dissenting:

I dissent from the majority’s holding that state law should be incorporated as the federal rule of decision governing the release of claims under section 107 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA or the Act), 42 U.S.C. §§ 9601-57 (1982), and from its affirmance of the grant of summary judgment in favor of Macmillan. I would adopt a uniform federal rule that a release of a CERCLA claim must be express. Because Mardan did not expressly release its CERCLA claim, I would reverse the grant of summary judgment in favor of Macmillan and award partial summary judgment to Mardan.

While recognizing that federal law governs the validity of a release of federal causes of action, the majority incorporates state law as the federal rule of decision because in its view (1) it is not clear whether Congress intended federal courts to develop a uniform federal standard or to incorporate state law, and (2) a federal rule is inappropriate as matter of judicial policy under the three-part test established in United States v. Kimbell Foods, Inc., 440 U.S. 715 , 99 S.Ct. 1448 , 59 L.Ed.2d 711 (1979). I think that Congress did express its preference for development of uniform federal rules. At the very least, the fact that federal law governs here creates a presumption against incorporation of state law in the absence of convincing justification. In any case, adopting a uniform federal rule is warranted under the Kimbell Foods test.

In assessing congressional intent, the majority claims that section 107(e), by permitting agreements to insure, hold harmless or indemnify CERCLA liabilities, evinces the intent of Congress to incorporate state law governing such agreements. Majority at 1458. That Congress provided for these agreements in section 107(e)(1) in no way implies that Congress intended that state law govern. On the contrary, it seems fair to assume that Congress, having failed expressly to incorporate state law, intended that releases of CERCLA *1464 claims be construed under federal law like all other CERCLA claims and defenses.

The majority’s argument also overlooks the fact that Congress preserved CERCLA claims arising “by reason of subrogation or otherwise” in section 107(e)(2). The courts that have considered the issue thus far have unanimously held that this provision makes available joint and several liability under the Act, and that both the policy and legislative history of CERCLA necessitate the formulation of uniform federal rules of liability under section 107. E.g., Wekner v. Syntex Agribusiness, Inc., 616 F.Supp. 27 (E.D.Mo.1985); Colorado v. Asarco, Inc., 608 F.Supp. 1484 (D.Colo.1985); United States v. A & F Materials Co., Inc., 578 F.Supp. 1249 (S.D.Ill.1984); United States v. Ward, 22 E.R.C. 1235 (E.D.N.C.1984); United States v. Chem-Dyne Corp., 572 F.Supp. 802 (S.D.Ohio 1983). Were the majority correct that Congress, by providing in section 107(e)(1) for a right or claim that has a state law counterpart, intended that state law govern that right or claim, then the courts that have addressed the right of contribution under section 107(e)(2) should at the very least have begun their choice of law analysis with the presumption that state law should control. No court in fact has done so.

The majority does not analyze the legislative history of the Act. In enacting CERCLA, Congress established a nationwide regulatory scheme in order to ensure rapid responses to the threats posed by improperly managed hazardous waste sites, to encourage the voluntary clean-up of those sites, and to make certain that those responsible for the problems bear the costs of clean-up. 5 U.S.Code Cong. & Ad.News 6119, 6119-20, 6132 (1980); Chem-Dyne, 572 F.Supp. at 805-06 . Representative Florio, CERCLA’s House sponsor, specifically addressed the question of uniformity: “To insure the development of a uniform rule of law, and to discourage business[es] dealing in hazardous substances from locating primarily in states with more lenient laws, the bill will encourage the further development of a Federal common law in [the CERCLA liability] area of law.” 126 Cong.Rec. H11787 (daily ed. Dec. 3, 1980). Although some difference exists between the establishment of CERCLA liability and the release of a CERCLA right of action, a uniform federal rule regarding releases from CERCLA liability serves Congress’ goals in the same manner that a uniform rule regarding liability does. Thus section 107 itself, the case law interpreting the Act, and its legislative history all support the conclusion that a uniform federal rule should govern releases of CERCLA claims.

Even assuming that congressional intent may be unclear, an analysis of the federal and state interests in the application of their own law to alleged releases of CERCLA claims also demonstrates that we should adopt a uniform federal rule here. Under Kimbell Foods, this analysis requires determining (1) whether there is a need for a uniform body of law to govern like situations, (2) whether application of state law would frustrate federal policy, and (3) whether the application of a federal rule would disrupt existing relationships predicated on state law. United States v. Kimbell Foods, Inc., 440 U.S. 715, 727 , 99 S.Ct. 1448, 1457 , 59 L.Ed.2d 711 (1979); Wilson v. Omaha Indian Tribe, 442 U.S. 653, 672-73 , 99 S.Ct. 2529, 2540 , 61 L.Ed.2d 153 (1979).

The majority does not see any reason to require a uniform body of law. Majority at 1458. However, the part of its analysis addressed to that question looks at the issue only from the perspective of hazardous waste operators and not from that of the public interest. As just discussed, the need for national uniformity in dealing with hazardous waste sites was an express factor underlying the passage of CERCLA. Uniformity with respect to releases from CERCLA liability is necessary to prevent the vagaries of differing state laws from affecting the incentive for voluntary cleanup. That incentive may well be eliminated when an operator has inadvertently waived its right of cost recovery. The majority concludes that this problem is an attenuated one by comparing the federal rule I *1465 propose to its own alternative of incorporating state law. The majority’s analysis confuses the question of whether a uniform federal rule should apply, which must focus on the need for uniformity and its possible effects, with the question of what is an appropriate uniform rule. In answering the former question, it is clear that Congress enacted CERCLA to ensure a uniformly rapid response to hazardous waste sites nationwide. To dilute uniformity even to a small degree seems to me to contravene that purpose.

The application of state law could well frustrate the Act’s specific objective of guaranteeing a rapid response when a hazardous waste clean-up becomes necessary. Ordinarily, the current operator of the site is the party best able to respond quickly and efficiently in such a situation and to perform or arrange for the clean-up, even if it did not create the problem. The CERCLA right of cost recovery encourages the current operator to move swiftly and then obtain contribution from other responsible parties. If, because of the application of state law to a release, the current operator inadvertently loses its CERCLA right of cost recovery, it will also lose its incentive to undertake a voluntary response. Without the ability to require contribution from other responsible parties, the current operator may prefer to wait and let the government perform the work. In such case the government can apportion its costs among all the responsible parties and the current operator would be required to pay only its share instead of all the costs.

The majority asserts that interpreting CERCLA releases under state law does not conflict with the goals of the Act because of the government’s option to respond and allocate costs. Majority at 1458-59. This argument is incorrect for two reasons. First, it overlooks a serious practical problem. While the government can, in theory, undertake the necessary work and obtain reimbursement from all responsible parties whenever clean-up of hazardous waste sites is required, its ability to monitor the numerous sites and initiate clean-up operations on a nationwide basis is severely constrained by the limited availability of human and budgetary resources. 1 Second, while in some instances the government may ultimately perform the job and recover its response costs, under the statutory scheme government clean-up is a last resort and occurs only after there is a failure of voluntary private action. It is voluntary private action that the statute seeks to achieve and it is swift and immediate voluntary private action that would be jeopardized by the application of state law. See 5 U.S.Code Cong. & Ad.News 6119, 6120, 6132 (1980).

Contrary to the majority’s view, application of a uniform federal rule would not disrupt existing relations predicated on state law. CERCLA is a federal program of national scope, without antecedent in state law. Private parties would not be surprised by the fact that federal law governs their rights under the Act, especially in light of the established rule that federal law governs federal releases. Moreover, as the majority correctly points out, most CERCLA releases are likely to be entered into by major companies, Majority at 1460; accordingly, there is little cause to worry that the parties will mistakenly think that state law governs. The majority also argues that a uniform federal rule governing CERCLA releases would cause greater confusion as to the law applicable in commercial transactions involving hazardous waste facilities because the parties will normally turn to state law. Majority at 1460. This argument simply overlooks the fact that, as pointed out above, other parts of CERCLA transactions must be construed in light of federal law. Thus, irrespective of which rule governs CERCLA releases, documents covering transactions of the type involved here must be prepared in light of applica *1466 ble federal law. Given the need for uniformity, the potential harm to federal interests and the absence of any disruption of commercial relations, I would hold that the adoption of a uniform federal rule regarding CERCLA releases is called for.

The standard developed by the courts for the release of other federal causes of actions is appropriate for a release of a CERCLA claim. In Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir.1981), we held that a “release of claims under [42 U.S.C.] section 1983 is valid only if ... voluntary, deliberate, and informed.” We adopted the standard that the releasor must be shown to have “understood the nature of whatever statutory and common-law remedies he waived by the release.” Id. (citing Charpentier v. Fluor Ocean Services, Inc., 613 F.2d 81, 84 (5th Cir.1980) (after remand)). In applying that standard, we have held that the release of certain federal rights must be express. Salmerón v. United States, 724 F.2d 1357 , 1361 (9th Cir.1983); Parker v. DeKalb Chrysler Plymouth, 673 F.2d 1178, 1182 (11th Cir.1982).

In my view, the release of a CERCLA claim should also be express. With the enactment of CERCLA, Congress established a national policy mandating the speedy clean-up of hazardous waste sites, preferably by voluntary private action, and the apportionment of the costs of clean-up to those responsible for the problems. While Congress permitted private agreements to modify apportionment in particular instances, the release of CERCLA claims should not be lightly implied; to do otherwise would frustrate the congressional intent behind CERCLA. Thus, in construing an agreement purporting to waive CERCLA rights, a court should find a waiver only where it is clear that the releasor intends to release its CERCLA rights. A general release that fails to refer explicitly to the Act does not suffice.

Applying the standard set forth above, I would reverse the grant of summary judgment in favor of Macmillan and direct that partial summary judgment be entered in favor of Mardan.

. As Chief Justice Burger noted in his opinion for the Court invalidating section 251 of the Gramm-Rudman Act, "[n]o one can doubt that Congress and the President are confronted with fiscal and economic problems of unprecedented magnitude." Bowsher v. Syttar, — U.S. —, 106 S.Ct. 3181, 3193 , 92 L.Ed.2d 583 (1986).