on property when it took immediate steps to properly dispose thereof).
The Precautionary Requirement is satisfied by taking precautionary action against the foreseeable actions of third parties responsible for the hazardous substances in question. United States v. Monsanto Co., 858 F.2d 160, 169 (4th Cir. 1988), cert. denied, 490 U.S. 1106, 104 L. Ed. 2d 1019, 109 S. Ct. 3156 (1989).
Both the Third-Party Defense and the Innocent Landowner Defense are affirmative defenses, requiring the defendant to prove each of the required elements by a preponderance of the evidence. City of New York v. Exxon Corp., 766 F. Supp. 177, 195 (S.D.N.Y. 1991); United States v. Price, 577 F. Supp. 1103, 1114 (D.N.J. 1983) (defendant has burden of showing exercise of due care). A defendant's failure to meet its burden on any one of the required elements precludes application of the defense. In re Sterling, 94 Bankr. at 929.
While liability under CERCLA is strict, the question of causation is not absent from liability considerations under CERCLA § 107. CERCLA's affirmative defenses shift the burden of proof on this question from the plaintiff to the defendant, who must show by a preponderance of the evidence that the release or threatened release was caused solely by an unrelated third party. See Shore Realty Corp., 759 F.2d at 1044-45 & n.17; United States v. Stringfellow, 661 F. Supp. 1053, 1061 (C.D. Cal. 1987) (third-party defense applies "only where a totally unrelated third party is the sole cause of the release or threatened release of a hazardous substance"); O'Neil v. Picillo, 682 F. Supp. 706, 728 (D.R.I. 1988) ("third-party defense 'essentially serv[s] to shift the burden of proof of causation to the defendants'") (quoting Violet v. Picillo, 648 F. Supp. 1283, 1293 (D.R.I. 1986)), aff'd, 883 F.2d 176 (1st Cir. 1989), cert. denied, 493 U.S. 1071 (1990); Developments, Toxic Waste Litigation, 99 Harv. L. Rev. 1458, 1544 (1986).
A hastily drafted piece of legislation, rushed through Congress upon minimal debate following the Presidential election of 1980, Healy, supra, at 68 n.5; Shore Realty, 759 F.2d at 1037, CERCLA is now viewed nearly universally as a failure, see, e.g., 140 Cong. Rec. E602, E602 (daily ed. March 24, 1994) (statement of Mr. Zeliff) ("It is time for Congress to admit they made mistakes in Superfund law . . . a law that has gone awry."); 140 Cong. Rec. S3965, S3965 (daily ed. March 25, 1994) (statement of Sen. Smith); Estelle Fishbein, Superflop; The Failure of Superfund, and the Flawed Plan to Fix it, Wash. Post, April 22, 1994, at A25. Evidence of CERCLA's deficiency can be seen in the fact that, after fourteen years and over eighteen billion dollars spent on the CERCLA program, only 12% of the sites on the NPL have been cleaned up. 140 Cong. Rec. S3965, S3965 (daily ed. March 25, 1994) (statement of Sen. Smith).
CERCLA's liability scheme was intended to ensure that those who were responsible for, and who profited from, activities leading to property contamination, rather than the public at large, should be responsible for the costs of the problems that they had caused. See United States v. Alcan Aluminum Corp., 990 F.2d 711, 716 (2d Cir. 1993); B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st Cir. 1986) ("Congress intended [through passage of CERCLA] that those responsible for problems caused by the disposal of chemical poisons bear the costs and responsibility for remedying the harmful conditions they created."); United States v. Chem-Dyne Corp., 572 F. Supp. 802, 805-06 (S.D. Ohio 1983); Lynda J. Oswald, Strict Liability of Individuals under CERCLA: A Normative Analysis, 20 B.C. Envtl. Aff. L. Rev. 579, 635 (1993); Jerry L. Anderson, The Hazardous Waste Land, 13 Va. Envt'l L. J. 1, 7 (1993); Development in the Law: Toxic Waste Litigation, 99 Harv. L. Rev. 1465, 1477 (1986).
In addition, Congress intended CERCLA's liability scheme to provide incentives for private parties to investigate potential sources of contamination and to initiate remediation efforts. See Carlyle Piermont Corp. v. Federal Paper Bd. Co., 742 F. Supp. 814, 817 (S.D.N.Y. 1990) (quoting City of New York v. Exxon Corp., 633 F. Supp. 609, 617 (S.D.N.Y. 1986)) ("One of the major objectives of the private recovery provisions of CERCLA is to 'assure an incentive for private parties, including those who may themselves be subject to liability under the statute, to take a leading role in cleaning up hazardous waste facilities as rapidly and completely as possible.'"); Cadillac Fairview/California, Inc. v. Dow Chem. Co., 840 F.2d 691, 694 (9th Cir. 1988) (one of CERCLA's purposes is to promote private enforcement actions independent of government actions funded by Superfund); Solid State Circuits, Inc. v. EPA, 812 F.2d 383, 386 (8th Cir. 1987) ("Since superfund money is limited, Congress clearly intended private parties to assume cleanup responsibility."); Chem-Dyne Corp., 572 F. Supp. at 805 (CERCLA passed, in part, to induce voluntary private responses at contaminated sites).
The imposition of strict liability solely on the basis of property ownership, however, does something other than cause handlers of dangerous substances to be responsible for the hazards they create. It transfers the costs of the national problem of remediating abandoned contaminated sites onto the shoulders of individuals involved in real estate transactions, many of whom had never violated any environmental regulation, thereby negating Congress' intention of making those responsible for causing contamination pay for its remediation. See Anderson, supra, at 6 (CERCLA cleanup costs are often borne by those who are not responsible for the problem at all and . . . many other parties are held liable to an extent far exceeding their actual responsibility."). The Second Circuit has noted that:
In passing CERCLA Congress faced the unenviable choice of enacting a legislative scheme that would be somewhat unfair to generators of hazardous substances or one that would unfairly burden the taxpaying public. The financial burdens of toxic clean-up had been vastly underestimated -- in 1980 when CERCLA was enacted $ 1.8 billion was thought to be enough. In 1986 when the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100 Stat. 1613 (1986), was passed, $ 100 billion was held to be needed. It may well be more today. It is of course the public-at-large that is already bearing the economic brunt of this enormous national problem. There may be unfairness in the legislative plan, but . . . we still must take this statute as it is.