The Never Ending Story: The Constitutionality of Superfund's Retroactive Liability Regime

David B. Spence

The author is Associate Professor of Law, Politics and Regulation, McCombs School of Business, University of Texas at Austin. He thanks Eric Opiela for his assistance in the preparation of this Article.

[32 ELR 11284]

Since the enactment of Superfund¹ in 1980, critics of the statute's liability regime have been relentless in their attempts to convince courts that Superfund liability is so unfair as to be unconstitutional. While their persistence has produced only minor changes in the liability regime, their cause may have been given a lift by the U.S. Supreme Court's 1998 decision in Eastern Enterprises v. Apfel.² In that decision, the Court held that when a statute "imposes severe retroactive liability on a limited class of parties that could not have anticipated the liability," and the liability is "substantially disproportionate to the parties' experience," the legislation is unconstitutional.³ Those words have sparked the critics' hopes that the Court will eventually conclude that Superfund is just such a statute.

The long-running war over Superfund liability has been like the early stages of a bullfight. The statutory liability regime is the bull, striking fear into the hearts of businesses like no other regulatory statute has before or since. Superfund's critics have played the role of the picaderos and banderillos, striking out at the bull in the courts and the U.S. Congress, landing only nonlethal blows and narrowing the reach of the Superfund liability regime only at the margins. Will Eastern Enterprises prove to be the final act of this drama, or just another flesh wound? Many view this latest argument as merely another in a long line of meritless constitutional challenges, all of which are doomed to fail.⁴ After all, the courts have rejected similar claims before⁵; nor, say the statute's defenders, should we read much into the Eastern Enterprises decision, a case in which the Court could not even cobble together a majority opinion. Furthermore, they contend, to the extent that there is an Eastern Enterprises test of the constitutionality of retroactive legislation, Superfund passes that test: unlike the statute at issue in Eastern Enterprises, Superfund is remedial,⁶ designed merely to make the polluter pay. I argue here that the effect of Eastern Enterprises may be more significant than that.

Specifically, I contend that: (1) there is an Eastern Enterprises framework for analyzing retroactive liability, and that it illustrates nicely how Superfund tiptoes along the line of constitutional unfairness; and (2) because Superfund liability can be imposed on truly innocent parties who derived no economic benefit from their connection to Superfund sites, Superfund can conflict with the majority's analysis in Eastern Enterprises. However, the Court will focus not on how a retroactive statute might be applied, but rather on how it actually is applied in the case at hand. Therefore, the fate of Superfund is, to a large degree, in the hands of the U.S. Environmental Protection Agency (EPA). Either EPA must apply the statute differently than it has in the past (by foregoing the imposition of liability on innocent parties and the allocation of too much excess liability to those with the deepest pockets) or risk a finding that it applies the statute's liability system in unconstitutional ways.

[32 ELR 11285]

I. The Historical and Legal Context

A. The Continuing Challenge to Superfund's Liability System

Given the amount of controversy it has generated over the years, it now seems only fitting that Superfund was created in a hurry, by a lame-duck Congress in 1980⁷ that wanted to make the polluter pay the cost of cleaning up inactive hazardous waste sites.⁸ As implemented by EPA and interpreted by the courts, the statute imposes a system of retroactive, strict, joint and several liability on several classes of potentially responsible parties (PRPs)—those associated with each Superfund hazardous waste site.⁹ Liability is retroactive in that PRPs may be held liable for cleanup costs even though the activities through which they are associated with the site occurred before the passage of Superfund and were not otherwise illegal.¹⁰ Liability is strict in that PRPs are liable without regard to fault: that is, their conduct need not have been negligent in any way.¹¹ Finally, liability is joint and several in that any individual PRP associated with a multiparty site may be held liable for the entire cost of cleanup.¹² The statute imposes liability for cleanup costs on four primary classes of PRPs: (1) current owners or operators of a site at which a release of hazardous substances has occurred¹³; (2) owners or operators at the time of the release¹⁴; (3) transporters who transported hazardous substances to and selected the site¹⁵; and (4) parties who arranged for disposal of the hazardous substances at issue.¹⁶ Thus, the reach of the statute's liability system is both unusually broad and deep.

Critics have challenged each of these aspects of the liability system. Some contend that it is unfair to impose liability retroactively because it is punitive to impose such enormous cleanup costs without giving the parties notice that their conduct might result in liability.¹⁷ Others argue that strict liability is unfair because it may impose cleanup costs on parties who took great care to ensure that their conduct was both legal and in accordance with established handling or disposal standards at the time.¹⁸ Still others contend that joint and several liability is unfair because it makes individual contributors to multiparty sites liable for costs associated with others' wastes.¹⁹ Indeed, since the beginning of the Superfund program, industry has objected to (1) EPA's practice of suing "deep pockets" for the lion's share of cleanup costs, even when those PRPs contributed relatively [32 ELR 11286] little to the problem,²⁰ and (2) paying for so-called orphan shares, or cleanup cost shares associated with PRPs who are no longer available or solvent.²¹

These concerns have produced a steady stream of attempts by PRPs and interest groups to change the liability regime. Congressional Republicans made serious attempts to revise Superfund's liability regime in the 103d through 106th Congresses, attempting first to eliminate retroactive liability,²² and later focusing on reducing PRP liability or eliminating it at particular types of Superfund sites.²³ In recent years, the prospects for passing a major Superfund reform bill have remained dim.²⁴ Reform proponents have scaled back their aspirations, taking a more piecemeal approach to reform. Over the years, the liability regime has been amended at the margins, with the addition of the so-called innocent purchaser defense²⁵ in 1986 to limit owner liability, a 1999 limitation on the liability of certain recyclers as "arrangers for disposal,"²⁶ and brownfields legislation in 2002.²⁷

Constitutional challenges to Superfund have been neither more successful nor less persistent than the legislative assault. The Court's early limitation on the reach of the Ex Post Facto Clause²⁸ to criminal statutes²⁹ has limited critics' constitutional ammunition, but they have taken comfort instead in the breadth and force of the language with which the Court has condemned retroactive liability, mostly in dicta, in the past.³⁰ The first round of challenges to Superfund's retroactivity came shortly after the statute's passage. In a series of decisions applying Superfund retroactively, federal courts concluded that Congress intended that Superfund be applied retroactively, and that the Ex Post Facto Clause did not prevent Congress from doing so.³¹ In the 1991 decision in Landgraf v. USI Film Products,³² the Court seemed to strengthen the presumption against retroactivity when it held that statutes that burden private rights should not be given retroactive effect unless Congress has made clear its intent to do so. Subsequently, in United States v. Olin Corp.,³³ a federal district court concluded that Congress did not make clear its intent to make Superfund retroactive and thereby failed the Landgraf test. However, the U.S. Court of Appeals for the Eleventh Circuit overruled that decision and upheld the constitutionality of Superfund shortly thereafter,³⁴ [32 ELR 11287] joining several other federal courts that had rejected the district court's analysis in Olin.³⁵

B. The Eastern Enterprises Decision

Very shortly after Superfund's defenders put out the Landgraf fire, the Supreme Court handed down the Eastern Enterprises decision. The decision revealed deep disagreements among the Justices over how to analyze the constitutionality of legislation imposing retroactive civil liability. A plurality of four Justices ruled that legislation imposing retroactive liability for financing miners' health benefits on a coal mining company was unconstitutional on Takings Clause grounds.³⁶ Justice Anthony M. Kennedy agreed that the statute was unconstitutional, but on Due Process Clause grounds³⁷; and Justice Clarence Thomas, while endorsing the plurality's analysis, suggested that the Ex Post Facto Clause might provide additional grounds for reversal.³⁸ The four dissenters, meanwhile, would have upheld the law, but agreed with Justice Kennedy that the plurality's Takings Clause analysis was misplaced.³⁹ However, the inability of a majority to agree on a single constitutional home for their analysis of retroactivity belies some real underlying agreement on the substance of that analysis. All the Justices agree that retroactive liability can be constitutionally unfair, and at least five agree that constitutional fairness turns on the defendants' ability to have anticipated that liability, and/or whether the imposition of liability is disproportionate to the defendant's connection to the problem the statute is designed to address.⁴⁰

1. The Opinion

The case involved a challenge to legislation requiring current and former coal mining enterprises to contribute to a health benefits fund for coal miners. Eastern employed coal miners prior to 1966, but by 1966 Eastern was out of the mining business. Prior to the Coal Act of 1992,⁴¹ Eastern had participated in the establishment and funding of several earlier benefit funds for miners, none of which mandated payment of lifetime health benefits by employers. The Coal Act authorized the Commissioner of Social Security to assign liability for paying premiums into a lifetime health benefits fund to current and former employers, including Eastern. The Commissioner assigned Eastern the responsibility to pay premiums covering more than 1,000 pre-1966 Eastern employees, based upon Eastern's participation in earlier funding plans. Eastern alleged that the assignment of liability violated both the Due Process and Takings Clauses.

A plurality opinion by Justice Sandra Day O'Connor (joined by Chief Justice William H. Rehnquist and Justices Thomas and Antonin Scalia) concluded that the Coal Act, as applied to Eastern, violated the Takings Clause.

Accepting the notion that the Takings Clause applies to situations in which the statutory impact falls not on real property or other specific assets, the plurality then applied a standard Takings Clause analysis, examining the statute's economic impact on Eastern, its effect on Eastern's "investment-backed expectations," and the character of the governmental action.⁴² The plurality found the Coal Act wanting, as applied to Eastern, particularly under the first two parts of the takings test.⁴³ The economic impact (estimated at $ 50 to $ 100 million) was significant, said the Court. More importantly, Eastern neither promised nor expected to fund retirement benefits for miners. Therefore, Eastern could not have anticipated this liability; and its investment-backed expectations were defeated.⁴⁴ Furthermore, the impact on Eastern is "severe, disproportionate, and extremely retroactive," all of which amounts to a violation of the Takings Clause, said the plurality.⁴⁵ Having reached that conclusion, the plurality expressly declined to address the question of whether the Coal Act also runs afoul of the Due Process Clause, thereby avoiding the uncomfortable task of applying the Court's discredited substantive due process jurisprudence to the Coal Act.⁴⁶

The dissenters—Justices Stephen Breyer, John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg—disputed both the factual and doctrinal premises of the plurality's opinion. In an opinion by Justice Breyer, the dissenters argued that the Takings Clause is concerned not so much with preventing unfair government action (or with defining such action as constitutionally illegitimate), but with compensating [32 ELR 11288] those whose property is taken for legitimate government purposes. Furthermore, said the dissenters, this case involves general financial liability rather than specific property (real or personal), so the Takings Clause does not apply; rather, they argued, the "natural home" for addressing the potential unfairness of retroactive liability is the Due Process Clause. The plurality's fear of "resurrecting Lochner," they said, is "misplaced." The dissenters agreed that retroactive legislation could sometimes be so unfair as to be unconstitutional. But in a second dissenting opinion by Justice Stevens, the dissenters disputed the idea that imposing retroactive liability on Eastern Enterprises was unjust in any event, arguing that during the 1950s and 1960s there existed an "implicit understanding" among employers and employees in the coal mining industry that the former would provide the latter with lifetime health benefits, and that this understanding kept the mines open during an extended period of labor strife.⁴⁷ Justice Stevens emphasized that employers like Eastern benefitted from this understanding, and from the stability (and profits) it produced.⁴⁸

The deciding vote was cast by Justice Kennedy, whose concurring opinion adopted the dissenters' doctrinal approach to reach the conclusion advanced by the plurality. Justice Kennedy rejected the plurality's view that the Takings Clause applies, for essentially the same reasons given by Justice Breyer in his dissent.⁴⁹ However, Justice Kennedy endorsed the plurality's analysis of the Coal Act in substance if not in name, finding the cost allocation scheme "contrary to essential due process principles"⁵⁰ —in other words, constitutionally unfair. Justice Kennedy specifically rejected the dissenters' conclusion that the Coal Act was remedial in nature, distinguishing it from retroactive statutes previously upheld by the Court because their aim was merely to internalize costs that businesses had been able to shift to others.⁵¹

2. Is There a Majority Test?

Given this division among the Justices, it is not surprising that some courts—including two circuit courts interpreting the Coal Act—have concluded that the Eastern Enterprises decision has no precedential value.⁵² Not only does the Court offer no majority opinion, it is clear that its holding applies only to the application of the Coal Act to Eastern, not to the Act as applied in other contexts. Thus, the Court has left lower courts (and itself) room to ignore the opinion. On the other hand, a closer look at the decision reveals a majority rationale, one that lurks beneath the disagreement over the constitutional home for that rationale. Not only do all of the Justices agree that retroactive legislation is unconstitutional when it is too unfair, but the five Justices in the majority appear to agree on the keys to analyzing that constitutional unfairness. That is, both the Justice O'Connor and Justice Kennedy opinions test the constitutionality of retroactive legislation by examining (1) the ability of the defendant to have foreseen liability or the possibility of liability, and (2) the notion of proportionality—the requirement of some sort of reasonable relationship between the defendant's liability and the defendant's connection to the problem the statute addresses.⁵³

The first prong of this rationale—the foreseeability analysis—seems to subsume, in turn, both the "degree of retroactivity" in the statute and the degree to which liability could be anticipated by the defendant under the circumstances. The plurality concludes that Eastern's investment-backed expectations were defeated because the Coal Act's "considerable" economic impact on Eastern⁵⁴ "depend[s] solely on its roster of employees some 30 to 50 years before the statute's enactment,"⁵⁵ and because Eastern had "ceased its coal mining operations"⁵⁶ long before the precursors of the Coal Act's pension system was established. The plurality is troubled by "the distance into the past that the Act reaches back to impose a liability on Eastern" concluding that this "raises substantial questions of fairness."⁵⁷ Furthermore, said the plurality, Eastern could not have foreseen its liability because at the time it left the coal mining business neither employers nor employees had any reasonable expectation that the former would finance health benefits of the kind addressed in the Coal Act.⁵⁸ Thus, the Coal Act runs afoul of the U.S. Constitution because it "attaches new legal consequences to [an employment relationship] completed before its enactment."⁵⁹ Justice Kennedy echoes the plurality's takings analysis on this issue:

In our tradition, the degree of retroactive effect is a significant determinant in the constitutionality of a statute. [32 ELR 11289] As the plurality explains today, in creating liability for events which occurred 35 years ago the Coal Act has a retroactive effect of unprecedented scope.⁶⁰

As for the second prong of the majority rationale, both the Justice O'Connor and Justice Kennedy opinions evince a concern that legislatively imposed retroactive liability be in some sense proportional to the defendant's connection to the problem the statute was designed to address. The plurality takes issue with the legislative calculation by which Eastern's liability was determined under the Coal Act, noting that "although Eastern at one time employed the . . . beneficiaries that it has been assigned . . ., the correlation between Eastern and its liability . . . is tenuous."⁶¹ The plurality concludes that Eastern's liability is distinguishable from liability regimes upheld in prior cases because Eastern's liability "is not calibrated either to Eastern's past actions or to any agreement—implicit or otherwise—by the company."⁶² Justice Kennedy also sees "no legitimate relation" between Eastern's liability under the Coal Act and the problem the statute was designed to address.⁶³

3. Retroactivity and Remedial Legislation

Justice Kennedy's discussion of proportionality is explicitly concerned with another aspect of fairness: namely, whether the statute tries to remedy a problem caused by the defendant. Stated differently, if the Eastern Enterprises majority does articulate a test of the constitutionality of retroactive legislation—one that looks to the foreseeabilty and proportionality of the liability regime—one might ask "what is the domain of that test?" Does it apply to "remedial" legislation? Is the test different in such cases? The Court's discussion of this issue is prompted by its earlier Usery v. Turner-Elkhorn Mining Co.⁶⁴ decision upholding as permissible retroactive remedial legislation the Black Lung Benefits Act, which compelled employer contributions to a black lung disease benefit fund for miners. The plurality acknowledges the continuing validity of the Turner-Elkhorn decision, and takes care to emphasize that the Coal Act is not "remedial" in the sense that the Black Lung Benefits Act was, because Eastern had no hand in creating the expectation of benefits the statute allocates, or in causing the problem the statute addresses:

Eastern might be responsible for employment-related health problems of all former employees whether or not the cost was foreseen at the time of employment, but there is no such connection here. There is no doubt that many coal miners sacrificed their health on behalf of this country's industrial development, and we do not dispute that some members of the industry promised lifetime medical benefits to miners and their dependents during the 1970s. . . . But the Constitution does not permit a solution to the problem of funding miners' benefits that imposes such a disproportionate and severely retroactive burden upon Eastern.⁶⁵

Justice Kennedy's concurrence summarizes the Turner-Elkhorn principle in much the same way:

Eastern was once in the coal business, and employed many of the beneficiaries, but it was not responsible for their expectation of lifetime health benefits or for the perilous financial condition of the [earlier benefit plans]. The expectation was created by promises and agreements made long after Eastern left the coal business.⁶⁶

What does all this mean?⁶⁷ Does the Turner-Elkhorn rule create an exemption from its constitutional fairness test for all remedial retroactive legislation?⁶⁸ It seems unlikely that the Court intends to grant Congress the unbridled power to enact retroactive, remedial legislation regardless of whether the legislation imposes liability foreseeably, accurately, or proportionately. However, even if that is the Court's intention, that merely shifts the locus of the fairness analysis from the question of whether a statute is constitutional to the question of whether it is remedial. That is, a statute that imposes retroactive liability in ways that are too unfair cannot be properly characterized as "remedial." What, then, distinguishes a remedial from a nonremedial retroactive statute? To the five members of the majority, legislation seems to be remedial when it imposes retroactive liability on those whose actions were direct causes of the harm being remedied,⁶⁹ or on those who benefitted from the harm by shifting costs to society.⁷⁰ Conversely, legislation that imposes liability on those who do not fall into either category is not remedial. It follows, therefore, that merely classifying retroactive legislation as remedial does not exempt it from the prohibition against imposing liability too unforeseeably or too disproportionately.

II. Does Superfund Liability Still Measure Up?

How, then, should courts apply the Eastern Enterprises test to Superfund? This is no mean feat. Most courts⁷¹ and [32 ELR 11290] commentators⁷² have concluded that the decision poses no threat to the constitutionality of Superfund because it has no precedential value, and/or because Superfund, as a remedial statute designed to make the polluter pay, is fundamentally different from the Coal Act in ways that insulate it from any Eastern Enterprises—based constitutional challenge. One illustrative case is the federal district court's opinion in Combined Properties/Greenbriar Ltd. Partnership v. Morrow.⁷³ The court read Eastern Enterprises as supporting "no single theory of [the] law" and, therefore, of no precedential value.⁷⁴ The court went on to conclude that even if there is an Eastern Enterprises test of constitutionality, Superfund nevertheless passes constitutional muster. The Greenbriar court upheld the assignment of liability for cleaning a site contaminated by solvents to a group of dry cleaning companies who disposed of the solvents at issue. Because the defendants "played a role in creating the very harm that the statute . . . is designed to remedy," the court concluded that liability was constitutional.⁷⁵ Other courts applying the Eastern Enterprises test have reached similar conclusions,⁷⁶ though one state court has found a state Superfund law wanting under Eastern Enterprises.⁷⁷

As a group, these decisions offer comfort to defenders of Superfund's constitutionality, but perhaps less solace than they might appear to offer at first glance. Why? There are three reasons. First, the Court has not provided any guidance about exactly how it balances the factors by which it judges the constitutionality of retroactive legislation, or how it decides whether a statute is remedial. Lower courts may or may not be applying the test correctly, in the Court's view: the decision itself shines almost no light on this question. Second, broader conclusions about the constitutionality of the Superfund liability regime are almost beside the point, since the Eastern Enterprises test, by its terms, applies not to the statute's retroactive liability regime, but to its application in any given case. That facet of the decision limits the reach of any court decision applying the test to Superfund, thereby complicating both PRPs' efforts to challenge the statute and EPA's efforts to create precedent that it can use to insulate the statute against any such challenge. Third, to the extent that courts have concluded that the Superfund liability regime is different in kind from the Coal Act in ways that satisfy the Eastern Enterprises test, their opinions are unpersuasive, confused, and sometimes demonstrably wrong.⁷⁸ Like the Greenbriar court, lower courts' analyses tend to rely on insufficiently explained distinctions between "remedial" and "nonremedial" statutes or slogans like "polluter-pays," labels that can obscure difficult subsidiary questions about who bears responsibility for the problem being remedied and who exactly is a polluter.

Moreover, in their efforts to grapple with these issues, courts sometimes introduce other elements of "fairness" (beyond foreseeabilty and proportionality) into the Eastern Enterprises test, misrepresenting the Superfund liability regime in the process. This should not be surprising, since Superfund quite clearly makes liable PRPs who could not reasonably foresee cleanup liability, and in amounts that are disproportionate to their responsibility for the cleanup problem. For example, among the "polluters" to whom the statute assigns liability are those who owned contaminated land and those who generated wastes that find their way to Superfund sites. In many cases, these PRPs are among those who caused the harm or benefitted from it (the "beneficiary-pays" principle), such as owners who might have paid reduced rates for contaminated property, and generators of waste who paid reduced rates for improper disposal. When courts describe Superfund as "remedial," perhaps they mean that it is constitutionally proper (read: fair) to impose liability on these PRPs too, even if doing so does not seem to satisfy the Eastern Enterprises test. A Superfund PRP who buried toxic wastes on her own property in 1930 may not have foreseen her liability for cleanup because no law prohibited her conduct. Such a PRP is nevertheless "responsible" for the problem, regardless of whether liability was foreseeable, because the PRP caused the contamination in question. Would the Court approve such liability on the grounds that it is "not disproportionate," or would it simply place the situation outside the domain of the Eastern Enterprises test because the statute is, in such a case, remedial? Either way, the imposition of liability passes constitutional muster. Similarly, assume five PRPs, all but one of whom are now insolvent, intentionally disposed of toxic wastes in equal amounts in a single open pit. Is the solvent PRPs joint and several liability too disproportionate under the Eastern Enterprises test? While her liability is disproportionate, one might argue that it nevertheless is foreseeable (under the [32 ELR 11291] other prong of the Eastern Enterprises test) because the PRP might have incurred such liability at common law.⁷⁹

Thus, grafting the Eastern Enterprises test onto the various rationales underlying Superfund's polluter-pays is not a straightforward task. Little wonder that courts have had trouble with it, or have avoided it altogether. It is, however, a necessary endeavor. Why? Because even when we account for all of the justifiable rationales for imposing retroactive liability via a remedial statute like Superfund, it remains true that Superfund liability can be (and has been) imposed on PRPs who are not responsible for the contamination at issue under any fair rationale.⁸⁰ One might say that the statute is not "remedial" in such a case, or that such PRPs are not "polluters," but those are mere conclusions. The important point is that courts cannot and should not sidestep the hard work of testing the constitutional fairness of an application of retroactive liability under Superfund simply by calling the statute "remedial" or a PRP a "polluter." To do so is to beg the question of whether the imposition of liability is so unfair as to be unconstitutional.

A. Applying the Foreseeability Test to Superfund

In order to assess the constitutionality of Superfund liability, courts need to consider at least five factors suggested, directly or indirectly, by the Eastern Enterprises opinions. Some of these factors are explicit parts of the majority's test; others are suggested by the application of that test to Superfund or by the Court's discussion of remedial legislation. They are: (1) degree of retroactivity of the liability imposed⁸¹; (2) degree to which the defendant could have reasonably anticipated the liability; (3) the question of whether the defendant caused or contributed actively to the contamination at issue; (4) the beneficiary-pays principle; and (5) the question of whether the liability imposed is proportional to defendant's responsibility.

1. Degree of Retroactivity

Clearly, Superfund is at least "as retroactive" as the Coal Act. Recall that the Eastern Enterprises plurality expressed concern about the backward reach of the Coal Act (the "degree of retroactivity"), noting that its reach back in time 30-50 years "raises substantial questions of fairness." Justice Kennedy called this degree of retroactivity "unprecedented."⁸² The national priorities list of Superfund sites contains many sites contaminated more than 30 to 50 years prior to the passage of Superfund in 1980.⁸³ If the Coal Act as applied to Eastern is too retroactive, there are certainly other PRPs to whom the application of Superfund is too retroactive as well. However, it is not clear from the Eastern Enterprises opinions whether the Court considers an unacceptable degree of retroactivity to be either necessary or sufficient to overturn retroactive legislation.

2. Foreseeability and Tort Liability Generally

Both the plurality and Justice Kennedy seem to attribute more importance to the degree to which the defendant could have anticipated the liability being imposed. It seems indisputable that some Superfund PRPs did not foresee the liability they face under the statute. Many who "arranged for disposal" followed the law and the standards of the time; similarly, there are landowner PRPs who acquired land not knowing it was contaminated, only to find themselves liable for cleanup costs later.⁸⁴ However, despite the extent of its reach back in time, one could argue that Superfund liability is indeed foreseeable because it merely codifies the common law of hazardous substances liability. The common law has long imposed (1) strict liability on policy grounds without regard to fault, in recognition of the fact that it sometimes results in unfairness,⁸⁵ and (2) joint and several liability when one of two joint tortfeasors is left holding the bag. In this sense, then, Superfund liability mirrors strict liability and joint and several liability in tort,⁸⁶ which are imposed with the understandings, respectively, that those who benefit from dangerous activities must pay for the harm they cause, and that sometimes liable parties must may pay more than their fair shares of liability in order to make whole the innocent plaintiff.⁸⁷

However, there are important distinctions to be made between traditional common-law liability rules and Superfund [32 ELR 11292] liability.⁸⁸ Traditionally, the common law of torts has imposed strict liability on defendants who undertake "ultrahazardous" or "abnormally dangerous" activities, and some courts have permitted recovery for contamination of the land by chemicals under this doctrine.⁸⁹ Superfund casts a far wider net than that, holding PRPs liable without regard to whether their conduct was abnormally dangerous at the time it occurred or to the foreseeability of the harm it could cause. Because the statutory definition of "hazardous substance" is a broad one, and arguably includes substances that are not ultrahazardous or abnormally dangerous,⁹⁰ liability may fall on PRPs to who would have escaped common-law strict liability.

One well-known example is Alcan Aluminum Company, which was held liable for the cleanup costs at a Pennsylvania site from which toxic substances were released into the environment. Alcan's only link to these sites was through its nontoxic mineral oil emulsion, which was disposed of at the site and which contained lower than background or ambient levels of harmful contaminants.⁹¹ Alcan's arguments that its wastes did not fall within the statutory definition of "hazardous substances" were to no avail,⁹² since that definition includes nontoxic mixtures that contain other toxic substances. Acknowledging that Alcan's wastes were nontoxic,⁹³ the U.S. Court of Appeals for the Third Circuit explained why that does not matter, stating that

the Government responds to "releases" that threaten environmental safety. Thus, it is the release alone that must justify the response costs, not the particular waste generated by one given defendant. Here, there is no question but that a release occurred. Second, the fact that a single generator's waste would not in itself justify a response is irrelevant in the multi-generator context, as this would permit a generator to escape liability where the amount of harm it engendered to the environment was minimal, although it was significant when added to other generators' waste.⁹⁴

It seems unlikely that a private plaintiff bringing a tort suit against Alcan would recover on these same facts, given that Alcan's waste was not hazardous and the harm was attributable to toxic wastes traceable to other available PRPs.

Similarly, owner liability can fall on one who purchases land without knowledge of the contamination; in such cases the owner may be both the injured party and the liable party under Superfund. In 1986, Congress amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to mitigate liability for certain landowners under Superfund.⁹⁵ The "innocent landowner defense,"⁹⁶ as it is known, ostensibly exempts from Superfund liability certain owners who acquired Superfund sites without [32 ELR 11293] actual knowledge of the presence of wastes on the site.⁹⁷ However, as interpreted by the courts, the innocent landowner defense does not exempt from liability all of these parties.⁹⁸ Several courts have rejected the innocent landowner defense in cases in which there was no evidence offered that the landowners in question had actual knowledge of the waste problem at the time the property was purchased or turned a blind eye to the problem.⁹⁹ Thus, Superfund liability can be applied in ways that differ significantly from common-law liability, and in ways that could not have been foreseen by some PRP defendants.¹⁰⁰

3. Causation

There is another distinction between common-law liability and Superfund, one that undermines some of thearguments used to distinguish the Coal Act from Superfund—namely, the question of whether the defendant caused or contributed to the problem the statute is designed to address. Some courts have distinguished the Coal Act at issue in Eastern Enterprises from Superfund by noting that Superfund liability [32 ELR 11294] "requires a factual finding of contribution to the environmental harm," and that Eastern's connection to the health problems of miners is less clear, and more tenuous, than a PRP's connection to Superfund contamination.¹⁰¹ While that statement is a fairly accurate summary of the common-law rule, it mischaracterizes Superfund liability.¹⁰² Strict liability in tort is limited to defendants whose conduct, while not negligent, intentionally exposes others to unusual risk.¹⁰³ Unlike a tort defendant, a Superfund PRP can be liable for remediation costs without any showing that her conduct caused the environmental damage at issue or put anyone at risk. The federal courts could not be any clearer on this point.¹⁰⁴

Indeed, it is not uncommon for Superfund PRPs to be held liable for contamination caused by a third party. This is frequently the case for landowner PRPs, many of whom took ownership of their properties long after contamination had occurred,¹⁰⁵ or for PRPs who arranged for proper disposal of their wastes only to find themselves subsequently liable for cleanup of contamination caused by that third party's improper disposal.¹⁰⁶ When it comes to liability for environmental harm under Superfund, the presence of an intervening cause does not insulate a defendant PRP from liability under § 107. The only exceptions to this rule are found in the § 107 defenses, which allow PRPs to escape liability when they can show that the release was caused by an act of God, an act of war, or the act of a third party with whom the defendant has no direct or indirect contractual relationship.¹⁰⁷ This so-called third-party defense does not protect PRPs whose unfaithful contractors (or their subcontractors or sub-subcontractors) disposed of their waste improperly.

This is important because the notion of causation seems important to the Eastern Enterprises majority. The plurality makes much of the fact that Eastern "had no control over the activities of its former employees subsequent to its departure from the coal industry in 1965."¹⁰⁸ For his part, Justice Kennedy stresses that Eastern was "not responsible for" the problems the Coal Act addresses.¹⁰⁹ Furthermore, the notion of causation seems to lie at the heart of the exception—if there is one—for remedial statutes. The plurality notes that when retroactive legislation

singles out certain employers to bear a burden that is substantial in amount, based on the employers' conduct far in the past and unrelated to any commitment that the employers made, or to any injury they caused, the governmental action implicated fundamental principles of fairness underlying the Takings Clause.¹¹⁰

Superfund liability is sometimes imposed in just this way; presumably, those instances implicate these same fundamental principles of constitutional fairness that troubled the Court in Eastern Enterprises.

4. Beneficiary Pays

Superfund liability may be merely remedial in another way: Superfund makes the polluter pay, retroactively internalizing costs that were shifted to society in the past. The Eastern Enterprises majority seized on this very sort of distinction in trying to reconcile its prior Turner-Elkhorn decision up-holding the constitutionality of the Black Lung Benefits Act with its decision that the Coal Act, as applied to Eastern, was unconstitutional. According to the plurality:

Eastern's liability . . . differs from coal operators' responsibility for benefits under the Black Lung Benefits Act of 1972. That legislation merely imposed "liability for the effects of disabilities bred in the past [that] is justified as a rational measure to spread the costs of the employees' [32 ELR 11295] disabilities to those who have profited from the fruits of their labor."¹¹¹

By contrast, said the plurality, no such connection existed between the Coal Act and Eastern.¹¹² Justice Kennedy makes exactly the same distinction, calling the Black Lung Benefits Act "remedial" because it was designed to impose on the employer a cost the employer had avoided in the past; the Coal Act, he said, does "not serve [such a] purpose."¹¹³

Of course, the desire to force firms to internalize environmental costs lies at the heart of Superfund's polluter-pays principle. Even when a PRP acted legally, it may have benefitted economically by shifting the environmental costs associated with waste disposal to society (or nearby residents). For example, where the PRP paid below-market rates for disposal, it captured some of the benefit of shifting environmental costs to society, and many would agree that it is fair to impose liability for cleanup costs on those PRPs.¹¹⁴ However, the mere existence of a Superfund site (and the need to cleanup the wastes) does not imply that the site's PRPs benefitted from improper disposal. This is so for two reasons. First, some PRPs may have paid for (but did not receive) proper disposal services—those that would have fully internalized social costs. In those cases, a contractor or other intermediary captured the benefit of shifting external costs to society.¹¹⁵ Second, and more importantly, for many PRPs who paid a market rate for disposal that excluded some or all of the social costs of disposal, the economic benefit represented by that discrepancy between private and social cost was captured not by the PRPs but by consumers.¹¹⁶ This is because all members of the industry pay the depressed market rate for disposal services. The cost savings, then, is passed on to consumers.¹¹⁷

Consider the liability of arrangers and owners, respectively. For arrangers, we may ask in any given case whether the arranger paid the market rate for disposal (the rate representing proper disposal according to then applicable standards). We can expect that there will be a very strong correlation between the price of disposal services and their quality. Where the arranger knew of the disposal plan and that plan was both safe and legal, we can expect that the arranger would have paid the market rate for disposal (and none of the rationales for imposing liability apply). Where the arranger either was unaware of the disposer's unsafe or illegal disposal plan or was deceived as to the disposer's true plans, the arranger may nevertheless have paid less than the market price for disposal. In such cases, arrangers received a direct benefit from improper disposal, and should be liable for cleanup costs under this analysis. On the other hand, if the arranger knew of the disposal plan and paid the market rate for disposal, then the imposition of liability is unfair. In such cases, either the price reflected full social costs or, to the extent it did not, that benefit was captured by consumers rather than by the arranger. There are real-world examples of PRPs who followed the explicit directions of regulators when transferring their wastes to disposers. John Hird cites an example of a Vermont state regulator who directed another PRP to send his waste to a site that later became a Superfund site. Later that same state regulator moved to EPA's regional office, where he oversaw the remediation (at PRPs' expense) of that very same site.¹¹⁸ Not only did these PRPs diligently follow regulators' instructions, they very likely paid the full market rate in doing so.

The same sort of problem arises with owner liability. In the case of the current owner PRP, if the purchase price reflected the presence of waste on-site, then the imposition of liability is fair because the owner benefitted from the contamination. An owner may have no actual knowledge of the presence of wastes on-site but may acquire the property for a price that reflects the presence of wastes on-site. In that case, not only does the owner/buyer benefit economically from the contamination, but the below-market price ought to have signaled her to the existence of a problem. On the other hand, if the purchase price did not reflect contamination, then the imposition of liability on the current owner is unjustified under the beneficiary-pays principle. Similarly, when an owner leases land to a tenant for business operations which the owner knows will cause contamination to the property, the economic benefit of the activity may be shared by the owner in the form of lease payments.¹¹⁹ However, knowledge of the problem does not necessarily imply any sort of culpability on the part of the owner or that the owner benefitted from the problem. For example, where the lease does not contemplate disposal of wastes, rental payments may not reflect cost savings associated with improper [32 ELR 11296] disposal. Rather, in that case, the tenant captures the entire benefit of its improper behavior, and the innocent land-owner defense provides the owner no protection. The only way the owner might benefit in such a situation is if the owner subsequently sells the land to an unsuspecting buyer for a price that does not reflect thepresence of wastes on the site.¹²⁰

Thus, while Superfund's "polluter-pays" principle is intended to internalize formerly externalized costs, it can impose liability on parties who captured no economic benefit from the activities that tied them to a Superfund site. Such liability is neither foreseeable or remedial.

5. Proportionality

The plurality and Justice Kennedy opinions in the Eastern Enterprises decision both stress that liability must be "proportional" to the defendant's responsibility, in some way. Of course, the potential for unfairness exists whenever joint and several liability is imposed on individuals, but the common law of joint and several liability is only awkwardly analogized to Superfund liability. Like the common law, Superfund recognizes that some joint tortfeasors may be held liable severally: that is, each may be held responsible for the entire amount of damage to the plaintiff arising from their actions, in which case the one held liable to the plaintiff may try to seek reimbursement from the other tortfeasors in suits for "contribution."¹²¹ The common-law rule arose to compensate innocent plaintiffs harmed by joint tortfeasors.¹²² It is not at all clear, however, that PRP payments for cleanup costs serve the same purposes as payments by a severally liable defendant to a plaintiff. Common-law joint and several liability maximizes the probability that the injured plaintiff will be made whole. PRP payments go toward removal of the harmful condition, but do nothing to compensate the injured. Indeed, proof of injury is not a prerequisite to liability under Superfund. Furthermore, under common-law rules, acts that are individually harmless but collectively harmful may be the basis of joint and several liability only when the acts are unreasonable under the circumstances.¹²³ That is, joint and several liability is imposed because context makes the harm foreseeable. By contrast, Superfund imposes joint and several liability in situations where the harm is unforeseeable and the PRP's conduct is perfectly reasonable under the circumstances.

Nor does the availability of contribution solve the problem of disproportionate liability, for two reasons. First, the Eastern Enterprises plurality rejected the argument that the ability of Eastern to seek indemnification from others did not "affect the availability of the relief" Eastern sought under the Constitution. Second, Superfund is sometimes enforced in ways that exacerbate the maldistribution of liability. In practice, individual PRPs' actual liability shares are determined: (1) in litigation between PRPs and other PRPs¹²⁴ or EPA¹²⁵ after a trust fund- or PRP-financed cleanup¹²⁶; or (2) by PRPs in the settlement process with EPA before or after cleanup; or (3) some combination of (1) and (2). That is, sometimes a subset of the PRPs at a site pays for the entire cleanup, either voluntarily in a pre-cleanup settlement with EPA or involuntarily as the result of an EPA cost-recovery lawsuit after the cleanup. In such cases, individual allocations are determined in negotiations or litigation between individual PRPs.¹²⁷ At sites where multiple solvent PRPs are available, allocation decisions are eventually made one way or another, and most of the transaction costs of the allocation process are now borne by PRPs.¹²⁸ This system can leave unlucky PRPs with significant excess costs, and creates the incentive for strategic gamesmanship in the Superfund settlement process, particularly at multiparty sites.

How are PRPs saddled with these excess costs? First, PRPs who pay for the cleanup may cover the orphan shares of insolvent or no longer available parties.¹²⁹ Second, PRPs who pay for cleanup typically absorb transaction costs associated with recovering money from PRPs who did not settle voluntarily or who were not targeted for cost recovery by EPA. Third, because the standard of strict, joint and several liability may not be applied by the court when PRPs seek reimbursement from other PRPs, the PRP bringing the reimbursement suit may be unable to recover some of its excess costs even from available and solvent PRPs.¹³⁰ Therefore, [32 ELR 11297] the PRP against whom EPA brings a § 107 cost-recovery action may pay for more than its fair share.¹³¹

Consider the decision environment facing PRPs at a multiparty site in the settlement process. Generally, EPA would prefer to preserve its resources and have PRPs (in most instances) clean up the site voluntarily,¹³² and EPA can use incentives like "mixed funding"¹³³ and fund coverage of orphan shares¹³⁴ to reach that result. EPA has been reticent about the use of mixed funding historically and has limited its use by design so as to preserve the trust fund.¹³⁵ If the EPA cleans the site itself using trust fund money, it may sue any or all of the PRPs afterward for recovery of its costs. In such situations, EPA may try to recover its costs from a relatively small subset of PRPs at multiparty sites because the ease and speed of litigation in such instances varies inversely with the number of PRP defendants. That is, since the statute authorizes EPA to recover its costs from any single PRP, it is tempting for the Agency to keep the defendant group as small as possible, and to focus its attention on the PRPs with the deepest pockets. This targeted subset of PRPs must then try to recover its excess costs from the remaining available and solvent PRPs. Given this environment, it is not difficult to see how liability can be imposed disproportionately whenever (1) EPA refuses to cover orphan shares or to provide mixed funding for a small subset of settling PRPs; or (2) EPA agrees to a mixed funding arrangement with a subset of settling PRPs, allocates to the settlers less than their "fair share" of liability, and provides contribution protection to the settlers. The latter circumstance may leave nonsettlers, in particular, facing more than their fair share of cleanup costs.¹³⁶ Indeed, critics have accused EPA of pursuing just such a policy in order to provide PRPs with additional incentives to settle, and of saddling deep-pocketed PRPs with excess liability in general.¹³⁷

III. Conclusion: Putting It All Together

We do not yet know how courts will balance these various factors by which they must, according to the Eastern Enterprises "test," assess the constitutionality of retroactive legislation. The Court has not provided an algorithm to guide that effort. Must all retroactive legislation avoid all of these pitfalls? Probably not. May liability be imposed in a way that violates all of them? Probably not. The line of constitutionality is somewhere between these extremes, but we do not know where. We might speculate that it remains constitutional to impose liability, proportionally, on most PRPs. However, there are PRPs who could not have foreseen their liability, did not cause the contamination in question, and did not benefit from it. The imposition of liability on these PRPs—particularly joint and several liability—probably runs afoul of the Eastern Enterprises test.

Of the decisions applying the Eastern Enterprises test to Superfund so far, most have been easy calls, involving PRPs who generated and intentionally released toxic wastes to the environment.¹³⁸ The one potential exception is Alcan Aluminum's ongoing U.S. Court of Appeals for the Second Circuit's constitutional challenge to Superfund. Alcan raised an Eastern Enterprises-based challenge its liability for cleanup of the so-called PAS incinerator site in New York State. The district court rejected Alcan's challenge, concluding that Eastern Enterprises has no precedential value, [32 ELR 11298] and that if it did, it does not support Alcan's challenge because Alcan (unlike Eastern) contributed to the harm the statute was designed to address.¹³⁹ As in the Pennsylvania case, Alcan shipped nontoxic wastes to the PAS disposal facility for incineration, and Alcan's emulsion wastes were found on-site. Given the facts of the case, Alcan seems to have a strong argument on both foreseeability and proportionality grounds. Alcan could not have foreseen that the wastes, which the district court concluded contained below-background levels of five metals, would trigger cleanup liability. Alcan did not cause the harm that triggered the Superfund cleanup, and it seems unlikely (given that PAS was a well-established commercial disposal site) that Alcan benefitted from it. Consequently, the imposition of liability on Alcan seems neither proportionate, in the Eastern Enterprises sense, nor "remedial," in any sense.¹⁴⁰

Nevertheless, most courts seem disinclined to undertake this sort of analysis, and avoid doing so either by discounting the Eastern Enterprises opinion or by violating its spirit.¹⁴¹ Why not preserve the Superfund trust fund and avoid incurring transaction costs by shifting those costs to (well-heeled or, at least, solvent) PRPs? After all, taxpayers have even less of a connection to hazardous waste contamination than PRPs like Alcan do; better, then, to allocate the cost to the Alcans of the world (who, after all, can afford it) than to taxpayers. However, this is dangerous reasoning, the kind of analysis that the Court's retroactivity jurisprudence is designed to guard against. As the Court noted in Landgraf (and echoed in Eastern Enterprises), Congress will be tempted to employ retroactive legislation as a method of retribution against the disfavored. It does not follow from the importance of Superfund's remedial purpose and the clarity of Congress' intent to make polluters pay for site cleanups that Superfund liability has always been imposed constitutionally. To the contrary, the imposition of retroactive liability is constitutional only when there is an adequate justification for doing so. EPA will need to be careful to avoid enforcing the statute in ways which, although consistent with pre-Eastern Enterprises case law, run afoul of the post-Eastern Enterprises standard of constitutionality.

1. Superfund is better known as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

2. 524 U.S. 498 (1998).

3. Id. at 500. This language is from the plurality opinion. I argue, infra, that a Court majority supports this view.

4. See, e.g., DOJ Attorney Says Courts Have Settled Retroactivity, Contribution, Municipal Issues, 29 Env't Rep. (BNA) 1693 (Jan. 1, 1999) (quoting a U.S. Department of Justice attorney who argues that courts have already resolved the constitutionality of Superfund's liability regime definitively). See also Barton H. Thompson Jr., The Allure of Consequential Fit, 51 ALA. L. REV. 1261 (2000) (concluding that Eastern Enterprises has little precedential value); Karen S. Danahy, CERCLA Retroactive Liability in the Aftermath of Eastern Enterprises v. Apfel, 48 BUFF. L. REV. 509 (2000) (Eastern Enterprises provides little force for a similar CERCLA challenge despite CERCLA's inherently more severe retroactive liability scheme). But cf. Jan Laitos, who reaches this conclusion with respect to landowner liability:

The Supreme Court's multiple opinions in Eastern Enterprises suggest that a majority of the Court (albeit a narrow five-Justice majority) may now be willing to adopt a new standard for when government action imposes special, disproportionate burdens on private property interests. The standard, which may be cobbled together from a plurality and a concurring opinion, recognizes that new government burdens may run afoul the Constitution if they are (1) retroactive and (2) do not take into account whether the property owner saddled with the burden has in some way caused the social problem that the law is meant to redress.

Jan G. Laitos, The New Retroactivity Causation Standard, 51 ALA. L. REV. 1123, 1124 (2000). Likewise, William L. Church hints that the Court could use Eastern Enterprises to strike down CERCLA. William L. Church, The Eastern Enterprises Case: New Vigor for Judicial Review?, 2000 WIS. L. REV. 547 (2000).

5. For a fuller discussion of previous litigation on this issue, see infra section I.A.

6. See, e.g., Charles Tiefer, Did Eastern Enterprises Send Enterprise Liability South?, 51 ALA. L. REV. 1305 (2000) ("Eastern Enterprises simply accepts tort-based retroactive legislation, however far back in time the legislation reaches, however severe its impact, and however disproportionate its measurements of liability, so long as the burdened enterprise is causally linked to the problem or injury being solved . . . ."). For a fuller discussion of this issue, see infra sections II.A.3 and 4.

7. 26 U.S.C. §§ 4611-4682; Pub. L. No. 96-510, Dec. 11, 1980; 94 Stat. 2797.

8. H.R. REP. NO. 96-1016, pt. 1, at 1 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6161 (stating that the purpose of CERCLA is "to establish prohibitions and requirements concerning inactive hazardous waste sites [and] to provide for liability of persons responsible for releases of hazardous waste at such sites"). In 1986, Congress amended CERCLA, passing the Superfund Amendments and Reauthorization Act (SARA) to fortify its broad, remedial purpose "to facilitate the prompt cleanup of hazardous waste sites and to shift the cost of environmental response from the taxpayers to the parties who benefitted from the wastes that caused the harm." OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574, 1578, 27 ELR 21318, 21319 (5th Cir. 1997).

9. PRPs are defined in § 107(a) of Superfund, 42 U.S.C. § 9607(a), ELR STAT. CERCLA § 107(a).

10. United States v. Monsanto Co., 858 F.2d 160, 174, 19 ELR 20085, 20090 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989) (footnote omitted) ("Many courts have concluded that Congress intended CERCLA's liability provisions to apply retroactively to pre-enactment disposal activities of off- site waste generators. They have held uniformly that retroactive operation survives the Supreme Court's tests for due process validity. We agree with their analyses."). See also the discussion of a more recent decisions addressing the retroactivity issue, infra notes 32-35 and accompanying text.

11. While the statute itself does not say anything about strict liability, it defines liability with reference to provisions of the Clean Water Act (CWA) which, in turn, have been interpreted by federal courts as imposing strict liability. See 42 U.S.C. § 9601(32), ELR STAT. CERCLA § 101(32) (referring to 33 U.S.C. § 1321, ELR STAT. FWPCA § 311); Stuart Transp. Co. v. Allied Towing Corp., 596 F.2d 609 (4th Cir. 1979) (interpreting 33 U.S.C. § 1321). Superfund has also been interpreted by courts as imposing strict liability independent of the CWA. See, e.g., Monsanto, 858 F.2d at 167, 19 ELR at 20087 ("We agree with the overwhelming body of precedent that has interpreted section 107(a) as establishing a strict liability scheme.").

12. Liability is joint and several, assuming that the harm is indivisible. In cases in which several parties have deposited wastes in a single location, the harm is generally considered to be indivisible, and joint and several liability will attach. See, e.g., United States v. Alcan Aluminum, Inc., 990 F.2d 711, 721-22, 23 ELR 20706, 20710 (2d Cir. 1993) ("[The courts] have at once adopted a scheme of joint and several liability but at the same time have limited somewhat the availability of such liability against multiple defendants charged with adding hazardous substances to a Superfund site."). But see Akzo Coatings, Inc., v. Aigner Corp., No. 3-91-570RM (D. Ind. July 19, 1996) (defendants' whose contamination was "geographically distinct" are jointly liable). For commentary on this issue, see B. Todd Wetzel, Divisibility of Harm Under CERCLA: Does an Indivisible Potential or Averted Harm Warrant the Imposition of Joint and Several Liability?, 81 KY. L.J. 825 (1993) (criticizing EPA's and the courts' treatment of this issue).

13. 42 U.S.C. § 9607(a)(1), ELR STAT. CERCLA § 107(a)(1). Current owners are liable regardless of whether they caused or contributed to the release, see infra section II.A.3, and may be liable even if ignorant of the contamination, see infra sections II.A.1 and 2.

14. Id. § 9607(a)(2), ELR STAT. CERCLA § 107(a)(2). The statute defines the term "release" broadly to include "leaking . . ., escaping, leaching" and other forms of passive migration of contaminants.

15. Id. § 9607(a)(3), ELR STAT. CERCLA § 107(a)(3).

16. Id. § 9607(a)(4), ELR STAT. CERCLA § 107(a)(4).

17. The words of Rep. Bill Zeliff (R-N.H.) are illustrative: "Holding someone liable for something that was legal in the past is un-American." Quoted in Oxley Reform Bill Does Not Go Far Enough for Small Businesses, House Committee Told, 26 Env't Rep. (BNA) 1131 (Oct. 27, 1995). A Republican sponsor of one Superfund reform proposal, Rep. Michael Oxley (R-Ohio), has echoed Representative Zeliff's sentiment: "We believe it is unfair for companies to be charged retroactively for taking actions that were within the law when they took place." Id. See also Gary Lee, Toxic Waste Dump Awaits Cleanup as Government Fights Over Tools, WASH. POST, May 25, 1996, at A3; Superfund: House Dems Offer Reform Plan, GREENWIRE, Oct. 29, 1997, at 1 (quoting Keystone Landfill Superfund site PRP and Gettysburg, Pennsylvania, restaurantowner Barbara Williams' comments to CBS' Mike Wallace: "It is sad to believe that even when you've obeyed the laws . . . somehow you can end up in a mess like this.").

18. Rep. Charles Canady (R-Fla.) has been a critic of strict liability under Superfund: "The EPA has punished numerous companies in Florida for something that is not their fault. They are being forced to pay thousands of dollars to clean up a mess they didn't make. It's simply not fair." Quoted in Steve Newborn, Bill Waives Cleanup Expenses, TAMPA TRIB., June 18, 1997, at 1.

19. This sentiment has been expressed by a federal district court:

CERCLA is now viewed nearly universally as a failure . . . . In addition to its unfairness, the liability structure of CERCLA is counterproductive. [Parties] faced with disproportionate liability litigate tenaciously, . . . postponing remediation of contaminated sites and dramatically increasing the costs . . . .

United States v. A&N Cleaners & Launderers, Inc., 854 F. Supp. 229, 239 (S.D.N.Y. 1994). (opinion of Judge Robert W. Sweet). See also discussion infra section II.A.

20. While I am aware of no systematic studies of EPA's prosecutorial decisions under Superfund to support this contention, it is very widely accepted. See, e.g., Rick Henderson, A New Environment: Braking the Green Machine, 26 REASON 36 (1995) ("older companies with deep pockets tend to get stuck with big cleanup bills . . ."); Dina ElBoghdady, Cities May Be Exempt From Superfund Cleanup Costs, STATE NEWS SERV., July 2, 1992 ("EPA generally sues 'deep pockets' . . ."); Edward N. Polisher & Clifford S. Meyer, The Federal Claims Priority Act and the Executor's Duty, TRUSTS & EST., July 1993 ("The EPA looks for contribution from every available deep pocket . . . ."); David J. Freeman, Two Recent Decisions Restrict Superfund Vicarious Liability, NAT'L L.J., Apr. 16, 1990, at 24 ("Can the Superfund cleanup program survive without access to . . . 'deep pockets?'").

21. See discussion of orphan share coverage, infra note 134 and accompanying text.

22. See, e.g., S. 3965, 103d Cong. (1994). Some proponents of liability reform sought to eliminate pre-1980 liability for PRPs, reasoning that the passage of Superfund put parties on notice that improper disposal could form the basis of liability. H.R. 4161, 103d Cong. (1994). Others sought to eliminate pre-1987 liability, based on the argument that it was not until 1987 that the full hazardous waste disposal regulation system under the Resource Conservation and Recovery Act (RCRA) was in place. H.R. 22576, 104th Cong. (1995).

23. See, e.g., S. 14711, 104th Cong. (1995); H.R. 2500/S.1285, 104th Cong. (1996). See also S. 8, 105th Cong. (1997), which would also impose a liability allocation system. A Clinton Administration-sponsored bill came very close to passage late in the second session of the 103d Congress. See H.R. 3800.

24. Charles Openchowski, Superfund in the 106th Congress, 30 ELR 10648 (Aug. 2000); Superfund: CERCLA Reform Bill Has "60-40" Chance of Passage During 1998, Oxley Predicts, 28 Env't Rep. (BNA) 1535 (Dec. 5, 1997); Interested Parties Hail Markup Delay as Talks on CERCLA Reform Resume, 28 Env't Rep. (BNA) 843 (Sept. 12, 1997); RCRA: Back Seat to Superfund, 28 Env't Rep. (BNA) 408 (June 27, 1977); House Bill Would Provide Exemptions for Small Businesses, Homeowners, 28 Env't Rep. (BNA) 990 (Sept. 26, 1997); Pallone Develops Reform "Principles" as Boehlert Prepares to Introduce Bill, 28 Env't Rep. (BNA) 1248 (Oct. 24, 1997); Extra Fiscal 1999 Superfund Money OK'd If CERCLA Reauthorized by May 15, 1998, 28 Env't Rep. (BNA) 1040 (Oct. 3, 1997). Disagreements over liability reform have been the major sticking point. See, e.g., Senator, EPA Chief in Heated Exchange Over Liability Provisions of GOP Measure, 27 Env't Rep. (BNA) 2237 (1997). See also U.S. EPA, The Clinton Administration's Superfund Legislative Reform Principles (May 7, 1997) ("The Administration opposes . . . repeal of all or part of the current strict, retroactive, joint and several liability standards."). See also Maximum Repeal of Retroactive Liability Should Be Goal of Congress, 27 Env't Rep. (BNA) 2031 (1997) (quoting Rep. Bud Shuster (R-Pa.) as saying that he continues to seek "to eliminate as much liability as possible" and pledges "to die hard on this issue").

25. 42 U.S.C. §§ 9607(b)(3), 9601(35)(A), ELR STAT. CERCLA §§ 107(b)(3), 101(35)(A): Pub. L. No. 99-499, tit. I, §§ 107(a) to (d)(2), (e), (f), 127(b), (e), tit. II, §§ 201, 207(c) (Oct. 17, 1986).

26. Pub. L. No. 106-113 (Nov. 29, 1999). See Carol J. Miller, Retroactive Application of New CERCLA Defense: The Superfund Recycling Equity Act, 31 ELR 10867 (July 2001).

27. Pub. L. No. 107-118 (Jan. 11, 2002). See Dale A. Guariglia et al., The Small Business Liability Relief and Brownfields Revitalization Act: Real Relief or Prolonged Pain?, 32 ELR 10505 (Apr. 2002).

28. "No Bill of Attainder or ex post facto Law shall be passed." U.S. CONST. art. I, § 9.

29. Calder v. Bull, 3 Dall. 386 (1798), is generally cited for the proposition that the Ex Post Facto Clause prohibits only criminal retroactive liability.

30. Justice Joseph Story's Commentaries condemn retroactive statutes as "generally unjust." 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION § 1398 (5th ed. 1891). This same sentiment is reflected in opinions such as Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) (noting that retroactivity is "generally disfavored"), and General Motors Corp. v. Romein, 503 U.S. 181 (1992) (noting that retroactive legislation "presents problems of unfairness").

31. Perhaps the most influential of these early decisions was a U.S. Court of Appeals for the Fourth Circuit decision, Monsanto (rejecting PRP arguments that Superfund liability runs afoul of the Ex Post Facto Clause and the Bills of Attainder Clause, or the Court's substantive due process jurisprudence). See also O'Neill v. Picillo, 883 F.2d 176, 183 n.12, 20 ELR 20115, 20119 n. 12 (1st Cir. 1989) (holding that CERCLA can be retroactively applied without running afoul of the Constitution); United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 733, 17 ELR 20603, 20606 (8th Cir. 1986):

It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. Legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. This is true even though the effect of the legislation is to impose a new duty or liability based on past acts.

(Quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976).)

32. 511 U.S. 244 (1984).

33. 927 F. Supp. 1502, 26 ELR 21303 (S.D. Ala. 1996).

34. United States v. Olin Corp., 107 F.3d 1506, 27 ELR 20778 (11th Cir. 1997).

35. See, e.g., Department of Toxic Substances Control v. Interstate Non-Ferrous Corp., 99 F. Supp. 2d 1123, 30 ELR 20580 (E.D. Cal. 2000); Morton Intern., Inc. v. A.E. Staley Mfg. Co., 106 F. Supp. 2d 737, 752 (D.N.J. 2000); AlliedSignal, Inc. v. Amcast Intern. Corp., 177 F. Supp. 2d 713, 727 (S.D. Ohio 2001); Mathews v. Kidder, Peabody & Co., 161 F.3d 156, 170 (3d Cir. 1998); Mayers v. Department of I.N.S., 175 F.3d 1289, 1295 (11th Cir. 1999); United States v. Vertac Chem. Corp., 33 F. Supp. 2d 769, 29 ELR 21060 (E.D. Ark. 1998); United States v. Iron Mountain Mines, Inc., 987 F. Supp. 1233, 28 ELR 21059 (E.D. Cal. 1997); United States v. ASARCO Inc., 28 F. Supp. 2d 1170, 29 ELR 20188 (D. Idaho 1999); Continental Title Co. v. Peoples Gas Light & Coke Co., 959 F. Supp. 893, 894 (N.D. Ill. 1997); United States v. Manzo, 182 F. Supp. 2d 385, 408 (D.N.J. 2000); Fina, Inc. v. Arco, 16 F. Supp. 2d 716, 721 (E.D. Tex. 1998); Raytheon Co. v. McGraw-Edison Co., Inc., 979 F. Supp. 858, 28 ELR 20323 (E.D. Wis. 1997); In re Tutu Wells Contamination Litig., 994 F. Supp. 638, 28 ELR 21296 (D.V.I. 1998); Metropolitan Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 494, 500, (Fla. 1999); State Dep't of Envtl. Protection v. Allied Scrap Processors, Inc., 724 So. 2d 151, 152 (Fla. App. 1st Dist. 1998).

36. Eastern Enterprises, 524 U.S. at 503-38.

37. Id. at 539-50.

38. Id. at 539.

39. Id. at 554 (opinion of Breyer, J.) ("I agree with Justice Kennedy . . . that the plurality views this case through the wrong legal lens. The Constitution's Takings Clause does not apply.").

40. For a more detailed discussion of these issues, see infra sections II.A.2-5.

41. Coal Industry Retiree Health Benefit Act of 1992 (Coal Act), 26 U.S.C. §§ 9701-9722.

42. Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 225 (1986).

43. 524 U.S. at 529 ("As to the first factor relevant in assessing whether a regulatory taking has occurred, economic impact, there is no doubt that the Coal Act has forced a considerable burden upon Eastern."); id. at 532 ("The Coal Act substantially interferes with Eastern's reasonable investment-backed expectations.").

44. Said the Court:

Although Eastern at one time employed the [fund] beneficiaries that ithas been assigned under the Coal Act, the correlation between Eastern and its liability to the [fund] is tenuous, and the amount assessed against Eastern resembles a calculation made in a vacuum. The company's obligations under the Act depend solely on its roster of employees some 30 to 50 years before the statute's enactment.

Id. at 531.

45. Id. at 538.

46. Id. at 537-38.

47. Id. at 551 (Stevens, J., dissenting).

48. Id. ("It was this understanding that kept the mines in operation and enabled Eastern to earn handsome profits . . . ."). See also id. at 563 (Justice Breyer arguing that "in return for what the miners thought was an assurance . . . from management of continued pension and health care benefits, the Union agreed to accept mechanization of mining, a concession that meant significant layoffs and a smaller future workforce.").

49. Id. at 539-47.

50. Id. at 549 (Kennedy, J., concurring):

The plurality opinion demonstrates in convincing fashion that the remedy created by the Coal Act bears no legitimate relation to the interest which the Government asserts in support of the statute. In our tradition, the degree of retroactive effect is a significant determinant in the constitutionality of the statute. As the plurality explains today, in creating liability for events which occurred 35 years ago the Coal Act has a retroactive effect of unprecedented scope.

51. These included a statute addressing employee health in the mining industry, the Black Lung Benefits Act (BLBA). In Usery v. Turner-Elkhorn Mining Co., 428 U.S. 1 (1976), the Court upheld the BLBA, concluding that it was justified as a remedial measure that allocates the costs of addressing black lung disease "to those who have profited from the fruits of their labor." Id. at 18. Kennedy distinguishes Turner-Elkhorn by noting that the Coal Act was not remedial in this sense. 524 U.S. at 547. The plurality also distinguishes Turner-Elkhorn. Id. at 536.

52. Association of Bituminous Coal Contractors v. Apfel, 156 F.3d 1246, 1254-55 (D.C. Cir. 1998); Anker Energy Corp. v. Consolidated Coal Co., 177 F.3d 161, 170 (3d Cir. 1999).

53. Unlike the plurality, Justice Kennedy shows no indication that he believes the economic impact of the liability on the defendant should be considered. Applying the first prong of its takings analysis, the plurality opinion concludes that the Coal Act's imposition of $ 50 to $ 100 million on Eastern "has forced a considerable financial burden" upon the company. 524 U.S. at 529.

54. "There is no doubt that the Coal Act has forced a considerable financial burden upon Eastern. The parties estimate that Eastern's cumulative payments under the Act will be on the order of $ 50 million to $ 100 million." Id.

55. Id. at 501.

56. Id. at 500.

57. Id. at 534.

58. Id. at 535-36.

59. Id. at 532 (citing Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994)).

60. Id. at 549 (Kennedy, J., concurring). Even the dissenters agreed that the Coal Act would be unconstitutional if it was too unfair "in terms of Eastern's reasonable reliance and settled expectations," id. at 531, though they concluded that Eastern's reasonable expectations were not defeated in this case.

61. Id. at 531.

62. Id. at 536.

63. Id. at 502. The dissenters, for their part, argue that such a connection did exist by the time Eastern left the mining business because Eastern helped create the expectation among miners that they would receive benefits of the kind the Coal Act ensures. That connection, they say, makes Eastern's statutory liability proportional to its responsibility. Id. at 553-54 (Breyer, J., dissenting).

64. 428 U.S. 1 (1976).

65. 524 U.S. at 536 (emphasis added).

66. Id. at 550.

67. The Court's classification of these two statutes is not particularly persuasive. It is difficult to see how the Black Lung Benefits Act is any more remedial than the Coal Act, Both codify regimes by which employers contribute to benefit funds for their former employees.

68. Perhaps the Court intends to exempt remedial retroactive legislation for efficiency reasons—because firms are better able to bear (and to minimize) social costs than those to whom they shifted those costs.

69. For a fuller discussion of the portions of the opinions that discuss causation as one indicator of a remedial statute, see infra section II.A.3.

70. Such a statute is ex ante efficient only if it allocates those costs accurately or proportionately. For a fuller discussion of the portions of the opinions that discuss cost-internalization as an indicator of remedial legislation, see infra section II.A.4.

71. See, e.g., United States v. Dico, Inc., 266 F.3d 864, 32 ELR 20171 (8th Cir. 2001); United States v. Manzo, 182 F. Supp. 2d 385, 408 (D.N.J. 2000); United States v. Vertac Chem. Corp., 33 F. Supp. 2d 769, 29 ELR 21060 (E.D. Ark. 1998); Franklin County Convention Facilities Auth. v. American Premier Underwriters, Inc., 240 F.3d 534, 31 ELR 20470 (6th Cir. 2001); Unity Real Estate Co. v. Hudson, 178 F.3d 649, 652 (3d Cir. 1999).

72. See Tiefer, supra note 6, at 1320 (suggesting that Superfund survives because it requires a causal link, "however weak," before liability is imposed); Danahy, supra note 4, at 563 (arguing that the opinion's narrow reach insulates Superfund from constitutional danger. Cf. James L. Huffman, Retroactivity, the Rule of Law and the Constitution, 51 ALA. L. REV. 1095, 1121 (2000) (suggesting that Superfund might not survive the Eastern Enterprises challenge).

73. 58 F. Supp. 2d. 675, 29 ELR 21477 (E.D. Va. 1999).

74. Id. at 681, 29 ELR at 21479.

75. Id. (regarding a defendant who disposed of chemicals being cleaned up); United States v. Alcan Aluminum Corp., 49 F. Supp. 2d 96, 100, 29 ELR 21379, 21380 (N.D.N.Y. 1999):

Retroactive liability under CERCLA is appropriate because it concerns environmental harms connected to the actions of parties like Alcan. Just as it was reasonable in Turner Elkhorn to impose retroactive liability for unforseen diseases relating to mining, it is reasonable here to impose retroactive liability for possibly unforseen costs of responding to environmental harms resulting from a party's disposal of waste.

76. Accord Alcan Aluminum Corp., 49 F. Supp. 2d at 96, 29 ELR at 21379 (concluding that Eastern Enterprises has "no precedential weight"); Vertac Chem. Corp., 33 F. Supp. 2d at 769, 29 ELR at 21060 (finding Eastern Enterprises "inapplicable"); Maine People's Alliance v. Holtrachem Mfg. Co., L.L.C., 2001 WL 584464, (D. Me. May 29, 2001) ("Eastern Enterprises does not undercut the constitutionality of retroactive liability under CERCLA"); ASARCO, Inc. v. Department of Ecology, 43 P.3d 471, 475 (Wash. 2002) ("CERCLA was challenged in several courts based on Eastern Enterprises, and survived every challenge."); Commonwealth Edison Co. v. United States, 46 Fed. Cl. 29, 39 (2000) ("No part of the plurality's reasoning constitutes binding precedent."); Manzo, 182 F. Supp. 2d at 408 ("This Court, however, joins other courtsin concluding that the Eastern Enterprises decision does not alter the long-standing view that CERCLA does not violate the takings clause."). Two circuit courts have reached similar conclusions about the Supreme Court's decision. Franklin County Convention Facilities Auth. v. American Premier Underwriters, Inc., 240 F.3d 534, 552, 31 ELR 20470, 31 ELR at 20476 (6th Cir. 2001) ("We conclude that Eastern Enterprises has no precedential effect on this case because no single rationale was agreed upon by the Court."); Unity Real Estate Co. v. Hudson, 178 F.3d 649

77. ASARCO, Inc., 43 P.3d at 475.

78. For a full explanation of why that is, see infra section II.A.

79. Similarly, one could argue that the notion of foreseeability subsumes the beneficiary-pays principle (which, in turn, is part of what makes a statute "remedial"), since PRPs who paid reduced rates for property or disposal services were put on notice that something was amiss.

80. It is not that Congress can force any individual to pay to remedy a problem; rather, it has wide latitude to impose proportional liability on firms that share, in some real sense, responsibility for the problem. In the case of Superfund, that responsibility may arise not only when the defendant's direct action caused the problem, but also from the defendant's indirect benefit from such an action taken by another.

81. While Justice Kennedy's concurrence does not seem to give this factor separate weight in assessing the constitutionality of retroactive legislation, the degree of retroactivity may be part of his calculation of disproportionality or foreseeability.

82. Eastern Enterprises, 524 U.S. at 549 (Kennedy, J., concurring) ("As the plurality explains today, in creating liability for events which occurred 35 years ago the Coal Act has a retroactive effect of unprecedented scope."). By this standard, it is not difficult to argue that Superfund is "too retroactive."

83. For example, the U.S. Titanium site in Virginia was contaminated between 1931 and 1971. See site description, at http://216.239.35.100/search?q=cache:LRREDGqV4oUC:www.deq.state.va.us/waste/pdf/superfund/ustitan.pdf+
titanium+dioxide+superfund+site&hl=en&ie=UTF-8. The Waterloo Coal Gasification Plant in Blackhawk County, Iowa was contaminated between 1901 and 1956. See site description, at http://216.239.35.100/search?q=cache:LB2YQmtIIDwC:www.epa.gov/region07/programs/spfd/nplfacts/waterloo_coal.pdf+
Waterloo+Coal+Gasification+Plant&hl=en&ie=UTF-8.

The Conrail Railyard site in Elkhardt, Indiana was contaminated in the early 1960s. See site description, at http://www.epa.gov/R5Super/npl/indiana/IND000715490.htm. There are many other examples of Superfund sites the cleanup liability for which dates back more than 50 years.

84. See, e.g., infra 100 (discussion of the Stringfellow landfill case). For a general explanation of how and why this is, see David B. Spence, Imposing Individual Liability as a Policy Choice: Holmesian Intuitions and Superfund Reform, 93 NW. U. L. REV. 389 (1999).

85. According to one leading authority, strict liability achieves "social justice" by assigning liability where neither party is at fault to the one who can "best bear the loss." See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 20-26 (5th ed. 1984); id. at 536 (quoting Roscoe Pound, The End of Law as Developed in Legal Rules and Doctrine, 27 HARV. L. REV. 195, 233 (1914)).

86. See Victor B. Flatt, How the Common Law Tells Us That Risk-Based Corrective Action Is Wrong, 76 NOTRE DAME L. REV. 341 (2001) (arguing that Superfund liability is no broader than common-law liability).

87. KEETON ET AL., supra note 85, at 327.

88. On this point generally, see Tom Kuhnle, The Rebirth of Common-Law Actions for Addressing Hazardous Waste Contamination, 15 STAN. ENVTL. L.J. 187 (1996).

89. RESTATEMENT (SECOND) OFTORTS §§ 519-520. See also Common-Law Strict Liability in Tort of Prior Landowner or Lessee to Subsequent Owner for Contamination of Land With Hazardous Waste Resulting From Prior Owner's or Lessee's Abnormally Dangerous or Ultrahazardous Activity, 13 A.L.R. 5th § 600 (1994). According to Professor Keeton, when abnormally dangerous activities risk damage to land, the rationale for imposing strict liability is that "the defendant's enterprise . . . must pay its way." KEETON ET AL., supra note 85, at 536. See also Liability of Generators Pursuant to Section 107(A)(3) of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C.A. Section 9607(A)(3)), 126 A.L.R. Fed. 265 (1996).

90. See 42 U.S.C. § 9601(14), ELR STAT. CERCLA § 101(14); 40 C.F.R. pt. 302.

91. Specifically, the federal district court found that while Alcan's emulsion contained traces of five metals, "the level of concentration of these hazardous substances in Alcan's used emulsion was below the naturally-occurring, or ambient, levels of these hazardous substances." United States v. Alcan Aluminum Corp., 892 F. Supp. 648, 25 ELR 21556 (E.D. Pa. 1995).

92. United States v. Alcan Aluminum Corp., 964 F.2d 252, 22 ELR 21124 (3d Cir. 1992).

93. At another site involving Alcan's emulsion, EPA "agreed that the emulsion was not a hazardous substance as defined by CERCLA," and removed Alcan's wastes from the site allocation list; however, the Agency subsequently reversed that decision. United States v. Alcan Aluminum Corp., No. 91-5481, 1991 U.S. Dist. LEXIS 18721 (N.D.N.Y. 1991). But cf. ASARCO (concluding that ASARCO could not reasonably have anticipated that it would incur liability for its emissions of "small doses of lead and cadmium" that contaminated neighboring properties during its smelting operations between 1904 and 1936).

94. Alcan, 964 F.2d at 264, 22 ELR at 21131. The Third Circuit remanded to permit Alcan to prove that the harm was divisible and therefore, that it was not joint and severally liable for cleanup costs. But the district court concluded that Alcan remained liable for cleanup costs even if none of the cleanup effort was directed toward cleaning up the constituents that rendered Alcan's waste a Superfund "hazardous substance."

Most courts have held that CERCLA liability does not depend on the existence of a threshold quantity of a hazardous substance. See, e.g., Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 669, 20 ELR 20281, 20283 (5th Cir. 1989) ("The plain statutory language fails to impose any quantitative requirement on the term hazardous substance and we decline to imply that any is necessary."); Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 922, 927, 15 ELR 20460, 20462 (D.C. Cir. 1985) ("a substance is a 'hazardous substance' within the meaning of CERCLA if it qualifies under any of the several subparagraphs of section 101(14)") (emphasis in original); City of New York v. Exxon Corp., 744 F. Supp. 474, 483, 21 ELR 20248, 20252 (S.D.N.Y. 1990) ("liability under CERCLA attaches regardless of the concentration of the hazardous substances present in a defendant's waste so long as the defendant's waste and/or the contaminants in it are 'listed hazardous substances' . . . ."); United States v. Western Processing Co., 734 F. Supp. 930, 936, 20 ELR 20990, 20992 (W.D. Wash. 1990) ("The concentration or amount of hazardous substance is irrelevant as the statutory definition contains no threshold requirement."); United States v. Conservation Chem. Co., 619 F. Supp. 162, 238, 16 ELR 20193, 20227 (W.D. Mo. 1985):

A waste is a "hazardous substance" under CERCLA if it contains substances listed as hazardous under any of the statutes referenced in CERCLA section 101(14) regardless of the volumes or concentration of those substances; presumably, if Congress intended the definition of hazardous substances to be contingent upon the presence of a certain amount or concentration of a hazardous substance, it would have so provided.

United States v. Carolawn Co., 14 ELR 20696, 20697 (D.S.C. 1984) (CERCLA "simply does not distinguish hazardous substances on the basis of quantity of concentration") (footnote omitted); United States v. Wade, 577 F. Supp. 1326, 14 ELR 20096 (E.D. Pa. 1983) (CERCLA imposes no concentration requirement on the definition of hazardous substances). But see United States v. Ottati & Goss, Inc., 22 ERC 1736, 1739 (D.N.H. 1984) (granting defendant's motion to dismiss on the ground that it "did not cause or contribute to cause the disposal of any hazardous wastes . . . which exceeded the threshold established by the EPA for hazardous wastes") (emphasis supplied).

95. 42 U.S.C. §§ 9607(b)(3), 9601(35)(A), ELR STAT. CERCLA §§ 107(b)(3), 101(35)(A); Pub. L. No. 99- 499, tit. I, §§ 107(a) to (d)(2), (e), (f), 127(b), (e), tit. II, §§ 201, 207(c) (Oct. 17, 1986).

96. The term used in the statute is actually "innocent purchaser" and the defense is contained in 42 U.S.C. § 9607(b)(3), ELR STAT. CERCLA § 107(b)(3), and in id. § 9601(35)(A), ELR STAT. CERCLA § 101(35)(A), which defines "contractual relationship" as including a land transfer instrument when the landowner meets certain specified requirements of the definition. Id. § 9603(35)(A)(i)-(iii), ELR STAT. CERCLA § 101(35)(A)(i)-(iii); id. 9603(35)(B), ELR STAT. CERCLA § 101(35)(B).

97. In addition, courts have held that parties successful in applying the innocent landowner defense are able to recover all of its costs under § 9607, see Advanced Technology Corp. v. Eliskim, Inc., 96 F. Supp. 2d 715, 30 ELR 20574 (N.D. Ohio 2000), and are not limited, like other PRPs, to an action for contribution. Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 29 ELR 20065 (6th Cir. 1998).

98. M & M Realty Co. v. Aberdeen Terminal Corp., 977 F. Supp. 683, 686 (M.D. Pa. 1997) set forth the four elements that must be proven by a preponderance of the evidence for a party to successfully assert the "innocent purchaser" defense:

1) another party was the sole cause of the release of hazardous substances and the damages caused thereby; 2) the purchasing landowner did not actually know or have reason to know of the presence of the hazardous substance at the time of acquisition; 3) the purchasing landowner undertook appropriate inquiry at the time of acquisition, in order to minimize liability; and 4) the purchasing landowner exercised due care once the hazardous substance was discovered.

This same test was applied by other courts as well. See, e.g., United States v. Manzo, 182 F. Supp. 2d 385 (D.N.J. 2000); Grand St. Artists v. General Elec. Co., 28 F. Supp. 2d 291, 29 ELR 21053 (D.N.J. 1998); United States v. CDMG Realty Co., 96 F.3d 706, 26 ELR 21589 (3d Cir. 1996). To the contrary, according to one commentator, the innocent landowner defense has recently been "eviscerated by the courts." See Court Finds Failure to Remediate Site Equitable Consideration in Cost Allocation, 27 Env't Rep. (BNA) 1586 (Nov. 29, 1996).

99. See, e.g., Manzo, 182 F. Supp. at 385 (no innocentlandowner defense even if landowners were not aware that waste oil they used to oil road they built on property contained polychlorinated biphenyls); United States v. Mexer, 120 F. Supp. 2d. 635, 640 (W.D. Mich. 1999) (despite fulfilling requirements of innocent landowner defense, defendant held liable nonetheless because only purchasers and not lessees are covered under defense.); Idylwoods Assocs. v. Mader Capital, Inc., 956 F. Supp. 410, 27 ELR 21003 (W.D.N.Y. 1997) (owners and operators cannot assert an innocent landowner defense unless they exercise due care); Containerport Group v. American Fin. Group, Inc., 128 F. Supp. 2d 470, 31 ELR 20433 (S.D. Ohio 2001) (owner or operator must take affirmative steps to address the contamination problem in order to avail itself of the defense); Franklin County Convention Facilities Auth. v. American Premier Underwriters, Inc., 240 F.3d 534, 31 ELR 20470 (6th Cir. 2001) (stopping work, and contacting environmental consultant not sufficient to meet "due care" standard); Foster v. United States, 922 F. Supp. 642, 26 ELR 21327 (D.D.C. 1996) (owner of contaminated property who did not conduct a pre-purchase environmental investigation and took no precautions after the contamination cannot assert innocent landowner defense); Farmland Indus., Inc. v. Colorado & Eastern R.R. Co., 922 F. Supp. 437 (D.D.C. 1996) (a property owner's failure to clean up contaminated debris released on to its property by another exacerbated Superfund response costs and justified allocating most of the associated costs to the owner); North Carolina v. Howes, 889 F. Supp. 849 (E.D.N.C. 1995) (defendant not entitled to raise innocent purchaser defense if release continued during his ownership). See also Avondale Fed. Sav. Bank v. Amoco Oil Co., 170 F.3d 692, 29 ELR 21001 (7th Cir. 1999) (holding that innocent landowner could not recover from PRPs under RCRA for costs due to EPA order issued under CERCLA). In contrast to these cases stand Thomson Precision Ball Co. v. PSB Assoc. Liquidating Trust, 2001 U.S. Dist. LEXIS 340 (holding that innocent landowner status is available when hazardous substances are not disclosed by prior owner); Rumpke of Ind., Inc. v. Cummins Engine Co., 107 F.3d 1235, 27 ELR 20596 (7th Cir. 1997) (if PRP landowner alleges that it did not contribute to the disposal of hazardous substances, it may sue other PRPs for cost recovery under § 107). However, other circuits have declined to follow Rumpke, see, e.g., Burlington N. & Santa Fe R.R. Co. v. Cargill, Inc., 76 F. Supp. 2d 1155 (D. Kan. 1999).; Goe Eng'g Co. v. Physicians Formula Cosmetics, Inc., No. 94-3576-WDK (D.C. Cal. June 3, 1997) (owner who was unaware of contamination at time of purchase and exercised due care after the purchase can assert the innocent landowner defense). In dicta, the Third Circuit, in United States v. CDMG Realty, 96 F.3d 706, 26 ELR 21589 (3d Cir. 1996), indicated disagreement with the application of the innocent landowner defense only to current owners, and argued that past owners, in certain circumstances, should be able to assert it to prevent injustice (holding that the term disposal does not include passive placement for purposes of asserting the innocent landowner defense); cf. ABB Indus. Sys., Inc. v. Prime Tech., Inc., 120 F.3d 351, 27 ELR 21335 (2d Cir. 1997) (concluding that it is available to current and past owners); Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 32 ELR 20180 (9th Cir. 2001) (holding construction of statute requires consideration of both "disposal" and "placement" in determining application of innocent landowner defense, potentially expanding its scope). This active/passive distinction in regard to the meaning of disposal is a yet unresolved issue, with the cases lying on a continuum of interpretations, from United States v. 150 Acres of Land, 204 F.3d 698, 30 ELR 20300 (6th Cir. 2000) (disposal is active only), to Nurad, Inc. v. Wm. E. Hooper & Sons Co., 966 F.2d 837, 22 ELR 20936 (4th Cir. 1992) (holding that disposal includes passive migration).

100. Nor can Superfund liability be properly analogized to products liability cases. In most products liability cases, the plaintiff must demonstrate that the product in question was defective in a way that caused the plaintiff's injury and that the defect existed when it left the defendant's control. See RESTATEMENT (SECOND) OF TORTS § 402(a) cmt. g. See also RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY §§ 1, 2, 15, 16 (Proposed Final Draft 1997). These elements of a strict products liability cause of action act as barriers to recovery for some prospective plaintiffs. Furthermore, products liability theories are based on the dangers associated with a product's foreseeable or intended uses, and misuse is usually a defense to liability. See RESTATEMENT (SECOND) OF TORTS § 402(a) cmt. n. See also RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 17(a) cmt. c. (Proposed Final Draft 1997). By contrast, Superfund PRPs such as Alcan are liable irrespective of (1) whether their hazardous substances are defective in this sense, or (2) whether the acts of others caused the dangerous or harmful condition. See, e.g., United States v. Stringfellow, 661 F. Supp. 1053, 1060-1, 17 ELR 21134, 21136 (C.D. Cal. 1987) (holding that Superfund does provide a defense to liability for contamination caused by an act or omission of a third party other than an agent of the PRP "or one whose act or omission occurs in connection with a contractual relationship . . . with the [PRP]," (citing 42 U.S.C. § 9607(b)(3), ELR STAT. CERCLA § 107(b)(3)). The so-called "third party defense" to liability is unavailable to PRPs whose wastes are connected to a site by the actions of a contractor (or a contractor's contractor) cannot avail themselves of this defense. Defenders of strict retroactive liability may argue that despite these differences, the purpose behind strict products liability applies to Superfund PRPs. That purpose is to prevent future harm, and like manufacturers of defective products, PRPs are in a better position to prevent the harm that their hazardous substances may cause, and so liability for that harm should fall on them. KEETON ET AL., supra note 85, § 75, at 536. However, even this argument is specious. Courts use this rationale to impose strict, retroactive products liability on individual manufacturers in individual cases because this is the only way courts can give their decisions prospective effect. This is, of course, not a problem for Congress. Congress can impose strict liability prospectively without imposing it retroactively.

101. See Combined Properties/Greenbriar, 58 F. Supp. at 17, 29 ELR at 21479.

102. See, e.g., Flatt, supra note 86, at 371 (arguing that the common law imposes liability on party (plaintiff or defendant) who is more relatively innocent). To the extent that this summary of common law liability implies that the plaintiff need not prove the essential elements of a claim, including causation, it too mischaracterizes the law. It also sidesteps the other differences, discussed infra, between assigning liability between litigants in a tort lawsuit and assigning liability legislatively, which differences occupy a central role in the Court's analysis of the constitutionality of retroactive legislation.

103. See RESTATEMENT (SECOND) OF TORTS, supra note 100; KEETON ET AL., supra note 85, at 536. The other primary justification for imposing strict liability on firms in connection with hazardous substances is that doing so deters accidents. See, e.g., William K. Jones, Strict Liability for Hazardous Enterprise, 92 COLUM. L. REV. 1705 (1992) (arguing for a broader application of strict liability than that called for by the Restatement). Cf. Joseph H. King Jr., A Goals-Oriented Approach to Strict Tort Liability for Abnormally Dangerous Activities, 48 BAYLOR L. REV. 341, 379 (1996) (defending the limitation of liability to situations in which the defendant has "introduced something different—something abnormally dangerous—that has significantly changed the risk equation . . ."). For an examination of the compensatory and deterrent rationales of strict liability, see Virginia E. Nolan & Edmund Ursin, The Revitalization of Hazardous Activity Strict Liability, 65 N.C. L. REV. 257 (1987).

104. See, e.g., New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d. Cir. 1986) (Superfund "imposes strict liability without regard to causation"); United States v. Alcan Aluminum Corp., 990 F.2d 711, 23 ELR 20706 (2d Cir. 1993) (Superfund "does away with the causation requirement"); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1154, 20 ELR 20334, 20338 ("there is nothing . . . which requires proof that the defendant's hazardous waste actually have migrated to plaintiff's property, causing contamination of plaintiff's property, before CERCLA liability is triggered"); Prisco v. New York, 902 F. Supp. 374, 26 ELR 20415 (S.D.N.Y. 1995) ("Once a defendant is identified as a responsible party, it is subject to CERCLA liability and the plaintiff need not show [causation]"); Atlantic Richfield Co. v. Blosenski, 847 F. Supp. 1261, 24 ELR 21125 (E.D. Pa. 1994) ("a causation requirement is at odds with the basic structure of CERCLA's definition of responsible parties"); United States v. Hooker Chems. & Plastics Corp., 680 F. Supp. 546, 549, 18 ELR 20580, 20580 (W.D.N.Y. 1988) ("Generally, the [plaintiff] need not establish causation but need only show a given defendant meets the criteria of a 'responsible party' under section 107(a) in order to be held liable under CERCLA."); see also United States v. A&N Cleaners & Launderers, Inc., 854 F. Supp. 229, 239 (S.D.N.Y. 1994); Tanglewood E. Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 18 ELR 21348 (5th Cir. 1988) (developer-owner of land on which wood treating facility had previously operated and on which highly toxic creosote had accumulated was liable as a PRP notwithstanding fact that hazardous waste was discharged by the wood treating facility).

105. Nor does the innocent landowner defense provide a causation exception or causation defense. See, e.g., Foster v. United States, 922 F. Supp. 642, 26 ELR 21327 (D.D.C. 1996) (owner of contaminated property who did not conduct a pre-purchase environmental investigation and took no precautions after the contamination cannot assert innocent landowner defense); Farmland Indus. v. Colorado & Eastern R.R. Co., 922 F. Supp. 437 (D.D.C. 1996) (a property owner's failure to clean up contaminated debris released on to its property by another exacerbated Superfund response costs and justified allocating most of the associated costs to the owner).

106. See also United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 19 ELR 21038 (8th Cir. 1989) (holding clients of recycler who disposed of chemicals on site liable as "arrangers" because they could foresee that recycler might spill chemicals on site).

107. 42 U.S.C. § 9607(b)(3), ELR STAT. CERCLA § 107(b)(3).

108. 524 U.S. at 532.

109. Id. at 546.

110. Id. at 537 (emphasis added).

111. Id. at 524 (citing Turner-Elkhorn).

112. Id.

113. Id. at 549-50 (Kennedy, J., dissenting). It is not entirely clear, to me at least, how the Coal Act is less remedial than the Black Lung Benefits Act. Both impose retroactive liability for paying health benefits on employers. Both statutes impose liability on employers to pay benefits to miners to compensate them for health costs sustained as a result of their work in the mines. The only real distinctions the Court makes between the two statutes focus on the greater foreseeability (in the eyes of the majority, at least) of the former.

114. Indeed, while it is not an airtight argument by any means, one might argue that the below market rate might have put the buyer on notice that it was purchasing something less than proper disposal.

115. Of course, that intermediary may or may not be a PRP at the site, depending on whether the intermediary is available and solvent. Even if the intermediary is a PRP, that fact will not absolve the first PRP of liability.

116. For a fuller exposition of the reasoning that leads to this conclusion, see Don Fullerton & Seng-Su Tsang, Should Environmental Costs Be Paid by the Polluter or the Beneficiary?, 85 PUB. ECON. REV. 85 (1996); KATHERINE N. PROBST & PAUL R. PORTNEY, ASSIGNING LIABILITY FOR SUPERFUND CLEANUPS; AN ANALYSIS OF POLICY OPTIONS (1994).

117. Fullerton and Tsang note that under not uncommon competitive conditions, consumers capture all the benefits of these externalities. Fullerton & Tsang, supra note 116, at 6. Probst & Portney go on to note another dimension of this fairness problem, i.e., that Superfund always imposes liability on current shareholders, successors in interest to the shareholders the time disposal occurred:

To the extent that retroactive liability collects from new shareholders rather than from the former managers or shareholders that are responsible for the pollution, it does not really follow the polluter-pays principle. And to the extent that it collects from shareholders rather than from consumers, retroactive liability does not follow the beneficiary-pays principle either.

PROBST & PORTNEY, supra note 116, at 67. One possible rejoinder to this argument is that shareholders assume this risk when they invest. I will not address this argument here. See also JOHN HIRD, SUPERFUND 120-21 (1990).

118. HIRD, supra note 117, at 122.

119. Interestingly, the U.S. Court of Appeals for the Second Circuit has indicated that owners in this situation can raise Superfund's third-party defense unless the contract between owner and tenant concerned the handling of hazardous substances. Westwood Pharmaceuticals, Inc., v. National Fuel Gas Dist. Corp., 964 F.2d 85, 22 ELR 20813 (2d Cir. 1992); see also New York v. Lashins Arcade Co., 91 F.3d 353, 26 ELR 21506 (2d Cir. 1996).

120. A landowner who transfers property knowing of the contamination problem on-site, without disclosing its existence, is liable as a Superfund owner, according to the District Court for the Western District of Kentucky in Anheuser Bush, Inc. v. Ford Motor Co., 1997 U.S. Dist. LEXIS 3556 (D.W. Ky. Feb. 10, 1997).

121. KEETON ET AL., supra note 85, at 328. See also RESTATEMENT (SECOND) OF TORTS, supra note 100, § 886A.

122. KEETON ET AL., supra note 85, at 328.

123. Id. at 354-55.

124. These cases are usually so-called contribution actions, brought under § 113 of the statute or (less commonly) cost-recovery actions brought under § 107. See 42 U.S.C. §§ 9607, 9613, ELR STAT. CERCLA §§ 107, 113.

125. Suits by EPA for cleanup costs are brought under either of two statutory sections. EPA "cost-recovery" actions are brought under § 107 for reimbursement of the trust fund after a cleanup financed by EPA. 42 U.S.C. § 9607, ELR STAT. CERCLA § 107. Alternatively, EPA can sue to force a court-ordered, PRP-financed cleanup under § 106. 42 U.S.C. § 9606, ELR STAT. CERCLA § 106.

126. I also use the terms "PRP-led" and "fund-led" to describe cleanups that are financed, in the first instance, by PRPs or the trust fund, respectively. Of course, even fund-led cleanups are PRP-financed to the extent EPA can secure reimbursement of the fund through cost-recovery litigation after cleanup.

127. For a good summary of the kinds of factors that go into allocation formulae, see Frank L. Mink et al., Superfund Site Contamination: Apportionment of Liability, 12 NAT. RESOURCES & ENV'T 68 (1997).

128. For a discussion of the distribution of transaction costs between the trust fund and PRPs, see PROBST & PORTNEY, supra note 116, at 21-23.

129. EPA estimates that orphan shares comprise about 18% of total Superfund PRP shares. See EPA estimate cited by PROBST & PORTNEY, supra note 116, at 33.

130. The circuits have been split on the question of whether cooperating PRPs can sue noncooperating PRPs for cost recovery under § 107, but a strong majority says "no." See, e.g., New Castle County v. Haliburton Nus Corp., 11 F.3d 1116, 27 ELR 21159 (3d Cir. 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 27 ELR 21211 (9th Cir. 1997); Klein v. Grand Union Co., No. 91 CIV. 8459 (CLB), 1997 U.S. Dist. LEXIS 6149 (S.D.N.Y. Feb. 25, 1997) (PRP seeking contribution must establish each defendant PRPs' equitable share of liability.); SC Holdings, Inc. v. A.A.A. Realty Co., 935 F. Supp. 671, 27 ELR 20120 (D. N.J. 1996). While this is the clear majority interpretation of the statute among the circuits, some courts have permitted PRPs who voluntarily agree to clean up waste at a site to bring cost-recovery actions under certain circumstances. See Rumpke of Ind., Inc. v. Cummins Engine Co., 107 F.3d 1235, 27 ELR 20596 (7th Cir. 1997) (if PRP landowner alleges that it did not contribute to the disposal of hazardous substances, it may sue other PRPs for direct cost recovery). On the other hand, in at least one case, a settling PRP was denied the rights to bring a contribution action where the defendant's share of liability would be "far less than the costs of litigation." Acushnet Co. v. Coaters, Inc., 972 F. Supp. 41, 28 ELR 20367 (D. Mass. 1997), aff'd sub nom. Acushnet Co. v. Mohasco Corp., 191 F.3d 69, 30 ELR 20071 (1st Cir. 1999). For a fuller discussion of this issue, see, e.g., JOHN M. HYSON, PRIVATE COST-RECOVERY ACTIONS UNDER CERCLA (Envtl. L. Inst. forth-coming 2002); John M. Hyson, The Plaintiff's Burden in CERCLA Contribution Actions: Unscrambling the First Circuit's Acushnet Decision, 31 ELR 10180 (Feb. 2001); Michael V. Hernandez, Cost Recovery or Contribution?: Resolving the Controversy Over CERCLA Claims Brought by Potentially Responsible Parties, 21 HARV. ENVTL. L. REV. 83 (1997); William D. Araiza, Text, Purpose, and Facts: The Relationship Between CERCLA Sections 107 and 113, 72 NOTRE DAME L. REV. 193 (1996).

131. One interesting example of how orphan share liability can be unfairly allocated is the case of In re Eagle-Picher Indus., Inc., No. MS-1-96-228 (Bankr. S.D. Ohio 1996). In that case, settling PRPs brought their contribution actions against a bankrupt PRP. Meanwhile, EPA settled with the bankrupt PRP on a number of claims, including Superfund liability claims, promising contribution protection as part of the settlement. The settlement between EPA and the bankrupt PRP effectively insulated the PRP from paying any portion of the orphan shares, leaving those shares to be covered by settling PRPs who voluntarily cleaned the site.

132. See THOMAS W. CHURCH & ROBERT NAKAMURA, CLEANING UP THE MESS; IMPLEMENTATION STRATEGIES IN SUPERFUND 13-18 (1993).

133. Under mixed funding, when a subset of PRPs agrees to pay for cleanup, EPA agrees to pay the shares of nonsettling PRPs and, therefore, to bear the risk associated with recovering money from those nonsettlers. Mixed funding arrangements are specifically authorized by the statute. 42 U.S.C. § 9622(b)(1), ELR STAT. CERCLA § 122(b)(1). The term "mixed funding" is sometimes used to refer to other situations in which the trust fund and PRPs share costs, but this is the most important type of mixed funding situation for PRPs faced with the "cooperate or fight" decision. The EPA's mixed funding policy is itself illustrative of the Agency's ambivalence, in that it encourages mixed funding as a general matter but discourages its use where the risk to the trust fund of incurring excess costs is significant. See Memorandum from J. Winston Porter, U.S. EPA, on Evaluating Mixed Funding Settlements Under CERCLA (Oct. 20, 1997).

134. EPA's policy on orphan shares limits trust fund coverage of orphan shares to 25% of the costs of the remediation work (excluding studies and other preliminary costs). See Memorandum from Steven A. Herman, U.S. EPA, on Interim Guidance on Orphan Share Compensation for Settlors of Remedial Design/Remedial Action and Non-Time Critical Removals (June 3, 1996).

135. See William Balcke, Superfund Settlements: The Failed Promise of the 1986 Amendments, 74 VA. L. REV. 123 (1988); New Emphasis on Settlements Encouraging, GAO Official Tells Subcommittee Hearing, 24 Env't Rep. (BNA) 415 (July 9, 1993); Industry Criticism Leads EPA to Study Ways to Increase Use of Mixed Funding, 23 Env't Rep. (BNA) 2068 (Dec. 18, 1992). In 1993, the EPA's director of waste programs attributed the Agency's underuse of mixed funding to the statutory policy in favor of maximizing recoveries from PRPs. Changing, Eliminating Some Requirements Could Streamline Settlements, Official Says, 24 Env't Rep. (BNA) 729 (Aug. 20, 1993).

136. For example, see O'Neil v. Picillo, 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989), in which the Agency settled with 30 of 35 defendants for $ 5.8 million. After cost-recovery actions against the five nonsettlers, three of the five were held liable for an additional $ 1.4 million, even though their waste comprised only a very small percentage (less than 1%) of the waste at the site, all within intact barrels that were removed during cleanup.

137. If EPA does make intentionally allocate excess liability to nonsettling or deep-pocketed PRPs, that practice raises another question, namely, whether the identity of PRPs ought to play a part in our assessment of the fairness of the liability system. Despite their differences, the Justices in Eastern Enterprises seem motivated by the concern that any legislative system for imposing retroactive liability be objectively fair, i.e., that it treat similarly situated parties similarly without regard to their identity. Common notions of fairness require that any such decision rule be based on some sort of conduct on the part of the potentially liable party. Thus, while ability to pay may be a perfectly proper basis for requiring some taxpayers to pay more taxes than others, it alone is not a proper justification for imposing liability on one individual over another.

138. For example, in Combined Properties/Greenbriar, the defendants were a group of dry cleaners who deposited solvents in the ground.

139. United States v. Alcan Aluminum Corp., 49 F. Supp. 96, 98, 29 ELR 21379, 21380 (N.D.N.Y. 1999).

140. Alcan's arguments were made as part of its argument that the harm at the site was divisible. Id. at 97, 29 ELR at 21380.

141. Id. at 98, 29 ELR at 21380. The Second Circuit, for example, has pinned Alcan's liability at the PAS site on the conclusion that Alcan's wastes provided a "mode of transport" for other, hazardous wastes that facilitated the migration of those wastes. In that sense, then, Alcan contributed to the harm. Of course, any liquid (including groundwater or tap water) could "contribute" to the harm in that very same way.