No Way Out? The Plight of the Superfund Nonsettlor
Editors' Summary: A principal purpose of CERCLA is to fix liability for cleanups on "responsible parties" through prompt response actions and settlements. Liability of all responsible parties connected with a CERCLA facility is joint and several, and consequently EPA's remedial investigations make little effort to ascertain all responsible parties and their proportional liability. Rather, EPA typically moves against a few large contributors, leaving the allocation of individual responsibility and enlargement of the class of potentially responsible parties (PRPs) to those entities. The Superfund Amendments and Reauthorization Act of 1986 (SARA) has a central purpose of encouraging settlements between government and PRPs. Yet, PRPs who do not settle, claiming that the proposed settlement will not exact a fair share of the cleanup costs from settlors, have been severely limited in obtaining judicial review. The author examines the case law surrounding partial settlements, nonsettlors' rights to fair-share hearings, nonsettlors' liability for remaining cleanup costs, efforts of nonparty PRPs to intervene, and possible constitutional issues raised by the effect of settlements on nonparty PRPs. He asserts that while EPA's historical approach to Superfund settlements has been administratively expedient, it has overlooked nonsettlors' substantial and good-faith reasons for opting not to settle. The author contends that allowing nonsettlors an opportunity to limit their liability in subsequent rounds of litigation, by being allowed to raise equitable considerations during the limited judicial oversight currently available, will provide fairness and will probably not defeat CERCLA's goal of prompt cleanups and settlements.