A Fundamentally Different Superfund Program

passed the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et seq., to address the growing problem of abandoned hazardous waste sites. CERCLA creates a fund, commonly known as Superfund, which the Environmental Protection Agency (EPA) can access to finance the remediation of sites that pose the highest risk. Unlike most other major environmental programs, the cleanup program operates primarily through a single set of comprehensive regulations, the National Oil and Hazardous Substance Pollution Contingency Plan (NCP), at 40 C.F.R. Part 300. The NCP provides EPA with considerable flexibility to implement the Superfund program. This article highlights the changes that have resulted in a Superfund program fundamentally different from that which existed five years ago. CERCLA § 107, 42 U.S.C. § 9607, imposes liability on those persons responsible for the presence of hazardous substances at a site. Liability under CERCLA is strict, joint and several for indivisible harms and it applies retroactively (i.e., imposes liability based on preenactment events). Claims by a defendant that it was not negligent or was acting in accordance with industry standards are not defenses to liability. In many respects, CERCLA is the most advanced hazardous waste cleanup program in the world. It has yielded over $12 billion in commitments to remedy contamination, and responsible parties currently perform or pay for approximately 70 percent of long-term cleanups. CERCLA also has prevented countless acts of pollution because its strong liability system serves as a deterrent against illegal and harmful waste management practices. As reflected in the liability provisions, parties responsible for contamination should be responsible for the cleanup. EPA instituted an Enforcement First policy in 1989, U.S. Environmental Protection Agency, A Management Review of the Superfund Program, OSWER Directive 9201. 01-A (1989), using its enforcement authority to assure that viable private parties that