13-7-13-1, -2 (West 1983).

IN-3. Hazardous waste training trust fund, IND. CODE ANN. § 12-7-8.6-11 (West 1983).

KANSAS

KS. Hazardous waste perpetual care trust fund, KAN. STAT. ANN. §§ 65-3431(w), -3444 (1982 Supp.).

KENTUCKY

KY. Hazardous waste assessment and management fund, KY. REV. STAT. ANN. §§ 224.876, .877 (Baldwin 1982).

LOUISIANA

LA-1. Environmental emergency response fund, LA. REV. STAT. ANN. §§ 30:1077 to :1080 (West 1982 Supp.).

LA-2. Abandoned hazardous waste site fund, LA. REV. STAT. ANN. § 30:1149 (West 1982 Supp.).

LA-3. Hazardous waste protection fund, LA. REV. STAT. ANN. §§ 30:1141, :1143 (West 1982 Supp.).

MAINE

ME. Hazardous waste fund, ME. REV. STAT. ANN. tit. 38, §§ 1319-B to -K (1982 Supp.).

MARYLAND

MD. State hazardous substance control fund, MD. HEALTH & ENVTL. CODE ANN. §§ 7-218 to -221, -265 (1982).

MASSACHUSETTS

MA. Oil and Hazardous Material Release Prevention Act, MASS. ANN. LAWS ch. 21C, § 7, ch. 21E, §§ 1-13).

MICHIGAN

MI-1. Disposal facility trust fund, MICH. STAT. ANN. §§ 13.30(41), (42) (Callaghan 1981).

MI-1. Hazardous waste service fund, MICH. STAT. ANN. § 13.30(43) (Callaghan 1981).

MINNESOTA

MN. Environmental response, compensation and compliance fund, MINN. STAT. §§ 115B.02 to .34).

MISSISSIPPI

MS. Hazardous waste disposal fee, MISS. CODE ANN. § 17-17-53 (1982 Supp.).

MISSOURI

MO. Hazardous waste remedial fund, MO. REV. STAT. MO. REV. STAT. §§ 260.435, .437, .440 to .550).

NEVADA

NV-1. Hazardous waste management fund, NEV. REV. STAT. §§ 444.740, .742, .744, .752, .774 (1981)

NV-2. Emergency trust fund, NEV. REV. STAT. §§ 444.754, 353.263 (1981).

NEW HAMPSHIRE

NH. Hazardous waste cleanup fund, N.H. REV. STAT. ANN. §§ 147-B:1 to :11 (1981 Supp.).

NEW JERSEY

NJ. Spill compensation control act fund, N.J. STAT. ANN. §§ 58:10-23.11 to .11z (West 1983 Supp.).

NEW MEXICO

NM. Hazardous waste emergency fund, N.M. STAT. ANN. §§ 74-4-7, -8 (1981).

NEW YORK

NY. Hazardous waste remedial fund, N.Y. FIN. LAW § 97-b; N.Y. ENVTL. CONSERV. LAW, §§ 27-0901, -0916, -0923, -1301 to -1319; 71-2723, -2725, N.Y. PUB. HEALTH LAW §§ 1389-a to -d (West 1982 Supp.).

NORTH CAROLINA

NC-1. Hazardous waste fund, N.C. GEN. STAT. §§ 130-166.18(a)(6), .19A (1981 Supp.).

NC-2. Oil and other hazardous substances pollution protection fund, N.C. GEN. STAT. §§ 143-215.83 to .94 (1981 Supp.).

OHIO

OH. Hazardous waste clean-up special account, OHIO REV. CODE ANN. §§ 3734.13 to .28 (Page 1982 Supp.)

OKLAHOMA

OK. Controlled industrial waste fund, OKLA. STAT. ANN. tit. 63, §§ 1-2015 to -2021 (West 1982 Supp.).

OREGON

OR. Hazardous waste disposal site state account, OR. REV. STAT. §§ 459.590 to .600, .680, .685 (1979).

PENNSYLVANIA

PA. Solid waste abatement fund, 35 PA. CONS. STAT. ANN. §§ 6018.104(77), 505(a-d), .605, .606, .701 (Purdon 1982 Supp.).

RHODE ISLAND

RI. Hazardous substance emergency control bond, Act of May 14, 1980, ch. 166, art. II, R.I. SESS. LAWS; R.I. GEN. LAWS § 23-19.22 (Michie Supp. 1982).

SOUTH CAROLINA

SC. Hazardous waste contingency fund, S.C. CODE ANN. §§ 44-56-160 to -200 (Law Co-op. 1982 Supp.).

TENNESSEE

TN-1. Perpetual care trust fund, TENN. CODE ANN. § 53-6308(c)(6) (1981 Supp.).

TN-2. Hazardous waste trust fund, TENN. CODE ANN. § 53-6308(c)(6) (1981 Supp.).

TEXAS

TX-1. Disposal facility response fund, TEX. WATER CODE ANN. §§ 26.302 to .307 (Vernon 1982 Supp.).

TX-2. Coastal protection fund, TEX. WATER CODE ANN. §§ 26.261 to .268 (Vernon 1982 Supp.).

VERMONT

VT. Pollution cleanup contingency fund, VT. STAT. ANN. tit. 10, §§ 1263(a); 1265(a), (d)(5), (e); 1282; 1283 (1982 Supp.).

VIRGINIA

VA. Hazardous waste disposal site user fees, VA. CODE ANN. §§ 32.1-178(A)(11-15), (B); 32.1-182 (1979).

WASHINGTON

WA. State hazardous waste disposal site fee, WASH. REV. CODE ANN. §§ 70.105.010 to .070 (West 1982 Supp.).

WISCONSIN

WI-1. Waste management fund, WIS. STAT. ANN. § 144.441 (West1982 Supp.).

WI-2. Hazardous substance spill fund, WIS. STAT. ANN. § 144.76 (West 1982 Supp.).

1. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941.

2. For a legislative history of CERCLA, see ELI, SUPERFUND: A LEGISLATIVE HISTORY (H. Cohn Needham & M. Menefee eds. 1982) [hereinafter cited as LEGISLATIVE HISTORY]; Grad, A Legislative History of the Comprehensive Response, Compensation and Liability Act ("Superfund") of 1980, 8 COLUM. J. ENVTL. L. 1 (1982).

3. OFFICE OF TECHNOLOGY ASSESSMENT, UNITED STATES CONGRESS, TECHNOLOGIES AND MANAGEMENT STRATEGIES FOR HAZARDOUS WASTE CONTROL 6 (1983) [hereinafter cited as OTA REPORT].

4. See, e.g., Clean Air Act § 110, 42 U.S.C. § 7410, ELR STAT. 42210; Federal Water Pollution Control Act (FWPCA) § 402, 33 U.S.C. § 1342, ELR STAT. 42141.

5. For a general description of CERCLA, see Comment, Superfund at Square One: Promising Statutory Framework Requires Forceful EPA Implementation, 11 ELR 10101 (1981). For an update on CERCLA implementation and the legal issues it raises, see Rogers, Three Years of Superfund, 13 ELR 10360 (Nov. 1983).

6. 42 U.S.C. § 9604, ELR STAT. 41945. CERCLA responses include both "removal" and "remedial" action. "Removal" action means cleaning up releases and removing hazardous substances. "Remedial" action is broader, addressing a permanent remedy to prevent future releases. CERCLA § 101(23) & (24), 42 U.S.C. § 9601(23) & (24), ELR STAT. 41943-44.

7. 42 U.S.C. § 9605, ELR STAT. 41946.

8. 42 U.S.C. § 9607, ELR STAT. 41947.

9. 42 U.S.C. § 9631, ELR STAT. 41953.

10. The NCP, originally established under § 311 of the FWPCA, 33 U.S.C. § 1321, ELR STAT. 42132, to respond to oil spills, was updated under CERCLA to cover hazardous substance releases as well. 47 Fed. Reg. 31180 (1982) (codified at 40 C.F.R. pt. 300, ELR REG. 47401-42). The NCP sets out methods and criteria for determining appropriate removal and remedial actions. The NCP also spells out the roles of federal, state, and local governments, as well as private entities, in cleanup actions. In addition, the NCP includes a "National Priorities List" of over 500 sites for federal response action. For the latest addition tothe list, see 48 Fed. Reg. 40674 (Sept. 8, 1983).

11. 42 U.S.C. § 9604(c)(1), ELR STAT. 41945.

12. CERCLA § 104(c)(3), 42 U.S.C. § 9604(c)(3), ELR STAT. 41945. States can receive credit for eligible cleanup expenditures made between January 1, 1978 and the passage of CERCLA on December 11, 1980. The NCP indicates the form state assurances must take. 40 C.F.R. § 300.62, ELR REG. 47435.

13. 40 C.F.R. § 300.67(b)(4), ELR REG. 47436. The governor of the state must request EPA to take planned removal actions before EPA will determine that such actions are "appropriate." 40 C.F.R. § 300.67(b), ELR REG. 47436.

14. 42 U.S.C. § 9604(d)(1), ELR STAT. 41945.

15. 42 U.S.C. § 9611(f), ELR STAT. 41950. In settling fund claims, the federal government is encouraged to use state agencies, private insurance, and claims adjusting organizations over federal personnel. 42 U.S.C. § 9612(b)(2)(C), ELR STAT. 41951.

16. CERCLA § 107, 42 U.S.C. § 9607, ELR STAT. 41947.

17. CERCLA § 112, 42 U.S.C. § 9612, ELR STAT. 41951.

18. The City of Philadelphia successfully argued, in City of Philadelphia v. Stepan Chemical Co., that even though it was potentially a responsible party, it should be allowed to maintain a claim for response costs under CERCLA. 544 F. Supp. 1135, 12 ELR 20915 (E.D. Pa. 1982). The States of Ohio, Minnesota, and California have brought claims under CERCLA, in some cases joining state claims. See State of Ohio ex rel. Brown v. Georgeoff, 562 F. Supp. 1300, 13 ELR 20457 (D. Ohio 1983); United States v. Reilly Tar & Chemical Co., 546 F. Supp. 1100, 12 ELR 20954 (D. Minn. 1982); United States v. Chem-Dyne Corp., 12 ELR 30026 (EPA Aug. 25, 1982) (prelitigation settlement agreement with some parties), No. C-1-82-840, ELR PEND. LIT. 65673 (S.D. Ohio, complaint filed Aug. 26, 1982); United States v. Stringfellow, No. 90-11-2-24, ELR PEND. LIT. 65786 (C.D. Cal., complaint filed Apr. 21, 1983).

19. 42 U.S.C. § 9607(a), ELR STAT. 41947.

20. Id.

21. 42 U.S.C. § 9601(32), ELR STAT. 41944.

22. 33 U.S.C. § 1321(f), ELR STAT. 42134.

23. Two district courts have ruled that § 107 imposes strict liability. See United States v. Chem-Dyne Corp., 13 ELR 20986 (S.D. Ohio Oct. 11, 1983); United States v. Reilly Tar & Chemical Co., 546 F. Supp. 1100, 12 ELR 20954 (D. Minn. 1982). Cases imposing strict liability under § 311 of the FWPCA include: United States v. Le Beouf Brothers Towing Co., 621 F.2d 787, 10 ELR 20548 (5th Cir. 1980), cert. denied, 452 U.S. 906 (1981); Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 9 ELR 20237 (4th Cir. 1979); Burgess v. M/V Tamano, 564 F.2d 964 (1st Cir. 1977), cert. denied, 435 U.S. 941 (1978). For a discussion of the issue of strict liability under CERCLA, see Comment, Conservation Chemical: Generator Liability for Imminent Hazards on the Docket, 13 ELR 10208, 10211 (July 1983) [hereinafter cited as Conservation Chemical Comment].

24. Joint and several liability means that any one tortfeasor is liable for the entire harm. See generally, W. PROSSER, LAW OF TORTS 291-99, 313-15 (4th ed. 1971).

25. An early version of CERCLA made liability joint and several, but the language was deleted, with the legislative history indicating that liability should be allocated according to § 311 of the FWPCA and the evolving principles of the common law. The federal government has taken the position that liability is joint and several where the injury is indivisible, citing cases under § 311 and the common law of a number of states. One court has accepted this argument. See United States v. Chem-Dyne Corp., 13 ELR 20986 (S.D. Ohio, Oct. 11, 1983). For a discussion of the debate over joint and several liability in the context of a pending case, see Conservation Chemical Comment, supra note 23, at 10211-15.

26. CERCLA § 107, 42 U.S.C. § 9607, ELR STAT. 41947, makes persons potentially liable. Section 101(21), 42 U.S.C. § 9601(21), ELR STAT. 41943, defines "person" to include states.

27. CERCLA § 107(a), 42 U.S.C. 9607(a), ELR STAT. 41947. For cases in which states have brought § 107 actions to recover response costs, see supra note 18.

28. A responsible party is liable to a state (or other person) who incurred "necessary" response costs "consistent with the national contingency plan." CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B), ELR STAT. 41947. In order to act under the § 104 response authority, the state must have its capabilities assessed and approved by EPA in advance and must act "in accordance with" the procedures and criteria of the NCP. CERCLA § 104(d)(1), 42 U.S.C. § 9604(d)(1), ELR STAT. 41946. In order to recover response costs from the fund, the state's response costs must be "necessary," incurred in "carrying out" the NCP, and approved under the NCP and certified by the responsible EPA official. CERCLA § 111(a)(2), 42 U.S.C. § 9611(a)(2), ELR STAT. 41950. Thus, recovery of state response costs from a responsible party should be easier, because prior EPA approval apparently is unnecessary and the actions need only be "consistent with" the NCP, not in compliance with its specific requirements.

29. CERCLA § 111(a)-(c), 42 U.S.C. § 9611(a)-(c), ELR STAT. 41950.

30. 42 U.S.C. § 9612, ELR STAT. 41951.

31. CERCLA § 221, 42 U.S.C. § 9631, ELR STAT. 41953.

32. Id.

33. CERCLA § 232, 42 U.S.C. § 9641, ELR STAT. 41953. Owners and operators of disposal facilities that cease operations and meet certain closure and post-closure requirements transfer their liability to this fund. CERCLA § 107(k), 42 U.S.C. § 9607(k), ELR STAT. 41947. Unlike the Superfund, the post-closure fund covers private damage claims in addition to claims for response costs and natural resource damages. The post-closure fund is financed by a tax on wastes disposed of at currently operating facilities.

34. See supra note 28.

35. 42 U.S.C. § 9608, ELR STAT. 41948.

36. CERCLA § 114(d), 42 U.S.C. § 9614(d), ELR STAT. 41952. CERCLA leaves intact existing law regarding recovery for response costs or damages resulting from federally permitted releases but states that it does not intend to modify in any way the obligations or liability of any person under any other provision of state or federal law, including common law, for damages, injuries, or loss resulting from a release of any hazardous substance or removal actions or costs. Section 107(j), 42 U.S.C. § 9607(j), ELR STAT. 41948.

37. 42 U.S.C. § 9614(c), ELR STAT. 41952.

38. Id. (emphasis added). The House version of Superfund, which was the bill eventually passed by the Congress, had no preemption provision; the Senate bill's preemption language was incorporated into the House bill. See Grad, supra note 2, at 26-28, 31.

39. CERCLA § 114(c), 42 U.S.C. § 9614(c), ELR STAT. 41952.

40. The Supremacy Clause, U.S. CONST. art. VII, cl. 2, operates to invalidate any state statute that conflicts with a federal statute or stands as an obstacle to the accomplishment and full execution of congressional objectives. If federal law completely occupies a field, no state law is allowed. If federal law partially occupies a field, which appears to be true of CERCLA, state laws are invalid to the extent they conflict with federal law. Maryland v. Louisiana, 451 U.S. 725 (1981); Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311 (1981); Ray v. Atlantic Richfield Co., 435 U.S. 151, 8 ELR 20255(1978). Courts are reluctant to strike down state statutes without clear congressional preemption, particularly in areas such as regulation of public health and safety, traditional state law areas. Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963); Huron Cement Co. v. Detroit, 362 U.S. 440, 443 (1960). For a detailed discussion of the preemption issue as it relates to the state superfund laws in Florida and California, see Note, The Preemptive Scope of the Comprehensive Environmental Response, Compensation and Liability Act of 1980: Necessity for an Active Role, 34 U. FLA. L. REV. 635, 646 (1982); Note, Superfund and California's Implementation: Potential Conflict, 19 CAL. W.L. REV. 373, 389 (1983).

41. See infra note 49 and accompanying text.

42. Compare the language of § 106(d) of the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. § 1416(d), ELR STAT. 41866, which states "no state shall adopt or enforce any rule or regulation relating to any activity regulated under this subchapter," held to preempt state permit programs in Save Our Sound Fisheries Ass'n v. Callaway, 387 F. Supp. 282, 4 ELR 20437 (D.R.I. 1974); and the Federal Hazardous Substances Labeling Act, which states "[i]t is hereby expressly declared that it is the intent of Congress to supercede any and all laws of the states," held to preempt state statutes in Chemical Specialties Manufacturers Ass'n v. Clark, 482 F.2d 325, 327 n.4, 3 ELR 20696, 20697 n.4 (5th Cir. 1973).

43. 12 ELR 20184 (D.D.C. 1981).

44. 12 ELR 20401 (D.N.J. 1982).

45. 11 ELR 20886 (D.N.J. 1981), aff'd, 683 F.2d 69, 12 ELR 20822 (3d Cir. 1982).

46. 28 U.S.C. § 1341.

47. 12 ELR 20734 (N.J.T.C. 1982).

48. Id. at 20738.

49. Id. at 20736. Senator Randolph's remarks are found at 126 CONG. REC. S14981 (daily ed. Nov. 24, 1980), reprinted in 1 LEGISLATIVE HISTORY at 528 (1982). Not mentioned by the court were remarks by Congressman Florio before the House. He expressed the view that state funds could be used for the 10-percent match requirement despite the preemption clause. 126 CONG. REC. H11788 (daily ed. Dec. 3, 1980), reprinted in 1 LEGISLATIVE HISTORY at 527 (1982).

50. Exxon Corp. v. Hunt, 12 ELR at 20738 (N.J.T.C. 1982).

51. Id.

52. The funds and their characteristics are listed in a table in the appendix. The appendix also includes the statutory citations for each funding provision. The 50 funds do not include funds to finance state hazardous substance permit and enforcement programs, nuclear waste cleanup actions, and oil spills, unless the fund also allows response actions for hazardous substance releases. It should be noted that funding mechanisms may not be the only state device for assuring state or private financing of response actions. States may impose financial responsibility requirements on owners or operators of sites now in use as part of their hazardous waste management programs. Such financial responsibility provisions are required under RCRA. See Cohen & Derkics, Financial Responsibility for Hazardous Waste Sites, 9 CAP. U.L. REV. 509 (1980).

53. See Cohen, New Developments in State Hazardous Waste Legislation, 9 CAP. U.L. REV. 489 (1980). EPA encouraged states to pass response, compensation, and liability acts for hazardous waste cleanup in the years before federal legislation was passed. Id. at 492.

54. For a discussion of the cost and policy advantages and disadvantages of the alternative tax and fee systems, see THE SUPERFUND CONCEPT: REPORT OF THE INTERAGENCY TASK FORCE ON COMPENSATION & LIABILITY FOR RELEASE OF HAZARDOUS SUBSTANCES 83-102 (1979); Comment, Allocating the Costs of Hazardous Waste Disposal, 94 HARV. L. REV. 584, 597-603 (1981).

55. New Jersey has such a statutory provision. N.J. STAT. ANN. § 58:10-23.11h (West 1983 Supp.). Major facility operators must pay a tax on the transfer of hazardous substances or petroleum products.

56. New York has such a provision.N.Y. ENVTL. CONSERV. LAW § 27-0923 (McKinney 1982 Supp.).

57. States that use graduated fee or tax schemes include California, Kentucky, Maine, Minnesota, Missouri, and New York.

58. Act of May 14, 1980, ch. 166, art. II, R.I. SESS. LAWS, § 1.

59. N.J. STAT. ANN. § 58:10-23.11f(8) (West 1983 Supp.); Act of May 10, 1983, ch. 7, 1983 Mass. Acts (to be codified at MAASS. ANN. LAWS ch. 21E, § 5(c)); CERCLA § 107(c)(3), 42 U.S.C. § 9607(c)(3), ELR STAT. 41948.

60. Act of June 27, 1983, 1983 Mo. Laws (to be codified at MO. REV. STAT. § 260.530).

61. CAL. HEALTH & SAFETY CODE § 25360 (Deering 1983 Supp.); CONN. GEN. STAT. ANN. § 22a-451 (West 1982 Supp.).

62. States that use penalties and fines as a source of fund revenues are listed in the appendix.

63. CONN. GEN. STAT. ANN. § 22a-449(a) (West 1982 Supp.).

64. KAN. STAT. ANN. § 65-3431(w)(2)(C) (1982 Supp.).

65. NEV. REV. STAT. § 353.263(1) (1981).

66. United States v. Hardage, 13 ELR 20188 (W.D. Okla. Sept. 29, 1982) (an imminent and substantial danger to the environment is not necessary for response actions unless the release is a "pollutant or contaminant").

67. KAN. STAT. ANN. § 65-3431(w)(2)(C) (1982 Supp.).

68. ILL. ANN. STAT. ch. 111 1/2, § 1022.2 (Smith-Hurd 1983 Supp.).

69. CAL. HEALTH & SAFETY CODE § 25351 (Deering 1983 Supp.).

70. ARIZ. REV. STAT. ANN. § 36-1854.01(B) (West 1982 Supp.); CAL. HEALTH & SAFETY CODE § 25351(b) (Deering 1983 Supp.); CONN. GEN. STAT. ANN. § 22a-451(d) (West 1982 Supp.); IND. CODE ANN. § 13-7-8.7-2 (West 1983); LA. REV. STAT. ANN. §§ 30:1143, 30:1149 (West 1982 Supp.); Act of May 10, 1983, ch. 121, 1983 Minn. Laws (to be codified at MINN. STAT. § 115B.20(2)(a) & (d)); Act of June 27, 1983, 1983 Mo. Laws (to be codified at MO. REV. STAT. § 260.480(2.6)); N.Y. STATE FIN. LAW § 97-b.3(d) (McKinney 1982 Supp.); TENN. CODE ANN. § 53-6308(c)(6) (1981 Supp.); TEX. WATER CODE ANN. § 26.304(c) (Vernon 1982 Supp.).

71. GA. CODE ANN. § 12-8-68 (1982).

72. CAL. HEALTH & SAFETY CODE § 25352 (Deering 1983 Supp.); MD. HEALTH & ENVTL. CODE ANN. § 7-220 (1982 Supp.); Act of March 24, 1983, ch. 7, 1983 Mass. Acts (to be codified at MASS. ANN. LAWS ch. 21E, § 5); Act of May 10, 1983, ch. 121, 1983 Minn. Laws (to be codified at MINN. STAT. § 115B.20); N.J. STAT. ANN. § 58:10-23.11g (West 1983 Supp.); N.C. GEN. STAT. § 143-215.87 (1981 Supp.); S.C. CODE ANN. § 44-56-160 (Law Co-op. 1982 Supp.).

73. CAL. HEALTH & SAFETY CODE § 25351 (Deering 1983 Supp.); ILL. ANN. STAT. ch. 111 1/2, § 1022.2 (Smith-Hurd 1983 Supp.); LA. REV. STAT. ANN. § 30: 1079E (West 1982 Supp.); Act of May 10, 1983, ch. 121, 1983 Minn. Laws (to be codified at MINN. STAT. § 115B.20).

74. CONN. GEN. STAT. ANN. § 22a-451(d) (West 1982 Supp.); LA. REV. STAT. ANN. § 30:1149 (West 1982 Supp.); Act of June 27, 1983, 1983 Mo. Laws (to be codified at MO. REV. STAT. § 260.480); N.Y. STATE FIN. LAW § 97-b(3) (McKinney 1982 Supp.); OHIO REV. CODE ANN. § 3734.19 (Page 1982 Supp.).

75. CAL. HEALTH & SAFETY CODE § 25375 (Deering 1983 Supp.); FLA. STAT. ANN. § 403.725 (West 1982 Supp.); N.J. STAT. ANN. § 58:10-23.11g (West 1983 Supp.); S.C. CODE ANN. § 44-56-160 (Law Co-op. 1982 Supp.).

76. CAL. HEALTH & SAFETY CODE § 25375 (Deering 1983 Supp.).

77. S.C. Dep't of Health & Envtl. Control R., S.C. CODE ANN. (R. & Reg.) 61-79.5C(2)(e)(iii) (Supp. 1980), cited in Comment, Hazardous Waste: Third Party Compensation for Contingencies Arising from Inactive and Abandoned Hazardous Waste Disposal Sites, 33 S.C.L. REV. 543, 551 (1982).

78. FLA. STAT. ANN. § 403.725 (West 1982 Supp.).

79. N.J. STAT. ANN. § 58:10-23.11g (West 1983 Supp.).

80. CAL. HEALTH & SAFETY CODE § 25360 (Deering 1983 Supp.); CONN. GEN. STAT. ANN. §§ 22a-451, 22a-452 (West 1982 Supp.); FLA. STAT. ANN. § 403.725 (West 1982 Supp.); KY. REV. STAT. ANN. § 224.877(6)(a) (Baldwin 1982); N.C. GEN. STAT. § 143-215.88 (1981 Supp.); N.H. REV. STAT. ANN. § 147-B:10 (1981 Supp.); N.J. STAT. ANN. § 58:10-23.11g (West 1983 Supp.); N.Y. ENVTL. CONSERV. LAW § 27-1313 (West 1982 Supp.); ME. REV. STAT. ANN. tit. 38, § 1319-J (1982 Supp.); Act of March 24, 1983, ch. 7, 1983 Mass. Acts (to be codified at MASS. ANN. LAWS ch. 21E, § 5); Act of May 10, 1983, ch. 121, 1983 Minn. Laws (to be codified at MINN. STAT. § 115B.04); Act of June 27, 1983, 1983 Mo. Laws (to be codified at MO. REV. STAT. § 260.530).

81. CAL. HEALTH & SAFETY CODE § 25360 (Deering 1983 Supp.); CONN. GEN. STAT. ANN. §§ 22a-451, 22a-452 (West 1982 Supp.); FLA. STAT. ANN. § 403.725 (West 1982 Supp.); Act of March 24, 1983, ch. 7, 1983 Mass. Acts (to be codified at MASS. ANN. LAWS ch. 21E, § 5); Act of May 10, 1983, ch. 121, 1983 Minn. Laws (to be codified at MINN. STAT. § 115B.04); N.J. STAT. ANN. § 58:10-23.11g (West 1983 Supp.); N.C. GEN. STAT. § 143-215.93 (1981 Supp.).

82. Act of May 10, 1983, ch. 121, 1983 Minn. Laws (to be codified at MINN. STAT. § 115B.05). For a more detailed review of the entire Minnesota act, see Johnson, Minnesota's MERLA: Federal Superfund and Beyond, ENVIRONMENTAL LAW, QUARTERLY NEWSLETTER OF THE STANDING COMMITTEE ON ENVIRONMENTAL LAW, ABA 4 (Summer 1983).

83. Act of March 24, 1983, ch. 7, 1983 Mass. Acts (to be codified at MASS. ANN. LAWS ch. 21E, § 5).

84. N.C. GEN. STAT. § 143-215.93 (1981 Supp.).

85. ME. REV. STAT. ANN. tit. 38, § 1306-B2 (1980); N.H. REV. STAT. ANN. § 147:58 (1981 Supp.). R.I. GEN. LAWS § 23-19.1-22 (1980); Two states without funds that have statutory causes of action for hazardous waste-caused damages are Alaska, ALASKA STAT. § 46.03.824 (1980), and North Dakota, N.D. CENT. CODE § 32-40-06 (1980). For a discussion on these and related state statutory provisions affecting third-party claims, see SECTION 301(e) STUDY GROUP, 1 INJURIES AND DAMAGES FROM HAZARDOUS WASTES — ANALYSIS AND IMPROVEMENT OF LEGAL REMEDIES 60 (1982).

86. FLA. STAT. ANN. § 403.161 (West 1982 Supp.); N.H. REV. STAT. ANN. § 147-B:10 (1981 Supp.).

87. CONN. GEN STAT. ANN. § 22a-451 (West 1982 Supp.).

88. ME. REV. STAT. ANN. tit. 38, § 1319-J (1982 Supp.); Act of June 27, 1983, 1983 Mo. Laws (to be codified at MO. REV. STAT. § 260.530); N.C. GEN. STAT. § 143-215.88 (1981 Supp.).

89. N.J. STAT. ANN. § 58:10-23.11g (West 1983 Supp.).

90. N.Y. ENVTL. CONSERV. LAW § 27-1313 (McKinney 1983 Supp.).

91. Act of March 24, 1983, ch. 7, 1983 Mass. Acts (to be codified at MASS. ANN. LAWS ch. 21E, § 5).

92. Act of May 10, 1983, ch. 121, 1983 Minn. Laws (to be codified at Minn. Stat. § 115B.03).

93. ME. REV. STAT. ANN. tit. 38, § 1319-J (1982 Supp.); Act of March 24, 1983, ch. 7, 1983 Mass. Acts (to be codified at MASS. ANN. LAWS ch. 21E, § 5); Act of May 10, 1983, ch. 121, 1983 Minn. Laws (to be codified at MINN. STAT. § 115B.04); Act of June 27, 1983, 1983 Mo. Laws (to be codified at MO. REV. STAT. § 260.530); N.H. REV. STAT. ANN. § 147-B:10 (1981 Supp.); N.J. STAT. ANN. § 58.10-23.11g (West 1983 Supp.).

94. CAL. HEALTH & SAFETY CODE § 25360 (Deering 1983 Supp.).

95. 42 U.S.C. § 9607(b), ELR STAT. 41947. States providing similar defenses are Massachusetts, Act of March 24, 1983, ch. 7, 1983 Mass. Acts (to be codified at MASS. ANN. LAWS ch. 21E, § 5); Minnesota, Act of May 10, 1983, ch. 121, 1983 Minn. Laws (to be codified at MINN. STAT. § 115B.04); Missouri, Act of June 27, 1983, 1983 Mo. Laws (to be codified at MO. REV. STAT. § 260.530); and New Jersey, N.J. STAT. ANN. § 58.10-23.11g (West 1983 Supp.).

96. FLA. STAT. ANN. § 403.161 (West 1982 Supp.).

97. N.C. GEN. STAT. § 143-215.88 (1981 Supp.).

98. For example, Minnesota applies a strict liability standard to harm caused to third parties by past as well as present releases, but enumerated defenses include the defense that the activity was not abnormally dangerous and the hazardous substance was deposited entirely before January 1, 1973. Act of May 10, 1983, ch. 121, 1983 Minn. Laws (to be codified at MINN. STAT. § 115B.05).

99. CONN. GEN. STAT. ANN. § 22a-451 (West 1982 Supp.); FLA. STAT. ANN. § 403.161 (West 1982 Supp.); Act of March 24, 1983, ch. 7, 1983 Mass. Acts (to be codified at MASS. ANN. LAWS ch. 21E, § 5); Act of May 10, 1983, ch. 121, 1983 Minn. Laws (to be codified at MINN. STAT. § 115B.04).

100. CONN. GEN. STAT. ANN. § 22a-451 (West 1982 Supp.); Act of March 24, 1983, ch. 7, 1983 Mass. Acts (to be codified at MASS. ANN. LAWS ch. 21E, § 5).

101. FLA. STAT. ANN. § 403.161 (West 1982 Supp.).

102. Act of May 10, 1983, ch. 121, 1983 Minn. Laws (to be codified at MINN. STAT. § 115B.08).

103. CAL. HEALTH & SAFETY CODE § 25360 (Deering 1983 Supp.).

104. See Conservation Chemical Comment, supra note 23, at 10213.

105. ARIZ. REV. STAT. ANN. § 36-1854.01 (West 1982 Supp.); COLO. REV. STAT. § 29-22-101-106 (1982); LA. REV. STAT. ANN. §§ 30:1079(A-3), 30:1143, 30:1149 (West 1982 Supp.); MICH. STAT. ANN. § 13.30(43) (Callaghan 1981); NEV. REV. STAT. §§ 353.263, 444.754 (1981); N.M. STAT. ANN. § 74-4-8 (1981); OKLA. STAT. ANN. tit. 63, §§ 1-2015-1-2021 (West 1982 Supp.); Act of May 14, 1980, ch. 166, art. II, § 1, R.I. Sess. Laws (1980); TENN. CODE ANN. § 53-6308(c)(6) (1981 Supp.); TEX. WATER CODE ANN. § 26.261-26.268 (Vernon 1982 Supp.); WIS. STAT. ANN. § 144.76 (West 1982 Supp.).

106. Exxon Corp. v. Hunt, 12 ELR at 20738.

107. Connecticut, for example, provides that "Payments shall not be made from the [emergency response fund] if federal funds are available for payment of such costs pursuant to [CERCLA]," CONN. GEN. STAT. ANN. § 22a-133 (West 1982 Supp.). States with similar provisions are California, CAL. HEALTH & SAFETY CODE §§ 25350, 25358 (Deering 1983 Supp.); Florida, FLA. STAT. ANN. § 403.725 (7) (West 1982 Supp.) (added as an amendment in 1982); Kentucky, KY. REV. STAT. ANN. § 224-876(13) (Baldwin 1982); Maine, ME. REV. STAT. ANN. tit. 38, § 1319-E(2) (1982 Supp.); Minnesota, Act of May 10, 1983, ch. 121, 1983 Minn. Laws (to be codified at MINN. STAT. § 115B.20(3); New Hampshire, N.H. REV. STAT. ANN. § 147-B:1(III) (1981 Supp.); New York, N.Y. STATE FIN. LAW § 97-b n. (McKinney 1982 Supp.). Also Kansas and Connecticut, which have perpetual care funds that are potentially subject to preemption because of the Post-Closure Liability Trust Fund contained in CERCLA, have prohibitions on duplication of federal expenditures in these fund provisions. See CONN. GEN. STAT. ANN. § 22a-126(b) (West 1982 Supp.); KAN. STAT. ANN. § 3441(w)(2) (1982 Supp.).

108. N.J. STAT. ANN. § 58:10-23.11z (West 1983 Supp.).

109. Ward, A Conversation with Superfund Chief Bill Hedeman, ENVTL. FORUM, Aug. 1983, at 7, 8.

110. OFFICE OF SOLID WASTE MANAGEMENT AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY, PRELIMINARY ANALYSIS OF STATE CAPABILITIES AND OPTIONS FOR FINANCING RESPONSE ACTIONS Appendix (July 1982).

111. 13 ENV'T REP. 1487 (BNA).

112. Id.

113. Ward, supra note 109, at 8.

114. An example of a fund limit is the Connecticut statute, which provides that when the balance in the fund exceeds $10 million, no further assessment shall be made; when the fund drops below $10 million, fees may be reinstated. CONN. GEN. STAT. § 22a-126(b) (West 1982 Supp.). The appendix contains a list of the state funds that have fund limits.

115. CAL. HEALTH & SAFETY CODE §§ 29345-29347 (Deering 1983 Supp.).

116. Massachusetts states that administrative agencies "shall annually review a schedule of reasonable fees to be paid by hazardous waste transporters," the fees to be set to raise money to meet estimated expenditures, Act of March 24, 1983, ch. 7, 1983 Mass. Acts (to be codified at MASS. ANN. LAWS ch. 21C, § 7); Minnesota provides that a legislative commission is to review taxes and tax rates after a state management plan for hazardous waste is completed, Act of May 10, 1983, ch. 121, 1983 Minn. Laws (to be codified at MINN. STAT. § 115B.22(8)); Ohio provides that fees are to be adjusted yearly "to provide the revenue necessary" to operate at the appropriation level set by the general assembly, OHIO REV. CODE ANN. § 3734.18(C) (Page 1982 Supp.).

117. CAL. HEALTH & SAFETY CODE § 25351 (Deering 1983 Supp.); Act of March 24, 1983, ch. 7, 1983 Mass. Acts (to be codified at MASS. ANN. LAWS ch. 21E, § 3); N.J. STAT. ANN. § 58:10-23.11f (1981 Supp.).

1. Sources used to compile this information are the state laws listed in the appendix and: NATIONAL CONFERENCE OF STATE LEGISLATURES, HAZARDOUS WASTE MANAGEMENT: A SURVEY OF STATE LEGISLATION, 1982 (1982) OFFICE OF TECHNOLOGY ASSESSMENT, TECHNOLOGIES AND MANAGEMENT STRATEGIES FOR HAZARDOUS WASTE CONTROL, 369 (1983).

2. The statutory citations or session laws for each state fund are listed below.

13 ELR 10348 | Environmental Law Reporter | copyright © 1983 | All rights reserved