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State and Local Government Liability Under the Superfund Act

The goal of the Comprehensive Environmental Response, Compensation, and Liability Act, better known as the Superfund Act, is to clean up the nation's hazardous waste sites. Such a goal is clearly important, but its stringent liability provisions have placed unintended and potentially crippling liability on state and local governments. The statute makes any individual or group that has created, transported, managed or disposed of hazardous waste strictly liable for the cost of hazardous waste clean up, without regard to fault. Polluters who jointly contribute to a hazardous waste site's dangers are each potentially liable for the entire clean-up bill. When the federal government sues a party, that party acquires the right to sue its fellow polluters to share the clean up expense.

Landfills where industrial hazardous waste has contaminated ordinary solid waste now represent approximately 20 percent of the worst hazardous waste sites in the nation as listed by the Environmental Protection Agency (EPA). Private party defendants in Superfund cases have sued local governments and others to pick up a disproportionate share of the clean up expense. These actions represent a staggering financial burden for local governments, estimated at $25 million per site. While EPA has recognized and been responsive to these concerns, only statutory change will provide permanent relief to governments.

The Government Finance Officers Association urges Congress to adopt legislation that will bar third-party actions against state and local governments for the generation or transportation of solid waste, facilitate negotiated settlements with the federal government of potential state and local government liability, and enact other changes in the law to reduce litigation.

Adopted: May 4, 1993