When EPA Makes a Superfund Mistake: Judicial Review Problems Under SARA

May 1987
Citation:
17
ELR 10148
Issue
5
Author
Alfred R. Light

Editors' Summary: The Superfund Amendments and Reauthorization Act of 1986 (SARA) resolved some of the questions raised under the 1980 Act, including the controversy surrounding the availability of preenforcement review. SARA, however, also raises a host of new questions concerning the timing, scope, and standard of judicial review. The author, an experienced Superfund defense counsel, uses a series of hypotheticals to illustrate the difficulties potentially responsible parties may face under SARA if EPA adheres to its current prosecutorial strategy. The hypotheticals involve administrative cleanup orders, citizen suits, administrative subpoenas, de minimis contributors, contribution protection, joinder of the federal government in actions brought by states, state land bans, contractor indemnification, preauthorization, and cost recovery actions. The author offers possible solutions and concludes that the system can work efficiently and equitably only if there are judicial, administrative, or private accommodations permitting cleanup to go forward.

Mr. Light is an associate with the law firm of Hunton & Williams in Richmond, Virginia.

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