* Managing Editor, 1999-2000, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW. The author wishes to thank Robert Cleaves, Kenneth Gray, and Clayton Maybee for their assistance and willingness to discuss their experience with the Wells Super Settlement. The author also wishes to thank his wife, Ann-Marie, for her patience and support as this Comment was researched and written.
1 42 U.S.C. §§ 9601-9675 (1994 & Supp. II 1996).
2 See Steven A. Herman, A Fundamentally Different Superfund Program, 13 Nat. Resources & Env’t 196, 196 (1998), for a relatively upbeat report on the improvement in the administration of the current law by the Environmental Protection Agency (EPA) under the leadership of the Clinton Administration.
3 See Plater, et al., Environmental Law and Policy: Nature, Law and Society 852 (1998). Professor Plater noted that a 1994 Congressional Budget Office report pegged the average cleanup cost per site at between $15.38 million and $18.25 million in 1992 dollars. See id.
4 See John A. Hird, Superfund: The Political Economy of Environmental Risk 28 (1994). Not surprisingly, this criticism has come primarily from the insurance industry. See id. But see Jerome M. Organ, Superfund and the Settlement Decision: Reflections on the Relationship Between Equity and Efficiency, 62 Geo. Wash. L. Rev. 1043, 1044-45 (1994) (providing an academic’s perspective on the settlement disincentives embedded in Superfund’s liability scheme as implemented by EPA, the states, and the federal courts). See id. at 1067-69.
5 See Karen L. DeMeo, Note, Is CERCLA Working? An Analysis of the Settlement and Contribution Provisions, 68 St. John’s L. Rev. 493, 497 (1994); John J. Fialka, Maine Experiment May Point the Way to Ending Tangle of Litigation Around U.S. Superfund Law, Wall Street Journal, Apr. 29, 1998, at A28; Plater, supra note 3, at 855. Professor Plater cited a 1992 Rand Corporation study indicating that for the five-year period from 1984 to 1989, transaction costs (i.e., legal costs) represented twenty-one percent of the total private party expenditures related to Superfund. See id.
6 See Andrea Foster, Legislative Squabbling Resumes, Chemical Wk., Dec. 16, 1998, available in 1998 WL 17065141; CMA Offers Bipartisan Commission To Resolve Superfund Deadlock, Chemical Mkt. Rep., Nov. 9, 1998, available in 1998 WL 10166586. Since 1994, Congress has consistently failed to provide for a comprehensive reauthorization package, including renewed taxes for the Superfund itself and reform of the more problematic liability provisions. See id. The one partial exception to the gridlock was the 1996 passage of the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act. See Pub. L. 104-208, 110 Stat. 3009-462 (codified primarily at 42 U.S.C. §§ 9601, 9607) (1996).
7 The initial impeachment-related maneuvering over the Monica Lewinsky scandal largely deadlocked Congress throughout the last five months of 1998, and the Senate impeachment trial of President Clinton lasted from early January through mid-February of 1999. In short, Congress was almost completely preoccupied with the scandal for nearly six months, and the Administration was preoccupied with the matter for even longer. See, e.g., David M. Shribman, The Year Washington Tried Our Patience, Boston Globe, Dec. 30, 1998, at A1; Aaron Zitner, Much of Corporate Agenda Dying in Congress, Boston Globe, Oct. 10, 1998, at F1; Brian McGrory, President’s Effectiveness Questioned, Boston Globe, Oct. 7, 1998, at A1.
8 See Ann R. Klee & Arnie Rosenberg, The Moribund State of CERCLA Reauthorization, 13 Nat. Resources & Env’t 451, 451 (1999) (“The fate of Superfund reform in the 105th Congress is a good case study on legislative impasse.”).
9 See 500th Superfund Site Clean-up Completed, Haznews, Jan. 1, 1998, available in 1998 WL 9399186 (describing EPA’s efforts to promote the use of innovative Prospective Purchaser Agreements at the Publicker Superfund site in Philadelphia); Kenneth F. Gray, “Super Settlements”: Early Release For All PRPS at Multiparty Superfund Sites? 13 Nat. Resources & Env’t 298, 298 (1998) (one of the most frequently used settlement options has been the large-party/small-party cash-out, whereby the small, de minimis parties cash-out first, leaving the large parties to settle later and remain on the hook under CERCLA).
10 See Gray, supra note 9, at 298. Both terms¾”Super” and “Global”¾have been used interchangeably to describe the topic of this Comment, but “Global” can also be applied simply to multi-party settlements that resolve all, or nearly all, of the issues regarding cleanup of a particular Superfund site. This Comment will use “Super.” See generally Joanne Wojcik, Insurers Key to Novel Plan to Pay for Site Cleanup, Bus. Ins., May 25, 1998.
11 As discussed immediately infra and in more depth at Section III(B), one of the chief benefits of the Super Settlement concept is that it directly addresses the extraordinarily long negotiation process that normally accompanies multi-party Superfund site cleanup by allowing all of the PRPs to be released from the process at the earliest possible moment, in exchange, of course, for some specified cash premium. See Gray, supra note 9, at 298.
12 This includes liability for past and future response costs, as well as natural resources damages, and any health assessments performed at the site. See 42 U.S.C. § 9607(a) (1994 & Supp. II 1996).
13 See Gray, supra note 9, at 298; Wojcik, supra note 10.
14 See Gray, supra note 9, at 298; Wojcik, supra note 10.
15 See Gray, supra note 9, at 298; Wojcik, supra note 10.
16 See Gray, supra note 9, at 298.
17 Me. Rev. Stat. Ann. tit. 38, §§ 1361–1371 (West 1998).
18 See Hird, supra note 4, at 9–10.
19 See id. at 9. Among the best known of these was the 1978 Love Canal incident in which an entire residential neighborhood in upstate New York was abandoned due to high levels of toxic waste discovered in fill material beneath the homes. See id.; see also 42 U.S.C. § 9661 (1994 & Supp. II 1996) (special provision included in CERCLA relating to a publicly funded buy-out of the Love Canal Emergency Declaration Area).
20 See Hird, supra note 4, at 10.
21 See 42 U.S.C. § 9607(a). The federal courts further added a presumption of joint and several liability to the strict liability specifically mandated by CERCLA, although the presumption can be rebutted. See Organ, supra note 4, at 1049-50; see, e.g., United States v. Alcan Aluminum Corp., 964 F.2d 252, 269 (3d Cir. 1992) (although CERCLA does not require joint and several liability, the logical conclusion to be drawn from its silence on the matter and the imposition of strict liability is that courts are free to impose whatever liability standard seems most appropriate in achieving CERCLA’s overarching goal of expeditious cleanup by known polluters).
22 See 42 U.S.C. § 9611.
23 Pub. L. No. 99-499, 100 Stat. 1678 (1999) (SARA). Among its many changes, SARA introduced an entirely new provision, section 122, codified at 42 U.S.C. § 9622, intended to act as a “significant inducement for parties to come forth, to settle, to avoid wasteful litigation, and thus to begin cleanup.” H.R. Rep. No. 99-253(I), at 59-60 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2840-41.
24 See Bradford F. Whitman, Superfund Law and Practice 208 (1991).
25 See Organ, supra note 4, at 1055.
26 See 42 U.S.C. § 9601(14). EPA may make further additions to covered hazardous materials through the provisions of 42 U.S.C. § 9602.
27 See 42 U.S.C. § 9604(e); 40 C.F.R. § 300.405(a)(3), (5) (1998).
28 See 42 U.S.C. § 9603(a), (c); 40 C.F.R. § 300.405(a)(1)-(2), (4).
29 See 42 U.S.C. § 9605(d); 40 C.F.R. § 300.405(a)(6).
30 See 42 U.S.C. § 9604(a)(1); Valerie M. Fogleman, Hazardous Waste Cleanup, Liability, and Litigation: A Comprehensive Guide to Superfund Law 32 (1992).
31 A full removal evaluation concentrates on the short-term, immediate response to the problem, including the rapid physical removal of contaminated soil and other matter from the site. See 42 U.S.C. § 9604(a). Removal actions themselves are limited to a total of two million dollars in cost and twelve months in duration. See id. § 9604(c)(1).
32 The typical full remedial evaluation is a more involved and drawn-out endeavor than a removal evaluation, including an examination by the Agency for Toxic Substance and Disease Registry (ATSDR) of the potential health effects of the site’s contamination on the surrounding community and a first step toward developing the data required to perform a full, permanent site remediation project. See 42 U.S.C. § 9604(a)(1), (c), (i).
33 See 42 U.S.C. § 9604(a)(1); 40 C.F.R. §§ 300.410 and 300.420.
34 See 42 U.S.C. § 9604(c); 40 C.F.R. §§ 300.425-.435; Hird, supra note 4, at 16.
35 See 40 C.F.R. § 300.425(d), and accompanying Appendix A.
36 See id. § 300.425(d); Hird, supra note 4, at 16. The NPL is the list of sites that are given the highest priority for EPA action and direct supervision of cleanup/remediation. See Hird, supra note 4, at 16.
37 See id. at 17.
38 See Organ, supra note 4, at 1058.
39 See 42 U.S.C. § 9622(a); Daniel Mazmanian & David Morell, Beyond Superfailure: America’s Toxic Policy for the 1990s, at 33 (1992).
40 See 42 U.S.C. § 9607(a)(1)–(4).
41 See id. § 9607(a)(4)(A), (B).
42 See id. § 9607(a)(4)(C).
43 See id. § 9607(a)(4)(D).
44 See Organ, supra note 4, at 1056-57.
45 See 42 U.S.C. § 9606(a).
46 Under 42 U.S.C. § 9622(f), this is known as a “covenant not to sue.”
47 See 42 U.S.C. § 9622(c), (f), (h)(4).
48 See Organ, supra note 4, at 1055.
49 See 40 C.F.R. § 300.430(a)–(e) (1998).
50 See id. § 300.430(f).
51 See id. § 300.435(a).
52 See id. § 300.435(a)–(c).
53 See id. § 300.435(a)–(c), (f). The maintenance period for RAs is usually assumed to extend to thirty years. See Fogleman, supra note 30, at 44.
54 Early on, EPA acted without specific legislative authority when entering into voluntary agreements and lodging consent orders. See Whitman, supra note 24, at 208. After SARA and the adoption of 42 U.S.C. § 9622, which specifically authorized settlements and prescribed a process for their codification in consent decrees or administrative orders, EPA, in conjunction with the United States Department of Justice, was able to act more systematically, and has consistently revised and updated its series of model consent decrees, including, most significantly, its Revised Model RD/RA Consent Decree (July 1995), which provides the key negotiating basis for many voluntary settlements under CERCLA. See Organ, supra note 4, at 1057.
55 See 42 U.S.C. § 9622 (1994 & Supp. II 1996). SARA, passed in 1986, represents the only complete reauthorization of Superfund since its initial passage in 1980. See Hird, supra note 4, at 13–14. In addition to the codified settlement provisions of 42 U.S.C. § 9622, SARA also increased the amount available to the Superfund itself (from $1.6 billion in the 1980 law, to $8.5 billion), and attempted to set strict site assessment and cleanup goals for EPA. See id.
56 42 U.S.C. § 9622(a).
57 See id. § 9622(b)(1).
58 See id. § 9622(d)(1)(A)–(C).
59 See id. § 9622(e)(1)-(2).
60 See id. § 9622(e)(3).
61 See 42 U.S.C. § 9622(f)(1). EPA is also authorized to require the inclusion of reopeners covering unforeseen future circumstances in these covenants, but the reopeners obviously apply only to claims by the government against settling PRPs and not other private parties. See id. § 9622(f)(6).
62 See id. § 9622(g). “De minimis” PRPs are defined as those PRPs who have only “minimally” contributed to a site’s contamination (measured either by volume or toxicity) or were essentially just innocent owners/operators of the site. See id. § 9622(g)(1)(A)-(B).
63 See Plater, supra note 3, at 843, 852. The cost estimate provided is the middle-range value for NPL site cleanups as analyzed by the Congressional Budget Office in a February 1994 report entitled “The Total Cost of Cleaning Up Nonfederal Superfund Sites.” See id. at 852.
64 See generally Organ, supra note 4; DeMeo, supra note 5; Douglas A. Henderson, Environmental Liability and the Law of Contracts, 50 Bus. Law. 183 (1994).
65 See Mazmanian & Morell, supra note 39, at 36-37.
66 See Organ, supra note 4, at 1139-40. Organ’s central thesis is that the sheer difficulty of cost recovery/contribution actions, combined with differing judicial interpretations of key sections of CERCLA, particularly 42 U.S.C. §§ 9607(a) and 9613(f)(1), so severely penalizes settling PRPs that settlements are almost always eliminated as a truly equitable, fair way of addressing PRP liability apportionment. See id. In addition, the issue of financially insolvent PRPs, while addressed directly by the United States Supreme Court in Midlantic National Bank v. New Jersey Department of Environmental Protection, remains a significant problem. See 474 U.S. 494, 506–07 (1986). Even with the edict of the Court that bankruptcy trustees may not abandon property in contravention of state environmental statutes or regulations, the reality remains that bankrupt PRPs are in a very poor position to contribute their equitable portion of cleanup costs at a given site. See id. at 507.
67 See Herman, supra note 2, at 197. Herman noted that over $100 million was spent by EPA in FY1996 and FY1997 to reimburse settling PRPs for orphan shares at various federal Superfund sites, representing a significant commitment from EPA in the first two years after adoption of its orphan shares policy. See id. Still, the continued lapse in renewal (since 1995) of the chemical feedstock taxes that were meant to provide a dedicated funding source for Superfund has increased the uncertainty surrounding the program, despite signs of a willingness in Congress to allocate significant General Fund revenues to the Fund. See Republicans Reiterate Commitment to Comprehensive Reform of Superfund, 28 Env’t Rep. (BNA) 18, 18 (May 2, 1997).
68 See Organ, supra note 4, at 1046-48.
69 See Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. §§ 1251–1387 (1994 & Supp. II 1996).
70 See Clean Air Act, 42 U.S.C. §§ 7401–7671q (1994 & Supp. II 1996).
71 See Mark D. Anderson, The State Voluntary Cleanup Program Alternative, 10 Nat. Resources & Env’t 22, 22 (1996). Instead, EPA has only been specifically authorized to agree to site-by-site cooperative agreements with states. See 42 U.S.C. § 9604(d).
72 See Hird, supra note 4, at 21; Mazmanian & Morell, supra note 39, at 39.
73 See Mazmanian & Morell, supra note 39, at 39-40; Whitman, supra note 24, at 92.
74 See 42 U.S.C. §§ 9604(c), (d); Mazmanian & Morell, supra note 39, at 39-40; Whitman, supra note 24, at 92.
75 See 42 U.S.C. § 9604(c)(2) (“The President shall consult with the affected State or States before determining any appropriate remedial action to be taken pursuant to the authority granted under this . . . section.”); Fogleman, supra note 30, at 46-47.
76 See 42 U.S.C. § 9604(d)(1)(A) (“If the President determines that the State . . . has the capability to carry out any or all such actions [authorized by § 9604], . . . the President may enter into a contract or cooperative agreement with the State. . . .”); Fogleman, supra note 30, at 46-47.
77 See 42 U.S.C. § 9604(c)(3), (d)(1)(B); 40 C.F.R. § 300.505 (1998) (cooperative agreements must be reached between EPA and a given state before EPA can take any action using the Superfund to pay for cleanup; a single NPL facility or a group of facilities may be covered by a single cooperative agreement); Whitman, supra note 24, at 53-55.
78 See Daniel P. Selmi & Kenneth A. Manaster, State Environmental Law 9-3 (1998); Anderson, supra note 71, at 22.
79 See Mazmanian & Morell, supra note 39, at 39.
80 See Anderson, supra note 71, at 22; Selmi & Manaster, supra note 78, at 9-4.
81 See Anderson, supra note 71, at 22-23. Most particularly, the states became concerned about the counterproductive chilling effect that their liability regimes were having on the redevelopment of centrally located “brownfield” sites. See id. EPA has defined “brownfields” as “abandoned, idled, or under–used industrial and commercial sites where expansion or redevelopment is complicated by real or perceived environmental contamination that can add cost, time, or uncertainty to a redevelopment project.” Plater, supra note 3, at 921. The brownfields issue has begun to reach critical mass in the mid- to late-1990s as State Superfund programs have aggressively attempted to address the problems of these sites. See id.
82 See David P. Littell and Kenneth F. Gray, Contaminated Property, Tackling Environmental Issues in Maine (1998 Update), 10–1, 10–16.
83 OSWER Directive, Notice of availability and request for comments, Sept. 9, 1997, 62 Fed. Reg. 47,495 (1997).
84 See Final Voluntary Program Guidance, 62 Fed. Reg. at 47,497.
85 See Littell & Gray, supra note 82, at 10–16; ECOS Asks EPA to Withdraw Guidance, Begin Dialogue With States on Brownfields, 28 Env’t Rep. (BNA) 989, 989-90 (Sept. 26, 1997). In New England, only Rhode Island has signed a statewide Superfund Memorandum of Agreement with EPA. See Littell & Gray, supra note 82, at 10–16.
86 See id.
87 See Final Voluntary Program Guidance, 62 Fed. Reg. 47,497 (1997) (purpose of the Final Voluntary Program Guidance was at least partially to allow “Regions and States [to] agree that EPA will not exercise cost recovery authority and does not generally anticipate taking a removal or remedial action at . . . sites . . . addressed by a State’s voluntary cleanup program . . .”); Littell & Gray, supra note 82, at 10–16.
88 See Selmi & Manaster, supra note 78, at 9–104. Regarding the value of state-issued liability limitations vis-à-vis ultimate CERCLA liability, Selmi and Manaster observed that “[w]hile these signals [i.e., removal of a site from the NPL, or issuance of a comfort letter by EPA to the PRP] will likely indicate that EPA has no interest in the property, ultimately the question depends on the client’s ‘comfort level’ in proceeding in the absence of legally binding assurances by EPA.” Id.; see also Town of New Windsor v. Tesa Tuck, Inc., 919 F. Supp. 662, 669-72 (S.D.N.Y. 1996) (holding that compliance with state law does not preclude liability under CERCLA). The case of Harmon Industries, Inc. v. Browner recently provided an interesting counterpoint to the informal situation in CERCLA by holding that EPA was barred from overfiling in a RCRA action by the nature of its delegation of enforcement power to the state in question and by principles of res judicata. See 19 F. Supp. 2d 988, 996-98 (W.D. Mo. 1998).
89 1983 Me. Laws 569, Me. Rev. Stat. Ann. tit. 38, §§ 1361–1371 (West 1998).
90 See Littell & Gray, supra note 82, at 10–17.
91 See id. at 10–17 to 10–18. To give just two examples: (1) the Maine Superfund Act considers intermediate landowners to be PRPs, while CERCLA does not; and (2) the Maine Superfund Act statutorily imposes joint and several liability, while CERCLA leaves that issue to judicial interpretation. See Me. Rev. Stat. Ann. tit. 38, §§ 1362(2), 1367; 42 U.S.C. § 9607(a)(2), (4) (1994 & Supp. II 1996).
92 See Me. Stat. Rev. Ann. tit. 38, § 1362(1). Specifically, waste oil is included under section 1362(1)(G).
93 See id. § 1367.
94 See id. § 1364(6). The fund is called the “Uncontrolled Sites Fund.” See id. In November 1996, Maine voters approved a $2.5 million bond issue to replenish the fund. See Maine DEP, Bureau of Remediation and Waste Management, 1996 Annual Report, at 1.
95 See Hird, supra note 4, at 21–22; Littell & Gray, supra note 82, at 10–17.
96 See 1993 Me. Laws 569, Me. Stat. Rev. Ann. tit. 38, § 343-E (1998).
97 See Anderson, supra note 71, at 23; Selmi & Manaster, supra note 78, at 39.
98 See 42 U.S.C. § 9622 (1994 & Supp. II 1996).
99 See Me. Stat. Rev. Ann. tit. 38, § 343-E(9). Rather than style this protection a “covenant not to sue,” as in CERCLA, the VRAP uses the term “no action assurance.” See id.
100 See id. § 343-E(2).
101 See id. § 343-E(6).
102 See, e.g., Anderson, supra note 71, at 22-23; Klee & Rosenberg, supra note 8, at 451.
103 See Whitman, supra note 24, at 81; but cf. Richard L. Revesz & Richard B. Stewart, The Superfund Debate, in Analyzing Superfund: Economics, Science, and Law 14–16 (Revesz & Stewart eds., 1995) (questioning critiques of time and cost required by remediation and suggesting that public health should perhaps be the paramount concern, regardless of cost).
104 See Anderson, supra note 71, at 23.
105 See id. at 23-24. Massachusetts and Michigan were the early leaders in this move away from strict residential-based cleanup standards. See id. at 24. The Maine Superfund law was revised in 1993 to allow for what it referred to as “partial cleanup” protection for parties voluntarily remediating sites. See Me. Rev. Stat. Ann. tit. 38, § 343-E(2).
106 See generally OSWER Directives (Sept. 1993), Presumptive Remedies: Policy and Procedures (9355.0-47FS); Presumptive Remedies: Site Characterization and Technology Selection for CERCLA Sites with Volatile Organic Compounds in Soils (9355.0-48FS); Presumptive Remedies for CERCLA Municipal Landfill Sites (9355.0-49FS).
107 See OSWER Directive, May 25, 1997: Land Use in the CERCLA Remedy Selection Process (9355.7–04); Littell & Gray, supra note 82, at 10–10.
108 See Interview with David H. Critchfield, CEO, Emsource, in Portland, Me. (Jan. 8, 1999) (hereinafter Critchfield Interview).
109 See Gray, supra note 9, at 298.
110 See Littell & Gray, supra note 82, at 10-9.
111 See Gray, supra note 9, at 298.
112 See U.S. Hazwaste Market Worth $15,000m in ‘96, Haznews, Oct. 1, 1997, available in 1997 WL 8662332. The article reports on the results of a 1996 survey conducted by Frost & Sullivan, Inc., which estimated that the environmental cleanup industry would, however, grow at a relatively flat rate of just 1.6 percent per year in the near-term. See id.
113 See Gray, supra note 9, at 299.
114 See Mazmanian & Morell, supra note 39, at 12–15, 117-42. In 1992, Mazmanian and Morell illustrated some of the more pointless cleanups of the 1980s, including the shuffling of waste from one site to the next, simply creating two problems instead of one. For example, waste from the Stringfellow Superfund site in Riverside, California was simply hauled away and redumped at another landfill in Los Angeles County, which subsequently became a Superfund site of its own. See id.
115 See id. at 47-48; Selmi & Manaster, supra note 78, at 9-99-9–102. State law tends to be ahead of federal law in this area. See Klee & Rosenberg, supra note 8, at 453.
116 See Anderson, supra note 71, at 24. Anderson cites Massachusetts, Ohio, and North Carolina as the three states that have adopted the fully-privatized approach. See id.
117 See Gray, supra note 9, at 299.
118 See id.
119 See id.
120 See Fialka, supra note 5, at A28.
121 See id.
122 See Gray, supra note 9, at 298; Rodney J. Taylor, “Environmental Insurance Market Analysis and Forecast,” Sept. 1998, at 2 (on file with author).
123 See Wojcik, supra note 10; Interview with Robert E. Cleaves, partner, Verrill & Dana, LLP in Portland, Me. (Nov. 13, 1998) (hereinafter Cleaves Interview).
124 See Wojcik, supra note 10; American Bar Association, Young Lawyers Division, CERCLA Primer 25–27 (Susan K. Wiens & Lisa S. Keyes eds., 1995); Revesz & Stewart, supra note 103, at 9–10.
125 See Wojcik, supra note 10; Cleaves Interview, supra note 123.
126 See Taylor, supra note 122, at 3; Wojcik, supra note 10.
127 See Gray, supra note 9, at 298–99; Wojcik, supra note 10.
128 See Fialka, supra note 5, at A28; Wojcik, supra note 10. The value of environmental insurance has been keenly felt in the corporate merger and asset acquisition field, where the use of finite environmental insurance instead of open-ended indemnities has been increasingly used to deal with potential environmental liabilities. See Taylor, supra note 122, at 8, 10.
129 See id. at 2. Major insurers who have entered the market include American International Group, Willis Corroon, Kemper Environmental, Zurich, and ECS/Reliance. See id. at 2-4.
130 See id. at 4-5.
131 See Wojcik, supra note 10.
132 See Taylor, supra note 122, at 6-7; see also Kathy McCabe, A Bumpy Ride to the Top, Boston Globe, July 14, 1999, at E4. Ms. McCabe’s article describes how a Boston area Harley-Davidson dealership confronted with much greater than expected environmental contamination cleanup costs was able to avoid a disaster because it had purchased $1,000,000 worth of environmental insurance for just $53,000. See id.
133 See Organ, supra note 4, at 1044–45.
134 See id.; Klee & Rosenberg, supra note 8, at 451. Klee and Rosenberg note that “[e]ven those willing to conduct voluntary cleanups find themselves stymied by excessive legal and analytical processes.” Klee & Rosenberg, supra note 8, at 451.
135 See Gray, supra note 9, at 298; Whitman, supra note 24, at 207–14, 222–35.
136 See Gray, supra note 9, at 298; Whitman, supra note 24, at 207–14, 222–35.
137 See Gray, supra note 9, at 298; Whitman, supra note 24, at 207–14, 222–35.
138 See Gray, supra note 9, at 298; Whitman, supra note 24, at 207–14, 222–35.
139 See Gray, supra note 9, at 298; Whitman, supra note 24, at 207–14, 222–35.
140 Although the United States Supreme Court has not yet directly addressed the issue, several of the circuit courts of appeals have dealt with the question. See, e.g., In re Cuyahoga Equip. Corp., 980 F.2d 110 (2d Cir. 1992); United States v. Hercules, Inc., 961 F.2d 796 (8th Cir. 1992). The leading case among the circuit courts of appeals regarding the validity of such settlement deals is United States v. Cannons Engineering Corp. See 899 F.2d 79 (1st Cir. 1990). Although some of the language in Cannons suggests that the First Circuit was somewhat concerned about the wisdom of requiring premiums from smaller PRPs, it has generally been followed for the proposition that EPA and other lead agencies are to be given considerable deference under CERCLA in deciding how to reach multi-party settlements. See United States v. Charles George Trucking, Inc., 34 F.3d 1081, 1085 (1st Cir. 1994). Thus, in George Trucking, the First Circuit, which hewed closely to the standard it established in Cannons, noted that “[d]espite appellants’ [George Trucking, the site’s non-settling owner/operator PRPs] animadversions, Cannons has not rusted. It teaches that CERCLA consent decrees must be reasonable, faithful to the statute’s objectives, and fair (both procedurally and substantively).” See id. at 1084; see also United States v. Kramer, 19 F. Supp.2d 273, 280–81 (D.N.J. 1998).
141 See Herman, supra note 2, at 197–98.
142 See Kramer, 19 F. Supp.2d at 277; Gray, supra note 9, at 298.
143 See George Trucking, 34 F.3d at 1085; Organ, supra note 4, at 1061-64.
144 See George Trucking, 34 F.3d at 1085 (“[A]n appellate tribunal may overturn a district court’s decision to approve or reject the entry of a CERCLA consent decree only for manifest abuse of discretion.”).
145 See Gray, supra note 9, at 298; Cleaves Interview, supra note 123.
146 See Gray, supra note 9, at 299; Organ, supra note 4, at 1068.
147 See Gray, supra note 9, at 299; Organ, supra note 4, at 1068.
148 See Jacques Whitford Company, Feasibility Study¾Portland Bangor Waste Oil Site¾Wells, Maine (Jan. 25, 1999), at 4 (hereinafter Wells FS).
149 See Maine DEP, Division of Remediation, Bureau of Remediation & Waste Management, 1997 Annual Report, at 1–2 (hereinafter 1997 Annual Report).
150 See 1997 Annual Report, supra note 149, at 1; Wells FS, supra note 148, at 6-9. Among the several waste oil-related pollutants identified at the site, the Wells FS cites very high concentrations of lead, polychlorinated biphenyls (PCBs), and volatile organic compounds (VOCs) (including benzene, ethylbenzene, toluene and xylene), primarily in the site’s four waste lagoons. See Wells FS, supra note 148, at 6-9.
151 See 1997 Annual Report, supra note 149, at 1; Interview with Clayton Maybee, Wells Site Project Manager, Maine DEP, in Augusta, Me. (Mar. 19, 1999) (hereinafter Maybee Interview).
152 See Gray, supra note 9, at 298; Fialka, supra note 5, at A28. The numbers are slightly different in the two articles: Gray cites 2,400 total PRPs, while Fialka cites 2,900, and Gray identifies the involved PRP total as around 350, while Fialka puts it at 397. See id. The 1997 Annual Report notes only that the total number of notified PRPs is “close to 400.” See 1997 Annual Report, supra note 149, at 2.
153 See Letter from Kenneth F. Gray, partner, Pierce Atwood, to Dennis Harnisch, Assistant Attorney General, State of Maine (June 13, 1997) (hereinafter Gray-Harnisch Letter) (on file with author).
154 See 1997 Annual Report, supra note 149, at 2; Gray-Harnisch Letter, supra note 153, at 2. The 1997 Annual Report notes: “The responsible parties formed a technical review group to provide comment on technical issues relating to the Remedial Investigation and Feasibility Study. The technical review group changed from in house review [and essentially became the Site Steering Committee] when the responsible parties hired Woodard and Curran [as their environmental cleanup consultants] late in 1997.” 1997 Annual Report, supra note 149, at 2.
155 See Wells FS, supra note 148, at 8–9; Cleaves Interview, supra note 123; see also Fialka, supra note 5, at A28.
156 See Wells FS, supra note 148, at 8–9.
157 See Maybee Interview, supra note 151. Extensive groundwater monitoring has been conducted around the site, and it appears that if the contamination level in the handful of nearby residential wells is significant enough to warrant their closure, the final settlement agreement may include funding for the piping of municipal water to replace that supply. See id.; Wells FS, supra note 148, at 29-30.
158 See 1997 Annual Report, supra note 149, at 1; Draft Letter from Mark Hyland, Director, Division of Site Investigation and Remediation, Maine DEP, to identified PRPs (draft dated Sept. 23, 1997), with attached “Data List for Category CB1” (hereinafter PRP Notice Letter) (on file with author).
159 See Fialka, supra note 5, at A28.
160 See Interview with Kenneth F. Gray, partner, Pierce Atwood, LLP in Portland, Me. (Jan. 8, 1999) (hereinafter Gray Interview).
161 See Fialka, supra note 5, at A28; Cleaves Interview, supra note 123.
162 See Cleaves Interview, supra note 123.
163 See Letter from Mark Hyland, Director, Division of Site Investigation and Remediation, Maine DEP, to David Critchfield, President, Emsource, Inc. (May 13, 1997), at 1–2 (hereinafter Hyland-Critchfield Letter) (on file with author).
164 See id. at 1–2. Mr. Hyland’s letter attempted, to the extent possible at that time, to clarify issues related to the Emsource proposal from the State of Maine’s point of view. See id. at 1.
165 See Fialka, supra note 5, at A28; Maybee Interview, supra note 151; Draft Letter from David Critchfield, President, Emsource, Inc., to identified Wells site PRPs (draft dated Sept. 11, 1997) (hereinafter Emsource Information Letter) (on file with author). Even at this relatively early date, Emsource clearly believed in its concept, and had already packaged it as “PRP Free” and trademarked it. See Emsource Information Letter, supra, at 1. Total cleanup costs for the site are currently estimated at somewhere between $8 and $10 million. See Maybee Interview, supra note 151.
166 See Fialka, supra note 5, at A28; Emsource Information Letter, supra note 165, at 2.
167 See Gray-Harnisch Letter, supra note 153, at 1–2. Even at this early point (June 1997), just as Emsource’s proposal was being circulated, it became clear that some PRPs were uncomfortable with Emsource’s relative newness as an incorporated entity (the company was founded in 1996) and its failure to keep key PRPs completely apprised of its ongoing discussions with Maine DEP. See id.; Maybee Interview, supra note 151.
168 See Fialka, supra note 5, at A28; Letter from Edward O. Sullivan, Commissioner, Maine Department of Environmental Protection, to Francis I. Hall, Triangle Motor Sales, Inc. (May 29, 1998) (on file with author); Maybee Interview, supra note 151.
169 As of this writing, the final deal has yet to be struck between the parties involved in the Wells Super Settlement, but the basic contours of the settlement are unlikely to change significantly in the next few months. See Gray Interview, supra note 160.
170 See Gray, supra note 9, at 298; Fialka, supra note 5, at A28.
171 See Gray, supra note 9, at 298.
172 See id.
173 See Me. Stat. Rev. Ann. tit. 38, § 1362(2)(A) (West 1998); Gray Interview, supra note 160.
174 See Gray, supra note 9, at 299; Fialka, supra note 5, at A28. Under a “cost-cap” environmental insurance policy, the insurer agrees to provide some fixed amount of protection to the Superfund Entity. See Critchfield Interview, supra note 108. To illustrate: if the estimated cleanup cost is $10 million, the Superfund Entity may purchase a cost-cap insurance policy for an additional $10 million, meaning that should the cleanup cost exceed the estimate, the insurer will provide funding for the next $10 million worth of remediation. See id. Once that next $10 million is exhausted, however, the Superfund Entity again becomes directly responsible for any additional costs. See id.
175 See Gray, supra note 9, at 298.
176 Releases are referred to as “no action” assurances under the Maine Superfund Law. See Me. Stat. Ann. tit. 38, § 343-E(g) (West 1998).
177 See Gray, supra note 9, at 298; Letter from R. Scott Mahoney, Central Maine Power, to Dennis Harnisch, Deputy Attorney General, State of Maine, and Mark Hyland, Director, Division of Site Assessment and Remediation, Maine DEP (Apr. 17, 1998), at 1–2 (hereinafter Mahoney Letter) (on file with author). One key issue that caused early bumps in the ride to a completed Super Settlement was PRP resistance to Maine DEP’s request that reopener provisions be included in the releases provided to the settling PRPs in addition to the standard reopener used with TRC’s portion of the agreement. See Mahoney Letter, supra, at 2.
178 See Gray, supra note 9, at 298.
179 See id.
180 See id.
181 See id.
182 See Maybee Interview, supra note 151. Early indications are that TRC is having satisfactory success in convincing a sufficient number of PRPs to officially sign on to the agreed-upon Super Settlement. See id. TRC, seeking to get as many PRPs on board as early as possible, is reportedly using varied settlement rates depending upon the time of sign-up. See id.
183 See Critchfield Interview, supra note 108.
184 See Gray, supra note 9, at 298–99.
185 See id.; Emsource Information Letter, supra note 165, at 1. The Emsource Information Letter was particularly forceful in its description of the concept: “The EMSOURCE solution, called PRP FreeÔ, will save you thousands of dollars. PRP FreeÔ allows you to transfer your liability for future cleanup costs to EMSOURCE and walk away from the liabilities at the site . . . forever.” See Emsource Information Letter, supra note 165, at 1.
186 See Gray, supra note 9, at 298–99.
187 See id. at 299.
188 See Fialka, supra note 5, at A28; Gray, supra note 9, at 299.
189 See Fialka, supra note 5, at A28.
190 See Gray Interview, supra note 160.
191 See Maybee Interview, supra note 151. Although the picture is somewhat unclear, it does appear that EPA has resisted doing more than issuing a comfort letter to the settling PRPs. See id.; Letter from Harley Lang, Director, Office of Site Remediation and Restoration, EPA Region I, to Mark Hyland, Director, Division of Site Assessment and Remediation, Maine DEP (Nov. 13, 1997), at 1–2 (“[C]ontingent upon the state’s continued effective management of this site [the Wells site], EPA Region I has determined that no further steps will be taken to list this site on the NPL.”) (emphasis in original) (on file with author).
192 See Gray Interview, supra note 160.
193 See id.
194 See id.
195 See id.; Email from Hank D. Aho, Maine DEP, to Susan Johnson, Senior Policy Specialist, National Conference of State Legislatures (Aug. 14, 1998), at 1 (hereinafter Aho-Johnson Email) (hard copy of Email on file with author).
196 See Gray, supra note 9, at 299; Aho-Johnson Email, supra note 195. Mr. Gray, one of the key PRP attorneys directly involved in the Wells site negotiations and a member of the Site Steering Committee, observed that the typical settlement negotiation process was already complicated enough, and inserting an additional party directly into the middle of the regime necessarily creates greater complexity, even as it promises an earlier end to the ordeal for the settling PRPs. See Gray Interview, supra note 160. Regarding just the basic concept of Super Settlements, Mr. Aho commented in his email to Ms. Johnson that “[l]ike most things that sound simple, this can get pretty complicated.” Aho-Johnson Email, supra note 195.
197 See Cleaves Interview, supra note 123.
198 See Whitman, supra note 24, at 235; see also United States v. Cannons Eng’g Corp., 899 F.2d 79 (1st Cir. 1990). Whitman observes that “[i]n most cases, the courts have ultimately approved . . . decrees over objections from the other [non-settling] parties.” Whitman, supra note 24, at 225.
199 See United States v. Charles George Trucking, Inc., 34 F.3d 1081, 1084 (1st Cir. 1994); Cannons, 899 F.2d at 85.
200 See 42 U.S.C. § 9622(a) (1994 & Supp. II 1996). The President (i.e., EPA) is specifically directed, when he so determines it is appropriate to do so, to “act to facilitate agreements under this section that are in the public interest and consistent with the National Contingency Plan in order to expedite effective remedial actions and minimize litigation.” Id.
201 See George Trucking, 34 F.3d at 1089 (“[S]o long as the basis for a sensible classwide approximation is at hand¾an approximation ‘roughly correlated with some acceptable measure of comparative fault’ [citation omitted]¾difficulties in achieving precise measurements of comparative fault will not preclude a trial court from entering a consent decree.”).
202 See supra, notes 176–181 and accompanying text.
203 34 F.3d at 1088.
204 See Gray Interview, supra note 160.
205 See Gray, supra note 9, at 298–99.
206 See id.
207 See id.
208 See id.
209 See Fialka, supra note 5, at A28.
210 See Gray, supra note 9, at 299.
211 See Henderson, supra note 64, at 183; Whitman, supra note 24, at 159-69.
212 EPA and United States Department of Justice, July 1995.
213 See Revised Consent Decree, supra note 212, at 39.
214 See id. at 39-40. Specifically, the applicable provision is identified as 40 C.F.R. section 264.143(f), which relates to the financial test and corporate guarantee for closure required of hazardous waste facility owners and operators as defined under RCRA. See Standards For Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities, 40 C.F.R. § 264 (1998).
215 See Whitman, supra note 24, at 159-76. Whitman notes that even though the Supreme Court declared, with apparent clarity, that bankruptcy trustees may not abandon property in contravention of state environmental statutes or regulations in the case of Midlantic National Bank v. New Jersey Department of Environmental Protection, the record among the lower courts has been relatively mixed. See 474 U.S. 494 (1986); Whitman, supra note 24, at 176; see also In Re Stevens, 68 B.R. 774, 780–81 (D. Me. 1987).
216 See Gray Interview, supra note 160.
217 See Gray, supra note 9, at 298–99.
218 See supra note 66, and accompanying text. To reiterate: contribution protection based not only on release from government-related liability but also private party indemnification and release agreements has been upheld by a majority of courts as enforceable. See, e.g., Mardan Corp. v. C.G.C. Conn, Ltd., 804 F.2d 1454, 1465–66 (9th Cir. 1986). Further, the courts have found that in such instances, private party agreements in no way eliminate the ability of the government (in this case, EPA) to include reopeners in its own releases, and later pursue any settling PRP, regardless of indemnity agreements between private parties, should any reopener contingency come to pass. See Henderson, supra note 64, at 192 n.48.
219 See Mahoney Letter, supra note 177, at 2; Maybee Interview, supra note 151.
220 See Whitman, supra note 24, at 209-210; supra notes 69 to 88, and accompanying text.
221 See New Jersey Dept. of Envtl. Protection v. Gloucester Envtl. Mgmt. Serv., 668 F. Supp. 404, 407 (D.N.J. 1987) (“The EPA’s decision as to the timing of an enforcement action is one within its discretion.”); Whitman, supra note 24, at 209. Whitman notes that “[a]s a policy matter, EPA never consents to become a party to a state enforcement action.” See Whitman, supra note 24, at 209.
222 See, e.g., EPA Region I, Model Region I Comfort Letter (May 3, 1995) (hereinafter Comfort Letter).
223 To name just three examples: place the site in question on the NPL; issue notices to the PRPs related to their specific CERCLA-imposed liabilities; or take immediate removal action.
224 See Comfort Letter, supra note 222. Region I’s comfort letter is relatively brief, and simply advises the recipient-PRP that “[i]n light of these circumstances [i.e., EPA’s satisfaction that the state is currently on top of the matter], EPA New England has determined that no further steps will be taken at this time to list this site on the NPL.” Id. The next sentence, however, states: “Please be advised that EPA New England, in consultation with the [State Agency], reserves the right to reactivate NPL listing activities at this site if new information or substantially changed site conditions make a recommendation for listing appropriate at a later time.” Id.
225 See id.
226 See EPA, Guidance on Deferral of NPL Listing Determinations While States Oversee Response Actions, OSWER Directive 9375.6–11 (May 3, 1995) (hereinafter Deferral Guidance); supra notes 69 to 88, and accompanying text.
227 Historically, EPA has been reluctant to issue even their own middle-ground no action assurances. See generally EPA, Office of Enforcement Compliance Monitoring, Policy Against “No action” Assurances (1994) (hereinafter No Action Policy). Indeed, the No Action Policy prohibits such assurances except under very limited circumstances, including: (1) “where expressly provided by applicable statute or regulation”; and (2) “in extremely unusual cases in which a no action assurance is clearly necessary to serve the public interest.” Id. However, under the pressure of the Brownfields Initiative, EPA has begun to be more flexible in issuing analogous releases to a variety of parties who would normally be arguably within the CERCLA liability web, most conspicuously prospective purchasers. See EPA, Office of Enforcement and Compliance Assurance, Guidance on Settlements with Prospective Purchasers of Contaminated Property (May 24, 1995).
228 See Selmi & Manaster, supra note 78, at 9–104. Selmi and Manaster recommend that the practitioner be careful in dealing with state-level covenants not to sue and related devices, and provide further cautionary information regarding EPA’s role: “The practitioner must always keep in mind that a covenant not to sue or a ‘no action’ letter from a state agency cannot bind the federal Environmental Protection Agency from taking action. In deciding whether to proceed despite the lack of concrete legal assurance that no CERCLA liability is possible, . . . [the PRP] must rely on signals from the Agency about its intentions” Id.
229 See supra notes 69 to 88, and accompanying text for a description of the informal federal-state relationship under CERCLA.
230 19 F. Supp.2d 988 (W.D. Mo. 1998).
231 See id. at 997.
232 See id. at 997–98.
233 See id. at 998.
234 Id. at 996 (emphasis added).
235 Id. at 998 n.12.
236 See Selmi & Manaster, supra note 78, at 9–104; Gray Interview, supra note 160.
237 See Harmon, 19 F. Supp.2d at 1000.
238 See Cleaves Interview, supra note 123.
239 See Gray, supra note 9, at 298–99.
240 See id.; Fialka, supra note 5, at A28.
241 See Mary K. Ryan, Can You Ever Contract Your Liability Away?, 75 Mass. L. Rev. 131, 131, 133–137 (1990).
242 See Henderson, supra note 64, at 192–95. See also, supra notes 69 to 88, and accompanying text.
243 See Gray, supra note 9, at 299.
244 See 33 U.S.C. § 1342 (1994); Cleaves Interview, supra note 123.
245 See 33 U.S.C. § 1342(a)(1)-(2); Cleaves Interview, supra note 123.
246 See Cleaves Interview, supra note 123.
247 See id.