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Disputes regarding contaminated sites have given rise to an explosion of federal and state court litigation. Congress enacted the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §§6901 et seq. , as a contemplated "cradle to grave" regulatory scheme for solid waste, and passed the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§9601 et seq. , to address the investigation and remediation of contaminated sites. RCRA and CERCLA each contemplate a strict, joint and several regulatory liability scheme to address sites that have required billions of dollars to investigate and remediate, and which will require additional billions in order to complete the job. Federal and state law cases involving groundwater contamination cases have presented special challenges to litigants and the Courts. Determining the source of groundwater contamination is often a matter of technical dispute, particularly in the case of commingled plumes or older plumes where original point source locations can no longer be located or where there has been a significant amount of contaminant degradation over time. Contaminated plumes derived in whole or in part from potential continuing sources can present difficult remedy selection issues and uncertainty regarding future cost obligations. While a variety of federal and state law theories of liability are available to address groundwater contamination, each presents certain benefits and limitations. For example, CERCLA claims can cover a wide spectrum of potentially responsible parties and are based on strict liability; however, CERCLA excludes petroleum from the scope of its liability scheme and limits recovery to necessary response costs consistent with the National Contingency Plan. RCRA claims can include petroleum contamination, but cannot seek recovery of past costs. Common law theories such as nuisance, trespass and negligence can permit recovery of a broader scope of potential damages and provide for joint and several liability, but they are not based on notions of strict liability and sometimes present difficult statute of limitations problems. This article identifies federal and California state law liability theories addressing responsibility for groundwater contamination, and reviews the elements of liability, potential limitations on available relief, and recent case law developments under these theories. [ABSTRACT FROM AUTHOR]

Because there is no specific legislative or regulatory guidance, there is no "right" way to allocate liability at Superfund sites. Allocation based on the cost of a remedy, and allocation based on the need for a remedy, i.e. risk-based allocation, represent two possibilities. Other allocation schemes can be located between these two philosophical poles. When waste streams and environmental impacts are qualitatively similar, allocation based solely on costs may make the most sense. When one or more potentially responsible parties (PRPs) have qualitatively different wastes or impacts, an allocation scheme based on both contribution to cost and to risk may be able to incorporate all PRPs. In any case, dissident PRPs, whose contribution to remedy costs is large but whose contribution to risk is small, may find satisfaction in the courts where there is precedent for risk-based allocation. [ABSTRACT FROM AUTHOR]

While the primary goal of environmental investigations is to assess and clean up contaminated properties, significant efforts are also directed towards resolving various matters in legal dispute. Opposing parties often disagree about the cause and timing of contamination and the associated liability and costs for meeting regulatory site closure requirements. Environmental experts are often needed to help resolve such legal disputes with expertise in hydrogeology, toxicology, microbiology, chemistry, engineering, and process safety. These experts, or teams of experts, provide technical approaches to determine the liability and cost apportionment amongst the various potentially responsible parties. Fate and transport models, environmental forensics, and risk assessment help to answer the issues in dispute. Skillful communication of these technical findings is needed to present conclusions to audiences that do not necessarily have technical backgrounds. [ABSTRACT FROM AUTHOR]

Introduces the "Commentaries & Perspectives" section of the periodical "Environmental Forensics." Section content; Guidelines for submitting articles for the section.

Points out that environmental forensics has evolved as a technical discipline which involves a systematic examination of environmental information to determine sources of chemical contamination, the timing of releases to the environment, the spatial distribution of contamination, and potentially responsible parties. Prediction that it will play an increasingly important role in regulatory enforcement actions and cost-recovery litigation in the U.S.