Daily Development for
Monday, July 14, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

HAZARDOUS SUBSTANCES; CERCLA: CERCLA applies retroactively and may, consistent with the Commerce Clause, be applied against a party even where the disposal of hazardous substances is limited to the confines of that party's own property.

United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997).

In a case that has attracted national attention, the Eleventh Circuit reversed and remanded a decision of the U.S. District Court for the Southern District of Alabama that had dismissed CERCLA claims against a company that disposed of hazardous substances "on-site" prior to CERCLA's enactment. The district court had departed from nearly sixteen years of unbroken precedent by holding, in light of the Supreme Court's decision in Landgraf v. USI Film Products, 511 U.S. 244 (1994), that CERCLA could not be applied retroactively. In addition, it had held that, under the Supreme Court's 1995 decision in United States v. Lopez, 514 U.S. 549 (1995), it would violate the Commerce Clause to apply CERCLA to the "on-site" disposal of hazardous substances.

The Eleventh Circuit reversed on both issues. It held that CERCLA's language, purpose and legislative history demonstrated "clear congressional intent" in favor of retroactive application, and thus met the Landgraf test. It further held that on-site waste disposal "substantially affects interstate commerce" and therefore satisfied the Commerce Clause test under Lopez.

Reporter's Comment: The district court decision had led many CERCLA defendants to begin asserting, as defenses, that CERCLA was unconstitutional and not retroactive. The Eleventh Circuit's decision will likely diminish this practice.

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