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Volume 24, Issue 4 — April 1994


The Superfund Reform Act of 1994: Success or Failure Is Within EPA's Sole Discretion

by Steven M. Jawetz

Editors' Summary: The Clinton Administration's proposed Superfund amendments—the Superfund Reform Act of 1994 (SRA)—were introduced in both the House and Senate in early February. Steven M. Jawetz of Beveridge & Diamond, reviews several key provisions of the bill's first five titles, including proposals to increase delegation to states, narrow defenses to EPA administrative orders and cost recovery actions, institute a nonbinding allocation process, and modify the remedy selection process. Mr. Jawetz assesses the extent to which the bill would address various concerns about EPA's current Superfund program. He focuses particularly on the practical impact the bill's provisions would have on potentially responsible parties (PRPs), noting provisions of the bill that might overrule existing case law, identifying several instances in which the bill would narrow PRP defenses and enhance EPA's authority, and suggesting some changes in approach that might improve the bill. Mr. Jawetz concludes that, because so much of the bill would enhance EPA's authority and discretion, the bill's success or failure in improving Superfund would depend on the choices EPA made in implementing it.


The Limits of Market-Based Approaches to Environmental Protection

by William F. Pedersen

Market-based approaches to protecting the environment based on buying and selling "pollution rights" have long been special favorites of the academic community. According to a growing body of literature, a much wider use of this approach could solve the problems of ineffectiveness, inefficiency, and rigidity that characterize our current system of environmental protection.1

In this literature, "environmental protection" largely means setting and enforcing a limit on discharges of clearly defined "pollutants" into the air and water. This literature often assumes that a set number of major sources is responsible for these discharges, and that equal amounts of discharges from any of these sources have roughly the same environmental effect.

When Is "Leaching" Not "Leaking"? CERCLA Liability of Owners and Operators at the Time of Disposal

by Henry L. Stephens

[T]he legislative history of CERCLA gives more insight into the "Alice-in-Wonderland"-like nature of the evolution of this particular statute than it does helpful hints on the intent of the legislature.

The statement quoted above, from a recent federal court decision,1 captures some of the frustration experienced by those who attempt to divine congressional intent regarding the scope of property owners' liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,2 as amended by the Superfund Amendments and Reauthorization Act of 19863 (CERCLA).4 CERCLA imposes liability on, inter alia, past owners or operators of property whose relationship to the property coincided with "the time of disposal of any hazardous substance" on the property.5 Some recent court decisions have interpreted this language expansively to include essentially every grantee in the chain of title to contaminated realty, irrespective of the grantee's acts, omissions, or authority to control practices regarding hazardous substances at the site.6 Under these decisions, a former owner of tainted property -- who held title for only a few minutes to serve as a middleman in a real estate transaction -- may be subject to joint and several liability for all costs associated with cleanup of a site if previously disposed of substances migrated underground during the grantee's ownership.7 Proponents of such an all encompassing liability scheme find support in the Fourth Circuit's recent pronouncements in Nurad, Inc. v. William E. Hooper & Sons Co.8 The rationale of the Fourth Circuit's reasoning in Nurad, however, was sharply criticized in a well-reasoned opinion of the U.S. District Court for the Northern District of Illinois in United States v. Petersen Sand & Gravel, Inc.9