The federal courts seem to hold that the contribution provisions of the Comprehensive Environmental Response, Compensation and Liability Act preempt private claims under state law to reallocate cleanup costs. At least they have held that in the few cases that have considered CERCLA preemption. If the law is what those cases say the law is, some state statutory provisions, like the private rights of action under the Pennsylvania Hazardous Sites Cleanup Act, or HSCA, may be entirely preempted, even when CERCLA cannot apply. But that would be absurd. So, figuring out what the law really is presents a challenge.
CERCLA establishes the federal Superfund program to respond to—that is, to clean up—releases of hazardous substances. Persons responsible for facilities from which a release occurs are liable to implement the response action under Section 106(a), 42 U.S.C. Section 9606(a), or to pay for costs of response incurred by the United States or a state under Section 107(a)(1-4)(A), Id. Section 9607(a)(1-4)(A). Unless a defendant can prove that a reasonable basis for apportionment exists, liability is typically joint and several. However, amounts spent by persons other than the United States or a state—including a liable person—can be reallocated among all of the available liable persons through private cost recovery under Section 107(a)(1-4)(B), contribution during or after an enforcement action under Section 113(f)(1), or contribution after a settlement under Section 113(f)(3)(B), 42 U.S.C. Sections 9607(a)(1-4)(B), 9613(f)(1), (f)(3)(B).
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