17 ELR 10101 | Environmental Law Reporter | copyright © 1987 | All rights reserved

Settlements with SARA: A Comprehensive Review of Settlement Procedures Under The Superfund Amendments and Reauthorization Act

Editors' Summary: The 1986 Superfund Amendments and Reauthorization Act (SARA) incorporated many significant changes into the existing Superfund law. In particular, the new law will have considerable impact on settlements between the Environmental Protection Agency (EPA) and responsible parties. EPA has had an international settlement policy in place for several years, but SARA codified many of the existing policies and gave EPA additional duties. The author, a senior EPA enforcement attorney, reviews the new settlement provisions and analyzes their potential impact on EPA's enforcement procedures, taking into account other relevant sections of SARA.

Mr. Mays is Senior Enforcement Counsel in the Office of Enforcement and Compliance Monitoring at the United States Environmental Protection Agency in Washington, D.C. Mr. Mays wrote this article in his private capacity, and no official support or endorsement by EPA or any other agency of the federal government is intended or should be inferred. Mr. Mays gratefully acknowledges the contribution of Nancy Firestone of the Department of Justice, Steve Leifer of EPA, and especially Julie Becker, Special Assistant, for their editorial review of this article.

[17 ELR 10101]

In enacting the Superfund Amendments and Reauthorization Act of 1986 (SARA),¹ which amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund),² Congress continued a trend it had initiated with the 1984 amendments to the Resource Conservation and Recovery Act (RCRA)³ toward micro-management of the environmental programs that it delegates to the United States Environmental Protection Agency (EPA). This trend, noted by several authors,⁴ is said to have grown out of distrust of the Reagan Administration's environmental commitment and motives, the frequent failure of EPA to meet deadlines, and weak enforcement of all programs in the early years of the Administration.

However, in comparing the settlement provisions of SARA with the policies and procedures in place at EPA since 1984, one must conclude that Congress was not acting out of distrust of the Agency. Rather, Congress apparently liked the way EPA was managing the program and wanted to ensure that it would not easily be changed. In many respects, Congress adopted EPA's Interim CERCLA Settlement Policy of December 5, 1984, (the 1984 Settlement Policy)⁵ and many of the Agency's other settlement procedures, and added considerable statutory guidance lacking in the original CERCLA. Credit for this unaccustomed congressional acceptance of EPA's program management is due largely to the extraordinary efforts of EPA Administrator Lee M. Thomas and several key EPA and Department of Justice staff members, who personally spent many hours discussing the amendments with the Senate and House conferees.

In addition, Congress substantially strengthened EPA's enforcement hand by the addition of provisions clarifying when preimplementation review of a proposed remedy might be available; establishing that preimplementation review would be conducted on the administrative record; setting a standard of review very favorable to EPA; and granting EPA administrative subpoena authority. This has led to a number of pundits to suggest that instead of SARA, the acronym for the new law should be RACHEL — Reauthorization Act Confirming How Everyone is Liable.⁶

[17 ELR 10102]

Major Effects of the New Provisions

The new amendments, together with an increase in the size of the Superfund from $1.6 billion to $8.5 billion, will have a number of significant effects:

(1) The Superfund enforcement program should become easier for EPA to implement. New provisions provide for rights of contribution and contribution protection among potentially responsible parties (PRPs); allow for limited judicial review of remedial actions proposed by EPA, confined to an administrative record to be prepared by EPA; and require that a court uphold EPA's record decisions in the absence of a showing that those decisions were arbitrary and capricious or not otherwise in accordance with law. This last is a formidable burden for any challenger to EPA's decisions, and should be a considerable incentive for PRPs to actively participate in development of the administrative record, and then to settle.

(2) The entire settlement and litigation process, while made easier for EPA, is likely to be extended considerably as a result of additional requirements for formal public and state participation in the development of remedial action plans and settlement procedures and in the application of state cleanup standards. While new negotiation issues such as nonbinding allocations of responsibility (NBARs), mixed funding, and de minimis settlements have arisen, the major focus of negotiations will shift from liability to remedy, as it had already begun to do in light of a string of judicial decisions affirming the standard of strict, joint, and several liability of PRPs.⁷ However, there are plenty of issues that can create polarizing and time-consuming argument during the development of a remedy, particularly since more parties with frequently diverse interests must be invited to participate in the choice of remedies. For example, citizens living near a waste site seldom favor any remedy other than complete removal, usually the most expensive alternative.

(3) EPA will rely even more heavily on cleanup of hazardous waste sites by use of the Superfund under CERCLA § 104,⁸ making subsequent efforts to recover the costs from PRPs under § 107.⁹ This will be at the expense of the use of CERCLA § 106¹⁰ enforcement authority. Prior to SARA's enactment, EPA's regional offices were reluctant to utilize the imminent and substantial endangerment provisions of § 106 to compel PRPs to undertake cleanup, claiming that those cases were too resource-intensive and the burden of proof too great when those problems could be avoided by use of the Superfund.¹¹ With $8.5 billion to spend, and EPA's management pushing for cleanups on a congressionally mandated schedule, the regional offices are now likely to become even more adverse to the use of § 106.

(4) The government's cornerstone of strict, joint, and several liability to compel PRP cleanup is still intact, but in danger of being eroded to more closely resemble a "fair share" allocation of responsibility. Under such an allocation, each PRP pays only that percentage of the cost of cleanup that its contribution to the waste site bears to the total amount of the waste. SARA did not affect the numberous court decisions interpreting CERCLA §§ 106 and 107 as allowing a court to apply strict, joint, and several liability against PRPs.¹² However, new SARA provisions endorse the use of "mixed funding" — a combination of PRP and CERCLA funds — to clean up a site, and, when mixed funding is used, require future response activities at the site to be borne in the same proportion as the original response costs. Mixed funding will present a temptation to EPA to cover "orphan shares" — those for which no financially viable PRP can be attributed — and the shares of recalcitrant PRPs with contributions from the Superfund, rather than attempting to compel solvent PRPs to cover those shares. EPA must develop clear guidance on the use of mixed funding to avoid an erosion of the joint and several liability standard in practice.

The following is an analysis of some of SARA's more significant provisions as they may affect settlement of Superfund cases.¹³ These provisions include requirements for providing notice and certain information to PRPs; preparation of NBARs; mixed funding; de minimis settlements; covenants not to sue; contribution; preenforcement review; and the circumstances under which a consent decree or an administrative order should be used. As far as possible, they are presented here in the order in which one is likely to encounter them in the chronological progression of a potential Superfund enforcement case.

The New Settlement Procedures

Congress provided specific settlement procedures in § 122 of SARA.¹⁴ The new procedures generally incorporate EPA's previously established policies. Use of those procedures is discretionary with EPA on a case-by-case basis, [17 ELR 10103] but it is expected that they will usually be followed.¹⁵ They will most likely not be used in an emergency situation that requires immediate response action by the Agency, as there is an exemption from the procedures in cases where there is a "significant threat" to public health or the environment.¹⁶

Notice and Information to PRPs

The heart of the new settlement procedures is in new CERCLA § 122(e).¹⁷ That section requires EPA to furnish the PRPs with notification of its desire to use § 122 procedures together with certain information early in the process, followed by a moratorium in enforcement or Superfund-financed remedial action for a stated period to allow negotiations between EPA and the PRPs. It also allows, at the option of EPA, the preparation of NBARs by EPA which purport to allocate percentages of the total costs of response among the PRPs.

The first step in the process is EPA's determination that a period of negotiation under § 122 would facilitate an agreement with PRPs for taking response action and expedite remedial action. With the exception of emergencies, it is difficult to envision a case in which a period of negotiation might not facilitate or expedite removal or remedial action by PRPs. The necessary determination will undoubtedly be made in writing by EPA's regional administrators or regional waste division directors.

EPA will notify all known PRPs of that determination in writing, and at the same time provide them with the following information to the extent then known to EPA: (1) the names and addresses of all PRPs; (2) the volume and nature of substances contributed by each known PRP; and (3) a ranking, by volume, of the substances at the facility.

This requirement will impose little, if any, additional duties upon EPA, since under the Agency's 1984 Settlement Policy¹⁸ it has been providing that information to PRPs in a notice letter advising them of their potential liability and providing an opportunity to negotiate.¹⁹ In an effort to improve exchanges of information and allow advance preparation for negotiations, EPA will continue to provide PRPs with an "informal" notice letter and information on the volume and nature of wastes contributed by known PRPs as early as possible, to be followed by a "formal" notice and additional information to begin the § 122 settlement negotiation process.²⁰ PRPs may also continue to individually request this information in advance of EPA's general notice and disclosure of information under CERCLA § 122(e) (1).

The requirement to furnish to the PRPs information generated by the government is subject to any privilege or protection provided by law.²¹ This includes EPA's attorney work-product and attorney-client claims, although information subject to those claims is not often included in the information required to be disclosed. Disclosure of material provided to EPA under the confidential business information (CBI) provisions of CERCLA § 104(e) is also prohibited, but the type of information that may be subject to a claim of CBI by the PRPs is restricted.²²

Moratorium

A moratorium period to allow negotiations commences from the date of receipt by the PRPs of the notice and information provided by EPA under CERCLA § 122(e)(1).²³ For 120 days after the PRPs receive the notice, EPA may not take any response action through use of the Fund under CERCLA § 104(a) or any enforcement action under § 106(a).²⁴ EPA may not commence a remedial investigation and feasibility study (RI/FS) under § 104(b) until 90 days after the PRPs receive the notice and information,²⁵ but any additional studies or investigations authorized under § 104(b), such as sampling, monitoring, information-gathering, and remedial design activities, may be commenced or continued during the moratorium period.²⁶

[17 ELR 10104]

PRPs have 60 days following receipt of the notice and information from EPA within which to make a good faith proposal for undertaking or financing actions for conducting the information-gathering activities under § 104(b) (including development of the RI/FS), or for cleanup of the site under § 106.²⁷ If the PRPs fail to submit a good faith²⁸ proposal within 60 days, EPA may immediately commence action under either § 104 or § 106.²⁹

Normally, EPA will not permit PRPs to assume an RI/FS or any other phase of work at a site after EPA has undertaken to perform that phase by use of the Fund.³⁰ Therefore, if the PRPs are to take the lead in performing an RI/FS, they will have to negotiate an agreement to do so within the 90-day moratorium period or such other time as the parties may agree. It should be noted that the statutory moratorium periods are minimum periods, and may be extended by EPA.

The EPA case negotiation team will usually fix a realistic schedule for negotiations at their outset, which might be longer than the statutory minimum depending on the complexities of the case. However, considering its case load, the amount of money available for cleanups, and the congressional mandates for results, EPA cannot afford to engage in extended periods of negotiations. Substantial, tangible progress in negotiations will normally be required to justify an extension of the negotiation period once it is fixed.³¹

While this moratorium sounds somewhat draconian, EPA has been following similar procedures under its 1984 Settlement Policy³² in providing PRPs with notice and opportunity to negotiate to perform all response actions, although the time to negotiate has varied considerably from a few weeks to many months, depending on the problems at the site. Generally, requiring a moratorium of 90 days prior to initiation of an RI/FS and 120 days for initiation of an enforcement action (or 60 days in the absence of a good faith offer from the PRPs) will not, in itself, appreciably delay EPA's actions for cleanup by use of the Superfund. Of course, the Agency can always use its discretion to not follow the § 122 procedures in those cases where circumstances dictate a modified procedure.

It is clear that if EPA elects to utilize the § 122 settlement procedures, opportunity to negotiate must be given to known PRPs prior to the commencement of any significant response activity on the site, including the RI/FS. The question arises whether that opportunity, once declined or not availed of by the PRPs, must be offered again at subsequent phases of response activity. The legislative history indicates that the opportunity to settle must again be extended to PRPs after the completion of the RI/FS.³³ PRPs are extremely reluctant to commit to any agreement until they have a reliable estimate of the potential costs, which is provided by the RI/FS, and as a result, EPA has customarily offered PRPs the opportunity to conduct remedial action following the completion of the RI/FS, even though the PRPs did not agree to undertake removal action or the RI/FS.³⁴ EPA will provide notice, information, and opportunity to negotiate no later than when it has identified a preferred remedy proposed by the RI/FS.³⁵

Subpoena Authority

Perhaps the most significant aspect of the so-called settlement procedures is the authority granted to EPA to issue subpoenas to compel attendance of witnesses or production of documents and other information.³⁶ The purpose of the subpoena authority is to enable EPA to "collect information necessary or appropriate for performing the [NBAR] or for otherwise implementing this section [122]."³⁷ Preparation of an NBAR will require knowledge of the entire case, so this may be considered a grant of authority to EPA to issue a subpoena for any related information about the case. In addition, preparation of an NBAR is not a necessary condition to issuance of a subpoena. To the contrary, a subpoena may be issued for any reason related to the purposes of § 122, i.e, the facilitation of agreements with PRPs, and the expediting of response actions. These are very broad purposes indeed.³⁸

This subpoena authority significantly strengthens EPA's administrative information-gathering capability, which was previously limited to information requests under CERCLA § 104³⁹ and RCRA § 3007.⁴⁰ Those authorities did not include the power to compel attendance and testimony of witnesses, and were time-consuming and inefficient to enforce. Now, EPA need only apply to a federal district court [17 ELR 10105] for an order of compliance when there is a failure or refusal to respond to a SARA subpoena.⁴¹

Nonbinding Allocation of Responsibility

A totally new but optional responsibility for EPA is the development of nonbinding preliminary allocations of responsibility, commonly called NBARs.⁴² These may be made available to the PRPs following completion of the RI/FS. This section is significant, not only because it contains the new subpoena authority discussed above, but because of the congressional approval for EPA to express its opinion to the PRPs regarding the apportionment of their liability.

SARA directs EPA to prepare guidelines forthe development of NBARs. In those guidelines, EPA must take a number of factors into consideration in developing NBARs, including volume, toxicity, and mobility of wastes; strength of evidence against the PRPs; ability of the PRPs to pay; litigative risks; public interest considerations; precedential value of the case; and equities and aggravating factors present in the case.⁴³ These factors are the settlement criteria contained in EPA's 1984 Settlement Policy,⁴⁴ by which EPA has been conducting internal evaluations of PRP liability. Preparation of an NBAR will, then, be much like conducting a comprehensive analysis of the case for settlement purposes.

The allocation of responsibility is usually the most difficult issue of negotiation among the PRPs. Prior to SARA's enactment, some PRPs had requested EPA to render an informal opinion on apportionment as an aid to their negotiations. On the other hand, some attorneys representing PRPs are not anxious to have NBARs prepared in their cases, fearing that EPA's NBAR will be difficult to overcome should they disagree with the allocation.

EPA, in its reliance upon joint and several liability, has refused until now to perform allocations, asserting that allocation is a matter to be resolved by the PRPs. While this position was also based on lack of Agency resources to perform allocations, it may have been against its own interests for EPA to have refused to perform an allocation in all cases. EPA's opinion, however nonbinding, could have considerable psychological influence among a large group of PRPs, and could serve to bring considerable pressure on those who are stalemating negotiations. Preparation of an NBAR would also benefit EPA in requiring EPA's enforcement personnel to carefully analyze its case no later than completion of the RI/FS.

Preparation of an NBAR is discretionary with EPA,⁴⁵ and, despite the potential for benefit to EPA, it is likely that NBARs will be prepared in relatively few cases, again due to a lack of government resources. Preparation of an NBAR will require a detailed analysis of all aspects of the case, including facts specific to each PRP. In cases with large numbers of PRPs, that could be very time-consuming and resource-intensive. In the absence of the development of a computer program capable of preparing NBARs in all cases, NBARs are most likely to be prepared in those cases involving substantial remedies and costs, with relatively few PRPs, where the potential for stalemate on the issue of allocation is high, and where the NBAR would likely break or avoid that stalemate and expedite settlement.

Preparation of NBARs may also present some problems for the government in that the assessment of such factors as litigative risks and strength of evidence frequently involve matters that are sensitive or privileged information. Determining what information should be given to PRPs and what should be withheld could be a source of internal government debate, as well as a source of consternation to the PRPs when withheld. Internal government documents or information that candidly assesses the strengths and weaknesses of the government's potential case will not be provided to the PRPs.

An NBAR is solely advisory to the PRPs. It is not admissible as evidence in any proceeding, nor can it be reviewed or used by a court as evidence of apportionment of liability.⁴⁶ However, the costs to EPA of preparing the NBAR are to be added to the response costs or included as response costs in any cost recovery action.⁴⁷ A court could thus become aware of the existence of an NBAR through a claim for reimbursement for its costs, but could not inquire into its content.

Where EPA rejects a substantial offer for response action made by PRPs pursuant to an NBAR, the Agency must also provide in writing to the PRPs the reasons for its rejection.⁴⁸ Although the statute does not define substantial offer, the Conference Committee's report provides a definition.⁴⁹ Since EPA normally replies in writing to all significant settlement proposals, this requirement should not impose any substantial new burdens. In any event, EPA's rejection of a PRP settlement proposal is not subject to judicial review.⁵⁰

Mixed Funding

For several years, EPA has been flirting with the concept of mixed funding, which is the use of a combination of Superfund and PRP funds to achieve site cleanup. Prior [17 ELR 10106] to SARA, cleanups were conducted with either PRP funds or the Superfund, but not both. The concept of mixed funding was endorsed in the 1984 Settlement Policy, but not utilized until recently.⁵¹ SARA specifically authorizes EPA to agree to "reimburse the parties … from the Fund, with interest, for certain costs of actions … that the parties have agreed to perform, but which [EPA] has agreed to finance."⁵² However, aside from that congressional approval of the concept, there is little additional guidance in SARA or the legislative history as to how it should be applied.

EPA is currently developing guidelines for the use of mixed funding. Those guidelines will stress that mixed funding will be most appropriate in cases where one or more major solvent PRPs are holding up a settlement, and the use of mixed funding would allow cleanup or settlement to proceed, to be followed by an action against the recalcitrant PRP for recovery of the Fund's share of the costs. That would be the ideal — and hopefully the most frequent — use of mixed funding. However, the guidance will also have to strike a balance between equitable considerations in covering orphan shares⁵³ and the necessity of preserving the principle of joint and several liability.

There is little question that mixed funding may be a useful means of achieving more expeditious and equitable settlements in some cases, particularly those in which there is a substantial orphan share, and it would be inequitable to require other PRPs to cover all of that share, notwithstanding joint and several liability. One can be sure that PRPs will propose mixed funding in every case in which there is an orphan share. There is a danger, from EPA's perspective, that mixed funding may insidiously become a tempting and easy way to achieve quick settlements on a fair share basis, eroding the principle of joint and several liability upon which the Superfund enforcement program is founded.⁵⁴

In the event of a mixed funding settlement, the Fund is liable for any subsequent remedial actions caused by failure of the original remedy in the same proportion as the Fund's contribution to the total cost of the original remedy. The Fund's share of the original remedy and any future costs may, however, be covered by PRPs who were not parties to the original settlement.⁵⁵ EPA is also authorized to retain funds paid to it as part of a settlement where EPA performs the response activity, rather than deposit those monies into the Fund.⁵⁶ This will enable EPA to establish site-specific trust funds from which the money can be drawn directly as work progresses, rather than to depend upon appropriation of money from the Fund, allowing site cleanups to proceed faster after settlement.

De Minimis Settlements and the Innocent Landowner

As with the mixed funding issue, Congress expressed its sense on a difficult subject of de minimis settlements, but gave little guidance about the details of how it should be handled.

PRPs who have contributed minor amounts of waste to a site are usually willing to pay a proportionate share of the costs of cleanup, plus an additional premium, if necessary, early in the response process so that they may be eliminated from a long involvement in the case and from the considerable attendant "transactional" costs, such as attorneys fees. While EPA is usually willing to consider allowing de minimis PRPs to settle early, a reliable estimate of the costs may not be known prior to the RI/FS, raising issues of the propriety of settlement with those parties before completion of the RI/FS.

SARA directs that "[EPA] shall as promptly as possible reach a final settlement with a [PRP] … if such settlement involves only a minor portion of the response costs at the facility" and the PRP qualifies as one of two special types of PRP.⁵⁷ Congress did not define what might constitute a "minor" portion of the response costs. In addition to the requirement that the proposed settlement constitute only a minor portion of the response costs, the PRPs must also qualify in either one of two other respects in order to be a de minimis contributor. One of those additional requirements is that the PRP must be one who has contributed a waste to the site which is minimal in volume and toxicity or other hazardous effects in comparison to the other hazardous substances at the site.⁵⁸

EPA has debated internally the establishment of a ceiling (e.g., up to 1 percent of the waste) as the measure for a de minimis contributor. However, it is feared that an arbitrary ceiling will not adequately consider the factors upon which de minimis contributor status must be determined, and which vary from case to case. EPA is currently developing a policy that will guide its regional offices on factors to consider in determining de minimis PRPs, and when and how to settle with them. It is anticipated that the policy will provide that until additional experience is gained with de minimis settlements, the status of de minimis contributors of waste will have to be determined on a case-by-case basis, taking into consideration all known facts regarding the PRP and characteristics of the wastes contributed by it to the site.

[17 ELR 10107]

In addition to the requirement that the proposed settlement constitute only a minor portion of the response costs, the PRP may, in order to be considered a de minimis party, also show that it: (a) is the owner of the real property on which the facility is located; (b) did not conduct or permit any hazardous waste activities on the property; (c) did not contribute to the release or threat of release of a hazardous substance at the facility through any act or omission; and (d) the PRP did not acquire the property with actual constructive knowledge that the property had been or was being used for hazardous waste activities.⁵⁹ The latter type of PRP has commonly been referred to as the "innocent landowner."

Potential confusion arises in how to reconcile treatment of an innocent landowner as a de minimis party under CERCLA § 122(g)(1)(B) with the defense now afforded innocent landowners under CERCLA § 107(b)(3).⁶⁰ Section 107(b)(3) provides in part that no PRP may be liable who can establish that the release or threat of release was caused solely by an act or omission of a third party other than one whose act or omission occurs in connection with a contractual relationship existing directly or indirectly with the defendant.⁶¹

Prior to SARA, there had been a dispute as to whether a contractual relationship included a deed or other conveyance of title. SARA has resolved that issue by defining "contractual relationship" as including land contracts, deeds, or other instruments transferring title,⁶² thereby establishing a basis for liability of a landowner who may have acquired the site subsequent to the disposal of waste. However, that liability can be avoided if the landowner can show that the site was acquired by the landowner after the disposal of the waste at the site, and that the landowner did not know and had no reason to know that hazardous waste had been disposed of on the property prior to when the property was acquired.⁶³

In order to show that the landowner did not know or had no reason to know of waste disposal on the property, the landowner must have made "all appropriate inquiry into previous ownership and uses of the property consistent with good commercial or customary practice."⁶⁴ This standard is surely rising rapidly due to the attention being given potential Superfund liability in real estate and financial circles. Any specialized knowledge or experience on the part of the defendant and other factors that might indicate the presence of waste may be taken into consideration by a court in determining whether appropriate inquiry was made or whether the defendant had no reason to suspect the presence of waste on the site.⁶⁵

On first reading, it appears inconsistent that so-called "innocent landowners" might have both a defense under § 107(b)(3) and also be considered PRPs with whom de minimis settlements might be negotiated, since the latter concept assumes liability. Although the two sections dealing with innocent landowners have similar language, they are not identical nor necessarily inconsistent. The § 107(b)(3) defense imposes the greater burden of proving lack of knowledge through an active investigation into the site prior to purchase in return for the defense. Congress apparently established the de minimis settlement status under § 122(g)(1)(B) for "benignly-innocent" landowners. This would apply to those who had no actual or constructive knowledge of the presence of wastes on the site, and who equitably should not be required to pay for the entire cost of cleanup, but who did not conduct a sufficiently thorough investigation into the site prior to purchase as to exercise the requisite due care to qualify for the defense available under § 107(b)(3).

Cost Recovery Settlement Authority

As a general rule, the Federal Claims Collection Act (FCCA)⁶⁶ restricts government agencies or departments from compromising any claim within their jurisdiction in excess of $20,000 without the consent of the Department of Justice. EPA has been provided an exception to FCCA in the compromise of claims for recovery of costs under § 107 where the total cost of the response action does not exceed $500,000 excluding interest.⁶⁷ There are many such small cost recovery actions, and it is important that these cases be settled as expeditiously as possible.

EPA has delegated authority to its regional administrators to settle claims under $500,000 without headquarters approval. However, if a fair portion of the costs cannot be recovered by settlement, EPA will refer the case to the Department of Justice for judicial action. Cost recovery settlements in excess of $500,000 will be submitted to the Department of Justice for approval, but unlike settlements for future remedial action, cost recovery settlements do not have to be in the form of a consent decree.⁶⁸

EPA may also utilize arbitration as a means of settlement of cost recovery cases where the total cost of response is under $500,000.⁶⁹ This provision was inserted at EPA's request, and the Agency has been experimenting with alternative dispute resolution techniques in its negotiated rulemaking and enforcement programs. EPA is anxious to try arbitration and mediation in some of its CERCLA enforcement cases, and cost recovery cases under CERCLA seem ideal for arbitration. EPA is in the process of developing regulations and guidelines for arbitration rules, agreements, and procedures.

[17 ELR 10108]

Covenants Not To Sue

Covenants not to sue are, understandably enough, the PRPs' favorite subject, and are among the most hotly contested subjects of negotiation. New CERCLA § 122(f) provides ammunition for almost everybody in that contest.⁷⁰ In drafting that section, Congress attempted to reconcile several distinct concerns. In order to encourage new technology, it authorized more expansive covenants not to sue (referred to here as releases) for complete destruction of wastes. To encourage settlements, Congress held out the potential for some degree of finality to PRPs by authorizing complete releases but allowed EPA to hold open the possibility of future enforcement action by "reopener" provisions in the release should EPA deem it appropriate to do so under the facts of the case.⁷¹

In attempting to balance these concerns, Congress provided general guidelines for when particular types of releases should be given. These guidelines essentially followed EPA's past practices under its 1984 Settlement Policy. The guiding principle for determining the extent of releases to be given is that "a more complete covenant not to sue shall be provided for a more permanent remedy undertaken by [the PRPs]."⁷²

There are four conditions under which EPA is authorized to grant a release. These conditions are when (1) the release is in the public interest; (2) the release would expedite response action consistent with the National Contingency Plan (NCP); (3) the PRPs are in full compliance with a consent decree for the response action; and (4) the response action has been approved by EPA.⁷³

The first condition is highly subjective, but provides a moral guideline. The second requires that the quid pro quo for a release be the expeditious response action by the PRPs. The remaining two conditions affirm the position EPA has taken concerning the granting of releases in consent decrees. Standard provisions for EPA's consent decrees⁷⁴ provide that the release does not take effect until the remedial work is completed in accordance with a work plan approved by EPA, which, in turn, must comply with the NCP.

Reopeners. With three exceptions,⁷⁵ any release shall include at a minimum an exception for liability for future response action, commonly called a reopener, allowing EPA to make a claim against the released PRPs for liability arising out of conditions that were unknown at the time the original remedial work was completed.⁷⁶ This provision is less restrictive than the two minimum reopeners provided for in EPA's 1984 Settlement Policy. The Settlement Policy required reopeners for conditions existing at a site and new technical information not known at the time of settlement provided that either indicated that an imminent and substantial endangerment might exist.⁷⁷

The reopener in CERCLA § 122(f)(6)(A) seems to cover the first reopener under EPA's 1984 Settlement Policy,⁷⁸ and there is no requirement that an imminent and substantial endangerment exist in order to trigger the reopener. To that extent, the SARA provision imposes less stringent conditions upon EPA as to when to invoke the reopener than existed under the Settlement Policy. In addition, SARA appears not to cover the second reopener, and to that extent, a release that contained only the minimum SARA reopener would be broader in scope than one given under the Settlement Policy.

Nevertheless, EPA has broad discretion under SARA to require such provisions in releases as are necessary to protect public health and the environment.⁷⁹ EPA will continue to incorporate into its settlements, as a minimum, both reopener provisions contained in the Settlement Policy,⁸⁰ with the exceptions described below. However, EPA will no longer agree that the threat of an imminent and substantial endangerment is necessary to trigger the reopener provision.⁸¹

Even so, these minimum reopeners are very narrow and present several potential problems for EPA, especially in light of other provisions in SARA. Neither reopener specifically covers failure of the original remedy, unless a claim can be made that the failure was due to information not known at the time of settlement. Since the technology of waste containment, disposal, or destruction is not at all certain, it is likely that the greatest cause of problems at a site subsequent to the original remedial work will be failure of the remedial design or construction. Unless the releases that the government gives in its settlements are more restrictive, the Fund may be required to pick up most, if not all, of the cost of subsequent remedial action.⁸²

Congressional concern with remedy failure can be seen in the mixed funding provision of CERCLA § 122(b), and in the provision in SARA § 121(a)⁸³ requiring EPA review [17 ELR 10109] of the remedy every five years. The former section requires that if mixed funding is utilized in a settlement, EPA shall use mixed funding for any future remedial actions made necessary by failure of the original remedy in the same proportion with the PRPs as was adopted in the original remedy. The five-year review provision mandates review of any remedy in which hazardous substances remain at the site every five years to ensure that remedial actions continue to protect human health and the environment. If not, EPA may take or require such additional remedial action as is necessary. These provisions seem to anticipate that PRPs who have settled should retain liability for additional work necessary due to failure of the remedy.

In the early days of CERCLA's enforcement, EPA was reluctant to give expansive releases of liability, fearing criticism from congressional oversight committees and other critics that it was being too lenient. On the other hand, PRPs argued that they would be more willing to settle and thereby expedite cleanups if broader releases were given. EPA eventually compromised by adopting in its 1984 Settlement Policy the approach of giving releases in order to encourage PRP settlements, but reserving the reopeners discussed above.⁸⁴

Congress has now given some parameters in CERCLA § 122(f) for the scope of releases. EPA has discretion to work within those parameters to meet individual case needs. Obviously, SARA raises many new issues on the scope of releases. EPA will be reviewing its 1984 Settlement Policy to determine what modifications are necessary to adjust to the apparent intent of Congress that failure of remedy be subject to reopener.

Exceptions to Reopeners. There are three exceptions to the requirement that a reopener be included in any release. The first exception⁸⁵ requires EPA to give a complete release without reopener where the PRPs propose a remedial plan consistent with the NCP providing for on-site disposal, but where EPA rejects the plan and requires off-site disposal in a RCRA-approved facility,⁸⁶ the latter usually being a far more expensive remedy. The second exception⁸⁷ also requires a complete release where the treatment of the wastes by the PRPs will destroy or permanently immobilize⁸⁸ the hazardous constituents so that the wastes and their by-products will no longer present any foreseeable risk.

These two exceptions are admirable incentives to the development of treatment technology, and provide the PRPs with the desired finality. Since EPA had already adopted this position in its 1984 Settlement Policy, it will constitute no new change in policy.

The third exception to the requirement for a reopener in releases is in cases involving settlements with de minimis PRPs.⁸⁹ EPA may, but is not required to, eliminate any reopener in releases to those PRPs. EPA is developing guidelines on settlements with de minimis PRPs that are expected to provide for the Agency to agree to a complete release in consideration for payment of the PRP's proportionate share, plus a "premium" payment to cover potential cost overruns and future site remediation. This procedure would undoubtedly be accepted by de minimis PRPs whose transactional costs will potentially far exceed the payment for its share and the premium.

Releases under SARA may provide that liability of a PRP for response work required subsequent to the original settlement "may be limited to the same proportion as that established in the original settlement agreement."⁹⁰ This is consistent with the provisions for proportional liability of the Fund for future work in a mixed funding settlement (although it is not limited to mixed funding settlements) and with apparent congressional intent to require PRP liability for failure of remedy. However, it continues the potential for movement away from joint and several liability of PRPs presented by the concept of mixed funding.

Contribution

CERCLA was not specific regarding either the rights of settling PRPs to institute claims for contribution against nonsettling PRPs, or the protection that settling PRPs might have against claims for contribution from nonsettling PRPs sued by EPA subsequent to the settlement. This frequently led to long negotiations over requests by PRPs for "contribution protection" by EPA against claims of nonsettling PRPs. EPA was reluctant to agree to contribution protection, since it usually contemplated reduction of any judgment that EPA might later obtain against the nonsettlors.

SARA lays this troublesome issue to rest, but in the process raises several new ones. Any person who has paid or agreed to pay response costs may now clearly seek contribution from any other person who may be liable under CERCLA § 107(a)⁹¹ during or following any civil action under §§ 106 or 107(a).⁹² Any person may also bring an action for contribution in the absence of a civil action.⁹³ This will enable PRPs who enter into administrative settlements with EPA to make claims for contribution.⁹⁴

[17 ELR 10110]

In hearing contribution claims, the court is authorized to use "such equitable factors as the court determines are appropriate" in allocating responsibility.⁹⁵ Those factors would include the same as those involved in the preparation of an NBAR under CERCLA § 122(e) (3) (A), such as volume, mobility, and toxicity of the wastes contributed by the respective parties; ability to pay; strength of evidence connecting the parties to the site; and equities and aggravating circumstances.

A PRP who has settled with the federal government or a state in an administrative or judicial settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.⁹⁶ The settlement does not release any of the nonsettling PRPs, but reduces the potential amount for which they are liable by the amount of the settlement.⁹⁷ This is a codification of § 4 of the Uniform Contribution Among Tortfeasors Act,⁹⁸ which EPA has argued should be the controlling law on the subject in pre-SARA cases.

However, in providing contribution protection to settling PRPs, and at the same time authorizing PRPs to make contribution claims against any other person who is or may be liable, SARA has raised another question. That question is whether a PRP, having settled with EPA, may make a claim for contribution against another PRP who has, simultaneously or earlier, also settled with EPA. In such cases, does the contribution protection provision take precedence over the right to assert the contribution claim?

In large cases with relatively few PRPs, the potential for settling PRPs to assert claims among themselves is significant. However, most PRPs would prefer to eliminate as many future claims as possible in a settlement, and the answer to this question may ultimately be found in the provisions of the consent decrees to be negotiated in light of the uncertainty of this issue. Notwithstanding Congress' attempts to settle the issue of contribution, it will undoubtedly continue to be a subject of negotiations relative to the liability of settling PRPs to each other.

SARA provides that the United States or a state may sue nonsettling PRPs after a partial settlement.⁹⁹ Although this issue has never been seriously in dispute, this provision was added for the sake of clarity. Finally, where non-settling PRPs are sued by both the government and the settling PRPs, the contribution claims of the settling PRPs are subrogated to the government's claims for the balance of the cleanup costs.¹⁰⁰ All contribution claims asserted under SARA § 113 are to be governed by federal law.¹⁰¹

Preimplementation Review and the Administrative Record

One of the most significant provisions of SARA is the section relating to the development of an administrative record of EPA's actions and the timing, scope, and standard of judicial review of that record.¹⁰²

The issue of whether review may be available for an EPA-directed remedy prior to implementation of that remedy by EPA has been the subject of considerable litigation.¹⁰³ The courts have almost uniformly held that there is no preimplementation review (also referred to as preenforcement review) of an EPA-selected remedy. Due process is satisfied by the opportunity to challenge EPA's remedy when a CERCLA § 107 cost-recovery action is filed.¹⁰⁴ With SARA, Congress has essentially confirmed the judicial interpretations of CERCLA on this issue.

SARA provides that judicial review of removal or remedial actions selected by EPA under CERCLA § 104, or the review of any administrative order issued under CERCLA § 106 is prohibited, except where an action is brought:¹⁰⁵ (a) where diversity jurisdiction exists¹⁰⁶ or where state law, such as the common law of nuisance, provides grounds for challenging the adequacy of a remedy;¹⁰⁷ (b) to recover costs or for contribution under § 107; (c) to enforce a § 106(a) administrative order, or recover a penalty for violation of such an order; (d) for reimbursement under § 106(b) (2), allowing a PRP who complies with a § 106 [17 ELR 10111] order to petition and sue for reimbursement of costs expended in compliance with the order if the PRP can establish that it is not liable for those costs; (e) by citizens under § 310, alleging that the removal or remedial work under §§ 104 or 106 violates a provision of SARA; (f) by the U.S. to compel a remedial action under § 106; and more significantly, even when judicial review is allowed, the review is limited to the administrative record prepared by EPA.¹⁰⁸ The standard of that review is restricted to whether EPA was arbitrary and capricious or not otherwise in accordance with law in its selection of the remedy.¹⁰⁹ Should the court find that EPA violated that standard, it may award to EPA only the response costs that are not inconsistent with the NCP and such other relief as is consistent with the NCP.¹¹⁰ Procedural errors in selection of the remedy will not affect recovery of costs unless they were so serious and related to matters of such central relevance to the action that the response action would have been significantly changed had the errors not been made.¹¹¹

EPA is to prepare the administrative record in each response action according to promulgated regulations,¹¹² but the record cannot be compiled solely by EPA employees in a smoke-filled back room. The regulations must provide for participation of interested persons in the record's development.¹¹³ Interested persons include PRPs and the public. They must be provided notice of the development of a remedial action plan, accompanied by a brief analysis of the plan and alternatives that were considered; reasonable opportunity to comment; an opportunity for a public meeting in the affected area; a response to each significant comment, criticism, or new data; and a statement of the basis and purpose of the selected action. Development of the record does not require an adjudicatory hearing.¹¹⁴

EPA has been developing administrative records in support of its remedial actions for several years, but these records have not been uniform across regions, nor have PRPs and the public been significantly involved in their preparation. The contents of the administrative record will now be extremely important to everyone concerned with the action, since the action, if challenged, will be upheld or invalidated on the basis of that record.

EPA is currently developing guidelines for preparation of an administrative record. SARA requires that the record shall include all items developed and received under CERCLA §§ 113(k) and 117(d) (relating to public participation in proposed and final plans for remedial action). The record will normally include the following: data and decision documents leading to the site's listing on the NPL; the RI/FS and data supporting the RI/FS; reports and studies referenced in the RI/FS; comments and internal EPA analysis; response to comments; and EPA's record of decision. The administrative record developed for removal actions will not be as extensive as those for remedial actions.¹¹⁵

Since any judicial review of removal or remedial action will be limited to the administrative record, there will be much interest in the regulations EPA develops for public and PRP participation in development of that record. Since the arbitrary and capricious standard of review imposes a very heavy burden on the challenging party, it is also very likely that the PRPs will henceforth focus their efforts on attempting to influence development of the RI/FS and other parts of the administrative record, and then attempt to negotiate the best available terms for cleanup in a consent decree with EPA.

Miscellaneous Provisions Affecting Consent Decrees

Several miscellaneous but important provisions affecting terms of consent decrees are tucked away in SARA § 121(a), in new CERCLA § 121(e).

Virtually all consent decrees provide for a dispute resolution procedure in the event a disagreement arises between the parties in the course of implementation of the decree. Prior to SARA's enactment, EPA agreed to dispute resolution provisions that required the parties to negotiate in good faith over the issue in dispute for a specified period of time before submitting the dispute to the court for resolution.¹¹⁶ New CERCLA § 122(e) makes such provisions mandatory.¹¹⁷ However, this does not remove the possibility of any party seeking the court's relief should those informal negotiations fail.

A more unusual provision is also found in CERCLA § 121(e)(2), which provides simply that "[w]here the parties agree, the consent decree may provide for administrative enforcement."¹¹⁸ In the past, if there was an alleged violation of a consent decree and the parties could not agree on the issue in dispute, their resort was invariably to the court. CERCLA § 121(e), permits the use of administrative enforcement procedures, but is not totally clear as to its meaning. The question that arises is what type of administrative procedures did Congress contemplate to enforce a decree? Those procedures could include the unilateral issuance of administrative orders by EPA or the state, although it is inconceivable that PRPs would ever agree to allow EPA to enforce a decree by unilateral issuance of an administrative order.

Considering the juxtaposition of the quoted provision with other portions of § 121(e)(2) relative to dispute resolution, it is reasonable to assume that "administrative enforcement" [17 ELR 10112] should be given a very broad meaning and that the intent is to allow the use of alternative dispute resolution techniques, such as arbitration or fact-finding, to be provided for within the terms of consent decrees. This would be reasonable in recognition of the crowded condition of most judicial dockets, and the need to provide flexibility to the parties to resolve disputes other than resort to the court. Because of its radical departure from past practice and uncertain application, this provision may be slow to gain acceptance.

Most consent decrees entered into by EPA under CERCLA have contained stipulated penalties for failure of the defendant(s) to perform the obligations assumed by them.¹¹⁹ CERCLA § 121(e) (2) makes it mandatory that stipulated penalties be included in a consent decree. The penalties are not to exceed $25,000 per day, but may be less than that. The amount of the stipulated penalties will depend on the obligations to be performed, the demonstrated responsibility of the PRP, and the negotiating skill of the parties.

Procedures After Settlement

In prescribing procedures for memorializing Superfund settlements, Congress indicated a definite preference for use of consent decrees, and for the opportunity for public comment upon proposed settlements in all cases.

When the government enters into a settlement with PRPs for remedial action under § 106, the agreement must be entered in the appropriate federal court as a consent decree.¹²⁰ However, the decree need no longer contain a finding of an imminent and substantial endangerment. This is welcomed by PRPs, who feared express imminent and substantial endangerment findings might be used against them in citizens suits or private tort actions.

Potentially responsible parties are also given some additional protection against third-party suits. The consent decree is not to be construed as an acknowledgment of the existence of imminent and substantial endangerment, and except as otherwise provided by the Federal Rules of Evidence,¹²¹ shall not be considered an admission of liability against any party to the decree for any purpose, nor admissable in any proceeding.¹²² A consent decree between the government and PRPs must be lodged with the court at least 30 days before it is signed and entered.¹²³ During that period, the Attorney General must provide the public an opportunity to comment on the terms of the proposed decree. The decree may be withdrawn if the comments indicate that it is inappropriate or inadequate.¹²⁴ This provision incorporates into law long-standing procedure at the Department of Justice.¹²⁵ Upon the lodging of a consent decree, Justice publishes a notice in the Federal Register that sets forth the parties, briefly describes the subject matter, and invites comments from the public for a period of 30 days. The Department prepares a report to the court that contains all comments received and the government's response to them. The court then determines whether the decree should be entered or rejected in light of the comments.

An exception to the requirement that settlements for remedial action be in the form of consent decrees is provided for settlements with de minimis parties.¹²⁶ Those settlements may be in either a consent decree or an administrative order.¹²⁷ If the response costs at the facility exceed $500,000, the Attorney General must approve the settlement, regardless of which format is used.¹²⁸

The requirement that settlements be in the form of consent decrees applies only to those for remedial actions, and does not necessarily apply to settlements for cost recovery under § 107, or for studies under § 104(b),¹²⁹ although the government could, and frequently does, embody those settlements in consent decrees. There is nothing in SARA indicating that cost recovery settlements have to take any particular form. As a matter of practice, EPA has frequently resolved those cases by an administrative settlement in the nature of a receipt and covenant not to sue if there is no further action for the PRP to take, or in an administrative order on consent or a consent decree if there is further remedial work to be performed. EPA will continue to utilize administrative settlements where only cost recovery is involved and consent decrees where additional remedial work is required.

If the cost recovery claim exceeds $500,000, the Attorney General must approve any "compromise and settlement" of the claim.¹³⁰ It is not clear whether this means that the Department of Justice must approve all settlements in excess of $500,000 or only those where EPA has failed to recover 100 percent of the total costs. The word "compromise" would seem to indicate the latter interpretation, but since it is difficult in any cost recovery action to be certain that 100 percent of the costs have been recovered, it is likely that Justice will be asked to approve all settlements in excess of $500,000.

The government may issue an order on consent or enter into a decree whenever an agreement is reached with respect [17 ELR 10113] to action under § 104(b) for investigations or studies.¹³¹ The authority to issue an administrative order, albeit on consent only, for § 104(b) activities is new. It is important since previously any order under CERCLA had to be based upon a finding of imminent and substantial endangerment under § 106. The new order authority would have been even more significant had the government been given authority to issue unilateral orders for § 104 activities.

Finally, before any settlement, including administrative settlements with de minimis PRPs under CERCLA § 122(g) and for cost recovery (including those arrived at through arbitration), may become final, a notice of the proposed settlement must be published in the Federal Register for at least 30 days to enable the public to comment.¹³² EPA is to consider those comments and may withdraw from the proposed settlement if the comments indicate that the settlement is ill-advised.¹³³

While publication of notice of proposed consent decrees by the Department of Justice is a long-standing practice, EPA has not customarily published notices of administrative settlements. This new requirement is a reflection of congressional concern for public participation in the cleanup process, a concern seen throughout SARA. In general, the requirement will not impose any significant new burdens or delays, but the provision may make settlements reached through binding arbitration somewhat difficult, since SARA seems to allow EPA the option to renounce the decision of the arbitrator if public comments weigh against it. PRPs may be reluctant to enter into arbitration with that possibility. However, it seems unlikely that those cases would attract much, if any, public comment, since only cost recovery claims under $500,000 may be arbitrated.

Conclusions

SARA's settlement provisions are a small but important part of a comprehensive, complex piece of legislation that will vastly expand both the power of the government and the role of citizens and states in cleanup of the nation's hazardous waste sites. Considerable experience with settlement procedures has been gained since Superfund's initial passage in 1980. Those basic procedures remain unaffected by SARA, but the effect of the expanded role of states and the public in settlement negotiations and procedures can only be the subject of an educated guess.

SARA contains additional incentives for PRPs to settle with the government, but, at the same time, the new safeguards for public and PRP participation and application of state cleanup standards will slow the process considerably. This slowdown is a necessary trade-off for the desirable goal of encouraging broad involvement in the cleanup process by those who are most interested in and affected by it.

The focus of discussions in negotiations will continue to shift from liability to remedy. This trend had already begun as a result of the rash of judicial decisions in 1984 and 1985 affirming the standard of strict, joint, and several liability of PRPs.¹³⁴ In selection of the remedy, however, there is plenty of room for polarizing argument. Citizens living near a waste site seldom favor any remedy other than complete removal, and they are given fresh ammunition in SARA for their position.¹³⁵ States will continue to promulgate strict cleanup standards which they will push to have considered as applicable or relevant and appropriate standards to control the cleanup.¹³⁶

All of these potential causes of delay will have to be balanced against the congressional mandate for commencement of 650 RI/FSs and 375 remedial actions by October 1, 1991,¹³⁷ and the determination of EPA's senior management to meet those mandates. EPA will have to set timetables for each procedural step, and strictly adhere to those timetables.¹³⁸ That, in turn, will mean that PRPs will have only narrow windows of opportunity within which to settle with EPA for performance of the RI/FS and the remedial design/remedial action, because the periods for negotiation will have to be much more limited than in the past. EPA's regional offices will be under considerable pressure to clean up sites by use of the Fund if the PRPs show reluctance to settle.

The factors considered by this Article are those directly affecting the settlement process. There are other factors that will affect the psychology of settlement, including whether the cost and coordination required for a third-party "overseer" of PRP-financed RI/FS actions¹³⁹ will discourage PRPs from agreeing to undertake those actions, leaving EPA to fund the cleanup and attempt subsequent cost recovery action. Many of those other factors are very important in providing incentives for or against settlements, and it is difficult to accurately predict what the synergistic effect of all of SARA's provisions will be upon settlement of hazardous waste cases. A period of experience under SARA will be required before that effect can be fully determined.

1. Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613 (1986).

2. 42 U.S.C. §§ 9601-9675, ELR STAT. 44005.

3. 42 U.S.C. §§ 6901-6991i, ELR STAT. 42001, as amended by the Hazardous and Solid Waste Amendments, Pub. L. No. 98-616 (1984).

4. See Rogers & Darrah, RCRA Amendments Indicate Hill Distrust of EPA, Legal Times, Nov. 19, 1984, at 28; Hall, Years of Wrangling End with Passage of Superfund Act, Legal Times, Oct. 27, 1986, at 14.

5. EPA Interim CERCLA Settlement Policy, 50 Fed. Reg. 5034 (1985), ELR ADMIN. MATERIALS 30001.

6. Congress delegated responsibility for implementation of SARA to the President. That authority was redelegated by Executive Order No. 12580, dated January 23, 1987, from the President to the various Executive agencies and departments that will carry out implementation of the Act. 52 Fed. Reg. 2923 (Jan. 29, 1987). With certain minor exceptions not relevant to this article, the functions vested in the President by § 122 of SARA were delegated to the Administrator of EPA. Executive Order No. 12580, § 4(d)(1). The Administrator will further delegate these functions to various assistant administrators and regional administrators within EPA.

7. United States v. Conservation Chemical Co., 589 F. Supp. 59, 14 ELR 20207 (W.D. Mo. 1984); United States v. Chem-Dyne Corp., 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1983); United States v. Northeastern Pharmaceutical and Chemical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984); United States v. South Carolina Recycling and Disposal Inc., 14 ELR 20272 (D.S.C. Feb. 23, 1984); United States v. A & F Materials Co., 578 F. Supp. 1249, 14 ELR 20105 (S.D. Ill. 1984); United States v. Argent Corp., 14 ELR 20497 (D.N.M. May 4, 1984); United States v. Wade, 577 F. Supp. 1326, 14 ELR 20096 (E.D. Pa. 1983).

8. 42 U.S.C. § 9604, ELR STAT. 44011.

9. 42 U.S.C. § 9607, ELR STAT. 44024.

10. 42 U.S.C. § 9606, ELR STAT. 44023.

11. For example, in fiscal year (FY) 1985, only 7 of 37 CERCLA cases EPA referred to the Department of Justice were based, at least in part, on § 106, the remainder being cost recovery cases under § 107. In FY 1986, the number of referred cases containing § 106 counts increased to 12 out of 42, still a small number considering that the Fund was not available for cleanup during much of the year and that EPA headquarters made extraordinary efforts to urge the regional offices to develop § 106 cases.

12. SARA does not specifically mention the standard of joint and several liability. However, the legislative history of the amendments makes it clear that Congress intended that the standard remain applicable to CERCLA cases. See 131 CONG. REC. H11069 (daily ed. Dec. 5, 1985) (statement of Rep. Dingell); 131 CONG. REC. H11073 (daily ed. Dec. 5, 1985) (statement of Rep. Eckart); 132 CONG. REC. S14903 (daily ed. Oct. 3, 1986) (statement of Sen. Stafford); 132 CONG. REC. S14935 (daily ed. Oct. 3, 1986) (statement of Sen. Durenberger); 132 CONG. REC. H9563 (daily ed. Oct. 8, 1986) (statement of Rep. Dingell); 132 CONG. REC. H9587 (daily ed. Oct. 8, 1986) (statement of Rep. Florio).

13. For a comprehensive review of the historical development of SARA, its major provisions, and its legislative history, see Atkeson, et al., An Annotated Legislative History of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 16 ELR 10360 (Dec. 1986).

14. SARA § 122(a), CERCLA § 122, 42 U.S.C. § 9622, ELR STAT. 44058.

15. See Memorandum from J. Winston Porter, Assistant Administrator for Solid Waste and Emergency Response, EPA, to Regional Administrators, et al., Re: Implementation Strategy for Reauthorized Superfund: Short Term Priorities for Action (Oct. 24, 1986) [hereinafter Porter Memorandum].

16. SARA § 122(a), CERCLA § 122(e) (5), 42 U.S.C. § 9622(e) (5), ELR STAT. 44060. The term "significant threat" is not defined in SARA or the legislative history. It would seem to be a higher standard than "imminent and substantial endangerment" which has been defined as not requiring a showing of actual harm, but only a potential for harm. See Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492, 5 ELR 20596 (8th Cir. 1975); United States v. Vertac Chemical Co., 489 F. Supp. 870, 10 ELR 20709 (E.D. Ark. 1980); United States v. Reilly Tar & Chemical Co., 546 F. Supp. 1100, 12 ELR 20954 (D. Minn. 1982); United States v. Hardage, No. CIV-80-1031-W (W.D. Okla. Dec. 13, 1982).

17. SARA § 122(a), CERCLA § 122(e), 42 U.S.C. § 9622(e), ELR STAT. 44059.

18. EPA Interim Settlement Policy, supra note 5.

19. See Memorandum from Gene Lucero, Director, Office of Waste Programs Enforcement, EPA, to Regional Waste Division Directors, Re: Procedures for Issuing Notice Letters (Oct. 12, 1984), ELR ADMIN. MATERIALS 30065 (digest).

20. See Memorandum from J. Winston Porter, Assistant Administrator, Office of Solid Waste and Emergency Response, EPA, and Thomas L. Adams, Jr., Assistant Administrator, Office of Enforcement and Compliance Monitoring, to Regional Administrators, et al., Re: Interim Guidance on Streamlining the CERCLA Settlement Decision Process, at 4 (Feb. 12, 1987) [hereinafter Streamlining Memo].

21. SARA § 122(a), CERCLA § 122(e)(1), 42 U.S.C. § 9622(e)(1), ELR STAT. 44059.

22. Id. The section states, in relevant part, that "[t]he provisions of subsection (e) of section 104 regarding protection of confidential information apply to information provided under this paragraph." However, SARA § 104(n) amends CERCLA § 104(e) by adding several criteria that PRPs must now meet in order to claim information as CBI. CERCLA § 104(e)(7), 42 U.S.C. § 9604(e)(7), ELR STAT. 44016. SARA § 104(n) also sets forth certain classes of information that are not entitled to CBI protection under CERCLA § 104(e). These are the trade or common names or generic class or category of a hazardous substance; the physical properties of the substance; the hazards to health and the environment posed by the substance; the potential routes of human exposure to the substance; the location of disposal of any waste; monitoring data or analysis data; hydrogeologic or geologic data; and groundwater monitoring data. Id.

This amendment was necessary due to the practice of a few companies to habitually claim all information furnished to EPA as CBI, severely restricting EPA's ability to disseminate that information within the agency and to other PRPs or to utilize it in response or enforcement activities without following a cumbersome declassification process.

23. SARA § 122(a), CERCLA § 122(e)(2), 42 U.S.C. § 9622(e)(2), ELR STAT. 44059.

24. This moratorium period may be shortened to 60 days if the PRPs fail to present a good faith proposal within 60 days of receipt of the notification and information required by § 122(e)(1). See CERCLA § 122(e)(2)(B), 42 U.S.C. § 9622(e)(2)(B), ELR STAT. 44059.

25. Id.

26. SARA § 122(a), CERCLA § 122(e)(2)(A), 42 U.S.C. § 9622(e)(2)(A), ELR STAT. 44059.

27. SARA § 122(a), CERCLA § 122(e)(2)(B), 42 U.S.C. § 9622(e)(2)(B), ELR STAT. 44059.

28. SARA does not define a "good faith" proposal. The Porter Memorandum defines it as "a proposal in writing in which the PRPs make a showing of their qualifications and willingness to conduct or finance the major elements of the ROD." Porter Memorandum, supra note 15, at 11. A ROD is a record of decision, i.e., EPA's official decision document for selection of the preferred remedy at a site.

Since the function of the good faith proposal is to open negotiations, EPA could also adopt an analogous rule contained in its 1984 Settlement Policy, supra note 5, as the threshold for consideration of settlement offers. That rule states that, in order to merit negotiations, the PRPs should offer a "substantial proportion" of the value of the case as determined by EPA in relation to the ten settlement criteria set forth in the Settlement Policy.

29. SARA § 122(a), CERCLA § 122(e)(4), 42 U.S.C. § 9622(e)(4), ELR STAT. 44060.

30. See Memorandum from Lee M. Thomas, Assistant Administrator, EPA, to Regional Administrators, Re: Participation of Potentially Responsible Parties in Development of Remedial Investigations and Feasibility Studies under CERCLA (Mar. 20, 1984), at 3, ELR ADMIN. MATERIALS 30063 [hereinafter Thomas Memorandum].

31. See Streamlining Memo, supra note 20, at 7.

32. EPA Interim Settlement Policy, supra note 5.

33. [S]ection 122(e) now requires the President, in certain circumstances, to provide notice and an opportunity for private parties to conduct the RI/FS when entering into negotiations under this section …. A separate notice and information release should be provided for private parties who actually conduct the remedial action. Information on volume, nature and ranking of wastes should be made available routinely at this time.

JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE, SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, H.R. CONF. REP. NO. 962, 99th Cong., 2d Sess. 253 (1986) [hereinafter CONFERENCE REPORT].

34. See Thomas Memorandum, supra note 29.

35. See Porter Memorandum, supra note 15, at 13.

36. SARA § 122(a), CERCLA § 122(e)(3)(B), 42 U.S.C. § 9622(e)(3)(B), ELR STAT. 44060.

37. Id. (emphasis supplied).

38. The legislative history supports this interpretation. See CONFERENCE REPORT, supra note 33, at 253.

39. 42 U.S.C. § 9604, ELR STAT. 44011.

40. 42 U.S.C. § 6927, ELR STAT. 42020.

41. SARA § 122(a), CERCLA § 122(e)(3)(B), 42 U.S.C. § 9622(e)(3)(B), ELR STAT. 44060.

42. SARA § 122(a), CERCLA § 122(e)(3), 42 U.S.C. § 9622(e)(3), ELR STAT. 44060.

43. SARA § 122(a), CERCLA § 122(e)(3)(A), 42 U.S.C. § 9622(e)(3)(A), ELR STAT. 44060.

44. See supra note 5.

45. SARA § 122(a), CERCLA § 122(e)(3)(A), 42 U.S.C. § 9622(e)(3)(A), ELR STAT. 44060. See also CONFERENCE REPORT, supra note 33, at 253.

46. SARA § 122(a), CERCLA § 122(e)(3)(C), 42 U.S.C. § 9622(e)(3)(C), ELR STAT. 44060.

47. SARA § 122(a), CERCLA § 122(e)(3)(D), 42 U.S.C. § 9622(e)(3)(D), ELR STAT. 44060.

48. SARA § 122(a), CERCLA § 122(e)(3)(E), 42 U.S.C. § 9622(e)(3)(E), ELR STAT. 44060.

49. A substantial offer is one which represents a commitment by the [PRPs] to undertake or finance a predominant portion of the total remedial action. Any substantial offer must provide for response or costs of response for an amount equal to or greater than the cumulative total, under the NBAR, of the [PRPs] making the offer. For a substantial offer to exist, all other terms must be agreed to.

CONFERENCE REPORT, supra note 33, at 254. The "cumulative total" of PRPs making the offer apparently means the total percentage of responsibility for cleanup costs allocated to those PRPs by the NBAR. The last sentence of the quoted material apparently refers to all terms of a proposed settlement other than the costs.

50. SARA § 122(a), CERCLA § 122(e)(3)(E), 42 U.S.C. § 9622(e)(3)(E), ELR STAT. 44060.

51. As of this writing, EPA is negotiating settlement agreements involving the concept of mixed funding at several sites. However, settlement agreements have not been consummated in those cases, and any discussion of those cases would be premature.

52. SARA § 122(a), CERCLA § 122(b)(1), 42 U.S.C. § 9622(b)(1), ELR STAT. 44058.

53. Congress intended that mixed funding cover a broad variety of circumstances:

The President … may reimburse parties for certain costs of actions under the agreement by using monies from the Fund on behalf of parties who are unknown, insolvent, similarly unavailable, or refuse to settle.

CONFERENCE REPORT, supra note 33, at 252.

54. Congress clearly intended that this not be the result of mixed funding. The Conference Report states:

In cases of mixed funding, the President is to undertake actions to impose the costs of the Fund obligations on non-settlors. Such actions may be to seek reimbursement for expenditures already made or to determine liability in advance of the actual incurrence of costs. But in any case, the burdens of mixed funding should be shifted to non-settlors, whether through reliance on the authorities of this Act or other laws, unless it would be unreasonable to undertake such efforts.

CONFERENCE REPORT, supra note 33, at 252.

55. SARA § 122(a), CERCLA § 122(b)(4), 42 U.S.C. § 9622(b)(4), ELR STAT. 44058.

56. SARA § 122(a), CERCLA § 122(b)(3), 42 U.S.C. § 9622(b)(3), ELR STAT. 44058.

57. SARA § 122(a), CERCLA § 122(g)(1), 42 U.S.C. § 9622(g)(1), ELR STAT. 44061.

58. SARA § 122(a), CERCLA § 122(g)(1)(A), 42 U.S.C. § 9622(g)(1)(A), ELR STAT. 44061.

59. SARA § 122(a), CERCLA § 122(g)(1)(B), 42 U.S.C. § 9622(g)(1)(B), ELR STAT. 44062.

60. 42 U.S.C. § 9607(b)(3), ELR STAT. 44024. See also SARA § 101(f), CERCLA § 101(35), 42 U.S.C. § 9601(35), ELR STAT. 44008.

61. 42 U.S.C. § 9607(b)(3), ELR STAT. 44024 (emphasis supplied).

62. SARA § 101(f), adding subsection (35) to CERCLA § 101, 42 U.S.C. § 9601(35), ELR STAT. 44008.

63. Id.

64. Id.

65. Id. See also CONFERENCE REPORT, supra note 33, at 187:

Defendants shall be held to a higher standard as public awareness of the hazards associated with hazardous substance releases has grown, as reflected by this Act, the 1980 Act and other Federal and State statutes…. Those engaged in commercial transactions should … be held to a higher standard than those who are engaged in private residential transactions. Similarly, those who acquire property through inheritance or bequest without actual knowledge may rely upon this section if they engage in a reasonable inquiry, but they need not be held to the same standard as those who acquire property as part of a commercial or private transaction.

66. 31 U.S.C. §§ 3701, 3711, 3716-3718 (1983).

67. SARA § 122(a), CERCLA § 122(h), 42 U.S.C. § 9622(h), ELR STAT. 44062.

68. See infra text following note 124 for discussion on the form of settlements.

69. SARA § 122(a), CERCLA § 122(h)(2), 42 U.S.C. § 9622(h)(2), ELR STAT. 44062.

70. SARA § 122(a), CERCLA § 122(f), 42 U.S.C. § 9622(f), ELR STAT. 44060.

71. SARA § 122(a), CERCLA § 122(f)(6), 42 U.S.C. § 9622(f)(6), ELR STAT. 44061.

72. SARA § 122(a), CERCLA § 122(c)(1), 42 U.S.C. § 9622(c)(1), ELR STAT. 44058.

73. SARA § 122(a), CERCLA § 122(f)(1), 42 U.S.C. § 9622(f)(1), ELR STAT. 44060.

74. See Memorandum from Courtney M. Price, Assistant Administrator, Office of Enforcement and Compliance Monitoring, EPA, and Jack W. McGraw, Acting Assistant Administrator, Office of Solid Waste and Emergency Response, to Regional Administrators, Re: Drafting Consent Decrees in Hazardous Waste Imminent Hazard Cases (May 1, 1985), at 3.

75. See infra text at notes 85-90.

76. SARA § 122(a), CERCLA § 122(f)(6)(A), 42 U.S.C. § 9622(f)(6)(A), ELR STAT. 44061.

77. See EPA Interim Settlement Policy, supra note 5.

78. EPA Interim Settlement Policy, supra note 5.

79. SARA § 122(a), CERCLA § 122(f)(6)(C), 42 U.S.C. § 9622(f)(6)(C), ELR STAT. 44061.

80. See Porter Memorandum, supra note 15, at 15. This also appears to be consistent with congressional intent, as the Conference Report states:

[N]ew section 122(f)(6)(B) is added to require, except in extraordinary circumstances, reopeners for unknown conditions…. This provision should be implemented in a manner consistent with the current application of the Administration settlement policy as to unknown conditions.

CONFERENCE REPORT, supra note 33, at 255.

81. See Porter Memorandum, supra note 15, at 15.

82. In addition, in a proceeding to require additional response action by PRPs under a reopener provision after a release has become effective, there could be significant evidentiary problems of "what did EPA know about conditions at the site or technology, when did it know it, and who knew it?," all critical factors in invoking the reopener conditions. EPA is a large, multi-faceted agency, the many parts of which are not always in communication with each other. Some parts of EPA may have information on technology, of which the government's case negotiation team was unaware. Is that knowledge imputed to the negotiation team?

83. SARA § 121(a), CERCLA § 121(c), 42 U.S.C. § 9621(c), ELR STAT. 44055.

84. EPA Interim Settlement Policy, supra note 5.

85. SARA § 122(a), CERCLA § 122(f)(2)(A), 42 U.S.C. § 9622(f)(2)(A), ELR STAT. 44061.

86. The facility must be one that has received a final permit under RCRA § 3005, 42 U.S.C. § 6925, ELR STAT. 42017. See CONFERENCE REPORT, supra note 33, at 254.

87. SARA § 122(a), CERCLA § 122(f)(2)(B), 42 U.S.C. § 9622(f)(2)(B), ELR STAT. 44061.

88. On what constitutes permanent immobilization, the Conference Report states:

When a covenant not to sue is issued … on the basis of application of treatment technologies involving "permanent immobilization" of hazardous substances …, such technologies must change the fundamental nature and character of such substances. Placing the substance in a permanent storage container or other containment method would not constitute a permanent immobilization technology.

CONFERENCE REPORT, supra note 33, at 255.

89. See SARA § 122(a), CERCLA § 122(g)(2), 42 U.S.C. § 9622(g)(2), ELR STAT. 44062; SARA § 122(a), CERCLA § 122(f)(6)(A), 42 U.S.C. § 9622(f)(6)(A), ELR STAT. 44062.

90. SARA § 122(a), CERCLA § 122(c), 42 U.S.C. § 9622(c), ELR STAT. 44058.

91. 42 U.S.C. § 9607(a), ELR STAT. 44024. Those persons generally include present owners and operators, past owners and operators of the site at the time of waste disposal, transporters who selected the site for disposal of the waste, and generators of the waste.

92. SARA § 113(b), CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1), ELR STAT. 44041.

93. Id.

94. Id. There is an issue about whether it is unconstitutional to bar claims for contribution against a party who has entered into an administrative settlement. In the floor debate, Senator Stafford (R-Vt.) argued that to provide contribution protection in nonjudicial proceedings was both bad policy and constitutionally flawed. 132 CONG. REC. S14904-05 (daily ed. Oct. 3, 1986). Because of the doubt on this issue, Congress included SARA § 122(b), which amends CERCLA § 308 to provide that if an administrative settlement under § 122 limits any person's right to obtain contribution from any party to that settlement, and the effect of such limitation would violate the Fifth Amendment to the Constitution, the limitation on contribution protection shall be of no force and effect. SARA § 122(b), CERCLA § 308, 42 U.S.C. § 9657, ELR STAT. 44071.

95. SARA § 113(b), CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1), ELR STAT. 44041.

96. SARA § 113(b), CERCLA § 113(f)(2), 42 U.S.C. § 9613(f)(2), ELR STAT. 44041.

97. Id.

98. UNIFORM CONTRIBUTION AMONG TORTFEASORS ACT OF 1955, 12 U.L.A. 98 (1955 Revised Act).

99. SARA § 113(b), CERCLA § 113(f)(3)(A), 42 U.S.C. § 9613(f)(3)(A), ELR STAT. 44041.

100. SARA § 113(b), CERCLA § 113(f)(3)(C), 42 U.S.C. § 9613(f)(3)(C), ELR STAT. 44041.

101. SARA § 113(b), CERCLA § 113(f)(1), (3)(C), 42 U.S.C. § 9613(f)(1), (3)(C), ELR STAT. 44041.

102. SARA § 113(c), CERCLA §§ 113(h)-(l), 42 U.S.C. §§ 9613(h)-(l), ELR STAT. 44042.

103. Wagner Seed Co. v. Daggett, 800 F.2d 310, 16 ELR 21001 (2d Cir. 1986); Barnes v. United States District Court, 16 ELR 21004 (9th Cir. Aug. 16, 1986); Wheaton Industries v. United States Environmental Protection Agency, 781 F.2d 354, 16 ELR 20260 (3d Cir. 1986); Lone Pine Steering Committee v. United States Environmental Protection Agency, 777 F.2d 882, 16 ELR 20009 (3d Cir. 1985), cert. denied, 106 S. Ct. 1970 (1986); J.V. Peters & Co. v. Administrator, 767 F.2d 263, 15 ELR 20646 (6th Cir. 1985); United States v. United Nuclear Corp., 610 F. Supp. 527, 15 ELR 20442 (D.N.M. 1985); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985); Solid-State Circuits, Inc. v. United States Environmental Protection Agency, No. 85-3101-CUX-2 (W.D. Mo. Nov. 1, 1985).

104. Id.

105. SARA § 113(c), CERCLA § 113(h), 42 U.S.C. § 9613(h), ELR STAT. 44042.

106. The purpose of the diversity exception is to permit actions under state law to be heard in federal court when the parties are residents of different states. See 132 CONG. REC. S14929 (daily ed. Oct. 3, 1986) (statements of Sens. Thurmond and Simpson); 132 CONG. REC. H9582 (daily ed. Oct. 8, 1986) (statement of Rep. Glickman).

107. The state law clause includes not only private actions under state common or statutory law, but also challenges to the adequacy of a remedy under SARA § 121(a) where the projected cleanup fails to satisfy state standards. SARA § 113(c), CERCLA § 113(h), 42 U.S.C. § 9613(h), ELR STAT. 44042; see also SARA § 121(a), CERCLA § 121(f), 42 U.S.C. § 9621(f), ELR STAT. 44056. For an excellent discussion of the diversity and state law exceptions to preimplementation review, see Atkeson, et al., An Annotated Legislative History of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 16 ELR 10360, 10398-10399 (Dec. 1986).

108. SARA § 113(c), CERCLA § 113(j)(1), 42 U.S.C. § 9613(j)(1), ELR STAT. 44042.

109. SARA § 113(c), CERCLA § 113(j)(2), 42 U.S.C. § 9613(j)(2), ELR STAT. 44043.

110. SARA § 113(c), CERCLA § 113(j)(3), 42 U.S.C. § 9613(j)(3), ELR STAT. 44043.

111. SARA § 113(c), CERCLA § 113(j)(4), 42 U.S.C. § 9613(j)(4), ELR STAT. 44043.

112. SARA § 113(c), CERCLA § 113(k)(2)(A), 42 U.S.C. § 9613(k)(2)(A), ELR STAT. 44043.

113. SARA § 113(c), CERCLA § 113(k)(2)(B), 42 U.S.C. § 9613(k)(2)(B), ELR STAT. 44043.

114. SARA § 113(c), CERCLA § 113(k)(2)(C), 42 U.S.C. § 9613(k)(2)(C), ELR STAT. 44043.

115. See Porter Memorandum, supra note 15, at 17.

116. Memorandum from Courtney Price, Special Counsel for Enforcement, EPA, to Assistant Administrators, et al., Re: Guidance for Drafting Judicial Consent Decrees (Oct. 19, 1983), and Memorandum from Courtney Price, Assistant Administrator, EPA, and Jack W. McGraw, Acting Assistant Administrator, to Regional Administrators, Re: Drafting Consent Decrees in Hazardous Waste Imminent Hazard Cases (May 1, 1985) [hereinafter Price Memos].

117. The new provisions state that "[a]ny consent decree shall require the parties to attempt expeditiously to resolve disagreements concerning implementation of the remedial action informally with the appropriate Federal and State agencies." SARA § 121(a), CERCLA § 121(e), 42 U.S.C. § 9621(e), ELR STAT. 44056.

118. SARA § 121(a), CERCLA § 121(e)(2), 42 U.S.C. § 9621(e)(2), ELR STAT. 44056.

119. See Price Memos supra note 116.

120. SARA § 122(a), CERCLA § 122(d)(1)(A), 42 U.S.C. § 9622(d)(1)(A), ELR STAT. 44058.

121. Rule 408 of the Federal Rules of Evidence provides:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount…. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

FED. R. EVID. 408.

122. SARA § 122(a), CERCLA § 122(d)(1)(B), 42 U.S.C. § 9622(d)(1)(B), ELR STAT. 44059.

123. SARA § 122(a), CERCLA § 122(d)(2)(A), 42 U.S.C. § 9622(d)(2)(A), ELR STAT. 44059.

124. SARA § 122(a), CERCLA § 122(d)(2)(B), 42 U.S.C. § 9622(d)(2)(B), ELR STAT. 44059.

125. See Statement of Policy Regarding Consent Judgments in Actions to Enjoin Discharges of Pollutants, 28 C.F.R. § 50.7 (1986).

126. SARA § 122(a), CERCLA § 122(d)(1), 42 U.S.C. § 9622(d)(1), ELR STAT. 44058.

127. SARA § 122(a), CERCLA § 122(g)(4), 42 U.S.C. § 9622(g)(4), ELR STAT. 44062.

128. Id.

129. SARA § 122(a), CERCLA § 122(d)(3), 42 U.S.C. § 9622(d)(3), ELR STAT. 44059.

130. SARA § 122(a), CERCLA § 122(h)(1), 42 U.S.C. § 9622(h)(1), ELR STAT. 44062.

131. SARA § 122(a), CERCLA § 122(d)(3), 42 U.S.C. § 9622(d)(3), ELR STAT. 44059.

132. SARA § 122(a), CERCLA §§ 122(i)(1) and (2), 42 U.S.C. §§ 9622(i)(1) and (2), ELR STAT. 44062.

133. SARA § 122(a), CERCLA § 122(i)(3), 42 U.S.C. § 9622(i)(3), ELR STAT. 44062.

134. See cases cited supra note 7.

135. See SARA § 121(a), CERCLA § 121(b)(1), 42 U.S.C. § 9621(b)(1), ELR STAT. 44054. The section provides in part:

Remedial actions in which treatment which permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances … is a principal element, are to be preferred over remedial actions not involving such treatment. The offsite transport and disposal of hazardous substances or contaminated materials without such treatment should be the least favored alternative remedial action where practicable treatment technologies are available …. [EPA] shall select a remedial action that is protective of human health and the environment, that is cost effective, and that utilizes permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable.

136. See SARA § 121(a), CERCLA § 121(d)(2)(A), 42 U.S.C. § 9621(d)(2)(A), ELR STAT. 44055.

137. SARA § 116(d), CERCLA § 116(d), 42 U.S.C. § 9616(d), ELR STAT. 44045.

138. See Streamlining Memo, supra note 20.

139. See SARA § 104(a), CERCLA § 104(a)(1), 42 U.S.C. § 9604(a)(1), ELR STAT. 44011.

17 ELR 10101 | Environmental Law Reporter | copyright © 1987 | All rights reserved