Time For Another Superfund Rant: Still Stupid After All These Years.

It’s been some time since I ranted about Superfund, but that’s not because the statute’s gotten any more reasonable.  To the contrary, there’s so much to rant about that it usually just seems too futile to bother.  Take Scott Pruitt’s vow to return Superfund to the “core” of EPA’s mission.  Funny, as stupid as CERCLA has always been, it’s never been at the core of EPA’s mission, because prior administrations acknowledged that the risks posed by Superfund sites aren’t even in the top ten risks EPA has responsibility for addressing.

In any case, the decision last month in LCCS Group v. A.N. Webber Logistics reminded me why periodic rants are necessary.  The LCCS Group is remediating the Lake Calumet Cluster Site (a name which itself would prompt all sorts of comments here if this were not a family-friendly blog).  It brought a contribution claim against Interplastic Corporation, whose only connection to the Site was apparently one shipment of 50 drums of waste resin to the LCCS.

The manufacture of the resin utilizes certain CERCLA hazardous substances.  However, it’s pretty clear that, once the resin has cured, no hazardous substances can leach out of the cured resin.  The Court denied cross motions for summary judgment, largely because it wasn’t totally clear whether the waste resins sent to LCCS by Interplastic were fully cured, so that there was a genuine dispute of material fact.

Then why the rant?  Because the entire discussion has something of an angels on the head of a pin quality to it.  Because the Court made clear that whether Interplastic’s waste resins actually leached hazardous substances or whether any such releases actually caused the incurrence of response costs simply does not matter.

I understand strict liability.  I don’t object to strict liability.  There are fine economic reasons for imposing strict liability.  But liability without causation?  It’s part of what resulted in Superfund being the incredibly inefficient, wasteful, program that all practitioners know it to be.

Time to move CERCLA to the core of the ashbin of history, where it has long deserved to be.

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