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Endangerment, Aviall, and CERCLA Administrative Consent Orders—The New Challenges of Managing Hazardous Waste Contamination

August 2005

Citation: 35 ELR 10517

Issue: 8

Author: Kevin A. Gaynor and Julia B. Latham

Editors' Summary: Parties undergoing cleanups at contaminated sites under CERCLA that have also been served with a notice of a citizen suit under RCRA face ambiguity and uncertainty as they try to make sense out of these two statutory schemes.The recent U.S. Supreme Court decision in Cooper Industries, Inc. v. Aviall Services, Inc., has further increased this statutory friction, particularly for those undertaking cleanups of contaminated sites pursuant to administrative orders on consent, unilateral administrative orders, or other administratively ordered means. Practitioners with clients currently undergoing such "voluntary" although administratively ordered CERCLA cleanups have an ever-increasing challenge of balancing questions of defenses, viability of contribution claims, and statutes of limitation when advising clients and protecting their interests. As this Article demonstrates, practitioners need to keep these concerns squarely before them when advising clients subject to such administrative cleanup orders.

 

Kevin Gaynor is in Vinson & Elkins' Washington, D.C., office. He cochairs the firm's environmental section. Jules Latham was until recently an associate in Vinson & Elkins' Washington, D.C., office where she worked in the environmental section. She has since relocated to Chicago where she is taking a sabbatical before returning to the practice of law. This Article was presented at the American Law Institute-American Bar Association Course of Study on Hazardous Substances, Remediation, and Enforcement held in Washington, D.C., April 21-22, 2005, cosponsored by the Environmental Law Institute.

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