Under the Superfund program, the U.S. Environmental Protection Agency (EPA or the Agency) faces a dilemma. The Agency wants potentially responsible parties (PRPs) to perform voluntary response actions pursuant to administrative consent orders or judicial consent decrees (collectively referred to as "orders" unless otherwise specified), but does not want to commit extensive attorney resources to negotiating the details of every order.

There seems to be agreement across a wide spectrum of those involved in Superfund cleanups that such cleanups should take into consideration the kinds of activities that are expected to take place at the site after the remedial work is completed. While cleaning every site to levels suitable for all conceivable uses may be a laudable goal, doing so can impose costs that are out of proportion to the added amount of protection obtained.

Editors' Summary: The effect of settlements among private parties in CERCLA contribution suits leaves courts with the choice of allocating liability among the nonsettling parties based on either the pro tanto method, which credits nonsettlors with the amount settling parties have paid, or the proportionate share method, which credits nonsettlors with the settlors' equitable share of cleanup costs. District courts have yet to achieve consensus on which method to adopt. The U.S. Supreme Court's recent admiralty case, McDermott, Inc. v.

[T]he legislative history of CERCLA gives more insight into the "Alice-in-Wonderland"-like nature of the evolution of this particular statute than it does helpful hints on the intent of the legislature.

Editors' Summary: Under CERCLA, a liable party cannot transfer its liability, yet it can contractually arrange for a third party to ultimately bear the financial burden of that liability. The applicability of these contractual allocations of environmental liability generally hinges on judicial interpretation of representations, warranties, indemnities, and releases. This Article surveys the case law on contractual allocation of CERCLA liability. Addressing legal issues unique to particular types of contractual provisions, the Article recommends ways to use and draft such provisions.

Trustees face possible liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because, as holders of legal title to property, they may be "owners" or "operators" of CERCLA facilities. Although CERCLA does not expressly address trustee liability and the U.S. Environmental Protection Agency, except for a brief mention in the preamble to its lender liability rule, has not formally addressed the subject, common-law trust principles support finding trustees liable for CERCLA damages in certain situations.

Editors' Summary: The extent to which the existing version of CERCLA removes the federal government's sovereign immunity has long been a matter of contention between states and several federal agencies. This Dialogue discusses the statutory framework, and describes the manner in which DOD and DOE have contended that the existing CERCLA "waiver" does not remove the government's immunity shield.

Editors' Summary: Institutional controls are a mechanism for providing a certain degree of safety in the absence of technology that could clean contaminated sites thoroughly. Institutional controls come in a variety of forms, each of which can be designed to meet specific site needs. Flexible but long-lasting mechanisms such as institutional controls can be used to ensure that land uses continue to be compatible with the level of cleanup at a site.

Even if it is wrong, the U.S.

Editors' Summary: The Clinton Administration's proposed Superfund amendments—the Superfund Reform Act of 1994 (SRA)—were introduced in both the House and Senate in early February. Steven M. Jawetz of Beveridge & Diamond, reviews several key provisions of the bill's first five titles, including proposals to increase delegation to states, narrow defenses to EPA administrative orders and cost recovery actions, institute a nonbinding allocation process, and modify the remedy selection process. Mr.