14. PREPARE TO SUE RESPONSIBLE PARTIES

One of the fastest growing areas of litigation in federal and state courts is about reimbursement of remediation expenses from the responsible parties. Valid claims may lie against waste generators, transporters, and past or present site owners and operators. The same legal concepts (strict, joint, and several liability, retroactive and prospective) that make it easy for EPA and state agencies to come after potentially responsible parties under Superfund laws, to carry out cleanups or reimburse the government, may be used by private parties seeking reimbursement for cleaning up the waste of others. A related theory of liability is called "common law contribution" for curing contamination caused by somebody else.

Knowledgeable landowners should be aware of the federal and state laws and limitations, their liabilities and defenses. They should be aware of claims they can pursue for breach of contract, breach of warranty, misrepresentation, indemnification and contribution, and using the private right of action in the federal Superfund (and several state Superfund statutes).

An important approach, to keep the litigation option open, while coping with cleanup obligations and agency compliance, is to conduct affairs so as to retain and organize the data needed to have any hope to pursue claims for reimbursement. Proper cost-accounting and claims presentation should be routine. These arrangements may need the cooperation of others, as in a shared cleanup. This means that contracts for land acquisition and subsequent cleanup should specify how the parties will cooperate in pursuing or defending various types of claims.