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Issue

Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — May 1988

Articles

Allocation of Superfund Cleanup Costs Among Potentially Responsible Parties: The Role of Binding Arbitration

by Kenneth P. Cohen

Editors' Summary: The high cost of resolving environmental disputes through litigation has made alternative dispute resolution (ADR) an increasingly attractive alternative. The high transaction costs of Superfund litigation would seemingly provide a strong incentive for the parties to use ADR. While non-binding mediation and negotiation techniques have been attempted in most Superfund cases, potentially responsible parties (PRPs) often reach an impasse on the issue of the proper allocation of cleanup costs. These cost allocation disputes will in turn often affect ongoing negotiations with EPA over the appropriate remedy at the site. To prevent this "spillover" effect, the author proposes that PRPs bifurcate the allocation and remedy selection issues by submitting the cost allocation dispute to binding arbitration. While CERCLA does not explicitly provide for bifurcation, the combined use of EPA's mixed funding authority and binding arbitration of cost allocation disputes could create a hybrid bifurcated proceeding and remove many of the obstacles to the voluntary cleanup of hazardous waste sites.

Opportunities for Environmental Enforcement and Cost Recovery by Local Governments and Citizen Organizations

by Adam Babich and Kent E. Hanson

Editors' Summary: When citizens and local governments are confronted with problems of pollution and environmental contamination, one of their options is to use the courts to seek enforcement of environmental laws against polluters or to recover the cost of cleaning up the contamination. In this Article, or to recover the cost of cleaning up the contamination. In this Article, Mr. Babich and Mr. Hanson review the citizen suit provisions of the major federal environmental laws and CERCLA's cost recovery provisions, examine important legal issues arising under such provisions, and assess the practical effect on citizen suits of recent Supreme Court precedent in Tull v. United States and Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. The authors conclude that citizen suits and cost recovery claims, though presently underutilized, can be an effective means of responding to past pollution, halting ongoing pollution, and perhaps deterring future violations.

Dialogue

Stipulated Penalties and Dispute Resolution in CERCLA Consent Decrees: Practical Innovations Can Benefit Everyone

by Kevin Gaynor

The Environmental Protection Agency (EPA) has a statutory obligation to begin 175 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cleanups by October 1989, and 200 more CERCLA cleanups by October 1991.1 If EPA is to meet these deadlines, it must negotiate on a truly massive scale with potentially responsible parties (PRPs), to ensure private cleanups at many sites.2 Even so, EPA has generally insisted on provisions in CERCLA consent decrees calling for draconian stipulated penalties and one-sided dispute resolution procedures. This insistence by EPA has chilled the desire of PRPs to enter into negotiated settlements. Recently, however, EPA has incorporated better-reasoned provisions into the consent decree entered for the Bayou Sorrel site in Louisiana,3 and if EPA is willing to adopt a similar posture in other sites around the country, the rate of private cleanup could be measurably improved.