Medical Monitoring and the Future of CERCLA: Reinvigorating the Superfund Law\u27s Consequential Purpose

The Article advances in three main parts. Part II gives a brief overview of the reasons why most of the legal and transactional time, attention, and money spent during CERCLA\u27s first fifteen years focused on who should pay for hazardous waste cleanup, and how much parties should pay once identified. The section briefly examines some of the understandable reasons why this occurred, but then argues that a revised CERCLA will be more effective if it concentrates instead on what costs should be covered. Part II concludes by demonstrating that such a re-focus would reflect CERCLA\u27s original, radically consequentialist design. Part III of the Article concentrates on the appropriateness of drafting explicit provisions for one of those whats -namely medical monitoring of hazardous waste cleanups. Given that much of the debate over CERCLA reform now centers on the need to set priorities and determine the extent of possible environmental harm, Part III argues that medical monitoring provides an especially appealing way to serve two functions, namely protecting human health and the environment from toxic harms and amassing reliable scientific information to plan future hazardous waste cleanups. The Article then briefly examines two opposing lines of cases that consider the medical monitoring issue, isolating what these cases say about environmental law and policy-making, and concludes that the pro-medical monitoring cases have the better argument. Part IV considers justifications for, and difficulties raised by, a pro-medical monitoring approach. The section concludes that the potential advantages of incorporating medical monitoring provisions into CERCLA outweigh the concerns raised by such a plan