Reinstating CERCLA as the “Polluter Pays” Statute with the Circuit Court’s Mutually Exclusive Approach

By Brianna E. Tibett, [1] Administrative Editor
Vermont Journal of Environmental Law
This post is part of the Environmental Law Review Syndicate. Please post any comments on the original, which can be found here.
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INTRODUCTION
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The purpose of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is to facilitate the “timely cleanup of hazardous waste sites and to ensure that the [cleanup costs are] borne by those responsible for the contamination.”[2] The proper application of CERCLA’s two private causes of action is necessary to achieve these goals. When applied properly they encourage private parties to voluntarily cleanup hazardous waste sites, effectively spread the cost of cleanup to the responsible parties, and encourage settlement.

For example, when a private potentially responsible party (PRP) voluntarily cleans up a site before any action regarding the site is commenced the PRP eliminates their exposure to uncertain liability, and avails itself of the “arguably preferred recovery vehicle for a PRP,” the cost recovery action. The private cost recovery action, under § 107(a)(4)(B), allows private parties to seek to recover the costs they incurred in voluntarily cleaning up a contaminated site from PRPs (regardless of their contribution to the site’s contamination).[3] The PRP subject to the § 107(a)(4)(B) cost recovery action, can counterclaim in or bring against multiple other PRPs a § 113(f)(1) contribution action, requiring the equitable apportionment of the response costs.[4] The remedy and the shorter statute of limitations afforded by contribution actions incentivizes PRPs to immediately locate other PRPs and initiate lawsuits sooner.[5]

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