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Issue

Volume 22, Issue 8 — August 1992

Articles

CERCLA Contribution Protection: How Much Protection?

by F. James Handley

Editors' Summary: Congress, through the 1986 Superfund Amendments and Reauthorization Act (SARA), has succeeded in promoting CERCLA settlements between potentially responsible parties (PRPs) and the government. But the growing number of settlements have resulted in increased litigation between settling and nonsettling PRPs, in part due to uncertainties about SARA's contribution provisions. SARA clarified that settling PRPs may seek contribution from other liable parties, and obtain protection from contribution actions related to matters addressed in their settlements. Unfortunately, Congress left unclear the extent to which settlements limit nonsettlors' liability, which settlement "matters" are accorded contribution protection, and how contribution protection applies to PRPs who settle at different times and over different issues. The author analyzes CERCLA's contribution provisions, their legislative history, and the apparent inconsistencies in key court decisions shaping their application. He explores the effect of contribution protection on nonsettling parties and private cost recovery actions, and the impact of PRP settlement timing on contribution claims and protection. The author concludes that Congress intended to punish nonsettling parties by saddling them with disproportionate liability. His analysis of cases interpreting CERCLA's contribution provisions supports recovery of private response costs voluntarily incurred, even against those parties with contribution protection. The author also concludes that the scope of contribution protection in de minimis settlements should generally be broad to provide final resolution of claims against de minimis parties.

Comment(s)

EPA's Civil Penalty Policies: Making the Penalty Fit the Violation

by Barnett M. Lawrence

Editors' Summary: EPA has set numerous records in recent years in assessing civil penalties against violators of environmental laws. This Comment explains how EPA uses guidance documents called civil penalty policies to calculate civil penalties. The various federal environmental statutes leave EPA with considerable discretion in setting a civil penalty amount. The author describes this statutory framework and then discusses the role of EPA's civil penalty policies in administrative and judicial enforcement actions. The Comment outlines EPA's general policy on civil penalty assessment and then turns to EPA's numerous statute-specific penalty policies. The section on statute-specific policies includes a table listing key facts for each provision of a statute that authorizes EPA to seek civil penalties. Finally, the Comment addresses the criticism of EPA's implementation of the policies and EPA's response to the criticism.

Dialogue

The Inconsistent Implementation of the Environmental Laws of the European Community

by Jody Meier Reitzes

Editors' Summary: The Treaty Establishing the European Economic Community (EEC Treaty) was intended to create a unified European market. The 1987 Single European Act, which amended the EEC Treaty, provided the legal framework to achieve that goal by 1992, and added provisions for a common environmental policy. Despite recognition by European Community (EC) Member States of the need for a common environmental policy, EC environmental legislation has not been uniformly implemented and enforced in Member States. The author examines the inconsistent implementation of EC environmental legislation and discusses the legal situation that allows for varied implementation. She compares this situation to the situation in the United States in the 1950s and 1960s when U.S. environmental law faced federalism problems. The author concludes that a remedy to the EC's problem would be to adopt a stronger enforcement policy that sanctions Member States that do not properly implement EC environmental directives.