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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — July 1991


Recyclable Materials and RCRA's Complicated, Conflicting, and Costly Definition of Solid Waste

by Stephen M. Johnson

Editors' Summary: RCRA is often perceived as establishing a comprehensive regulatory scheme for managing hazardous waste from "cradle to grave." However, when a substance becomes a solid waste subject to RCRA's jurisdiction remains unclear. This Article examines how RCRA defines solid waste and EPA's attempts to clarify that definition. The Article focuses on how this lack of clarity has impacted RCRA's goal of encouraging recycling and recovery of resources from solid waste. The Article analyzes three D.C. Circuit decisions that considered RCRA's definition of solid waste and concludes by discussing an approach that Congress may take to clarify this definition when it reauthorizes RCRA.

A Decade of Superfund Litigation: CERCLA Case Law From 1981-1991

by David E. Jones, Kyle E. McSlarrow, and Eric J. Murdock

Editors' Summary: Much has happened since the authors published their initial survey of CERCLA case law in the October 1989 issue of ELR. EPA issued substantial revisions to the NCP in March 1990. In November 1990, Congress reauthorized the Superfund for three more years. And, of course, there have been new cases. A glance at the number of cases cited in the footnotes of this Article will give the reader an idea of the volume of CERCLA case law. The authors have bravely confronted the new cases and have produced a summary of the decade of CERCLA case law.

Superfund Transaction Costs: A Critical Perspective on the Superfund Liability Scheme

by Jonathan Z. Cannon, David M. Friedland, and William N. Hedeman

Editors' Summary: The Superfund liability scheme has been heavily criticized for creating needless litigation among potentially responsible parties (PRPs) and for generating inordinately high costs and extended delays in cleaning up hazardous waste sites. This Article discusses the transaction costs and delays arising at each step in the Superfund process from initial listing of a site on the CERCLA national priorities list, through the search for PRPs, to the formation and maintenance of PRP committees and the remedial investigation/feasibility study processes. The Article describes the millions of dollars in administrative, legal, engineering, consulting, and other management costs that governmental and private parties spend to prepare for and participate in litigation designed to raise money for cleanups. These transaction costs are an unavoidable result of the existing Superfund liability system and do not directly contribute to cleaning up hazardous waste sites. The Article concludes that various settlement tools—de minimis settlements, mixed funding, nonbinding allocations of responsibility, model consent decrees, alternative dispute resolution, and covenants not to sue—may incrementally reduce transaction costs and delays but do not address the Superfund statute's underlying tendency to force parties to litigate or prepare for litigation at every step in the process. The adversarial nature of the process remains unchanged, with EPA extracting funds on a site-by-site basis and PRPs exercising legal options to resist EPA and to impose cleanup costs on other parties. Further, the government's resources and ability to control the process are limited, even under an aggressive enforcement-first policy. Thus, in the current public debate over whether to change Superfund's liability scheme, the Article contributes to the necessary first step of finding out why the system is not working.