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Copyright 1993 University of Chicago.

University of Chicago Law Review

When Less is More: A Significant Risk Threshold For CERCLA Liability

Spring, 1993

60 U. Chi. L. Rev. 697


Evan Bogart Westerfield *


"What mighty contests rise from trivial things" 1

The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") 2 establishes an array of regulatory and judicial mechanisms designed to address the health risks and other problems associated with improperly disposed hazardous wastes. One of these mechanisms, the cost recovery action, autho- rizes federal and state governments as well as private citizens to remedy sites contaminated with hazardous wastes and then bring suit to recover the costs of this cleanup from "responsible" par- ties. 3 CERCLA's drafters believed that such suits would help defuse the nation's toxic time bomb 4 rapidly and at the polluters' expense. 5

The centerpiece of the cost recovery mechanism is an expan- sive liability scheme. CERCLA makes liable an enormously broad range of parties, including many that would surely escape liability under traditional common law principles. 6 Parties may have to bear the full cost of cleanup, for instance, even if they disposed of their wastes according to prevailing law 7 and even if no evidence shows that their wastes, rather than someone else's, caused the contamination at the site. 8 Such sweeping liability may seem un- fair, but CERCLA's drafters insisted that the drastic nature of the hazardous waste problem necessitated just such a drastic solution. 9

Recently, some courts have extended CERCLA's already wide liability net even further, holding that parties can be liable even if the hazardous materials they discharged into the environment posed only very low risks of harm. ...
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