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Issue

Volume 17, Issue 4 — April 1987

Articles

Settlements With SARA: A Comprehensive Review of Settlement Procedures Under the Superfund Amendments and Reauthorization Act

by Richard H. Mays

Editors' Summary: The 1986 Superfund Amendments and Reauthorization Act (SARA) incorporated many significant changes into the existing Superfund law. In particular, the new law will have considerable impact on settlements between the Environmental Protection Agency (EPA) and responsible parties. EPA has had an international settlement policy in place for several years, but SARA codified many of the existing policies and gave EPA additional duties. The author, a senior EPA enforcement attorney, reviews the new settlement provisions and analyzes their potential impact on EPA's enforcement procedures, taking into account other relevant sections of SARA.

Perspectives on the Problem of Federal Facility Liability for Environmental Contamination

by Donald W. Stever

Editors' Summary: Environmental compliance by federal facilities remains one of environmental law's thorniest issues. The applicable law is intricate, and the practical need to deal effectively with large federal agencies requires different skills and approaches than those traditionally applied to the private sector. In this Article, the author analyzes current legal issues applicable to federal facilities and offers practical advice for achieving environmental compliance.

The Department of Defense Environmental Cleanup Program: Application of State Standards to Federal Facilities After SARA

by Kyle E. McSlarrow

Editors' Summary: The 1986 Superfund amendments have had dramatic impact on environmental law in general, and their specific application to federal facilities is no exception. In this Article, the author outlines the amendments' effects on the Department of Defense's hazardous waste cleanup program, and also analyzes the provisions common to all federal facilities. In particular, the author reviews the increasingly difficult issues involved in applying Superfund requirements as well as Resource Conservation and Recovery Act provisions at the same sites, and suggests an interpretation of the statutes that applies relevant provisions of both yet still avoids duplication and conflict.

Dialogue

Foreclosure and United States v. Maryland Bank & Trust Co: Paying the Piper or Learning How to Dance a New Tune?

by Joel R. Burcat

In his Comment1 on United States v. Maryland Bank & Trust Co.,2 Phillip Reed suggests, "[L]ike other landowners and hazardous waste generators who have learned too late just how broad CERCLA's liability scheme can be, they [banks and other creditors] may simply have to pay the piper."3 Without intending to be contentious, I believe the contrary is true. Banks and other creditors will only have to dance to a new tune. The public will end up paying the piper.

Two district courts have held that bank creditors could be liable under the Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA)4 for the cost of cleanup of hazardous waste facilities created and maintained by their debtors. In rendering their decision, these courts analyzed the so-called "security interest exception"5 under CERCLA to find that the banks were "owners or operators" of the facilities. The exception was incorporated into CERCLA by Congress to protect creditors holding security interests in hazardous waste facilities, where the creditor did not dominate the debtor or manage the hazardous waste facility.6 Mr. Reed, in discussing Maryland Bank & Trust Co. and an earlier case that also relied on the security interest exception,7 states that the results in the cases "may be reconciled"8 and that the "reasoning" of the court in Maryland Bank & Trust Co. is "persuasive."9 While the ultimate decisions in both cases may be correct, the reasoning of both is erroneous. The reliance by both courts on public policy arguments is also misplaced.