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Would the Superfund Response Cost Allocation Procedures Considered by the 103d Congress Reduce Transaction Costs?

One of the most prominent issues in the Congressional debate over reauthorization of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) has been how to reduce "transaction costs" while at the same time fairly and expeditiously resolving liability disputes. This Dialogue asks: Would the allocation procedures proposed in last year's Superfund reauthorization bills meet those sometimes conflicting goals?

Restitution Under RCRA §7002(a)(1)(B): The Courts Finally Grant What Congress Authorized

Earlier this year in KFC Western, Inc. v. Meghrig, the U.S. Court of Appeals for the Ninth Circuit ruled that private parties may obtain restitution of the costs of cleaning up contaminated property under §7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA). The Ninth Circuit's ruling in KFC Western opened the way for private parties to use the RCRA citizen suit provision to recover their costs of investigating, studying, and cleaning up contaminated property from responsible parties.

76 FR 64943

EPA entered into a proposed administrative settlement under CERCLA that requires the settling parties to pay $1,050,000 in past and future U.S. response costs incurred at the ACM Smelter and Refinery NPL site near Great Falls, Montana, and to perform a remedial investigation and feasibility study for portions of the site.

76 FR 64378

United States v. Airgas Carbonic, Inc., No. 1:11-cv-163 (S.D. Ga. Oct. 4, 2011). Seventy-three settling CERCLA parties responsible for violations at the Alternate Energy Resources, Inc., site in Augusta, Georgia, must perform remedial design and remedial action at the site; 797 other parties must pay a portion of the past and future response costs incurred by the United States and Georgia.

76 FR 63954

United States v. Newmont USA Ltd., No. 05-020-JLQ (E.D. Wash. Sept. 30, 2011). A settling CERCLA defendant responsible for violations at the Midnite Mine Superfund site on the Spokane Indian Reservation in Stevens County, Washington, must pay $18.7 million in U.S. response costs incurred at the site and must perform the EPA-selected cleanup for the site.

76 FR 62446

In re DPH Holdings Corp., No. 05-44481 (RDD) (Bankr. S.D.N.Y. Oct. 4, 2011). A settling CERCLA and RCRA defendant responsible for violations at the Tremont City Landfill Superfund site in Tremont City, Ohio, and the South Dayton Dump & Landfill Superfund site in Moraine, Ohio, must provide the United States with an allowed claim of $857,582.52, subject to the approval of a tax refund action.

76 FR 37152

United States v. Tecumseh Products Co., No. 1:03-cv-00401 (E.D. Wis. June 13, 2011). Settling CERCLA defendants must finance and perform the remainder of the remedial action at the Sheboygan River and Harbor Superfund site in Sheboygan County, Wisconsin, at an estimated cost of $12.6 million and must pay EPA's oversight costs.

76 FR 35470

United States v. Hecla Ltd., No. 96-0122-N-EJL (D. Idaho June 13, 2011). A settling CERCLA and CWA defendant responsible for violations at the Bunker Hill Mining and Metallurgical Complex Superfund site in the Coeur d'Alene Basin watershed in Idaho must pay $263.4 million, plus interest, in past and future response costs to the United States, the Coeur d'Alene Tribe, and Idaho and must coordinate future mining operations with EPA's cleanup activities in the Coeur d'Alene Basin. 

76 FR 33784

United States v. United Nuclear Corp., No. CV 11-01060-PHX-NVW (D. Ariz. May 31, 2011). A settling CERCLA defendant responsible for violations at the Pine Mountain Mine Superfund site in the Tonto National Forest in Arizona must pay $800,000 in U.S. response costs incurred at the site.

76 FR 33364

United States v. Union Pacific Corp., No. 8:11-cv-00195 (D. Neb. June 1, 2011). Settling CERCLA defendants responsible for violations at the Omaha Lead Superfund site in Omaha, Nebraska, must pay $21,350,000 in U.S. response costs incurred at the site, must spend $3.15 million in community health education on the health risks of lead exposure, and must pay $100,000 to the DOI and $400,000 to the Nebraska Department of Environmental Quality.