CERCLA (the superfund statute) was the last of the big environmental statutes, and was really the last of the big government command-and-control regulatory programs. It deals with pollution (there had been acts about land polution, air pollution, etc). The purpose of the superfund was to deal with abandoned and uncontrolled hazardous waste sites.
For our purposes, the main thing is that this statute applies where there has been a release (or threat of release) of a hazardous substance. These factors are very broadly defined. There's a two-pronged basis for defining hazardous:
So pretty much everything can be hazardous. And if there's a release or threat of release, the statute kicks in and either:
Who are liable parties? Four categories:
There's no volumetric threshold to trigger the statute (i.e., a teaspoonful would do it as well as a barrel).
Liability is strict, joint/several, and retroactive. (that's judge-made law, not in the statute). § 113(f) provides a right of contribution between liable parties. The basis for apportioning liability in a § 113(f) contribution action is "equitable principles." That's pretty wishy-washy, but basically the district court has broad discretion to decide what is appropriate in an individual case. So the standard of review is abuse of discretion, which is hard to prove.
There are only three defenses:
Within that 3rd-party defense, there's a sub-defense: the "innocent purchaser" defense. § 101(35). If someone acquired contaminated property, not knowing, and without reason to know, and didn't contribute to the contamination themselves, they may not be liable as owners, if they took "all appropriate inquiry" under the statute to ascertain whether there was an environmental property. Of course, that's a moving target: standards may have changed since the time of acquisition.
Cleanups are very expensive ($40M on average, but some are way bigger). The way the process works (under the "National Contingency Plan [policy? NCP anyway]). NCP specifies how to investigate a site to decide whether it falls under the statute and how to prioritize it (i.e., will EPA take action, or leave it to the state, etc.). NCP also specifies how to undertake site remediation.
The regulations focus primarily on the soil and the groundwater (where the contaminants are and where they are going). First they determine the nature and extent of the problem-- that will allow them to do the prioritization. Ordinarily that means finding out what the contaminants are, how much of them there are (volume and concentration). Lateral and vertical extent of contamination are determined by sampling. Gathering those data and making estimates takes time and money; usually this is done by the state environmental agency under agreement with EPA.
And samples have to be stored, and the people who collect them have to be trained (because the materials are hazardous), and there are federal protocols for that, and they might need hazmat gear, which is spendy too. And all that is before anyone even decides there needs to be a cleanup. When that decision is made, the parties who will be tasked with the cleanup do more detailed studies, which in turn cost more; there are a lot of factors at work, though.
Then there are regs about how the cleanup has to be done. It usually involves removing the contaminated soil. And maybe burning it (which is quite expensive, since dirt doesn't burn easily). And you have to carefully clean your bulldozers, and dispose of the wastewater, and so on and so on. It really adds up.
This is lawyer- and consultant-intensive as well. Lots of meetings with agencies and experts.
Once somebody gets fingered under the statute (i.e., becomes a PRP: remember that liability hasn't been adjudicated yet-- the goal is to take action without having to wait out a big lawsuit), failure to follow EPA's order is treble damages. So the goal is to reduce your exposure by laying off liability on other parties.
So normally litigation is costly enough that you think twice about filing a suit, but here is't not that big a deal relative to a substantial share of liability for the site. But someone with only a small share might like to avoid a lawsuit. So different parties may well have quite different attitudes about lawsuits. And it's not unusual to have even hundreds of defendants, lots of detail, and lots of mystery (because often who contributed the contaminants is did so long ago, and there aren't great records).
Anyway, there is a lot of pressure to settle, and a lot of incentive to point the finger at everybody else. If we don't work this out, it's going to litigation.
The parties and their interests:
Note, however, that we don't know now how much it's going to cost to clean up, and we won't know for sure anytime soon. We don't even know for sure who all the liable parties are, or what their fair share ought to be (or would be if we litigated in federal court for several years about the equitable principles). We just can't know these things in advance, and caselaw provides little guidance. There is a ton of uncertainty.