Does the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹ suspend the states' authority to enforce environmental laws at sites selected by the federal government for remedial action? The United States has taken that position to avoid compliance with state laws at federally owned hazardous waste sites. The issue recently came to a head before the Tenth Circuit Court of Appeals in a case concerning the U.S.

A sharp conflict among the judicial circuits has emerged concerning whether private parties may recover attorneys fees in cost recovery actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).¹ The issue centers on the meaning of CERCLA § 107(a)(4)(B), which permits private parties to recover "necessary costs of response … consistent with the national contingency plan."² Specifically, the question is, does the phrase "necessary costs of response" include attorneys fees?

The Comprehensive Environmental Response, Compensation, and Liability Act¹ (CERCLA) does not expressly provide for joint and several liability, but it is well-established that under CERCLA § 107(a)² potentially responsible parties (PRPs) will be jointly and severally liable for the release, or threat of release, of hazardous substances.³ As a general proposition, a PRP may be able to defend against the full application of joint and several liability in a particular case if it can show that harm it caused or for wh

Editors' Summary: When Congress passed CERCLA, it chose to omit specific reference to joint and several liability in the statute, intending courts to determine the scope of liability on a case-by-case basis. Since then, courts have applied common-law principles, set forth in the Restatement (Second) of Torts, to cases involving multiple defendants responsible for contamination at CERCLA sites. These principles call for imposition of joint and several liability on multiple tortfeasors unless the harm is divisible or there is a reasonable basis for apportionment.

Editors' Summary: CERCLA divides response actions into two categories: removal actions and remedial actions. The need for clarity in the classification of CERCLA response actions as removal or remedial actions is crucial for private parties attempting to recover their response costs. These parties must prove that the costs of their response actions are necessary and consistent with the national contingency plan (NCP), however, the NCP requirements differ for the two types of actions.

Editors' Summary: Currently, mixed radioactive/hazardous waste is regulated by both the NRC and DOE under the Atomic Energy Act (AEA) and by EPA under RCRA. Despite the agencies' numerous and elaborate attempts to minimize and avoid conflicts between these two regulatory schemes, a fundamental conflict remains between the approaches that the two statutes take to regulating waste.

Editors' Summary: CERCLA § 107(a) authorizes EPA and private-party plaintiffs to recover prejudgment interest on outstanding costs related to CERCLA's response actions. This interest can amount to millions of dollars, and may be the single largest cost item at a site. Despite this, surprisingly little attention has been paid to prejudgment interest and how it is calculated.

Keynote Presentation: Making the Partnership Work

Panel Discussion: Regulation of Nuclear Materials

Regulation of Air Quality

Regulation of Water Quality: Is EPA Meeting Its Oblilgations or Can the States Better Meet Water Quality Challenges?

Regulating Solid and Hazardous Wastes

Editors' Summary: Naturally occurring radioactive material (NORM), which exists at very low levels throughout nature, is found in significant concentrations in over 50 common industrial wastes. EPA estimates that U.S. industry generates tens of billions of metric tons of low activity NORM waste each year. Despite the tremendous volume of NORM waste produced annually, there is only one site in the country that is expressly licensed to receive it.

Editors' Summary: The Clean Air Act's (CAA's) Title V operating permit program was one of the most significant additions of the 1990 Clean Air Act Amendments. The U.S. Environmental Protection Agency's (EPA's) July 1992 final rules for the Title V program, which are the heart of CAA permitting, set forth the minimum requirements for federally mandated state permit programs.