[*] Professor of Legal Studies, Bowling Green State University. B.S. Education, 1978, Bowling Green State University; J.D., 1981, University of Toledo College of Law. Since this speech was written as part of Ms. Browner's duties as a U.S. Government employee, the Journal's copyright provision does not attach. Please credit the U.S. Environmental Protection Agency whenever reproducing any parts of this speech. Return to text.

[**] Research assistant to Professor Kubasek. Return to text.

[***] Research assistant to Professor Kubasek. Return to text.

[1] See infra Part III. Return to text.

[2] See id.

3. Pub. L. No. 95-510, 94 Stat. 2767 (1980) (codified as amended at 42 U.S.C. §§ 9601-9675) (1994)). Return to text.

[4] 927 F. Supp. 1502 (S.D. Ala. 1996), rev'd, 107 F.3d 1506 (11th Cir. 1997). Return to text.

[5] See infra notes 12-14 and accompanying text. Return to text.

[6] See 927 F. Supp. at 1504. Return to text.

[7] See id. Return to text.

[8] See id. Return to text.

[9] 511 U.S. 244 (1994) (deciding that since Congress did not expressly allow for retroactive application of the Civil Rights Act of 1991, the Act could not be applied retroactively in a Title VII case). Return to text.

[10] 514 U.S. 549 (1995) (holding that Congress exceeded its commerce clause authority when it passed the Gun-Free School Zones Act since possess of a gun was not an economic activity that substantially affected interstate commerce). Return to text.

[11] See Olin, 107 F.3d 1506 (11th Cir. 1997) (reversing the district court by holding that there was no commerce clause violation and that CERCLA liability costs do apply retroactively). Return to text.

[12] See Insurers Have Their Say, HAZARDOUS WASTE NEWS, Sept. 16, 1996, available in 1996 WL 7981946. Return to text.

[13] See id. Return to text.

[14] Mark D. Tucker, Retroactive Liability is Challenged, NAT'L. L.J., Oct. 14, 1997, at Cl. Return to text.

[15] See, e.g., Clean Air Act (CAA), 42 U.S.C.A. § 7041 (1997) (regulating air pollution emissions); Clean Water Act (CWA), 33 U.S.C.A. § 1251 (1997) (regulating toxic water pollutants); Toxic Substances Control Act (TSCA), 15 U.S.C.A. § 2601 (1997) (regulating potentially toxic chemicals used in commerce); Solid Waste Disposal Act (SWDA), as amended by the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.A. § 6901 (1997) (establishing a comprehensive system to regulate hazardous waste from its creation to its disposal). Return to text.

[16] See S. REP. NO. 69-848, at 101-12 (1980), reprinted in 1 A LEGISLATIVE HISTORY OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 (SUPERFUND) [hereinafter 1 LEGISLATIVE HISTORY] ("[T]he regulations do not address those situations where an owner is unknown or is unable to pay the cleanup costs, nor do they address the cleanup of spills, illegal dumping or releases generally."). Return to text.

[17] See 1 LEGISLATIVE HISTORY, supra note 16, at 2 ("The legacy of past haphazard disposal of chemical wastes and the continuing danger of spills and other releases of dangerous problems pose what many call the most serious health and environmental challenge of the decade."). Return to text.

[18] See id. (stating that CERCLA was to "provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites."); Administration Testimony to the Subcomm. on Env't Pollution & Resource Protection, Comm. on Env't & Public Works, 96th Cong. (1980) reprinted in 1 LEGISLATIVE HISTORY, supra note 16, at 55 (statement of Sen. John C. Culver) ("In these hearings, we are searching for solutions to the problems of how to cleanup old hazardous waste dump sites that now threaten our environment, and for ways to cleanup future spills of hazardous wastes."); id. at 100 (statement of Thomas C. Jorling, Assistant Administrator, Water & Waste Managt., EPA) ("The proposed legislation addresses releases to the environment of oil, hazardous substances, and hazardous wastes from spills and from inactive and abandoned disposal sites."). Return to text.

[19] See H.R. 7020, 96th Cong. (1980), reprinted in 2 A LEGISLATIVE HISTORY OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 (SUPERFUND), at 391-463 [hereinafter 2 LEGISLATIVE HISTORY] (describing the Hazardous Waste Containment Act of 1980).

[A]n act to amend the Solid Waste Disposal Act to provide authorities to respond to releases of hazardous waste from inactive hazardous waste sites which endanger public health and the environment, to establish a Hazardous Waste Response Fund to be funded by a system of fees, to establish prohibitions and requirements concerning inactive hazardous waste sites, to provide liability of persons responsible for release of hazardous waste at such sites, and for other purposes.

[20] See Letter from Robert T. Stafford & Jennings Randolph to Rep. James J. Florio (Dec. 2, 1980), in 1 LEGISLATIVE HISTORY, supra note 16, at 774-75.

On Monday, November 24, the Senate passed a compromise "superfund" bill . . . . That the bill passed at all is a minor wonder . . . Specific mention has been made of adding an oil spill provision. That was suggested in the Senate, but agreement could not be reached on a specific provision, so none was offered . . . Some disagreed with increasing the size of the Fund. Others disagreed with the creation of a private right of action, whether against a Fund or against a spiller. Others disagreed with preemption provisions. Others disagreed with limitations on liability, especially as they related to inland oil barges. In short, we could not even reach a consensus, much less unanimity.

Id. Return to text.

[21] See 1 LEGISLATIVE HISTORY, supra note 16, at 762 (statement of Sen. Domenici) ("[T]he problem of hazardous substances must be addressed, and this body is acting in a responsible manner by passing legislation in this Congress."); id. at 765 (statement of Sen. Weicker) ("[W]e cannot let any time pass before we take the problem of hazardous wastes head on. We must pass the superfund bill now."); id. at 767 (statement of Sen. Riegle) ("I . . . hope the House will act on it before adjournment. We cannot afford to wait any longer in establishing the necessary framework and funding to meet the hazards posed by toxic wastes."); id. at 784 (statement of Rep. Florio) ("The time is now to deal with this problem . . . The concern is whether we are going to have legislation or whether we are not going to have legislation."). Return to text.

[22] The Senate passed the compromise bill on Nov. 24, 1980. See 1 LEGISLATIVE HISTORY, supra note 16, at 560. The House passed the compromise bill on December 3, 1980. See 1 LEGISLATIVE HISTORY, supra note 16, at 776. For further discussion of the legislative history of the bills, see Frank P. Grad, A Legislative History of the Comprehensive Environmental Response, Compensation, and Liability Act ("Superfund"), 8 COLUM. J. ENVTL. L. 1 (1982). Return to text.

[23] 562 F. Supp. 1300 (N.D. Ohio 1983). Return to text.

[24] However, several earlier cases had compared CERCLA to RCRA to illustrate RCRA's inadequacies. See generally United States v. Waste Indus., 556 F. Supp. 1301, 1317 (E.D.N.C. 1982) ("Congress recognized . . . a gap existed in the regulatory scheme fashioned through the RCRA. That gap involved the problems caused by inactive waste disposal sites . . . [t]he Superfund legislation was designed to fill that void."). See also United States v. Wade, 546 F. Supp 785 (1982); Philadelphia v. Stepan Chem. Co., 544 F. Supp 1135 (E.D. Pa. 1982); Grad, supra note 22, at 35 ("CERCLA picks up where RCRA leaves off, i.e., when untoward emergencies occur, or when spills occur at current or no longer active sites by making provisions for protection after a site has been closed."). Return to text.

[25] In Georgeoff, the state attempted to cleanup the hazardous waste disposal site owned by Summit National Liquid Services (SNLS), commonly known as Deerfield Dump (Dump). See 562 F. Supp. at 1300. The state alleged that an assortment of hazardous wastes had been left at the Dump. See id. The Dump went through a series of owners after SNLS went out of business in 1979; however, the waste left at the Dump continued to pose a threat to the source of drinking water in the area. See id. Return to text.

[26] See id. at 1303 (quoting J. Story in Society for Propagating the Gospel v. Wheeler, 22 F.Cas. 756, 767 (C.C.D.N.H. 1814) (No. 13, 156) (defining a retroactive law as one that "creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past . . ."). Return to text.

[27] See 509 F. Supp. 342 (D.D.C. 1981).

The Court's analysis must begin with the fundamental rule of law that the meaningful intent of a statute is to be sought first in the language it is framed. If the language is plain and unambiguous, then there is no need to enlist the rules of interpretation, and the duty of the Court is to enforce the act according to its terms . . . . When the imperative character necessary to demonstrate retroactive intent cannot be assigned to the words of the Act, the Court must look at the various indica of Congressional intent.

Georgeoff, 562 F. Supp. at 1308. Return to text.

[28] See Georgeoff, 562 F. Supp. at 1308-09. Section 9607 provides for liability under CERCLA:

(a) Covered persons; scope; recoverable costs and damages; interest rate; "comparable maturity" date

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for—

(A) all cost of removal or remedial action incurred by the United States Government or a States or an Indian tribe not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;

(C) damages for injury to, destruction of, or loss of natural resources, includeing the reasonable costs of assessing injury, destruction, or loss resulting from such a release; and

(D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.

42 U.S.C.A. § 9607 (1983). Return to text.

[29] 562 F. Supp. at 1310. Return to text.

[30] See id. at 1311. Judge Dowd describes the frequent references to "inactive" waste disposal sites and concludes that Congress intended to focus on the past, rather than future conduct. See id. (citing 42 U.S.C. § 9601 (20) (A) (iii) which states in the Preamble the purpose "to provide for . . . the cleanup of inactive hazardous waste disposal sites). Return to text.

[31] See id. at 1311-12 ("A more generalized examination of the Congressional debates concerning CERCLA indicates an unequivocal Congressional intent to effect the complete cleanup of existing hazardous waste facilities."). Quoting from Senator Tsongas, the court states that "the need for an emergency Federal response to deal with abandoned waste sites and chemical spills is real, and it is immediate." Id. Furthermore, Judge Dowd notes Senator Danforth's statement that "[w]e have no time to lose . . . I believe the clear consensus is that we must cleanup abandoned hazardous dump sites as soon as possible." Id. Return to text.

[32] Id. at 1313-14. Judge Dowd also concluded that the liability provisions of CERCLA may be applied retroactively to transporters. See id. at 1314. Return to text.

[33] 579 F. Supp. 823 (W.D. Mo. 1984), aff'd in part, rev'd in part, 810 F.2d 726 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987). According to the initial findings of fact in the case, Northeastern Pharmaceutical's president and vice-president "[k]new [the company's] manufacturing process produced by products that contained toxic substances, including dioxin, that could be harmful to human health." Id. at 833. In July 1971, a plant supervisor put drums containing hazardous wastes in a trench on the Denny farm. See id. In 1979, the EPA received an anonymous tip that waste materials had been disposed at the Denny farm. See id. The court stated that

[b]ecause of the region's soil conditions, there was a substantial likelihood of the hazardous wastes in the Denny farm site entering the environment and going into the ground farm site entering the environment and going into the ground water system; whereupon, the contaminants may have come into contact with members of the public who may have been adversely affected by their exposure to these wastes.

Id. Return to text.

[34] 42 U.S.C. § 9604 (granting the federal officials general authority to respond to hazardous waste pollution by cleaning up the source and lessening its effects). Return to text.

[35] 42 U.S.C. § 9606. This section provides for abatement actions:

(a) Maintenance, jurisdiction, etc.

In addition to any other action taken by a State or local government, when the President determines that there may be imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat, and the district court of the United States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public I interest and the equities of the case may require. The President may also, after notice to the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and welfare and the environment.

Id. Return to text.

[36] See supra note 28 (discussing CERCLA's liability provision). Return to text.

[37] See Northeastern Pharmecuetical, 579 F. Supp. at 839 ("There can be little doubt that sections 104 and 107(a) were intended to apply retroactively."); see also Georgeoff, 562 F. Supp. at 1302-12; Waste Indus., 556 F. Supp. at 1316-17; Wade, 546 F. Supp. at 792-93; Stepan Chem. Co., 544 F. Supp. at 1140-41. In Northeastern Pharmecuetical, the court states that "section 106(a) applies to inactive sites and that the same persons listed as liable under section 107(a) are liable under section 106(a) . . . [t]o read sections 104, 106(a), and 107(a) otherwise would be to emasculate the purpose of CERCLA and the intent of Congress." 579 F. Supp. at 839. Return to text.

[38] 579 F. Supp. at 840 (citing 126 CONG. REC. S14962-963 (daily ed. Nov. 24, 1980) (remarks of Sen. Randolph); id. at S14966 (remarks of Sen. Stafford); id. at S14972 (remarks of Sen. Tsongas); 126 CONG. REC. H11799 (daily ed. Dec 3, 1980) (remarks of Rep. Jeffords)). Return to text.

[39] 428 U.S. 1 (1976) (deciding black lung benefit provisions of Coal Mine Health and Safety Act of 1969 were constitutionally sound). Return to text.

[40] See 428 U.S. at 16 ("[O]ur cases are clear that legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations . . . This is true even though the effect of the legislation is to impose a new duty or liability based on past acts."). The court reasoned that "the imposition of liability for the effects of disabilities bred in the past is justified as a rational measure to spread the costs of employees' disabilities to those who have profited from the fruits of their labor." Id. at 18. Return to text.

[41] 579 F. Supp. at 841 ("Congress rationally considered the imposition of liability for the effects of past disposal practices as a means to spread the costs of cleanup on those who created and profited from the waste disposal-generators, transporters, and disposal site owners/ operators."). See also Georgeoff, 562 F. Supp. at 1312; S. Rep. No. 848, at 33-34 (1980), reprinted in 1980 U.S. CODE CONG. & ADMIN. NEWS 6119. Return to text.

[42] See 579 F. Supp. at 841. Other cases agreeing that response costs incurred before CERCLA enactment were unrecoverable include United States v. Morton-Thiokol, Inc., No. 83-4787 (D.N.J. July 2, 1984), and United States v. Wade, 546 F. Supp. 785 (E.D. Pa. 1982) (Wade I). Return to text.

[43] See 579 F. Supp. at 843 ("It is difficult to believe that if Congress had intended to make the defendants liable for pre-CERCLA expenses, it would not have said so explicitly and clearly in the statutory language, committee reports, or floor debates."). Return to text.

[44] See United States v. Northeastern Pharm. & Chem. Co., 810 F.2d 726 (8th Cir. 1986). Return to text.

[45] See Jones v. Inmont Corp., 584 F. Supp. 1425, 1428 (N.D. Ohio 1984) ("Past generators of hazardous wastes are responsible parties under [the liability] provision."); United States v. Onatti & Goss, 630 F. Supp. 1361 (D.N.H. 1985) (holding that the retroactive application of CERCLA Sections 106-107 does not violate the Constitution). Return to text.

[46] 605 F. Supp. 1064 (D. Colo. 1985). Shell Oil addressed the disposal of wastes at the Rocky Mountain Arsenal owned by the United States. See id. The Army used the Arsenal for "manufacture, testing, demilitarization, disposal, and other handling of various chemical agents and munitions." Id. The United States has leased property to Shell since 1947 for the "manufacture, packaging, and other handling of pesticides, herbicides, and other chemicals." Id. at 1067. Both the Army's wastes and all of some portion of Shell's wastes were disposed of through a common system. See id. When the waste disposal systems failed, it released into the environment "hazardous substances comprised of co-mingled wastes generated by the Army, Shell, and other Arsenal tenants. The released chemicals have killed migratory and other birds, fish and wildlife, have contaminated air, land, groundwater, lakes, and other surface waters within the Arsenal, and have contaminated or threaten to contaminate the environment outside the Arsenal." Id. By administrative order in 1975, the State of Colorado instructed the Army and Shell to stop the discharge of specific chemicals and cleanup the sources of specific chemicals. See id. Return to text.

[47] See id. at 1072. Return to text.

[48] See id. Return to text.

[49] See id. Those cases to which Judge Carrigan refers are the following: United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984 (D.S.C. February 23, 1984), aff'd in part, United States v. Monsanto, 858 F.2d 100 (4th Cir. 1988); United States v. Conservation Chem. Co., 589 F. Supp. 59 (W.D. Mo. 1984); United States v. Northeastern Pharm. & Chem. Co. 579 F. Supp. 823 (W.D. Mo. 1884); United States v. A.&F. Materials Co., 578 F. Supp. 1249 (S.D. Ill. 1984); United States v. Price, 577 F. Supp. 1103 (D.N.J. 1983); Brown v. Georgeoff, 562 F. Supp. 1300 (N.D. Ohio 1983); United States v. Outboard Marine Corp., 556 F. Supp. 54 (N.D. Ill. 1982); United States v. Reilly Tar & Chem. Corp., 546 F. Supp. 1100 (D.Minn. 1982); United States v. Wade, 546 F. Supp. 785 (E.D. Pa. 1982). Return to text.

[50] See Shell Oil, 605 F. Supp. at 1073 ("I conclude that the unavoidably retroactive nature of CERCLA, and Congress' decision in CERCLA to impose the cost of cleaning up hazardous waste sites on the responsible parties rather than on taxpayers, strongly indicate Congressional intent to hold responsible parties liable for pre-enactment government response costs."). Return to text.

[51] See id. at 1073-77. Because this case is often cited, the reasoning behind Judge Carrigan's conclusion is extremely important. Judge Carrigan discusses both the government and Shell's arguments. First, Shell argued that the use of "shall" in § 107(a)(4) that any person who accepts shall be liable implies intent of prospective application of the liability provision. See id. at 1073. The government responded by arguing that all other verbs in section 107(a) are in the past tense. See id. at 1073. Judge Carrigan concluded the "congressional intent to either impose or withhold liability for response costs incurred before CERCLA cannot be divined from the verb tenses in § 107(a)." Id.

Second, Shell contended that, if costs are to be recoverable, response and remedial actions must be compatible with the revised NCP (National Contingency Plan). See id. at 1074. In response, the government argued that in the definition section 101(31) of CERCLA, NCP refers to both the original and revised NCP. See id. Thus, the government claimed, recovery would not be limited to post-CERCLA response costs. See id. Judge Carrigan concludes that the "NCP consistency requirement does not preclude recovery of costs incurred before CERCLA's enactment." Id. at 1075.

Third, Shell noted that section 302(a) states "[u]nless otherwise provided, all provisions of this Act shall be effective on the date of enactment of this Act." Id. The government asserted that this date simply provides the date when an action can first be brought and time begins for issuing regulations. See id. at 1064. Judge Carrigan agreed and "[did] not interpret § 302(a) to limit liability for response costs to those incurred after December 11, 1980." Id. Furthermore, the government argued, while § 107(a) does not specifically address time limits for recovery for incurred costs, §§ 107(f) and 111(d) provide specific time limits on recovery for pre-enactment natural resource damages. See id. Thus, if Congress had wanted to restrain the recovery for pre-enactment response costs, it would have explicitly stated so. See id. Judge Carrigan concluded, "Section 107(f) provides that there may be no recovery for damage to natural resources occurring wholly before enactment . . . Accordingly, one must conclude that funds so spent before enactment are recoverable." Id. at 1076.

After examining the arguments, Judge Carrigan offered this reasoning for his conclusion:

Construing section 107(a) to preclude recovery of pre-enactment response costs would carve out an exception to the general retroactive scheme of the statute for those most severe situations where as here, the government's response commenced prior to enactment of the statute. I cannot believe that Congress could have intended to protect the public by imposing liability on the responsible parties, yet except the sites where response had already commenced because the situations were the most imminently threatening. Such an interpretation would penalize the government for prompt response and provide and undeserved windfall to the parties who had created, then abandoned, some of the most egregious sites. I decline to presume that Congress intended this irrational result.

Thus, I conclude from the statute's explicit limitation on recovery of certain natural resource damages, and its failure to limit retroactive recovery of response costs, that CERCA authorizes recovery of response costs, whether incurred before or after its enactment. I hold that Congress, in CERCLA, has overridden the presumption against retroactive application of statutes. The legislative history fully supports this conclusion.

Id. at 1076-77. Return to text.

[52] See id. at 1077-79. Again, Judge Carrigan lays out Shell's argument. First, Shell highlighted the deletion of Section 3072, a provision that authorized the recovery of pre-enactment response costs, from H.R. 7020. See id. at 1077 ("Section 3072 of H.R. 7020, 96th Cong., 2d Sess. (1980) (as introduced) provided: 'The provisions of this subpart and subpart C shall apply to releases of hazardous waste without regard to whether or not such releases occurred before, or occur on or after, the date of the enactment of the Hazardous Waste Containment Act of 1980.'"). Judge Carrigan asserts that this provision "applied to liability for response costs without distinguishing between costs incurred before and after enactment; the provision addressed only the time when the releases occurred. . . . There is accordingly no reason to read the deletion as evidence of intent to preclude recovery of pre-CERCLA response costs." Id.

Next, Shell claimed that the deletion of § 4(n) from the enacted compromise bill shows Congress' intent not to authorize recovery for pre-response costs. The pertinent portion of this section (from S. 1480, as introduced), as cited by Judge Carrigan, read as follows:

(n)(1) No person (including the United States, the Fund, or any State) may recover under the authority of this section, nor may any money in the Fund be used under Section 6 of this Act for the payment of any claim, for damages specified under subsection (a)(2)(A), (B), (C),(D),(G), or (E) (other than for loss resulting from personal injury) of this section, nor may any money in the Fund be used under section 6(a) (1) (E) or (F) of this Act, where such damages and the release of a hazardous substance from which such damages resulted have occurred wholly before the enactment of this Act.

Id. at 1078. Judge Carrigan determined that Shell's interpretation of the § 4(n) was wrong. He asserted that the time limitations imposed by § 4(n) were included in CERCLA as the §§ 107(f) and 111(d) restrictions of natural resource damages. See id. at 1079. Therefore, he states, "the scheme of § 4(n) in limiting recovery for pre-enactment damages, but not response costs, was maintained in the final statute. The legislative history of § 4(n), including the comments emphasizing that recovery of removal costs is not to be limited by retroactivity concerns, therefore applies to the statute as passed." Id.

After reviewing Shell's arguments, Judge Carrigan states his reasoning for his conclusion that CERCLA authorizes recovery of pre-enactment response costs.

I conclude that the whole purpose and scheme of CERCLA is retrospective and remedial. Where Congress has intended a liability provision to have only prospective operation, as in the case of natural resource damages, Congress has so stated explicitly. (Sections 107(f) and 111(d), 42 U.S.C. §§ 9607(f) and 9611(d).) Congress did not explicitly limit or deny liability for response costs incurred before enactment. Consistent with the statutory scheme, I conclude that CERCLA authorizes recovery of pre-enactment response costs.

Id. Return to text.

[53] 810 F.2d 726 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987).

54 Id. at 737. Return to text.

[55] See Amending and Extending the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Hearings before the Comm. on Env't and Public Works, 98th Cong., 2d Sess. 2 (1984) (statement of Sen. Randolph) ("We have gained . . . a fuller appreciation of the dangers to our citizens and communities by hazardous substances . . . Early in the implementation of Superfund, it became apparent that the problem was more widespread than even the members of the committee had realized."); id. at 16 (statement of Sen. Bradley) ("We now know that the magnitude of hazardous waste problems is even larger than we earlier feared."). Return to text.

[56] 42 U.S.C.A. § 9611 (1982). Return to text.

[57] See supra note 55, at 2 (statement of Sen. Randolph) ("This 5-year program, with the authorization of $1.6 billion is inadequate."); id. at 10 (statement of Sen. Bradley) ("The $1.6 billion currently available is clearly insufficient to make a significant dent in the task of cleaning up these dump sites."). Return to text.

[58] See supra note 55, at 1-1252. This collection of eight hearings before the Committee on Environment and Public Works addresses numerous issues pertaining to Superfund Reform. For example, the committee heard testimony on the health effects of Hazardous wastes on the April 11, 1984 hearing. See id. at 1-60. For the May 24, 1984 hearing, see id. at 657-900. Issues such as citizen participation were generally addressed at the May 16, 1984 hearing. See id. at 167-341. Return to text.

[59] See supra note 55, at 130-37 (testimony of Norman Nosenchuck, Director, Div. of Solid/Hazardous Waste, Dept. of Envtl. Conservation) (addressing the cost of cleanup per site in New York); id. at 161-66 (testimony of Charles Wilhelm and the position paper of the Association of State and Territorial Solid Waste Management Officials) ("The amount of the Fund should be increased to at least $9 billion . . . ."); id. at 241-59 (statement of Vance Hughes, Legislative Director of Clean Water Action Project) ("We recommend that the Senate adopt a non-expiring fund concept . . . We believe that it will be necessary for the fund to 'collect' $15 billion over the next five years."); id. at 287-335 (testimony of Jane L. Bloom, National Resources Defense Council) ("[T]he size of the Fund must be increased to at least $9 billion over 5 years and preferably to $2.4 billion per year as long as the job takes."); id. at 369-98 (discussing support of the Superfund through "waste end" taxes as opposed to feedstock taxes). The question of liability was largely addressed at the July 31, 1984 hearing. See id. at 947-1146. Return to text.

[60] See S.51, 99th Cong. (1985), reprinted in 2 A LEGISLATIVE HISTORY OF THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, at 413-54 [hereinafter SARA LEGISLATIVE HISTORY]. The Superfund Improvement Act of 1985 was a bill to extend and amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, and for other purposes. This bill was initially introduced on January 3, 1985, and it reauthorized the Superfund to $7.5 billion. See 131 CONG. REC. S11995-S12034 (Sept. 14, 1985). The language of S.51 was inserted into H.R. 2500 since all tax bills must originate in the House. See 131 CONG. REC. S12158-S12168, S12184-S12209 (Sept 26, 1985). See also H.R. 2817, 99th Cong. (1985), reprinted in 3 SARA LEGISLATIVE HISTORY, at 1540-1677; 131 CONG. REC. 16573-75 (June 20, 1985); id. at 1535-39 (introducing J.R. 2817); H.R. 3852, 99th Cong. (1985), reprinted in 5 SARA LEGISLATIVE HISTORY, at 3567-4017; H.R.Res No. 331, 99th Cong. (1985); id. at 4019-22 (proposing H.R. 3852 as an amendment in the nature of a substitute); 131 CONG. REC. H11547-65 (Dec. 10, 1985), id. at 4269-4301 (passing the bill, which authorized $10 billion for the Superfund); id. at H11595, reprinted in 5 SARA LEGISLATIVE HISTORY, at 4356 (inserting the text of H.R. 2817 in the place of the Senate-passed H.R. 2005). Return to text.

[61] See supra note 3, at 94 Stat. 2797 ("The taxes imposed by this section shall not apply after September 30, 1985. . . ."). Return to text.

[62] See 131 CONG. REC. (Jan 3, 1985) (statement of Sen. Lautenberg)

[I]t is vital that the Congress take up consideration of the Superfund program as soon as possible. The Superfund program expires in September. It is imperative that Superfund be reauthorized with sufficient lead time so that the Environmental Protection Agency can gear up to run as expanded and accelerated program.

Id. Return to text.

[63] See H.J. Res. 573, 99th Cong. (1986), reprinted in 7 SARA LEGISLATIVE HISTORY, at 5402-5403. Passed on March 20, 1986, this extension provided a loan from the general fund. See Letters from Lee M. Thomas, EPA administrator, to Rep. John D. Dingell & Sen. Robert T. Stafford (Sept. 22, 1986), reprinted in 132 CONG. REC. H9627 (daily ed. October 8, 1986). The EPA Administrator, Lee Thomas, had informed Congress that if the EPA did not receive new funding by April 1, he would have to shut down the Superfund program. See id. Return to text.

[64] See H.J. Res. 713, 99th Cong., 2d Sess. (1986), reprinted in 7 SARA LEGISLATIVE HISTORY, at 5411-5412. Return to text.

[65] See 132 CONG. REC. H9032 (daily ed. Oct. 3, 1986), reprinted in 6 SARA LEGISLATIVE HISTORY 4817; see H.R. Conf. Rep. 962, 99th Cong. (1986), reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 3276, reprinted in 6 SARA LEGISLATIVE HISTORY, at 4818; 132 CONG. REC. S14,943 (daily ed. Oct. 3, 1986), reprinted in 6 SARA LEGISLATIVE HISTORY, at 5243. The bill passed the Senate the same day it was reported. See 132 CONG. REC. H9634 (daily ed. Oct. 8, 1986), reprinted in 6 SARA LEGISLATIVE HISTORY, at 5386-87. The House passed the bill on October 8. See id. Return to text.

[66] Pub. L. No. 99-499, 100 Stat. 1613 (1986). Return to text.

[67] See David J. Hayes & Conrad B. MacKerron, Superfund II: A New Mandate, A BNA Special Report, 17 Env't Rep. 1, 128 (BNA) (Feb. 13, 1987). ("The 1986 Superfund Amendments have dealt with many different problems that arose under the first five years of the program by generally increasing the government's authority to control the cleanup process and providing a greatly increased, stable source of funding."). SARA increased the Superfund to $8.5 billion over five years for the Environmental Protection Agency and other federal agencies to cleanup abandoned and inoperative waste sites. See id. at 1. "The 8.5 billion for the hazardous waste cleanup program will be raised through a new $2.5 billion broad based tax on business income and a sharply increased tax on petroleum . . . ." Id. at 2. SARA also added numerous revisions:

The revisions add strict cleanup standards strongly favoring permanent remedies at waste sites, stronger EPA control over the process of reaching settlement with parties responsible for waste sites, a mandatory schedule for initiation of cleanup work and studies, individual assessments of the potential threat to human health posed by each waste site, and increased state and public involvement in the cleanup decision-making process, including the right of citizens to file lawsuits for violations of the law.

Id. at 1.

In the summary of key changes to statue, the authors that SARA had the following effect:

[T]he Act recodified the liability concepts included in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. In particular, Congress has validated the principles of strict, joint, and several liability for responsible parties. The Department of Justice persuaded Congress that these principles, which hold each responsible party potentially liable for the full cost of a cleanup, provide the necessary legal 'club' to induce parties to enter into cleanup settlements with the government. Congress did not explicitly incorporate these concepts in the language of the superfund, but it re-affirmed the applicability of strict, joint, and several liability throughout its consideration of the superfund amendments.

Id. at 19. Return to text.

[68] See supra note 67 (discussing liability under SARA). Return to text.

[69] See United States v. Montrose Chem. Corp., 835 F. Supp. 534 (C.D. Cal. 1993), rev'd, California V. Montrose Chem. Corp., 104 F.3d 1507 (9th Cir. 1997); United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); United States v. Shell Oil Co., 841 F. Supp. 962 (C.D. Cal. 1993); HRW Sys. Inc. v. Wash. Gas Light Co., 823 F. Supp. 318 (D. Md. 1993); Abbot Lab. v. Thermo Chem., Inc., 790 F. Supp. 135 (W.D. Mich. 1991); United States v. Kramer, 757 F. Supp. 397 (D.N.J. 1991); Kelley v. Thomas Solvent Co., 714 F. Supp. 1439 (W.D. Mich. 1989); Amland Properties Corp. v. ALOCA, 711 F. Supp. 784 (D.N.J. 1989); United States v. Hooker Chem. & Plastics Corp., 680 F. Supp. 546 (W.D. N.Y. 1988); United States v. Mottolo, 695 F. Supp. 621 (D.N.H. 1988); United States v. Miami Drum Serv. Inc., 25 E.R.C. 1469 (S.D. Fla. 1986); United States v. Tyson, 25 E.R.C. 1897 (E.D. Pa. 1986); United States v. Dickerson, 640 F. Supp. 448 (D. Md. 1986). Return to text.

[70] See Lewis M. Barr, CERCLA Made Simple: An Analysis of the Cases Under the Compre hensive Environmental Response, Compensation, and Liability Act of 1980, 45 THE BUS. LAW. 923, 1000 (1990) ("Ten years after its enactment, and four years after its major refinement, CERCLA is working more or less as Congress intended."); see also William A. Montgomery Jr., Constitutional Implications of CERCLA: Due Process Challenges to Response Costs and Retroactive Liability, 31 WASH. U. J. URB. & CONTEMP. L. 279, 288 (1987) ("The control and cleanup of releases of hazardous substances into the environment is a legitimate governmental objective. The liability provisions of CERCLA are a rational means of attaining that end because it is fair to place liability on those who benefit from the creation of the hazardous waste."). But see George C. Freeman, Jr., Inappropriate and Unconstitutional Retroactive Application of Superfund Liability, 42 THE BUS. LAW. 215-248 (1986). Return to text.

[71] See id. Return to text.

[72] See id. Return to text.

[73] See United States v. Olin, 927 F. Supp. 1502 (S.D. Ala. 1996). Return to text.

[74] See id. Olin is a Virginia corporation that owned and operated a chemical plant in McIntosh, Alabama. See id. at 1503. The United States alleged that the Olin plant site was actually two sites. Site 1 includes 20 acres on the southern edge of the property, on which an active chemical-production facility operates. See id. at 1504. This site contains a number of "solid waste-management units," both active and inactive, many of which have been closed and treated for the removal of hazardous substances. See id. The government claims that "in 1952 Olin Mathieson began operating a mercury-cell chloralkali plant on Site 1 which generated and released wastewater containing mercury into Site 2 until 1974. This plant ceased operating in 1982." Id. at 1504. Furthermore, in 1955 "Olin Mathieson built a 'crop-protection-chemicals' plant which discharged waste water into Site 2 until 1974." Id.

Because these two plants ran from the 1950's to late 1982, "mercury and chloroform, which are alleged to be hazardous substances under 42 U.S.C. §9601(14), were released into Site 1." Id. Although most of the supposed contamination occurred before December 11, 1980, the government argued that a threat of continued releases at and from Site 1 existed. Id. at 1506. "According to the remedial investigation report, any contaminants still at Site 1 affect groundwater there mostly by migrating through the alluvial aquifer . . . . Indeed, the record reflects that any contamination at Site 1 is of such minimal proportions as not to constitute any hazard to the public." Id. at 1506-07. Along with the action against Olin, the Justice depart ment filed a proposed consent decree. See id. at 1505. Before it would rule on the consent decree, the court requested two briefs. The defendant additionally raised the issue of CERCLA's retroactivity, claiming that "Congress did not intend for CERCLA to be retroactive and that if it did, CERCLA violates the Due Process Clause and unconstitutionally delegates legislative power to the EPA." Id. at 1507. The Justice Department responded to the claims concerning retroactivity. Hence, Judge Hand examined these arguments about retroactivity to form his decision. See id. Return to text.

[75] Id. at 1519. Judge Hand also concluded that CERCLA violated the Commerce Clause as interpreted in United States v. Lopez, 514 U.S. 549 (1995). Return to text.

[76] See, e.g., Mark D. Tucker, "Retroactive Liability" Is Challenged, NAT'L L.J., Oct. 14, 1996, at C1 (discussing Judge Hand's "unanticipated decision" that CERCLA could not be applied retroactively). This unusual decision brought about an impassioned response from the Department of Justice. See, e.g., Congress Wanted CERCLA Applied Retroactively, Government Says in Brief, 9 No. 9 MLRSF 4 (Aug. 9, 1996) ("A federal judge who found in May that CERCLA did not apply retroactively to waste cites created before its enactment seriously misinterpreted a recent Supreme Court decision on the Commerce Clause, the U.S. Department of Justice argued . . . .").

While many commentators were surprised at the decision, they generally believed that the decision would be short-lived. See, e.g., Superfund: Retroactive Liability Decision Seen Unlikely to Survive Certain Appeal, SOLID WASTE REP., Aug. 1, 1996, available in 1996 WL 8264604. Accord ing to Adam Babich of the Washington-based Environmental Law Institute, the decision could create a "short flurry of activity." Id. However, he believed that decision would be short lived because Judge Hand "went the other way on an issue that was settled." Id. Return to text.

[77] See 927 F. Supp. at 1507 ("[A] panel of the Eleventh Circuit recently referred to CERCLA as being retroactive. Virginia Properties Inc. v. Home Ins. Co., 74 F. 3d 1131, 1132 (11th Cir., 1996). The issue of retroactivity, however, was not before that court."). Return to text.

[78] See id. Judge Hand recognizes the following federal cases: In the Matter of Penn. Cent., 944 F.2d 164 (3rd Cir. 1991); Aetna Cas. & Sur. Co. v. Pintlar Corp., 948 F.2d 1507 (9th Cir. 1991); O'Neil v. Picillo, 883 F.2d 176 (1st Cir. 1989); United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988); United States v. Northeastern Pharm. & Chem. Co., 810 F.2d 726 (8th Cir. 1986); HRW Sys. v. Wash. Gas, 823 F. Supp. 318 (D. Md. 1993); United States v. Kramer, 757 F. Supp. 397 (D.N.J. 1991); Philadelphia v. Stepan Chem., 748 F. Supp. 283 (E.D. Pa. 1990); Kelley v. Solvent Co., 714 F. Supp. 1439 (W.D. Mich. 1989); O'Neil v. Picillo, 682 F. Supp. 706 (D.R.I. 1988); United States v. Hooker Chem. & Plastics, 680 F. Supp. 546 (W.D.N.Y. 1988); United States v. Dickerson, 640 F. Supp 448 (D. Md. 1986); United States v. Onatti, Inc. 630 F. Supp. 1361 (D.N.H. 1985); Town of Boonton v. Drew Chem., 621 F. Supp. 663 (D.N.J. 1985); United States v. Conservation Chem. Co., 619 F. Supp. 162 (W.D. Mo. 1985); United States v. Shell Oil, 605 F. Supp. 1064 (D. Colo. 1985); Jones v. Inmont, 584 F. Supp. 1425 (S.D. Ohio 1984): United States v. S. C. Recycling Disposal Co., 653 F. Supp. 984 (D.S.C. 1984); United States v. Northeastern Pharm. & Chem. Co., 579 F. Supp. 823 (W.D. Mo. 1984); United States v. Price, 577 F. Supp 1103 (D.N.J. 1983); Ohio v. Georgeoff, 562 F. Supp. 1300 (N.D. Oh. 1983); United States v. Wade, 546 F. Supp. 785 (E.D. Pa. 1982). Return to text.

[79] 511 U.S. 244, 114 S. Ct. 1483, 128 L.Ed.2d 229 (1994). See also Olin, 927 F. Supp. at 1507. The defendants cited Freeman George Clemon, Jr., A Public Policy Essay: Superfund Retroactivity Revisited, 50 BUS. LAW. 663 (Feb. 1995). Freeman argues that section 107(a) of CERCLA could not meet the test of the statutory construction offered in Justice Stevens' majority opinion in Landgraf. See id. at 665. Moreover, Freeman claims that neither the text of the statute nor the legislative history could support the retroactive application. See id. Return to text.

[80] 927 F. Supp. at 1508. Judge Hand cites the Plaintiffs Memorandum on the Retroactivity of CERCLA and Due Process Issues. The plaintiff maintains that "[e]very court to face CERCLA retroactivity challenges has rejected the arguments advanced here. Indeed, courts have uniformly held that (1) Congress clearly and unequivocally intended retroactive application of CERCLA; and (2) such a liability scheme is rationally related to a legitimate governmental interest." Id. Return to text.

[81] See id. Return to text.

[82] Id. Judge Hand cites the following cases: United States v. South Carolina Recycling & Disposal, Inc., 653 F. Supp. 984 (D.S.C. 1984), aff'd in part and vacated in part, 858 F.2d 160 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); United States v. Diamond Shamrock Corp. No. C80-1857, 1981 WL 137997, at *1 (N.D. Ohio May 29, 1981); United States v. Price, 523 F. Supp. 1055 (D.N.J 1981), aff'd, 688 F.2d 204 (3d Cir. 1982). South Carolina Recycling concluded that the act was not "retroactive," but applied CERCLA on the theory that because the previous disposal continued to cause or threatened to cause releases after the Act's effective data. See 653 F. Supp. at 984. Return to text.

[83] Id. Return to text.

[84] Id. Return to text.

[85] Id. at 1508-09. Judge Hand argues that Landgraf destroys the interpretive premises of previous cases by "attempting to clarify confusion regarding the interpretive rules applicable to retroactivity." Id. at 1508. "Our precedents on retroactivity left doubts about what default rule would apply in the absence of congressional guidance, and suggested that some provisions might apply to cases arising before enactment while others might not." Id. (comparing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) with Bradley v. Richmond Sch. Bd., 416 U.S. 696 (1974)). The court continues: "In reaffirming the traditional presumption against retroactive legislation, Landgraf disproves language in Bradley which had appeared to reverse that traditional presumption." Id. at 1508-09. Bradley allowed an award of attorneys' fees "on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in a manifest injustice or there is a statutory direction or legislative history to the contrary." 416 U.S. at 711. Furthermore, the Landgraf court states that "[a]lthough the language suggests a categorical presumption in favor of application of all new rules of law, we now make it clear that Bradley did not alter the well-settled presumption against application of the class of new statutes that would have genuinely 'retroactive' effect." Landgraf, 511 U.S. at 277. Return to text.

[86] Judge Hand claims that the court in Georgeoff "did exactly what Landgraf disapproves. Georgeoff began quite appropriately by 'initially determin[ing] the standard to be applied in determining whether a statute should be applied retroactively.'" 927 F. Supp. at 1509 (citing Georgeoff, 562 F. Supp. at 1306). Return to text.

[87] Olin, 927 F. Supp. at 1508. Return to text.

[88] See id. In a footnote, Judge Hand recounts the Georgeoff court's explanation of the presumption.

Since the principal basis for the presumption against retroactivity is the threat of raising a constitutional issue, the reduction of that constitutional issue must necessarily reduce the need to interpret CERCLA to avoid raising that constitutional issue. The weight of the presumption therefore being reduced, a more lenient approach in reviewing claims that the presumption has been over-ridden may be appropriate. After Thorpe and Bradley, the presumption against retroactivity has arguably been changed to a presumption in favor of retroactivity. That presumption can only be over-ridden where there is a clear legislative directive to limit the statute to a prospective application or the change in law would cause manifest injustice to the party adversely affected.(emphasis added).

Id. at 1507, n. 9. Return to text.

[89] Id. at 1509. Return to text.

[90] See id. Judge Hand states that "the rest of the cases basically rely on one or more of these three cases and other cases which cite these cases." Id. at 1509. Return to text.

[91] 605 F. Supp. at 1064. Return to text.

[92] 810 F.2d 726 (8th Cir. 1986). Return to text.

[93] See 605 F. Supp. at 1072; 810 F.2d at 733. Return to text.

[94] See Olin, 927 F. Supp. at 1509. First, Judge Hand states that "neither case explains how it is applying the presumption against retroactivity; but like Georgeoff, both cases demonstrate little regard for the presumption." Id. Judge Hand recognizes that the Shell Oil court analyzes the statutory provisions as well as the "general scheme and purpose" of CERCLA, and the court concludes that CERCLA is "unavoidably retroactive." 605 F. Supp at 1073. Judge Hand also cites Landgraf stating "that retroactive application of a new statute would vindicate its purpose more fully . . . is not sufficient to rebut the presumption against retroactivity." Landgraf, 511 U.S. at 285-86. Judge Hand further criticizes the court in Shell because "[o]ther than its discussion of 'general purpose and scheme,' Shell Oil does not explain precisely what overrides the presumption against retroactivity." 927 F. Supp. at 1509. In regard to Northeastern Pharma ceutical, Judge Hand maintains that the case "treats the presumption itself lightly, devotes only one sentence to the statutory language, relies on Shell Oil and Georgeoff among other cases, and offers one paragraph about the statutory scheme." Id. at 1510. In a footnote, Judge Hand offers the discussion of the presumption by the Court in Northeastern Pharmaceutical:

The district court correctly found Congress intended CERCLA to apply retroactively. (citation omitted). We acknowledge there is a presumption against the retroactive application of the statutes. See United States v. Security Industrial Bank, 459 U.S. 70, 79 (1982). We hold, however, that CERCLA §302(a), is "merely a standard 'effective date' provision that indicated the date when an action can first be brought and when the time begins to run for issuing regulations and doing other future acts mandated by the statute." United States v. Shell Oil Co., 605 F.Supp. 1064, 1075 (D. Colo. 1985); cf. Von Allmen v. Conn.t Teachers Retirement Bd, 613 F.2d 356, 359-60 (2d Cir. 1979) (veterans statute).

Although CERCLA does not expressly provide for retroactivity, it is manifestly clear that Congress intended CERCLA to have retroactive effect. The language used in the key liability provision, CERCLA §107, 42 U.S.C. § 9607, refers to actions in the past tense: "any persons who . . . at the time of disposal of any hazardous substances owned or operated," CERCLA § 107(a)(2), 42 U.S.C. § 9607(a)(2), "any person who arranged with a transporter for transport of disposal," CERCLA § 107(a)(3), 42 U.S.C. § 9607(a)(3), and "any person who . . . accepted any hazardous substances for transport to . . . sites selected by such person," CERCLA § 107(a)(4), 42 U.S.C. § 9607(a)(4).

Further, the statutory scheme itself is overwhelmingly remedial and retroactive. CERCLA authorizes the EPA to force responsible parties to cleanup inactive or abandoned hazardous substance sites, CERCLA § 106, 42 U.S.C. § 9606, and authorizes federal, state, and local governments and private parties to cleanup such sites and then seek recovery of their response costs from, responsible parties, CERCLA § 104, 107, 42 U.S.C. § 9604, 9607. In order to be effective, CERCLA must reach past conduct. CERCLA's backward looking focus is confirmed by the legislative history. . . .

Id. at 1510. Return to text.

[95] Id. Return to text.

[96] Id. at 1510-11. As support for this claim that Landgraf has an impact on Olin, Judge Hand offers the following footnote: "See also Leonard Charles, The Civil Rights Act of 1991, Retroactivity, and Continuing Violations, 28 U. RICHMOND L. REV. 1363 (1994) ("Prior to Landgraf, the Court had utilized two conflicting presumptions regarding the retroactivity of civil legislation."). See Nelson Lund, Retroactivity, Institutional Incentives, and the Politics of Civil Rights, 1995 PUB. INT. L. REV. 87 (1995); Duncan B. Hollis, Employment Discrimination Law, Statutory Retroactivity, 36 B.C. L. REV. 373, 385 (1995) ("Beyond the scope of the § 1981 cases, however, Rivers, in conjunction with Landgraf, does much to resolve the confusion surrounding what test a court should apply when a case implicates a statue enacted after the violative conduct occurred."). Return to text.

[97] 927 F. Supp. at 1511. While Judge Hand summarized the analysis, he also included major portions of the opinion. See id. at 1510-12. Return to text.

[98] Id. at 1512. Return to text.

[99] See id. at 1512-13. First, Judge Hand simply states, "CERCLA contains no language explicitly stating that it is retroactive." Id. at 1512. However, he acknowledges that Landgraf's "discussion of other (i.e., non-express) statutory language and legislative history establishes that these should be considered in determining congressional intent." Id. at 1512. Therefore, Judge Hand examines the non-express statutory language.

Because Landgraf instructs that answers to retroactivity issues can vary among the provisions, Judge Hand examines sections 106(a) and 107(a). First, in regard to section 106(a), Judge Hand states that "[a]though injunctive relief is ordinarily prospective, when it requires a party to spend funds related to actions taken prior to CERCLA's enactment, such relief is nevertheless retroactive. Thus to the extent that the government's claims under 106(a) and 107(a) relate to actions taken prior to the effective date of CERCLA, they involve the issue or retroactivity." Id. at 1512-13.

Moreover, Judge Hand maintains that the Justice Department relies only on Northeastern Pharmaceutical's observation, citing that "[t]he language used in the key liability provision, CERCLA § 107 . . . refers to actions and conditions in the past tense." 810 F.2d at 733. In contrast, the Court proffers the decision in Georgeoff.

Despite these statutory arguments, the Court is unable to declare that the statute evidences the 'imperative character' required to overcome the presumption against retroactivity. Regardless, these provisions provide some evidence that Congress intended CERCLA to apply retroactively. The Court, therefore, will consider these statutory terms indicia, of a Congressional intent to allow retroactive application of CERCLA.

562 F. Supp. at 1311.

Judge Hand next states that the court in Shell Oil agrees with Georgeoff's decision that "the statutory language in CERCLA is not sufficient to establish retroactivity . . . ." Id. at 1513. Therefore, the Court concludes that "the language of Section 107 provides 'no clear evidence of Congressional intent,' as required by Landgraf, that CERCLA's liability provisions be given retroactive effect." 927 F. Supp. at 1513.

Furthermore, Judge Hand states that Section 106 "contains no language indicating congressional intent to authorize relief that is retroactive." Id. The Justice Department argues that, "although it reaches pre-enactment conduct, legislation designed to alleviate a continuing public nuisance does not act retroactively." 562 F. Supp. at 1304. However, Landgraf rules out this attempt to dodge the issue of retroactivity. Return to text.

[100] See Olin, 927 F. Supp. at 1513-16. Judge Hand initially states that "CERCLA itself has almost no legislative history." Id. at 1513. He relies on arguments from Frank P. Grad, Treatise on Environmental Law Sec. 4A.02[2][a], at 4A-51 (1994). See id. at 1514. Grad states, "the actual bill which became Public Law No. 96-510 had virtually no legislative history at all" and that most of CERCLA's legislative history comes from "bills introduced which contributed to some extent to the final act." Id.

The Court acknowledges that in Landgraf, it considered a previous bill as part of legislative history. More importantly, the Court in Landgraf strongly regarded the fact that a bill that had explicitly provided for retroactivity has been vetoed the previous year. Because the later legislation did not contain the explicit provision for retroactivity, the Landgraf court inferred that "it seems likely that one of the compromises that made it possible to enact the 1991 version was an agreement not to include the kind of explicit retroactivity command found in the 1990 bill." Landgraf, 511 U.S. at 262.

Morever, Judge Hand recognizes that the court in Georgeoff stated, "the precise issue of retroactivity . . . was not addressed in Congressional debates." 562 F. Supp. at 1311. The Justice Department highlights that one of the differences between CERCLA and the civil rights statute examined in Landgraf is that no other bill before CERCLA explicitly supported retroactivity. See 927 F. Supp. at 1508. Judge Hand responds to this argument by stating the absence of a vetoed bill discussing retroactivity "does not strengthen the case for retroactivity. It only means that what Justice and other courts have labeled the legislative history of CERCLA may not be as clear as was the legislative history of the Civil Rights Act considered in Landgraf." Id. at 1514. In an attempt to demonstrate clear intent of CERCLA's retroactivity, the Justice Department argues that the "history, as analyzed by the courts, demonstrates unequivocally that Congress was concerned about the past, pre-enactment acts of disposal." Id.

However, Judge Hand dismisses the Justice Department's argument by stating the following:

The argument of the Justice, relying as it does on past cases, fails to overcome the presumption against retroactivity because those prior cases do not follow the analysis of Landgraf and because they find clarity in legislative history which does not exist. Many of the past cases are unclear about two things which are dis tinguished in Landgraf: congressional intent and retroactive effect. As discussed below, Landgraf struggles with the term 'retroactive.' The majority excludes cer tain statutes from the presumption against retroactivity, specifically procedural and jurisdictional statutes.

511 U.S. at 244.

Approving of Justice Story's discussion in Society for Propagation of the Gospel v. Wheller, 22 F.Cas. 756 (No. 12, 156) (CCDNH 1814), the majority states that "[a] statute does not operate 'retroactively' merely because it is applied in a case arising from conduct antedating the statute's enactment . . . ." 511 U.S. at 269. In other words, the fact that legislation might have retroactive effect does not necessarily mean that Congress clearly intended it to be so applied. Return to text.

[101] 927 F. Supp. at 1516. Return to text.

[102] See id. Return to text.

[103] Id. Return to text.

[104] Id. The Court continues by stating that "the Justice Department's attempt in this case to impose liability under § 107(a) largely on actions occurring prior to the statute's effective date 'would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.'" Id. at 1516. Return to text.

[105] See id. Judge Hand states that "[w]hat Landgraf said about compensatory damages can be said about the financial liabilities under CERCLA for pre-enactment conduct: [t]he new damages remedy in Sec. 102, we conclude, is the kind of provision that does not apply to events antedating its enactment in the absence of clear congressional intent." Id. Return to text.

[106] Id. at 1516-19. Return to text.

[107] Landgraf, 511 U.S. at 280. The Court focuses on a particular section and then "distinguishes between a procedural provision of that section (jury trial right) which would 'presumably apply to cases . . . regardless of when the underlying conduct occurred,' and its punitive and compensatory damages provision." Id. at 281. While the Landgraf court interpreted punitive damages not to be retroactive, the court struggled with classifying the provision that authorized the recovery of compensatory damages because the "conduct itself was already unlawful—only the remedy was new. . . despite the differences between the compensatory damages provision." 927 F. Supp. at 1517. Return to text.

[108] See Olin, 927 F. Supp. at 1516. According to Judge Hand,

"§ 106 does provide for fines for failure to comply with an executive branch abatement order; such fines are clearly punitive. Section 107(c)(3) also authorizes punitive, treble damages. The EPA uses the threat of punitive damages as a negotiating tool. Given the very real threat of punitive damages, CERCLA retro activity poses very nearly the same 'ex post facto' danger referred to in Landgraf."

Id. at 1517. "According to Landgraf, a provision for punitive damages should not be construed as retroactive unless the language forces that conclusion." Id. at 1517. Return to text.

[109] Id. at 1516. Return to text.

[110] Id. The court in Olin stated "even on the compensatory damages issue, Landgraf says, 'it is the kind of provision that does not apply in the absence of clear congressional intent.' Certainly, under Landgraf principles, CERCLA liability is the kind that does not apply retroactively without clear congressional intent." Id. at 1517. Return to text.

[111] Id. Return to text.

[112] Id. at 1518. Return to text.

[113] See id. First, the court cites Landgraf, stating that "compensatory damages are quin tessentially backward-looking. Compensatory damages may be intended less to sanction wrongdoers than to make victims whole, but they do so by a mechanism that affects the liabilities of defendants. They do not 'compensate' by distributing fund from the public differs, but by requiring particular employers to pay for harms they caused." Id. Second, the court again cites Landgraf, stating that the fact that "retroactive application of [this] statute would its purpose more fully . . . is not sufficient to rebut the presumption against retroactivity." Id. at 1518 (citing 511 U.S. at 285-86). Return to text.

[114] The court claims that only one sentence, in isolation, provides support for the Justice Department's argument. "Section 102 is plainly not the sort of provision that must be understood to operate retroactively because a contrary reading would render it ineffective.' Id. at 1518. Judge Hand further acknowledges that Congress addresses present as well as future problems. See id. However, the court makes the following argument:

It does not follow . . . that the liability provision 'must be interpreted to be retroactively because a contrary reading would render it ineffective.' The Court continues by stating that in regard to pre-enactment releases. "the purpose of CERCLA can be covered through the Superfund. The EPA, however, has chosen to recover as much as possible from private parties, no doubt in part due to Congress' failure to provide sufficient resources to pay for cleaning all the sites, even as the need was thought to be in 1980. See Georgeoff, 562 F.Supp. at 1312-13. While Georgeoff takes the lack of funding as an indication of congressional intent to make CERCLA retroactive, lack of funding does not render the operation of the statute itself ineffective in the sense used in Landgraf.

Id. Return to text.

[115] 927 F. Supp. at 1519. Return to text.

[116] Id. Return to text.

[117] See id. at 1502; Landgraf, 511 U.S. at 244. Return to text.

[118] See id. Return to text.

[119] See supra notes 33-54, and accompanying text for a discussion of cases decided before the reauthorization of CERCLA. Return to text.

[120] See id. Return to text.

[121] 925 F. Supp. 691 (D.Nev. 1996). Return to text.

[122] Id. at 704 (citing Shell Oil, 605 F. Supp. at 1072). Return to text.

[123] Id. at 693. The earlier cases that the court refers to include Bradley v. Richmond School Board, 416 U.S. 696 (1969) (authorizing application of statutory attorney's fees provision to a prevailing party in litigation commenced before the provision's effective date) and Thorpe v. Hous. Auth. of Durham, 393 U.S. 268 (1969) (authorizing application of a regulation requiring local housing authority to give pre-eviction notice of reasons and opportunity to an eviction commenced before issuance of the regulation). See Landgraf, 511 U.S. at 276-80. Return to text.

[124] 925 F. Supp. at 693. Return to text.

[125] Id. at 694 ("Congress implicitly authorized retroactive application of the third category of liability, damages to natural resources, section 107(a)(4)(C).") (quoting Shell Oil, 605 F. Supp at 1076)). In contrast, Olin does not specifically address this section of Shell. Return to text.

[126] Id. at 695 ("[T]he distinction between retroactive damages liability and retroactive response cost liability was maintained in the final version of CERCLA as the §§ 107(f) and 111(d) limitations on recovery of natural resource damages."). Return to text.

[127] See generally Shell Oil, 605 F. Supp at 1064-86. Return to text.

[128] Atlantic Richfield, 925 F. Supp at 695 (citing Shell Oil, 605 F. Supp. at 1064, 1069, 1076-77). Return to text.

[129] Id. As support for this conclusion, Judge Hagen offered the following footnote:

See, e.g., Colloquy between Senators Stafford and Hart in Senate Debate on S. 1480, Nov. 24, 1980 (noting term "hazardous substances" in S. 1480 will cover existing abandoned radium-contaminated sites in Colorado); Remarks of Rep. Vento in House Debate on S. 1480, Dec. 3, 1980 (noting bill is designed in part "to cleanup our environment from past improperly disposed of hazardous wastes;" delay in passage of bill will "prolong the overall danger"); Remarks of Rep. Fisher in House Debate on S. 1480, Dec. 3, 1980 (noting bill will deal with "problems of toxic waste disposed of years ago"); Remarks of Rep. Martin in House Debate on S. 1480, Dec. 3, 1980 ("[A]bandoned orphaned collection of unlabeled crud . . . will not clear themselves up"); Remarks of Rep. Lent in House Debate on S. 1480, Dec. 3, 1980 (noting RCRA contains a gap "respecting the past disposal of chemical wastes . . . it is necessary to enact legislation to assist in the cleaning of these sites"); Remarks of Rep. LaFalce in House Debate on S.1480, Dec. 3, 1980 (noting bill "deal[s] with the problem of abandoned waste sites"); Remarks of Rep. Gore in House Debate on S. 1480, Dec 3, 1980 (pointing out that 3000 abandoned hazardous chemical waste sites in the U.S. "need to be dealt with"); Remarks of Rep. Brown in House Debate on S. 1480, Dec. 3, 1980 (establishing that in contrast to other environmental legislation, this bill deals with "who pays for cleaning up the environmental mess we have created"); Statement of Sen. Muskie ("Our present laws are not enough . . . We must correct those omissions in the law having to do with past hazardous waste disposal methods."); Letter, September 25, 1979, from Douglas M. Costle, Admin.,U.S.E.P.A., to Jennings Randolph, Chairman, Senate Committee on Environment and Public Works, reprinted in S. Rep. No. 96-848, July 11, 1980 (providing for response at "abandoned and inactive' sites; bill "would establish liability for costs expended by the government to cleanup past disposal practices that today are threatening public health and the environment"; liability provisions are not retroactive because "they merely codify longstanding common law rules relating to liability for hazardous products and undertakings"); S. Rep. No. 96-848, July 11, 1980, additional Views of Senators Domenici, Bentsen, and Baker ("S. 1480 . . . substantially chang(es) existing common law (in some cases retroactively")).

Id. at 695 n.8. Return to text.

[130] 933 F. Supp. 431 (M.D. Pa. 1996). Return to text.

[131] See id. at 438. The Court came to the following conclusion:

[Olin] is the only Court to date to hold that CERCLA does not apply retroactively. Several courts, including the Third Circuit, have addressed the issue of CERCLA's retroactivity. See In the Matter of Penn Central, 944 F.2d 164 (3rd Cir. 1991). Furthermore, all of the cases this Court has cited in rejecting Defendants liability arguments have applied CERCLA retroactively without formally ruling on the issue. Accordingly, we are unpersuaded by a single Alabama District Court case which is surrounded by a myriad of opinions that apply CERCLA retroactively, either directly or implicitly. Thus, we will reject Defendants arguments on retroactivity grounds.

Id. Return to text.

[132] 96 F.3d 1434 (3d. Cir. 1996), cert. denied, 117 S. Ct. 2479 (1997). Return to text.

[133] 1 Federal Court Upholds Retroactive Application of Superfund; Holds Alcan Corp Liable for 1985 Oil Slick, DOJ NEWS RELEASE, available in 1996 WL 481778. Return to text.

[134] 790 F. Supp. 1255 (E.D. Pa. 1992). Return to text.

[135] See id. This case examined several factors similarly to Olin. See id. First, the Court found that CERCLA's express language supports a finding of clear congressional intent to apply CERCLA retroactively. See id. The Court specifically found persuasive the past tense language used in 42 U.S.C. § 9607(a)(2), (a)(3), and (a)(4). Next, the court made the following ruling:

The legislative history of CERCLA supports a finding that Congress intended CERCLA to apply retroactively. The fact that inactive sites are discussed separately from new sites and the fact that inactive sites are discussed first suggests to this Court 1) that the existence of inactive sites such as Love Canal prompted Congress to pass CERCLA, and 2) that CERCLA was intended to impose liability on those parties responsible for such inactive sites. To effectuate this result, CERCLA must be applied retroactively. To find otherwise would be to ignore a significant portion of the legislative history of the Act. Moreover, a contrary finding would frustrate the primary purpose of the Act.

Id. Return to text.

[136] 107 F.3d 1506 (1997) [hereinafter Olin II]. Return to text.

[137] See id. at 1510 ("[A]lthough Congress did not include in CERCLA either legislative findings or a jurisdictional element, the statute remains valid as applied in this case because it regulates a class of activities that substantially affects interstate commerce."). Id. Return to text.

[138] See id. The government argued that the issue was "releases of hazardous substances generally." Id. Return to text.

[139] Id. Return to text.

[140] See id. at 1510-11. The court only references Lopez when concluding that "the regulation of intrastate, on-site waste disposal constitutes an appropriate element of Congress' broader scheme to protect interstate commerce and industries thereof from pollution." Id. at 1511. Return to text.

[141] See id. at 1514. Return to text.

[142] Id. Return to text.

[143] 94 F.3d 1489 (11th Cir. 1996) (holding against original property owner already held responsible for cleanup costs under CERCLA in action against general and limited partners of current owner). Return to text.

[144] 85 F.3d 1514 (11th Cir. 1996) (deciding that the district court was correct in granting summary judgement in favor of manufacturers who were sued under CERCLA by buyer because electrical transformers contained polychlorinated biphenyls (PCBs)). Return to text.

[145] 84 F.3d 402 (11th Cir. 1996) (concluding that landowners who contracted for pesticide aerial spraying were not liable since they did not arrange for disposal as defined under CERCLA). Return to text.

[146] Olin II, 107 F.3d at 1511. Return to text.

[147] See Allan Freedman, With Bipartisan Deal Elusive, Superfund Effort Dies, 54 CONG. Q. WKLY. REP. 2044 (1996) [hereinafter Freedman I]. Return to text.

[148] See id. Return to text.

[149] See Allan Freedman, GOP Woos Democrats in Talks Over New Superfund Plan, 54 CONG. Q. WKLY. REP. 614 (1996). Return to text.

[150] See Issue: Superfund, 54 CONG. Q. WKLY. REP. 31 (1996). Return to text.

[151] See S. 1285, 104th Cong. § 701(b) (1995).

(iv) NO RETROACTIVE LIABILITY—

(I) Compensatory Restoration—There shall be no recovery from any person under of this section of the costs of compensatory restoration for a natural resource injury, destruction, or loss that occurred prior to December 11, 1980.

(II) Primary Restoration—There shall be no recovery from any person under this section for the costs of primary restoration if the natural resource injury, destruction, or loss for which primary restoration is sought and release of the hazardous substance from which the injury resulted occurred wholly before December 11, 1980.

Id. Return to text.

[152] See Allan Freedman, Senate Plan Would Shift Costs, Narrow Scope of Superfund, 53 CON. Q. WKLY. REP. 1923 (1995) [hereinafter Freedman II]. Return to text.

[153] See S. 1285, 104th Cong. § 501 (1995).

(B) CONDUCT PRIOR TO DECEMBER 11, 1980—

IN GENERAL—For any mandatory allocation facility that is otherwise excluded by subparagraph (A), an allocation process shall be conducted for the sole purpose of determining the percentage share of responsibility attributable to activity of each potentially responsible party prior to December 11, 1980.

Id. § 501(b).

(k) EQUITABLE FACTORS FOR ALLOCATION—The allocator shall prepare a non-binding allocation of percentage shares of responsibility to each allocation party and to the orphan share, in accordance with this section and without regard to any theory of joint and several liability based on—

(1) the amount of hazardous substances contributed by each allocation party; (2) the degree of toxicity of hazardous substances contributed by each allocation party; (3) the mobility of hazardous substances contributed by each allocation party; (4) the degree of involvement of each allocation party in the generation, transportation, treatment, storage, or disposal of hazardous substances; (5) the degree of care exercised by each allocation party with respect to hazardous substances, taking into account the characteristics of the hazardous substances; (6) the cooperation of each allocation party in contributing to any response action and in providing complete and timely information to the allocator; and (7) such other equitable factors as the allocator determines are appropriate.

Id. § 501(k). Return to text.

[154] See Freedman II, supra note 152, at 1923. Return to text.

[155] S. 1285, 104th Cong. § 701(c)(4) (1995).

(3) SELECTION OF RESTORATION METHOD—

When selecting appropriate restoration measures, including natural recovery, a trustee shall select the most cost-effective method of achieving restoration.

Id. Return to text.

[156] See Freedman II, supra note 152, at 1923. Return to text.

[157] S. 1285, 104th Cong. § 802 (1995).

(A) LIMITATION—

During each of the 3 12-month periods following the date of enactment of this subsection, the Administrator may add not more than 30 new vessels and facilities to the National Priorities List.

(B) PRIORITIZATION—

The Administrator shall prioritize the vessels and facilities under the subparagraph (A) on a national basis in accordance with the threat to human health and the environment presented by each of the vessels and facilities, respectively.

Id. Return to text.

[158] See Freedman II, supra note 152, at 1923. Return to text.

[159] S. 1285, 104th Cong. § 201(a) (1995).

(A) NONCOMPREHENSIVE DELEGATION STATES—

A non-comprehensive delegation State shall implement each applicable provision of this Act (including regulations and guidance issued by the Administrator) so as to perform each delegated authority with respect to a delegated facility in the same manner as would the Administrator with respect to a facility that is not a delegated facility.

(B) COMPREHENSIVE DELEGATION STATES—

(i) IN GENERAL—A comprehensive delegation State shall implement applicable provisions of this Act or of similar provisions of State law in a manner comporting with State policy, so long as the remedial action that is selected protects human health and the environment to the same extent as would a remedial action selected by the Administrator under Section 121.

Id. Return to text.

[160] See Allan Freedman, Oxley Treads a Fine Line in Revising Superfund, 53 CONG. Q. WKLY. REP. 2990 (1995) [hereinafter Freedman III]. Return to text.

[161] See H.R. 2500, 104th Cong. § 202(a) (1995).

(A) EXEMPTION FROM LIABILITY—Subject to subparagraph (B), no person (other than the United States or a department, agency or instrumentality of the United States) shall be liable for costs or damages referred to in subsection (a) with respect to a release or threatened release of a hazardous substance from a facility that—

(i) on June 15, 1995, was listed on the National Priorities list; and

(ii) on or before June 15, 1995, was authorized by the appropriate State or local government to accept, and did accept for disposal household waste (from single and multiple dwellings, hotels, motels, and other residential sources).

Id. Return to text.

[162] See Freedman III, supra note 160, at 2990. Return to text.

[163] See H.R. 2500, 104th Cong. § 203(a) (1995).

(1) DE MINIMIS CONTRIBUTOR EXEMPTION FROM RETROACTIVE LIABILITY—In the case of a facility or vessel not owned by the United States listed on the National Priorities List, no person described in paragraph (3) or (4) or sub section (a) (other than the United States or a department, agency or instrumentality of the United States) shall be liable under subsection (a) for any costs under this section if no activity of such person described in such paragraph (3) or (4)—

(A) occurred after January 1, 1987, and

(B) resulted in the disposal or treatment of more than 1 percent of the volume of materials containing hazardous substances at such facility or vessel.

Id. Return to text.

[164] See Allan Freedman, Businesses May Escape Cleanup Costs, 53 CONG. Q. WKLY. REP 2174 (1995). Return to text.

[165] See Freedman II, supra note 152, at 1923. Return to text.

[166] See Freedman III, supra note 160, at 2990. Return to text.

[167] See H.R. 2500, 104th Cong. § 201(a) (1995).

(g) REIMBURSEMENT FOR RETROACTIVE LIABILITY—(1) In the case of a facility or vessel not owned by the United States listed on the National Priorities Lists, a person (other than the United States or any department, agency, or instrumentality of the United States) shall be eligible for reimbursement from the Fund for 50 percent of any costs referred to in Section 107(a) paid or incurred by such person after October 18, 1995, to the extent that—

(A) such person's liability under Section 107 is attributable to a status or activity of such person (as described in paragraph (1), (2), (3), or (4) of subsection (a) that existed or occurred prior to January 1, 1987, and

(B) such costs are attributable to response activities carried out after October 18, 1995.

Id. Return to text.

[168] See id. Return to text.

[169] See Allan Freedman, Superfund Negotiators Hope For Bipartisan Compromise, 54 CONG. Q. WKLY. REP. 1041 (1996). Return to text.

[170] See Issue: Superfund, 54 CONG. Q. WKLY. REP. 2440 (1996). Return to text.

[171] See Freedman I, supra note 147, at 2044 (1996). Return to text.

[172] See id. Return to text.

[173] See id. Return to text.

[174] See David Hosansky, President Expected To Travel Center Lane to 21st Century, 54 CONG. Q. WKLY. REP. 3222 (1996). Return to text.

[175] See id. Return to text.

[176] See id. at 3224. Return to text.

[177] See id. Return to text.

[178] See Allan Freedman, President Expected To Travel Center Lane to 21st Century, 54 CONG. Q. WKLY. REP. 2818 (1996). Return to text.

[179] Senate Bill 8, the Superfund Cleanup Acceleration Act, was introduced before the Senate on January 21, 1997, by Senator Bob Smith and his co-sponsor, Senator John Chafee of Rhode Island. See Bill Introduces Fair-Share Cleanup Liability, 4 INS REG 9, available in 1997 WL 7880063. Return to text.

[180] See id. Return to text.

[181] See Miles Moore, GOP Makes 2nd Try at Superfund Reform, TIRE BUS., Feb. 3, 1997. Return to text.

[182] See Bill Summary & Status for the 105th Congress (visited January 4, 1998) . As of Sept. 4, 1997, hearings on Senate Bill 8 were occurring in the Committee on Environment and Public Works. See id. Return to text.

[183] See H.R. 3000, 105th Cong. (1997). Thirty-nine representatives co-sponsored this bill. See id. Including this bill and Senate Bill 8, members of Congress have introduced at least fifteen other bills to amend CERCLA. See Bill Summary & Status for the 105th Congress, (viewed Jan. 17, 1998) . Return to text.

[184] See id. § 201(a). In addition, this bill absolves of liability certain owners or operators who acquired the contaminated facility by inheritance or bequest. It also limits liability for certain owners or operators who are tax-exempt organizations and certain municipalities and other owners of National Priority Listed landfills. The bill exempts from liability: (1) construc tion contractors whose liability is based solely on a contracted construction activity at the facility; (2) certain railroad owners or operators of spur tracks; or (3) persons whose liability is based on a status as a holder of a pipeline right-of-way or easement or of a gas or oil lease if such a person does not cause or contribute or consent to the release or threat of release. See id. Return to text.

[185] See Bill Summary & Status for the 105th Congress (visited January 4, 1998) . On Nov. 9, 1997 the bill was referred to the Committee on Commerce, the Committee on Transportation and Infrastructure, and Ways and Means. See id. Return to text.

[186] "I would like to eliminate retroactive liability . . . . It is 'fundamentally un-American . . . . I will die hard on this issue,' says Representative Shuster." Mark Hoffman, Superfund Reform Redux: Calls to Repeal Retroactive Liability Continue, Legislators Say, 2 BUS. INS., 1997 WL 8293787. Return to text.

[187] See Freedman I, supra note 147, at 2044. Return to text.

[188] See id. Return to text.

[189] See id. Return to text.

[190] Rep. Archer, Chair of the House Ways & Means Comm., said that he will do what he can to ensure that taxes to refinance the Superfund will not be re-authorized until the program has been completely reformed. See Hoffman, supra note 186. Return to text.

[191] See Freedman I, supra note 147, at 2044. Return to text.

[192] See id. Return to text.

[193] See id. Return to text.

[194] See infra note 200 and accompanying text. Return to text.

[195] See Tucker, supra note 76, at C1. Return to text.

[196] See id. Return to text.

[197] See id. Return to text.

[198] See Allan Freedman, Superfund Cleanup, 54 CONG. Q. WKLY. REP. 544 (1996). Return to text.

[199] See Allan Freedman, Superfund Rewrite Focuses on Retroactive Liability, 53 CONG. Q. WKLY. REP. 1173 (1995). Return to text.

[200] See id. Return to text.

[201] See Allen Freedman, Administration Opposes GOP's Superfund Bill, 54 CONG. Q. WKLY. REP. 1167 (1996). Return to text.