Seek and destroy: designation of potentially responsible parties under CERCLA

Abstract

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund) gives the Environmental Protection Agency (EPA) broad powers to clean up hazardous waste sites in the United States. The EPA can designate owners and operators of waste sites and generators and transporters of hazardous substances as potentially responsible parties (PRPs). The PRPs must clean up the site or face substantial fines and penalties. Under the doctrine of “strict, joint, and several liability”, the EPA can require a few PRPs to assume the entire burden of cleaning up a site, even though their contribution to the release has been minimal. To avoid inequitable results, the paper proposes several practical and politically feasible modifications to CERCLA which would (1) require the EPA to justify its designation of PRPs, (2) allow nonculpable and de minimis PRPs to win dismissal from cleanup orders, and (3) allow minor contributors to avoid joint liability and pay only their proportional costs of cleanup.