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Lawyers still cleaning up over contaminated sites

Superfund has been good for the legal profession.

Entering the fourth decade of the environmental cleanup law's existence, business is still booming for lawyers involved in the mammoth litigation that often occurs.

Many thought that the legal work surrounding the 1980 law, officially known as the Comprehensive Environmental Response, Compensation, and Liability Act, would have diminished by now, but there are still hundreds of sites awaiting remedial work.

And where there is a polluted property, there is usually litigation.

Under the statute, companies that contributed to the contamination of a site are liable for cleanup costs. Where there are multiple parties, all can be required to pay something.

All kinds of legal wrangling ensues, both between government and private parties and between private parties who disagree over how much they should pay.

Gail Suchman, an environmental lawyer at the Stroock law firm in New York, who began her career as a U.S. EPA attorney, recalled that in the 1980s Superfund "tied up every environmental lawyer in the country."

At that time "an incredible amount of money was made by private party lawyers," Suchman said.

Government action later died down, especially after Congress refused in 1995 to renew the chemical and oil fees that kept the Superfund topped up (Greenwire, Dec. 10).

But there may be something of a rebound under the Obama administration, lawyers say, in part thanks to the $600 million Superfund allocation included in last year's American Recovery and Reinvestment Act.

Robert Infelise, an environmental attorney in San Francisco with Cox, Castle & Nicholson, said there is a simple reason there has been so much litigation: The law was badly written in the first place and has never been revisited.

"It's a comment on the extent to which Congress enacted a law and then essentially ignored it," Infelise said.

Evidence that confusion still arises over the law is shown by the fact that the Supreme Court, which has the job of ironing out confusion in the law, continues to take an interest in it.

The most recent occasion was in 2009 when the court ruled on two key issues relating to defendant liability.

Lawyers are still figuring out exactly what it means.

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End draws near for long, bitter cleanup battle

After nearly a decade of wrangling, one of the Superfund program's largest and most politically volatile cleanups could soon be entering a new era of cooperation. In practical terms, the future of the 40-mile stretch of the Hudson River tainted by polychlorinated biphenyls (PCBs), likely carcinogens that are now banned in the United States, will remain uncertain until Jan. 14, 2011 -- when General Electric Co. must decide on participating in a second phase of dredging chemicals from the iconic New York waterway. But environmentalists who have long pushed for the strongest possible Hudson cleanup standards are optimistic that GE and U.S. EPA will be on the same page come spring.


Unheeded warnings set stage for environmental disaster

NIAGARA FALLS, N.Y. -- A national toxic-waste nightmare was foretold in the 1953 contract prepared by the Hooker Electrochemical Co. for the transfer of industrial property that became a residential development known as Love Canal. The contract warned: "[T]he premises above described have been filled, in whole or in part, to the present grade level thereof with waste products resulting from the manufacturing of chemicals." And added, "the grantee assumes all risk and liability incident to the use thereof."

About This Report

In the decade after the first Earth Day, Congress passed four landmark environmental laws – but only the fifth has entered the lexicon with a nickname enduring enough to transform the destiny of hundreds of communities grappling with hazardous waste. E&E takes a look at the still-evolving legacy of the Comprehensive Environmental Response, Compensation, and Liability Act, commonly known as Superfund, as the statute marks the 30th anniversary of its passage.


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