When Is One Generator Liable for Another's Waste

Since the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund Act) was adopted as a compromise bill by the lame duck Congress in December of 1980, companies that generated and disposed of hazardous wastes at off-site facilities have been seriously concerned about the question of when one company can be held liable for clean-up and other response costs associated with another company's wastes. Two issues are central to the question of when one generator may be liable for another's waste: 1) whether and to what extent a causal connection must be shown to exist between a generator's waste and a particular response measure or cost, and 2) whether liability under the Superfund Act is joint and several or several only. The language of the Superfund Act does not clearly resolve either issue, and while some trial courts have recently begun to address them, no definitive solution is at hand. This article will examine the first group of judicial decisions under the Superfund Act addressing the issues of joint and several liability and causation. This Article will also note those issues that have not yet been addressed by the courts, but which must be resolved in the course of determining the liability of one generator for the waste of another.