On Dec. 19, the 2nd U.S. Circuit Court of Appeals took on the confusing question of declaratory judgments under the federal Superfund statute, the Comprehensive Environmental Response, Compensation and Liability Act. CERCLA addresses contaminated sites, that is, sites onto which or from which there has been a “release” of a “hazardous substance.” As the Supreme Court said most recently in Burlington Northern and Santa Fe Railway v. United States , the statute has twin purposes: “to promote the ‘timely cleanup of hazardous waste sites’ and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.”

CERCLA casts a fairly wide liability net. Section 107(a) defines “responsible persons” to include the familiar four classes: current owners and operators; owners and operators at the time of “disposal” of a “hazardous substance”; “arrangers” for treatment or disposal of a hazardous substance (often called “generators”); and transporters for treatment or disposal of a hazardous substance who participate in selecting the receiving facility. The United States may pursue any of these to recover an order to “abate” the threat posed by a release of hazardous substances under Section 106. Under Section 107, the United States, a state and other persons in certain circumstances may pursue recovery of costs that they have expended. Under Section 113, parties that incur costs or reimburse the government may pursue contribution against other responsible parties.

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