Turn Out the Lights, the Party's Over: The Emerging Consensus on CERCLA Salvage Litigation Issues

April 1999
Citation:
29
ELR 10203
Issue
4
Author
William D. Evans Jr.

Editors' Summary: The enactment of CERCLA in 1980 sparked an explosion of contentious litigation between EPA and potentially responsible parties (PRPs) concerning the liability of PRPs under the Act. After over a decade of litigation in which EPA usually emerged victorious, the focus of CERCLA litigation has shifted to secondary suits between PRPs for cost recoupment, contribution, and insurance coverage, and, consequently, new issues have arisen. This Article examines the issues that dominate the emerging case law for secondary CERCLA suits. It begins by summarizing how joint and several liability and contribution under the Act affect secondary suits. The Article next discusses how seven circuit court decisions addressing CERCLA secondary suit litigation settled the five crucial issues: (1) the appropriate statutory cause-of-action, (2) the extent of liability, (3) the applicable limitations period, (4) the preemption of state-law remedies, and (5) the appropriate factors for cost allocation. The Article concludes with a description of three proposals for uniform rules governing the maintenance of CERCLA secondary suit litigation.

William D. Evans Jr. practices with the Anne Arundel County Office of Law as a Senior Assistant County Attorney in Annapolis, Maryland. Mr. Evans was previously a trial attorney with the Environmental Enforcement Section of the U.S. Department of Justice. This Article is dedicated to the memory of his uncle, Robert K. Evans, and cousin, Dr. Theodore Cooper. The excellent assistance of Joyce A. Sokal in the preparation of this Article is appreciated.

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Turn Out the Lights, the Party's Over: The Emerging Consensus on CERCLA Salvage Litigation Issues

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