Over the past two years, reauthorization of Superfund legislation has been a hotly debated topic.[1] A primary issue in these debates has been to what extent should retroactive liability be limited under the law.[2] Before Congress acted on any proposal to limit retroactive liability, a federal district court judge issued a controversial ruling holding that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)[3] did not apply retroactively to impose liability for waste disposed prior to the law's enactment in 1980. The controversial case was United States v. Olin,[4] decided by Senior District Court Judge Hand in May 1996. Even though this decision was later reversed on appeal, this case briefly gave hope to those who did not favor retroactive liability.[5]

In Olin, the United States filed an action under CERCLA against the Olin Corporation, a Virginia corporation that operates a chemical plant in Alabama.[6] A proposed consent decree was filed with the complaint.[7] After reviewing the parties' briefs on constitutional and statutory issues relating to CERCLA, Judge Hand denied the consent decree and dismissed the case on two grounds.[8] First, Congress did not clearly express an intent that the liability provision of CERCLA should be applied retroactively, as required by the decision in Landgraf v. USI Film Products.[9] Second, the application of CERCLA violated the Commerce Clause as interpreted in United States v. Lopez.[10]

Even though the circuit court struck down the Olin decision on appeal,[11] a number of industry and insurance groups were supportive of the lower court decision and believed that the court correctly stated the law regarding retroactive liability.[12] For example, the Washington Legal Foundation, the American Insurance Association, the National Association of Independent Insurers, and the Reinsurance Association of America publicly expressed their support for the lower court ruling.[13] Moreover, some Republicans in Congress called the original decision a "watershed event in Superfund reform."[14] Even though Judge Hand attempted to restrict retroactive liability, this issue may not be resolved until Congress amends the Superfund law or the United States Supreme Court addresses the precise issue of retroactive liability under CERCLA.

This article addresses the issue of retroactive liability in hopes of proffering a legislative solution to the divisive issue. Part II examines the history of CERCLA. Part III analyzes the reasoning of the Olin decision, how other courts reacted, and its reversal in Olin II. Part IV examines the ongoing debate in Congress. Part V concludes by suggesting a legislative solution to this issue, and calling for legislation affirming CERCLA retroactive liability.

Although various laws existed in 1979 that addressed many impacts hazardous substances had on the environment,[15] Congress recognized that a gap existed in those regulations.[16] That gap encompassed the problems caused by inactive or abandoned waste disposal sites described as the most serious health and environmental problem of the decade.[17] Thus, CERCLA was passed to provide for the cleanup of inactive hazardous wastes sites.[18] CERCLA was actually an amalgamation of several bills.[19] Although little consensus existed on certain aspects of the combined Senate and House bill,[20] Congress realized the importance of legislation that would immediately address the problem of inactive or abandoned waste sites.[21] Therefore, both the House and the Senate passed the compromise bill, CERCLA.[22]

While CERCLA was enacted in 1980, the issue of retroactive liability was not raised in the courts until 1983 when Brown v. Georgeoff[23] was heard.[2]4 Georgeoff addressed the question of imposing liability on contributors for pre-enactment waste activities.[25] Although no court had yet ruled on the issue of retroactive liability under CERCLA, Judge Dowd facilitated his decision in Georgeoff by applying the general reasoning that previous courts used when deciding the issue of retroactivity under other statutes.[26] Using Judge Sirica's framework in Windsor v. State Farm Insurance Co.,[27] Judge Dowd first examined the language of CERCLA, specifi cally examining Section 107.[28] The State argued that the past tense verb usage "must be construed to apply to conduct occurring before the enactment."[29] Judge Dowd noted that other sections of CERCLA supported the view that CERCLA should be applied to pre-enactment conduct.[30] Due to CERCLA's ambiguous wording, Judge Dowd examined the legislative history of the statute.[31] He concluded that "[t]he Congressional intent to make industry pay for the cleanup costs must be interpreted as an intent to authorize lawsuits which impose liability retroactively upon transporters."[32]

Another early case that addressed retroactive liability was United States v. Northeastern Pharmaceutical & Chemical Co. (Northeastern Pharmaceutical).[3]3 In Northeastern Pharmaceutical, the court concluded that Sections 104,[34] 106(a),3[5] and 107(a)[36] of CERCLA were intended to apply retroactively.[37] Equally important, the court recognized that "Congress intended to have the chemical industry, past and present, pay for the costs of cleaning up inactive hazardous waste sites."[38]

In its analysis of section 107, the Northeastern Pharmaceutical court relied on Usery v. Turner Elkhorn Mining Co.[3]9 In Usery, the Supreme Court ruled that general retroactive liability is constitutional.[40] Following the Usery case, "CERCLA's imposition of liability for past acts is rational and satisfies the Due Process Clause of the Fifth Amendment."[41]

Although the Northeastern Pharmaceutical court ruled that Sections 104, 106(a), and 107(a) applied retroactively, it also ruled that those sections did not apply retroactively to response costs incurred before December 11, 1980.[42] The court's conclusion was based on the absence of explicit statutory language that would make the defendants liable for pre-CERCLA costs.[43] This decision was reversed on appeal in 1986.[44] During the period between the initial hearing of Northeastern Pharmaceutical and its appeal, other cases addressed similar questions of retroactive liability.[45] The most important case decided in this period was United States v. Shell Oil Co.[46]

In Shell Oil, the district court addressed two issues regarding the retroactive application of CERCLA. First, pursuant to CERCLA are parties liable for pre-enactment actions?[47] Second, does CERCLA hold responsible parties liable for pre-enactment government in curred response costs?[48] In response to the first issue, Judge Carrigan pointed to other court decisions where liability was imposed on responsible parties for acts committed before CERCLA's enactment.[49] As for the second issue, Judge Carrigan drew his own conclusion based on the retroactive nature of CERCLA and the act's legislative history, finding that responsible parties are liable for pre-enactment government response costs.[50]

Judge Carrigan examined both statutory provisions[51] and legislative history to support his conclusions.[52] Thus, the court in Shell Oil was the first to rule that pre-enactment incurred government response costs were recoverable under CERCLA. On appeal, the circuit court in Northeastern Pharmaceutical[53] adopted the reasoning applied by the Shell Oil court when it held that "the district court erred in finding that CERCLA does not authorize recovery of pre-enactment response costs."[54] This effectively reversed the judgment that pre-enactment response costs were not recoverable.

While courts were grappling with the issue of retroactive liability, Congress began to consider reauthorizing CERCLA. Congress realized that the problems created by abandoned and inactive waste sites were worse than originally anticipated.[55] CERCLA allotted only $1.6 billion for the Superfund,[56] and Congress recognized that this amount would be insufficient to fund the enormous cleanup that was needed.[57] Congress decided that the program needed to continue,[58] but how much the Superfund increase would be and who would pay for such an increase was still undetermined.[59] Thus, several bills were presented to amend CERCLA.[60]

The taxing authority of the Superfund expired in September 1985.[61] Congress realized that timely passage of legislation was needed if necessary cleanups were to continue.[62] However, because it had not come to an agreement on reauthorization, Congress passed a two month, $150 million extension to allow the cleanups to continue.[63] A second loan providing $48 million was passed in August 1986.[64]

A congressional committee began meeting in February and continued to meet until the bill was passed in both the Senate and House.[65] Finally, on October 17, 1986, approximately one year past the expiration of the Superfund taxing authority, President Reagan signed the act, thereby amending CERCLA and establishing the Superfund Amendments and Reauthorization Act (SARA).[66]

SARA greatly impacted several components of CERCLA.[67] Had Congress been dissatisfied with the application of retroactivity under CERCLA, this issue would have been addressed through the reauthorization. However, Congress did not restrict retroactive liability in SARA.[68] Thus, after CERCLA was amended in 1986, numerous cases continued to hold that CERCLA imposed retroactive liability.[69] Moreover, some commentators claim that CERCLA, with its imposition of retroactive liability, has been successful.[70] Although the legality of retroactive liability was infrequently raised after the enactment of SARA, a discussion of retroactive liability did occur when Congress engaged in discussions of the proposed reauthoriza tion in 1995.[71] However, discussions did not focus on whether retro active liability could be imposed, but instead on whether CERCLA should be amended to abolish retroactive liability.[72] The issue appeared to be settled until 1996 when Olin rekindled the debate about the existence of retroactive liability.[73]

In Olin, District Court Judge Hand came to a conclusion which contradicted the case history of CERCLA.[74] Judge Hand concluded "Section (a) and Section 106(a) . . . are not retroactive."[75] What started as an ordinary case to recover cleanup costs became a milestone case that shocked legal commentators across the country.[76]

Judge Hand provides a lengthy argument for his decision. First, Hand maintains that the Eleventh Circuit had not "squarely addressed" the issue of retroactive.[77] Next, although Judge Hand recognizes the multitude of federal cases that have directly addressed the issue of CERCLA's retroactivity,[78] he asserts that all of these cases were decided before the Supreme Court's decision in Landgraf v. USI Film Prods.[79] While Judge Hand notes that the defendants argued that Landgraf should be influential, he also notes that the Justice Department countered that CERCLA's retroactivity is "well-settled" and not affected by Landgraf because the decision "announced no new constitutional rules, and in no way impacts this case law."[80] Judge Hand concludes that Landgraf was significant in terms of retroactive liability.[81] He suggests that "not all the courts which have applied CERCLA to pre-enactment conduct have agreed that it is retroactive."[82]

Next, Judge Hand asserts that because Landgraf "addresses a rule of statutory construction,"[83] the Justice Department cannot credibly argue that '[t]he result in Landgraf is unremarkable.'"[84] Judge Hand suggests that the Justice Department easily dismissed Landgraf because the case "demolishes the interpretive premises on which prior cases had concluded CERCLA is retroactive."[85] As an example, Judge Hand proffers the finding of Brown v. Georgeoff.[86] While the court in Georgeoff recognized a historical "presumption favoring a prospective only application of a statute,"[87] Judge Hand describes how the court applied a presumption in favor of retroactivity.[88] Because Landgraf disapproved of the premises for the decision in Georgeoff, Judge Hand argues that "Georgeoff and the cases which rely on its analysis—and which do not do their own analysis—cannot be considered persuasive."[89] Judge Hand continues by noting that only two other cases do their own analysis of retroactivity,[9]0 United States v. Shell Oil Co.[9]1 and United States v. Northeastern Pharmaceutical & Chemical Co., Inc.,[92] and both cases approvingly refer to Georgeoff.[93] Furthermore, Judge Hand enumerates various problems with the reasoning in Shell and Northeastern Pharmaceutical.[94]

Yet Judge Hand recognizes that "prior to Landgraf, lower federal courts would have tended to minimize the importance of the presumption against retroactivity."[95] He concludes that Landgraf "does at least clarify the analysis of retroactivity and, therefore, does 'impact this case.'"[96]

Judge Hand next offers a summary of the majority opinion of Landgraf, stating that the opinion requires a court

1) to determine a) whether Congress has expressly stated the statutes reach and b) if not, whether the text and legislative history have 'clearly prescribed' Congress' intent to apply the provision retroactively; 2) if not, whether the provision actually has 'retro active effect' on the party or parties in the litigation, and 3) if so, to apply the traditional presumption against retroactivity—absent a clear congressional intent to the contrary.[97]

Because the court ruled that no Congressional intent for CERCLA's retroactive liability existed, the court next examined the question, "Does CERCLA Have a Retroactive Effect?"[103] In the Olin decision, Judge Hand determined that CERCLA "certainly has 'retroactive effect' because . . . it easily falls within the explanatory language of that term."[104] Yet the Olin court applied Landgraf's decision about compensatory damages to the financial liabilities under CERCLA, ruling that the damages in this provision do not apply when there is an absence of Congressional intent.[105]

In the final step of the Landgraf analysis, Judge Hand asks, "Should the Presumption Against Retroactivity be Applied?"[10]6 In Landgraf, the court examined whether a particular section of an act "should govern cases arising before its enactment."[10]7 The Olin court argued that CERCLA posed the threat of punitive damages,[108] and "liability under CERCLA would require compensation for actions which when taken violated no federal or state law."[109] Based on this reasoning, the Olin court decided that CERCLA liability is the type of liability that "does not apply retroactively without clear congressional intent."[110]

Judge Hand's Olin decision continued by criticizing the Justice Department's reliance on Northeastern Pharmaceutical, a case that characterizes CERCLA as "overwhelmingly remedial and retroactive" and as having a "backward focus."[111] He suggests that legislation "cannot be remedial if the conduct being 'remedied' was lawful at the time of its occurrence,"[112] and asserts that the "backward focus" of CERCLA is not persuasive.[113] Finally, Judge Hand asserts that the Justice Department's argument "boils down to a claim that CERCLA must be read to be retroactive," and he presents an argument against the Justice Department's claim.[114]

Judge Hand ultimately concludes that neither the Justice Department nor the pre- Landgraf cases established that Section 107(a) is "the sort of provision that must be understood to operate retro actively because a contrary reading would render it ineffective."[115] Therefore, the court ruled that "Section 107(a) and Section 106(a) as linked to it in this case are not retroactive."[116]

Several questionable aspects regarding Olin's reasoning existed. First, the analogy between Landgraf and Olin was questionable. While Olin addressed retroactivity pertaining to hazardous waste damage, Landgraf examined retroactivity pertaining to civil rights.[117] Most importantly, the damaging effects in each situation are quite different. In Olin, the effects of the past action are still harmful to those individuals who live near the areas of abandoned waste sites. In contrast, in the civil rights case, Landgraf, the effects of the action would probably have been more damaging in the past. Thus, one important difference between Landgraf and Olin is that the effects of the damages of the past action is more presently harmful in cases involving environmental waste.[118]

Furthermore, Congress reauthorized CERCLA twice and did not attempt to change the liability provisions, even though many cases had arisen questioning retroactive liability.[119] While Congress had the opportunity to change the liability provisions both in 1986 and 1990, they did not implement any changes because the matter seemed to be settled.[120] Since Congress did not take steps to change the court's interpretation imposing retroactive liability implied that the court's imposition of such liability was in fact consistent with the Congressional intent.

While waiting for the appeal, several cases highlighted deficiencies in Judge Hand's argument. In Nevada v. United States and Atlantic Richfield Co.,[121] Judge Hagen, in applying the Landgraf framework, concluded that Congress "clearly intended CERCLA to reach backward and impose liability upon those who are responsible for ongoing environmental deterioration resulting from wastes which had been dumped in the past."[122]

In reaching this decision, Judge Hagen first noted that instead of setting forth a new rule of law regarding retroactivity, Landgraf simply clarified that earlier decisions "did not erode the traditional presumption against retroactivity."[123] Moreover, Judge Hagen stated that Landgraf requires "clear evidence of Congressional intent" as opposed to a "clear statement of Congressional intent."[124] Judge Hagen next determined that the "negative implication analysis set forth in United States v. Shell Oil, 605 F. Supp. 1064 (D. Colo. 1985) . . . is far more persuasive in the CERCLA case than it was in the Landgraf case."[125] Judge claimed that "it is clear that the entire scheme of the statute contemplates retroactive liability for response costs, but not for natural resource damages."[126] However, Shell Oil does not discuss the distinction of natural resource damages.[127]

Judge Hagen further ruled that the Shell Oil court "clearly applied the presumption and found it outweighed by overwhelming evidence of congressional intent on retroactivity."[128] Finally, Judge Hagen concluded that "the clear intent of Congress was to provide for retroactive application of the CERCLA liability provision."[129] Judge Hagen did not comment on the Olin decision itself because that case had not yet been published at the time Judge Hagen made his ruling.

However, other courts did specifically find the Olin decision flawed. On July 15, 1996, the Gould Inc. v. Battery & Tire Serv.[130] court rejected the Olin decision,[131] and on August 22, 1996, the United States v. Alcan Corp.[132] court offered a one-sentence order that rejected the defendant's arguments that relied on Olin.[133] Finally, on September 27, 1996, in United States v. Rohm and Haas Co.,[134] the court disagreed with Olin by ruling that Congress intended CERCLA to be applied retroactively.[135] These decisions underscore that courts should not follow in the footsteps of Olin, but instead should follow the well-established precedent that CERCLA is retroactive. The Eleventh Circuit agreed with these other courts when it reversed the Olin decision.

On March 25, 1997, the 11th Circuit reversed the Olin decision.[13]6 In Olin II, the court flatly rejected the conclusion that Lopez altered the constitutional standard for federal statutes regulating intrastate activities.[137] In reaching this decision, the Olin II court first categorized the activity at issue. Rejecting the government's argu ment,[138] the court determined that the issue was "disposal of hazardous waste at the site of production."[139] In determining that this issue affected interstate commerce, the court relied on a Senate committee report, which cited improper on-site waste disposal as a significant factor in chemical contamination in agriculture losses and the Lopez decision.[140]

Following Landgraf, the Olin II court also reviewed CERCLA's language, structure, purpose, and legislative history to determine if retroactive liability applies. Based on its analysis, the Olin II court concluded that the district court mistakenly found no insight into Congress' intent.[14]1 The Olin II court made this determination based on legislative history, which "confirms that Congress intended to impose retroactive liability for cleanup.[142] This decision supports the Eleventh Circuit's implicit holding of retroactive liability found in several cases, including Redwing Carriers v. Saraland Apartment,[14]3 Florida Power & Light Co. v. Allis Chalmers Corp.,[14]4 and South Florida Water Management District v. Montalvo.[145] In each of these cases, the acts which gave rise to the contamination occurred before CERCLA was enacted. In Olin, the Eleventh Circuit specifically states that the district court's ruling on retroactive liability "runs contrary to all other decisions on point."[146] In reaching this conclusion, the Olin II court rendered many companies' one ray of judicial hope obsolete.

Until the United States Supreme Court makes a decisive ruling about retroactive liability, companies will continue to argue against retroactive liability. Unless the highest court renders a final decision on this issue, many companies may be reluctant to settle claims regarding retroactive liability, which may delay cleanups across the country. Since a decision from the United States Supreme Court is at least a year away, it is imperative that Congress take a clear stand with respect to retroactive liability as soon as possible.

Even though the courts appear settled on whether retroactive liability exists under CERCLA, Congress is divided over whether to keep retroactive liability.[147] Whether one takes the existence of the Congressional debate as supporting the validity of retroactivity, or simply view Congress as confused or trying to correct an erroneous misinterpretation of CERCLA, at some point in the near future, a legislative solution to the question is necessary.

While the debates in Congress over reauthorization of the Superfund do not focus exclusively on the issue of retroactivity under the Act, certain retroactive application of CERCLA liability laws provided the major focus for the last set of arguments in Congress in 1996 that this article examines.[148] In the ongoing debate over reauthorization, the issue of retroactivity is considered one of the divisive "linchpins" of the program.[149]

In 1995, Republican Representative Michael G. Oxley of Ohio and Republican Senator Robert C. Smith of New Hampshire, generated two proposals in the House and the Senate, respectively, which aimed to eliminate retroactive liability.[150]

Senator Smith's proposal initially aimed to eliminate the retroactive liability provision for companies that dumped waste prior to 1980, the year the Superfund was enacted.[151] In addition, Senator Smith wanted to change the section of the current liability system that holds only one business responsible for payment of an entire site's cleanup.[152] Senator Smith's proposal would have repealed that section, holding each polluter responsible only for his proportionate share.[153]

Also, Senator Smith placed greater emphasis on cost efficiency in clean-up efforts.[154] His bill would have required the Environmental Protection Agency (EPA) to choose the clean-up remedy that provides the most inexpensive protection for human health and the environment.[155] Another major provision of Senator Smith's bill would have placed a cap on the number of new sites that the EPA could add to the list of Superfund sites.[156] In each of the three years after enactment, the EPA would only be able to add thirty new sites.[157] Finally, Senator Smith's bill gave states more power and potential responsibility with regard to Superfund sites within their borders.[158] According to Senator Smith's bill, states would have been able to chose whether to veto placing a site on the national priorities list, and following federal cleanup standards, cleanup the site on their own.[159]

Representative Oxley's bill, though with similar objectives as Senator Smith's, had its own particular provisions. One difference was a provision directed at small businesses and municipalities that could have affected up to 250 Superfund sites, along with the multitude of businesses that dump into those sites.[160] This provision would have fully exempted some parties from liability if, after June 1995, they had dumped waste at a site that had already accepted municipal solid waste from another party or parties.[161]

Another provision of Representative Oxley's bill provided a different kind of exemption for some small businesses.[162] A business could have become exempt from all liability if it contributed less than one percent of the waste to a Superfund site prior to 1987.[163] Representative Oxley chose the 1987 date since that is when record-keeping requirements were fully implemented.[164] The 1987 date pleased many insurance companies because it is also the year that they changed their policies to avoid paying future Superfund-related claims.[165] In addition, Representative Oxley's bill also allowed for government rebates that would come out of the Superfund,[166] and companies that dumped waste before 1987 could apply for reimbursement.[167]

While neither party in Congress was willing to give up in the early stages of drafting and reviewing the proposed bills, each acknowledged that future negotiations regarding the Superfund program were dependent on the outcome of the 1996 November election.[168]

Members of both parties of Congress accepted that any changes to the Superfund program regarding retroactive liability would rely prominently on bipartisan compromise, and would proceed gradually, if at all.[169] However, after more than a year of concentrated efforts[170] to obtain a bipartisan compromise on Senate Bill 1285, the Republican-developed Superfund bill proposed by Senator Smith was pronounced dead during the week of July 15, 1996.[171] This signified the end of hope for bipartisan agreement for Superfund revision until after the November 1996 elections. Both Democrats and Republicans waited to see if their side might gain more of an upper hand on the issue after the elections.[172] A Dole victory might have led the Republican's to achieve their desired repeal of retroactive liability, while a win for Clinton would imply a more moder ate, but still bipartisan, drafting of a compromise.[173]

Now in his second term as President, President Clinton once again must work with a Republican-led Congress. This time, he is even more likely to emphasize moderation on issues, in an attempt to stress bipartisan compromise and balance, especially on sticky topics like the environment.[174] One of the most binding features of the Clinton presidency is the Republican Congress' priority to balance the federal budget.[175] With that priority as a guideline, it is likely to dictate future legislation. Where the Superfund is concerned, debates over making site cleanup even more cost effective, and continuing the push to reduce liability standards to avoid expensive litigation, are not going to go away. Moreover, with less money to spend, President Clinton will be under continual pressure to pursue moderate measures.[176] Republicans will also be stressing moderation and compromise since they realize that they must reach a middle ground with the President and his administration if they want to successfully carry out their own agenda.[177]

Environmental policy will be a challenge for the President and Congress. The ideal middle ground hoped for in other areas is especially distant here due to warring interest groups and fiscal tightening. Environmental policy success lies in creative approaches to old issues, on a more incremental level.[178] In fact, the first Superfund reform bill of 1997 did not explicitly address the issue of retroactive liability.[179] The primary features of the bill were (1) the creation of a fair-share allocation of multiparty sites to replace joint and several liability; (2) the elimination of liability for small contributors; and (3) the provision of $60 million in funding to states and localities to spur the cleanup and redevelopment of sites.[180] Even some of the strongest supporters for the elimination of retroactive liability began the year by conceding that such repeal does not have a chance of surviving Democratic opposition.[181] To date, this bill is still facing committee hearings.[182]

On November 9, 1997 Representative Oxley modified his 1986 bill and reintroduced it as the Superfund Reform Act.[183] Like its predecessor, this bill curtails retroactive liability. For example, retro active liability would not occur for: (1) releases occurring in connection with arranging for disposal, treatment, transport, or acceptance of hazardous substances prior to 1987 at non-federally owned National Priority Listed facilities; (2) releases at facilities which only handle municipal solid waste or sewage sludge; or (3) de micromis releases.[184] The bill has just begun the committee hearing process.[185]

Despite the fact that current legislative proposals do not provide for a repeal of retroactive liability, the issue is still a matter of concern to many in Congress.[186] As noted previously, this issue is one that needs immediate resolution. Adding to the pressures to overhaul the program, is the unknown future role of industry taxes that have, until recently, helped to pay for the cleanup program.[187] The taxes actually expired December 31, 1995,[188] though the program can be successfully funded by a surplus until fiscal year 2000.[189] However, some parties involved do not want to reauthorize these taxes until there is greater certainty that Congress will successfully overhaul the Superfund program.[190] This pending funding limitation, suggested by leaders of the authorizing committees, is aimed to pressure Congress to revise the Superfund program.[191]

The legitimacy of retroactive liability cannot be delayed while Congress waits to make a decision on the future role of industry taxes. Congress needs to settle the issue of retroactive liability by amending the act with language such as: "Liability under this act is retroactive." Even though many Republicans oppose maintaining the provision for retroactive liability on the grounds that it is unfair to punish companies for actions that, when carried out, were fully legal,[192] the limitations introduced in House Rule 3000 should not alter how courts presently apply retroactive liability. Even though several Republicans argue that being more lax with liability standards will slow down the clutter of litigation that now consumes the time and focus of many companies, preventing them from overseeing the actual cleanup of their sites,[193] any laceration may result in individual tax payers paying for the clean up.[194]

There is another equally persuasive unfairness argument. A number of companies have had substantial retroactive liabilities imposed upon them, but they have already resolved most of them.[195] Therefore, not only do they have little to gain from the repeal, but they have been placed at a disadvantage vis-à-vis their competitors who have not been good corporate citizens and who have managed to thus far evade their liability for hazardous sites created prior to 1980.[196] Thus, in terms of fairness, the case for retaining retroactivity seems to be stronger.

An additional consideration concerns companies involved with lawsuits against their insurers for remediation costs from settlements with the EPA. These companies might find that courts will hold that since there is no retroactive liability, settlements paid for a form of liability that does not exist are merely gratuitous.[197] Such a result would be extremely unfair.

Easing up on liability standards for companies sends a strong message to polluters that they can easily shake the blame for pollution and environmental damage and simply let the federal govern ment pay for the costs of cleaning up polluted sites.[198] In addition, a full repeal of retroactive liability is not cheap. The Congressional Budget Office reported that repealing retroactive liability would cost the federal government from $800 million to $1.3 billion a year.[199] As a result, taxpayers would likely become the targets to bear the burden of cleaning up many sites, even when the company responsible for the costly damages is known.[200] Much of the tax burden for Superfund has thus far fallen on the chemical and petroleum companies. When these taxes are reauthorized, if there is not retroactive liability, a most logical source of money will be could come from an increase chemical and petroleum companies' taxes.

Major opponents of repealing retroactive liability, like Carol Browner, administrator of the EPA, allege that a repeal would only prolong the cleanup process, require more money from taxpayers, and send the wrong message to polluters.[201] If correct, such allegations further support the need for Congress to pass a simple amendment to CERCLA, clearly stating that the liability under the act is retroactive.

The legitimacy of retroactive liability will not be resolved until the United States Supreme Court speaks or Congress takes action. A careful review of Olin and subsequent cases leads to the conclusion that if the issue reaches the Supreme Court, the Court will likely uphold retroactive liability. However, an appeal of Olin to the highest court for resolution of this issue will take at least another year. There is no point in waiting over a year for the court to act; Congress should take action itself by affirming the act's retroactive liability.