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