The CERCLA Contribution Protection Racket: EPA Can Only Settle Its Own Claims, Not Private Party Claims

29 TXLR 984 (Nov. 6, 2014)

4 Pages Posted: 15 Oct 2014 Last revised: 6 Nov 2014

Date Written: November 6, 2014

Abstract

Since 1986, the Comprehensive Environmental Response, Compensation, and Liability Act has contained an express right of contribution. One key feature of the provision has become known as “contribution protection.” That provision states, “A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.” This paper focuses on one particular feature of this language — What are the “claims for contribution” which are extinguished by operation of law when a person has resolved its liability to the United States or a State?

In its internal policy guidance, EPA takes the position that it may extinguish any claim for “all response actions taken or to be taken and all response costs incurred or to be incurred, at or in connection with the Site, by the United States or any other person.” By addressing in the settlement claims asserted by other plaintiffs seeking response costs, the United States would extinguish those claims even though they are not part of the claim of the United States in connection with the site. Congress is unlikely to have intended this in 1986, and even if it did, such a provision is likely unconstitutional under the Fifth Amendment. Cf. Hansberry v. Lee, 311 U.S. 32 (1940) (“It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he has not been designated as a party or to which he has not been made a party by service of process.”) Courts should instruct the United States regarding the concept of derivative liability at the core of the definition of “contribution” and correct this misunderstanding.

Keywords: CERCLA Environment Litigation

Suggested Citation

Light, Alfred (Fred) R., The CERCLA Contribution Protection Racket: EPA Can Only Settle Its Own Claims, Not Private Party Claims (November 6, 2014). 29 TXLR 984 (Nov. 6, 2014), Available at SSRN: https://ssrn.com/abstract=2509877

Alfred (Fred) R. Light (Contact Author)

St. Thomas University School of Law, ( email )

16401 N.W. 37th Ave.
Miami, FL 33054
United States
305-623-2315 (Phone)
305-623-2390 (Fax)

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