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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — October 1992


Natural Resources Damages Under CERCLA §107: How the Liability Rules Differ Between Actions for Natural Resource Damages and Response Costs

by Mehron Azarmehr

Editors' Summary: CERCLA § 107 is perhaps best known as creating a cause of action for the recovery of costs incurred in responding to releases of hazardous substances. Recently, however, federal and state governments have used it increasingly in suits to recover natural resource damages. This Article describes the elements of a CERCLA cause of action for the recovery of natural resource damages and compares them to the elements of a CERCLA cause of action for the recovery of response costs. The author examines who may bring suits for natural resource damages, the nexus requirement between the resources and a government authority, and the key definitions of "release" and "hazardous substance." He also analyzes the requirement of causation, the applicable statute of limitations, permitted releases, retroactive application of CERCLA, and the right to trial by jury. The author concludes that the increasing use of CERCLA § 107 by state and federal governments to recover natural resource damages, coupled with both the absence of a dollar limit on natural resource damage recoveries and the tremendous number of sites nationwide that could give rise to natural resource damages suits, suggests that such suits will likely increase tremendously and the amount of money involved will be staggering.


Regulatory Negotiations: A Practical Perspective

by Ellen Siegler

You have just received a telephone call from an U.S. Environmental Protection Agency (EPA) official asking whether your company or trade association is interested in participating in a regulatory negotiation to develop a new or amended regulation that the Agency will issue under an environmental statute. Or your client asks your advice on whether to participate. What will you say? It is increasingly likely that you may receive such a call.

Regulatory negotiation (reg-neg) is a process that developed years ago but has been slow to gain acceptance. Reg-neg is a negotiation in which representatives of a governmental agency and representatives of various interests affected by a regulatory initiative attempt to develop the initiative together in an open forum. In less objective terms, reg-neg may be viewed as one of the following: (1) a process by which representatives of different points of view try to reach a balanced resolution of complex regulatory matters; (2) a process in which a group of people, most of whom do not talk to each other routinely, engage in a seemingly endless effort to wear each other down to achieve self-interests of their constituents; or (3) a messy, time-consuming process that can produce an outcome that all interests can live with.

The Changing Congress: Your Scorecard for the November Elections

by Jonathan W. Delano

As important as is the outcome of the presidential race this November, environmental lawyers, lobbyists, and advocates who watch Congress are keenly aware that the simultaneous congressional elections on November 3 are key to the nature and success of an environmental agenda in the next two years.

The committees that regulate the environment in the House of Representatives can be expected to change substantially in the 103d Congress, while the Senate appears, for the moment, to be a bit more stable. That much is certain. What is less clear is who will benefit from the expected turnover in the key committees.

EPA Issues Long-Awaited Lender Liability Rule

by Patricia L. Quentel

On April 29, 1992, the U.S. Environmental Protection Agency (EPA) issued a final rule1 that attempts to define the parameters of the security interest exemption set forth in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).2 Acting in the wake of the Eleventh Circuit's decision in United States v. Fleet Factors Corp.,3 EPA proposed and promulgated the rule in response to increasing concerns of secured creditors.4

The rule sets forth a range of activities that secured creditors may engage in to manage and protect their security interest while maintaining the security interest exemption. The rule clarifies the application of the security interest exemption and defines what conduct constitutes "participating in management," which may bring a secured creditor within the ambit of CERCLA liability for cleanup costs. Although it is probable that secured creditors are better off with the guidance offered by the rule than without it, the rule nonetheless leaves important issues undecided; consequently, secured creditors remain vulnerable to liability for cleanup costs.