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Stipulated Penalties and Dispute Resolution in CERCLA Consent Decrees: Practical Innovations Can Benefit Everyone

May 1988

Citation: 18 ELR 10155

Issue: 5

Author: Kevin Gaynor

The Environmental Protection Agency (EPA) has a statutory obligation to begin 175 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cleanups by October 1989, and 200 more CERCLA cleanups by October 1991.1 If EPA is to meet these deadlines, it must negotiate on a truly massive scale with potentially responsible parties (PRPs), to ensure private cleanups at many sites.2 Even so, EPA has generally insisted on provisions in CERCLA consent decrees calling for draconian stipulated penalties and one-sided dispute resolution procedures. This insistence by EPA has chilled the desire of PRPs to enter into negotiated settlements. Recently, however, EPA has incorporated better-reasoned provisions into the consent decree entered for the Bayou Sorrel site in Louisiana,3 and if EPA is willing to adopt a similar posture in other sites around the country, the rate of private cleanup could be measurably improved.

Mr. Gaynor is a partner in the Washington, D.C., office of Venable, Baetjer, Howard & Civiletti. Until December 1987, he was Assistant Section Chief of the Environmental Enforcement Section in the Department of Justice Lands and Natural Resources Division. He thanks Stephen Ramsey of Sidley & Austin, Washington, D.C., and Brigid Kenney of the Baltimore office of Venable, Baetjer & Howard for their thoughtful comments on the article.

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