Author: Brian Block

There is perhaps no piece of enacted legislation that is shown greater contempt on a consistent basis by those tasked with its interpretation than is the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund). 1 In almost any opinion that requires interpretation of CERCLA, it is highly probable that the judge will inject his or her own unique words of disdain for the frustratingly confusing statute. For instance, Judge Young sitting in the District of Massachusetts explained that he could not “forbear remarking on the difficulty of being left compassless on the trackless wastes of CERCLA.”2 In fact, as Judge McKeown on the Ninth Circuit noted, “It has become de rigueur to criticize CERCLA as a hastily passed statute that is far from a paragon of legislative clarity.”3 Accordingly, the failure of a federal appeals court to properly interpret one of CERCLA’s key provisions should come as no surprise. And it should be equally as unsurprising, though possibly disconcerting, that a portion of this same provision was drafted in a manner so flawed as to make it self-defeating in certain circumstances.

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