¹ 42 U.S.C. Ch. 103, Pub. L. 96-150, 94 Stat. 2767 (11 Dec. 1980). CERCLA was amended by the Superfund Amendments and Reauthorization Act (1986) and the Small Business Liability Relief and Brownfields Revitalization Act (2002).

² The text of CERCLA does not expressly impose retroactive liability for clean-up operations on the four categories of Potentially Responsible Person (PRP). Retroactive liability under CERCLA instead has been established by case law and arguably originated in the common law: Howard, B., ‘A New Justification for Retroactive Liability in CERCLA: An Appreciation of the Synergy between Common and Statutory Law’ (1998) 42(3) Saint Louis University Law Journal, pp. 847–64Google Scholar.

³ See, e.g., Yoon, Y., ‘The Impact and Implications of CERCLA on the Soil Environmental Conservation Act [SECA] of the Republic of Korea’ (2017) 6(1) Transnational Environmental Law, pp. 11–29CrossRefGoogle Scholar. Even though the Constitutional Court of the Republic of Korea initially interpreted liability under SECA as being applicable retroactively, it recently reversed its former recognition by holding that retroactive liability under SECA violates ‘the principle of legitimate expectations protection’ rooted in substantive due process rights of the Korean Constitution. As Yoon points out, although Korea had, to some extent, followed CERCLA and US case law, it had gradually formulated a distinctive liability scheme based on the Korean regulatory context.

⁴ See, e.g., Art. 2 of the Federal Soil Protection Act of Germany (1998) (which defines ‘contaminated sites’ (‘Altlasten’) to include closed-down waste management installations that cause harmful soil changes or other hazards for individuals or the general public). See also s. 78A(2) of Part 2A of the United Kingdom (UK) Environmental Protection Act 1990 (which provides that ‘contaminated land’ is ‘[a]ny land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land that: (a) significant harm is being caused or there is a significant possibility of such harm being caused; or (b) significant pollution of controlled waters is being caused, or there is a significant possibility of such pollution being caused’).

⁵ CERCLA in the US stopped short of imposing liability for personal injury or economic loss caused by land contamination. However, many US states have enacted laws that go further than CERCLA. In Minnesota, e.g., statutes impose liability for personal injury and economic loss. Damages that can be recovered in respect of the release of hazardous substances include claims based on economic loss, death, and personal injury or disease: Minn. Stat. Ch. 115B (2018).

⁶ See United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100 (D. Minn. 1982).

⁷ See, e.g., United States v. South Carolina Recycling & Disposal, Inc., 653 F. Supp. 984 (D.S.C. 1984).

⁸ Troy, D., Retroactive Legislation (AEI Press, 1998), pp. 85–6Google Scholar.

⁹ Layfield, L., ‘CERCLA Successor Liability, and the Federal Common Law: Responding to an Uncertain Legal Standard’ (1990) 68(6) Texas Law Review, pp. 1237–72Google Scholar.

¹⁰ Surber, J., ‘Back on Track: The Reversal of United States v. Olin and the Continuation of Retroactive Interpretation of CERCLA’ (1997) 20(2) Environs: Environmental Law and Policy Journal, pp. 24–39Google Scholar.

¹¹ Munzer, S., ‘Retroactive Law’ (1977) 6(2) Journal of Legal Studies, pp. 373–98CrossRefGoogle Scholar.

¹² According to estimates in the US, the average cost of a clean-up is USD 30 million per site: Nakamura, T. Church & R., Cleaning up the Mess: Implementation Strategies in Superfund (Brookings Institution Press, 1993), p. 8Google Scholar.

¹³ Tarlock, A., ‘Environmental Law: Then and Now’ (2010) 32(1) Washington University Journal of Law and Policy, pp. 1–32Google Scholar.

¹⁴ Brown v. Georgeoff, 562 F. Supp. 1300 (N.D. Ohio 1983).

¹⁵ E.g., ConocoPhillips Pipe Line Co. v. Rogers Cartage Co., No. 3:11-cv-497-DRHDGW, 2012 WL 1231998 (S.D. Ill. 12 Apr. 2012).

¹⁶ Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).

¹⁷ United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996).

¹⁸ See, e.g., Gould Inc. v. A&M Battery & Tire Service, 933 F. Supp. 431 (M.D. Pa. 1996); United States v. Northeastern Pharmaceutical & Chemical Co., Inc., 810 F.2d 726 (8th Cir. 1986).

¹⁹ United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), rev'd, 107 F.3d 1506 (11th Cir. 1997).

²⁰ ConocoPhillips Pipe Line Co., n. 15 above.

²¹ The Contaminated Sites Remediation Act of Manitoba (1997) (CCSM c. C205), s. 3, provides: ‘Subject to subsection (3), this Act applies to a site that has been contaminated regardless of whether (a) the site became contaminated (i) before or after the coming into force of this section, or (ii) because of an act or omission that was permitted or not prohibited by any law or license; or (b) another proceeding has been, is or may be taken under any other Act of the Legislature in respect of the site or the contamination’. The Environment Quality Act of Quebec (1990) (c. 26, s. 4), s. 31.43, states: ‘Where it appears to the Minister that contaminants are present in the land in a concentration exceeding the limit values prescribed by a regulation made under section 31.69, or that the contaminants, even though they are not determined in the regulation, are likely to adversely affect the life, health, safety, welfare or comfort of human beings, other living species or the environment in general, or to be detrimental to property, the Minister may order any person or municipality that, even before the coming into force of this section, had emitted, deposited, released or discharged all or part of the contaminants or had allowed the contaminants to be emitted, deposited, released or discharged; or after the coming into force of this section, has or has had custody of the land as owner or lessee or in any other capacity …’. The Environmental Protection Act of Newfoundland and Labrador (2002) (c. E-14.2), s. 24 provides: ‘This part (Part VII Contaminated Sites) applies regardless of when a substance became present in, on, over or under a contaminated site’.

²² The petitioner, China Petroleum Chemicals Industrial Development Corporation merged with Taiwan Alkali Industry Corporation (referred to here as Taiwan Alkali Co., a now defunct corporation) in 1983 under the direction of the Ministry of Economic Affairs. In 2004, the Tainan City government determined that the dioxin and mercury pollution of the An-Shun Factory, as well as other facilities originally belonging to the Taiwan Alkali Corporation, was attributable to its processing of pentachlorophenol between 1965 and 1978, and that the company was the polluter. Taiwan Alkali Co. was held liable under the Soil and Groundwater Remediation Act (2001). Since the petitioner had merged with and absorbed its legal personality, all general liability was to be assumed by China Petroleum. Tainan City ordered the petitioner to pay New Taiwan dollars (NTD) 652,221 as a remediation fee and to provide land to store the pollutants. The petitioner failed to comply. The cost was doubled, with a penalty and late fee, in accordance with relevant rules, making a total of NTD 2,858,881. The petitioner instituted administrative proceedings to contest the order. It contended that the Ministry of Economic Affairs had failed to supervise the two corporations properly and that the Ministry's forced merger of the two corporations was an illegal exercise of public power. The petitioner sued for state compensation. However, the court affirmed that all claims were to be rejected. A petition for a constitutional interpretation on the ground that the relevant law violated the principle of the prohibition on retroactive laws was lodged in 2013.

²³ J.Y. Interpretation No. 714 of the Constitutional Court of Taiwan, ‘Liability for Pollution Produced Prior to the Entry into Force of the Soil and Underground Water Pollution Control Act’, 15 Nov. 2013.

²⁴ Troy, n. 8 above, p. 88.

²⁵ There is divergence between states in their definition of owner/occupier of the property as well as the imposition of retroactive liability. In Utah, e.g., liability may not be apportioned against a current or previous owner or operator who acquired or became the operator of the facility on or after 18 Mar. 1985, who may otherwise be a responsible party but who did not know and had no reason to know, after having made all appropriate inquiries into the previous ownership and uses of the facility, consistent with good commercial or customary practice at the time of the purchase, that any hazardous material which is the subject of a release was on, in, or at the facility prior to the acquisition or operation of the facility, and the release is not the result of an act or omission of the current or previous owner or operator: Utah Code Ann. § 19-6-310 (2016). The Hazardous Site Cleanup Act of Pennsylvania provides a definition and exceptions applicable to the owner of property: 35 P.S. § 6020.701. However, the circular definition of ‘property owner’ is not that helpful in clarifying retroactivity issues of their liabilities. Courts sometimes rely on state common law to assign owner liability. For example, in City of Los Angeles v. San Pedro Boat Works, 635 F. 3d 440 (9th Cir. 2011), the City of Los Angeles claimed that the successor was an ‘owner’ under CERCLA. However, the appeal court held that the successor was not liable as ‘owner’ because, based on Californian common law, the permittee under a revocable permit for specific use of real property was not the owner of that property where the fee title owner retained power to control the permittee's use of that property. A mere possessory interest in the use or enjoyment of real property did not constitute ‘ownership’. The court intended the scope of liability to be determined from traditional and evolving principles of common law. Thus, San Pedro Boat Works, as successor, was not liable for nuisance because the permittee did not know or have reason to know of the contamination.

²⁶ Soil and Groundwater Pollution Remediation Act of Taiwan of China (2000, revised in 2010), Arts 15, 17, 25.

²⁷ Federal Soil Protection Act of Germany (1998), n. 4 above, Art. 4.

²⁸ UK Environmental Protection Act 1990, n. 4 above, Part 2A, s. 78(F).

²⁹ Environment Quality Act of Quebec (1978) (CQLR c. Q-2), s. 31.43.

³⁰ Japan is one of the few exceptions. Japan makes liable parties – whether landowner, operator or polluter – accountable for soil contamination only after the enactment of the Law for Remediation of Soil Contamination (Art. 3, Annex). The liability of the owner or operator of facilities or land, and polluters, is allocated as follows. Firstly, if soil contamination on the premises of such facilities or properties is attributable to its owner or operator, the owner or operator is liable for the costs of remediation. Secondly, if the owner or operator was not the polluter, then those who caused the soil contamination are subject to remediation orders from the governors. Thirdly, if innocent landowners or operators are unable to find a polluter, they are required to eliminate soil contamination at their own cost but are entitled to indemnification from the polluter if the polluter is later found.

³¹ Under CERCLA, several parties may be involved in cleaning up contaminated sites on the national priority list. This has resulted in considerable inefficient, lengthy, and complicated litigation resulting in excessive transaction costs. Studies have shown that 30–60% of the funds associated with CERCLA were spent on litigation and negotiation with potentially liable subjects. The liability mechanism has long been confronted with criticism as to its unfairness and violation of the polluter-pays principle: Judy, M. & Probst, K., ‘Superfund at 30’ (2009) 11(2) Vermont Journal of Environmental Law, pp. 191–248CrossRefGoogle Scholar; Hedeman, W.N., Cannon, J.Z. & Friedland, D.M., ‘Superfund Transaction Costs: A Critical Perspective on the Superfund Liability Scheme’ (1991) 21(7) Environmental Law Reporter, pp. 10413–26Google Scholar; Gergen, M., ‘The Failed Promise of the “Polluter Pays” Principle: An Economic Analysis of Landowner Liability for Hazardous Waste’ (1994) 69(3) New York University Law Review, pp. 624–92Google Scholar.

³² Freeman, G., ‘Inappropriate and Unconstitutional Retroactive Application of Superfund Liability’ (1986) 42(1) Business Lawyer, pp. 215–48Google Scholar.

³³ Supreme Administrative Court, KHO 2006, 30.

³⁴ Supreme Administrative Court, KHO 1996, A29.

³⁵ Netherlands State v. Akzo Resins; and Van Wijngaarden v. Netherlands State, Hoge Raad, 24 Apr. 1992, NJ 1993, 642 and 643.

³⁶ Netherlands State v. Van Wijngaarden, Hoge Raad, 24 Apr. 1992, LJN ZC0576; Netherlands State v. AKZO Resins, Supreme Court 24-04-1992, LJN AD1660.

³⁷ Ferguson, C., ‘Assessing Risks from Contaminated Sites: Policy and Practice in 16 European Countries’ (1999) 7(2) Land Contamination and Reclamation, pp. 87–108Google Scholar.

³⁸ Slattum, K., ‘Is the United States v. Olin Decision Full of Sound and Fury Signifying Nothing: The Future of Retroactive Liability of the Comprehensive Environmental Response, Compensation, and Liability Act’ (1997) 25(1) Pepperdine Law Review, pp. 141–82Google Scholar.

³⁹ Oswald, L., ‘Strict Liability of Individuals under CERCLA: A Normative Analysis’ (1993) 20(4) Boston College Environmental Affairs Law Review, pp. 579–638Google Scholar.

⁴⁰ Kundis, C., ‘Federalisms Challenges to CERCLA: An Overview’ (2012) 41(4) Southwestern Law Review, pp. 1–30Google Scholar.

⁴¹ See Art. 32(1) Flemish Soil Remediation Decree (1995); L. Lavrysen, ‘Legislation on Soil Remediation in the Flemish Region of Belgium: Prevention and Remedying of Environmental Damage’, in International Seminar on Law Regulating Soil Contaminations (Environment Protection and Resource Conservation Committee, National People's Congress of the People's Republic of China, 2007), available at: https://biblio.ugent.be/publication/631325/file/631386.

⁴² Bauw, E., ‘Liability for Contaminated Land: Lessons from the Dutch Experience’ (1996) 43(2) Netherlands International Law Review, pp. 127–41CrossRefGoogle Scholar.

⁴³ The Contaminated Sites Act of West Australia (2003), s. 25(1)–(3), states: ‘A person is responsible for remediation of a site to the extent that the person caused, or contributed to, the contamination of the site after the commencement of this Act … whether the contamination resulted from an act that was done with lawful authority or without lawful authority. A person who caused, or contributed to, the contamination of a site before the commencement of this Act is responsible for remediation of the site only to the extent that the person caused, or contributed to, that contamination by an act that was done without lawful authority’.

⁴⁴ Percival, R.V., Gravens, K.H. Cooper & M.M., ‘CERCLA in a Global Context’ (2012) 41(4) Southwestern Law Review, pp. 727–72Google Scholar.

⁴⁵ L. Eskesen & U. Jensen, Denmark, International Comparative Legal Guide, available at: http://www.iclg.co.uk/books/el/page3.php?page=country_de.htm.

⁴⁶ Concerted Action on Brownfield and Economic Regeneration Network (CABERNET), ‘Country Profile Denmark’, available at: http://www.eugris.info/displayresource.aspx?r=347.

⁴⁷ Soil and Groundwater Pollution Remediation Act of Taiwan, provision 43.

⁴⁸ 42 U.S. Code § 9607(c)(1): ‘Except as provided in paragraph (2) of this subsection, the liability under this section of an owner or operator or other responsible person for each release of a hazardous substance or incident involving release of a hazardous substance shall not exceed — (A) for any vessel, other than an incineration vessel, which carries any hazardous substance as cargo or residue, $300 per gross ton, or $5,000,000, whichever is greater; (B) for any other vessel, other than an incineration vessel, $300 per gross ton, or $500,000, whichever is greater; (C) for any motor vehicle, aircraft, hazardous liquid pipeline facility (as defined in section 60101(a) of title 49), or rolling stock, $50,000,000 or such lesser amount as the President shall establish by regulation, but in no event less than $5,000,000 (or, for releases of hazardous substances as defined in section 9601(14)(A) of this title into the navigable waters, $8,000,000). Such regulations shall take into account the size, type, location, storage, and handling capacity and other matters relating to the likelihood of release in each such class and to the economic impact of such limits on each such class; or (D) for any incineration vessel or any facility other than those specified in subparagraph (C) of this paragraph, the total of all costs of response plus $50,000,000 for any damages under this subchapter’.

⁴⁹ Environmental Management Act of British Columbia (2003), s. 50.

⁵⁰ Ibid., s. 51.

⁵¹ For detailed analysis see Bauw, n. 42 above, p. 134.

⁵² C. Nathanail & R. Bardos, Reclamation of Contaminated Land (John Wiley & Sons Ltd, 2004), p. 2.

⁵³ J. Xie & F. Li, ‘Overview of the Current Situation on Brownfield Remediation and Redevelopment in China’, The World Bank, Sept. 2010, p. 3, available at: http://documents.worldbank.org/curated/en/450251468024319815/Overview-of-the-current-situation-on-brownfield-remediation-and-redevelopment-in-China.

⁵⁴ PRC Ministry of Environmental Protection, Ministry of Land Resources, ‘Report on National Land Contamination Investigation Survey’, 2014 (in Chinese), available at: http://www.gov.cn/foot/site1/20140417/782bcb88840814ba158d01.pdf.

⁵⁵ Law of the PRC on the Prevention and Control of Soil Pollution, Chairman's Decree No. 8, entered into force 1 Jan. 2019, available at: http://www.npc.gov.cn/npc/c30834/201808/13d193fc25734dee91da8d703e057edc.shtml (in Chinese). The Law only loosely defines relevant terms and, in some instances, provides no definition at all: e.g., there is no definition of key terms such as ‘soil’, ‘soil pollution’, ‘parties liable for soil pollution’, ‘site investigation’, ‘risk assessment’. The definitions used for this article are derived from the legislative history documents and Law and Standard Branch of the PRC Ministry of Ecological Environment, Application Manual of the Law of the PRC on Prevention and Control of Soil Pollution (Law Press, 2018).

⁵⁶ PRC Soil Pollution Law, Art. 35. For a more detailed discussion of risk control and remediation procedures in China's Soil Pollution Law, see Li, T. et al. , ‘Soil Pollution Management in China: A Brief Introduction’ (2019) 11(3) Sustainability, pp. 556–70CrossRefGoogle Scholar.

⁵⁷ PRC Soil Pollution Law, Art. 36.

⁵⁸ Soil Environmental Quality: Standard on Risk Control of Soil Pollution in Agricultural Land (GB 15618-2018) and Soil Environmental Quality: Standard on Risk Control of Soil Pollution in Constructional Land (GB 36600-2018).

⁵⁹ PRC Soil Pollution Law, Art. 37.

⁶⁰ Since the 1980s China has developed a real-property rights system with three main types: (i) ownership rights, (ii) usufructuary rights, and (iii) security rights. Holders of usufructuary rights, which might be enterprises or individuals, have the right to possess, utilize and obtain profits from the land. Compared with ownership rights, usufructuary rights are incomplete: e.g., owners have no right to sell the land.

⁶¹ PRC Soil Pollution Law, Arts 45 and 46.

⁶² The Soil Pollution Law immediately empowered the administrative agencies of local government to identify parties liable for land contamination through administrative procedures in Art. 48.

⁶³ PRC Soil Pollution Law, Art. 71.

⁶⁴ As described in Section 2 above, land contamination occurs when pollutants accumulate to a certain level, thereby generating harm, or the risk of harm, to the environment and human health, regardless of when the site investigation is initiated to legally clarify that the site is, in fact, contaminated.

⁶⁵ See various provincial land contamination laws, such as the Regulation on Prevention and Control of Soil Pollution of the Hubei Province (2016), which states in Art. 23 that contaminated sites should be controlled and remediated by the entities and individuals who caused the pollution. Governments at the county level and above are responsible for the control and remediation if identification of liable parties cannot be accomplished. See further Li, X. et al. , ‘Contaminated Sites in China: Countermeasures of Provincial Governments’ (2017) 147 Journal of Cleaner Production, pp. 485–96CrossRefGoogle Scholar.

⁶⁶ Even the requirement of remediation in the new Chinese Law might be much lower than the remedial action required by CERCLA in the US: for more detailed information, see X. Zhao, Developing an Appropriate Contaminated Land Regime in China: Lessons Learned from the US and UK (Springer, 2013), p. 171.

⁶⁷ PRC Soil Pollution Law, Art. 61.

⁶⁸ Ibid., Arts 57 and 65.

⁶⁹ By way of a further example, empowering owners of usufructuary rights to pursue cost recovery from land contamination funds when polluters of sites contaminated before enactment of the Law cannot be identified is likely to result in onerous costs supported primarily by public finance, or in delayed remedial actions in light of severe local protectionism.

⁷⁰ Medium People's Court of Changzhou City, Su 04 Civil trial No. 214 (2016).

⁷¹ No. 48 (2008), Ministry of Environmental Protection. At the time of the court decision, the national Soil Pollution Law was still at the proposal stage.

⁷² China also introduced a land-banking mechanism in the 1990s, which requires the acquisition of land prior to storing, transferring, and constructing on land in urban areas. The land-use rights on contaminated sites with historical pollution may have already been withdrawn by the government for the purpose of public interest or redevelopment of old towns.

⁷³ Friend of Nature, China Biodiversity and Green Development Foundation v. Changlong Agrochemical Co. Ltd and Changzhou Changyu Chemical Co. Ltd (Appeal), High People's Court of Jiangsu Province, Su Civil appeal No. 232 (2017).

⁷⁴ The court decision dodged the core question surrounding the retroactive liability of polluters: whether the polluters should be pursued for the site contamination costs spent by the government. The judge should have referred to Art. 46 of the PRC Soil Pollution Law. At that time, the Law had been enacted but had not come into effect on appeal. The judge pointed out that the government of Xinbei District, which had already conducted the remediation, could pursue cost recovery from the appellant if it so wished.

⁷⁵ Similar arguments have been made by defendants in land contamination litigation in China: see Friend of Nature, Medium Court, n. 70 above, and Friend of Nature (Appeal), High People's Court, n. 73 above.

⁷⁶ In fact, Art. 46 only provides that response costs – including site investigation, risk assessment, risk control, remediation, outcome evaluation, and long-term stewardship – should be borne by parties liable for the land contamination, in other words, by those who caused the contamination. The legislation needs to further entitle the owner of usufructuary rights to pursue cost recovery from the polluters, even though they merely bear second-order responsibility. This is important because finding polluters liable could be much harder and more time-consuming than anticipated by the legislature.

⁷⁷ In 2010 the UK Secretary of State for Environment, Food and Rural Affairs decided two appeals under the contaminated land provisions in Part 2A of the Environmental Protection Act 1990. The appeals were made by Redland Minerals Ltd (Redland) and Crest Nicholson Residential Plc (Crest) against a remediation notice served on them by the Environment Agency (EA). The case concerned a site at Sandridge, Hertfordshire (the Site). From 1955 to 1980 the Site was used as a chemical factory producing bromate and bromide. While the factory was in operation, bromate and bromide entered the soil and gradually made their way into the underlying chalk aquifer. Crest purchased the Site from Redland in 1983. At the time Crest knew a certain amount about the bromide contamination problem in the soil (but not the underlying aquifer), and nothing about the contamination issues relating to bromate. By 1987 Crest had developed the Site and sold 66 houses. Redland subsequently purchased the interests of the companies that had run the chemical works and took on their liabilities. On 11 Nov. 2005 the EA served a remediation notice (the Notice) on Redland and Crest, identifying them both as the Class A appropriate persons for the pollutant linkages and therefore liable for remediation actions at the Site. Essentially, the Secretary of State decided that Crest and Redland had been properly identified as Class A appropriate persons on the basis that they had ‘caused’ the pollution. The remediation actions were appropriate in the main and the approach taken by the EA in applying the liability rules was sensible.

⁷⁸ E.g., Art. 68 of the PRC Soil Pollution Law provides that local government should implement risk control and remediation of contaminated lands when the polluter of the land acquired from the market is the former owner of the usufructuary land. This provision widens the responsibility of government – that is, the cost of public finance.

⁷⁹ Throughout a long period in history, the state, in conjunction with government at different levels, was the real controller of enterprises. The relationship between the government and enterprises under the traditional economic system was hierarchical and subordinate – the public-owned economy accounted for over 97% of the whole. As the state was the sole owner of enterprises, enterprises were adjunct to government as their operation and production activities were arranged according to administrative authority orders without any independent decision-making rights. The state and government comprehensively managed the planning, investment, finance, supply, and labour wages of the enterprises. Government bore unlimited responsibility for enterprise and gained almost all the residual profits, while enterprises could neither control and dispose of their assets independently nor gain the return on assets.

⁸⁰ Wang, H., ‘Cleaning Up Contaminated Sites in Urban China: Who Should Be Liable?’, in Ginzky, H. et al. (eds), International Yearbook of Soil Law and Policy (Springer, 2018), pp. 167–88Google Scholar, at 183.