Placing Superfund Liability Determinations in the Hands of Scientists

May 1999
Citation:
29
ELR 10259
Issue
5
Author
James A. Rogers

Editors' Summary: Relying on federal courts to allocate a major contaminated site's Superfund liability can take years, and "quick and dirty" efforts to allocate liability are rarely successful. Faced with these harsh realities, over 30 parties potentially responsible for contamination underlying the eastern San Fernando Valley near Los Angeles, California, decided to rely on scientists to allocate liability for the cleanup of the Glendale operable units. In this Dialogue, the author describes this novel approach of placing Superfund liability determinations in the hands of scientists. It begins with an overview of the San Fernando cases and the parties' early efforts to obtain a bargain-basement allocation. After these efforts proved unsuccessful, the parties agreed to a binding arbitration in which a panel of three scientists would be the arbiter. Therefore, much of the Dialogue describes the arbitration agreement, the alternative dispute resolution process, and the panel's decision. The arbitration was successful in that it enabled the parties to avoid contentious litigation. The panel's decision was largely based on an independent, advanced understanding of contaminant movement in groundwater, geochemistry, mathematical computer modeling, and environmental engineering that is not readily available to federal judges. However, the extent to which the panel's decision represents an improvement over traditional judicial decisionmaking depends on the party and how that party fared in the panel's decision.

James A. Rogers is a partner and the head of the environmental practice group at Wilmer, Cutler & Pickering in Washington, D.C. He served as the Chairman of the Board of Directors of the Environmental Law Institute from 1987 to 1990, and he was the Associate General Counsel for Water and Solid Waste at the U.S. Environmental Protection Agency from 1977 to 1981.

Article File