KEYNOTE ADDRESS: THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, LIABILITY,
AND COMPENSATION ACT OF 1980
James H. Russell, attorney at Law
Baker and Hostetler, Inc.
Cleveland, Ohio 44114
INTRODUCTION
Good morning, ladies and gentlemen! Thank you for the privilege of being with such a distinguished group this morning.
It's true, as Dr. Etzel mentioned a minute ago, that I've practiced environmental law for many
years now, and during that time it has been very gratifying to me to work daily with you and your
colleagues. I have also learned how some of you feel about environmental lawyers! (Laughter). And
speaking today as an environmental lawyer to such distinguished engineers and scientists reminds me
of another public speaker, who once had the misfortune of spilling a large glass of water all over his
lap at the dinner table, just seconds before he was to rise and make a formal after-dinner speech to
a large audience. After he was introduced to the audience, he rose from his chair, surveyed the large,
august group, and then acknowledged his fear that: "No matter how hard I try to explain things, I
know you may never believe me."
As you well know, we have the same overriding concern in environmental law practice. Credibility
is what we strive for—every day, all the time. It's the most important thing we have to sell—to the
environmental regulators, to permit issuers, to enforcement authorities. It is our most valuable asset
for our clients. But acquiring credibility is like shining a brass plate: it takes so much hard work,
every day, to get the luster we want, and yet it tarnishes by simply not polishing it. Working with
environmental agencies seems often as if we are using a shaving mirror. Once it is cracked, it is
difficult to concentrate on the remaining parts of the mirror and the task at hand.
Not too long ago, in a rulemaking proceeding before an administrative body in a Midwestern
state, I had finished what I thought was a fine oral argument, telling that particular environmental
agency what we thought the law should be. We had been through weeks of public hearings and
months of preparation. And, as Dr. Etzel mentioned, I had, before that, written a number of different legal articles suggesting revisions to certain environmental laws. After thirty minutes of oral
argument, the Hearing Officer interrupted and said: "You need go no further, Mr. Russell. We
understand your position, and we understand what your client wants us to do. But isn't it true, sir,
that several years ago you authored a certain legal article, which I hold up before you now, in which
you firmly advocated that we do exactly the opposite of what you would have us do today?"
Having not been asked such a question before, I must say I did not know what to do. But a
young associate who worked with me on environmental matters did know what to do. He found the
poise and presence of mind to rise from his chair and say: "Madame Hearing Officer, it's true that
Mr. Russell did author that and other articles. But I can say to you that I have worked for him for
several years, and I know him well. And since the time he wrote that article, I believe he has learned
a great deal!"
"CERCLA" OR "SUPERFUND"
Today, our subject is something about which we also have learned a great deal: the Comprehensive
Environmental Response, Liability, and Compensation Act of 1980, or what we call "CERCLA" or
"Superfund". Many of you know the statute and what it involves in practice. I would like to spend
a few minutes with you this morning reviewing the basic components of CERCLA and what the
statute is all about, what it has become judicially, and what it means to you. And then 1 will review
463