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Superfund's Emerging Issues


May 12, 2015


Washington, DC

An ELI Public Seminar

The early years of CERCLA were notable for litigation over the breadth and meaning of Superfund’s often obtuse provisions, but until fairly recently it appeared that many of the key issues of the first 20 years were resolved, either through amendments or the vast body of case law that courts have developed while grappling with the statute. Though sometimes considered a mature area of law, two issues in particular have been the focus of recent developments in the field. In the last several years, courts have reopened discussion on the extent to which liability among responsible parties is joint and several. The Supreme Court’s holding in Burlington Northern, that a reasonable basis for apportionment can overcome the presumption of joint and several liability, has raised new questions about what kinds of facts are necessary to succeed on such a claim.

Additionally, as EPA has moved to remediate increasingly larger areas, CERCLA’s liability scheme arguably creates some tension with underlying views of the equitable distribution of the costs of pollution. In “mega-sites” like rivers or bays with histories of industrial pollution that reach back 100 years or more and involve hundreds of defunct entities that cannot contribute to the cleanup, CERCLA’s liability scheme often places the burden on contemporary industry and governmental entities that have little to do with past contamination.

Our expert panel discussed the evolution and current state of joint and several liability and issues raised by “mega-site” remediation projects. We also celebrated the release of the Superfund Deskbook, 2nd Edition, authored by two of the panelists and published by ELI Press. Reception attendees were able to purchase the book on site with a 20% discount. For more information about Superfund Deskbook, 2nd Edition, visit http://www.eli.org/eli-press-books/superfund-deskbook-2d-edition.

Jay Pendergrass, Senior Attorney and Director, Climate and Energy Program, ELI (moderator)
Michael Daneker, Partner, Arnold & Porter LLP and Author of Superfund Deskbook, 2nd Edition
Kathleen L. Millian, Partner, Terris Pravlik & Millian, LLP
Allison Rumsey, Partner, Arnold & Porter LLP and Author of Superfund Deskbook, 2nd Edition

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