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Issue

Volume 17, Issue 11 — November 1987

Articles

State Actions for Natural Resource Damages: Enforcement of the Public Trust

by Carolyn L. Buchholz, Howard Kenison, and Shawn P. Mulligan

Editors' Summary: When Congress enacted the Superfund statute in 1980, it authorized the federal and state governments to recover for natural resource damages caused by hazardous substances. The potential of this legal doctrine went virtually unrecognized for several years, in part because of the ambiguity of what was included in the new cause of action, and in part because of executive branch delay in implementing the laws' mandates on natural resource damages. Now, particularly after congressional reaffirmation of the doctrine in the 1986 Superfund Amendments, natural resource damages are clearly an important part of environmental law: the Interior Department has promulgated regulations fleshing out the meaning of the doctrine, and many lawsuits have been filed seeking recovery for natural resource damages. In this Article, the authors outline how the doctrine can be applied by state governments and detail specific deficiencies in the Interior Department's regulations. Natural resource damages, the authors argue, is a far more powerful and encompassing doctrine than the Interior Department's regulations presently allow. The authors suggest that states may, if they choose, recover for natural resource damages even to resources that are privately owned, and present an innovative approach to ensure that private interests are nonetheless compensated.

Hearings Before an EPA Administrative Law Judge

by Judge Gerald Harwood

Editors' Summary: Practice before administrative agencies, especially EPA, has always been an important part of an environmental lawyer's job. Administrative practice is becoming increasingly important. Several statutes have recently been amended to provide for the administrative assessment of civil penalties by EPA. The first step after EPA proposes to assess a civil penalty is generally a hearing before an EPA administrative law judge (ALJ). Judge Harwood, EPA's Chief Administrative Law Judge, describes the role of the ALJ within EPA and the statutes under which adjudicatory hearings most frequently arise. Judge Harwood then outlines the procedures followed in hearings before EPA ALJs, from the administrative complaint through the issuance of an initial decision.

Dialogue

Dealing With the Post-SARA Dynamics of PRP Settlements: Anyone for A Stay?

by Michael Dore

Hazardous waste cases litigated under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) invariably involve large numbers of potentially responsible parties (PRPs). It is not uncommon for a single site to involve hundreds of parties, including the owners and operators of the site, transporters that utilized the site for disposal, and original generators of the waste.

Experience has demonstrated that one of the most significant aspects in these cases is the negotiation of appropriate allocation and settlement arrangements among the PRPs. Failure to achieve a PRP agreement invariably results in significantly increased litigation costs, more expensive governmentally funded cleanups, and compromise of the court's ability to effectively manage related litigation such as toxic tort and insurance coverage claims.1