SETTLEMENTS AS AN INCENTIVE TO PROCURE HAZARDOUS WASTE SITE CLEANUP: THE THIRD CIRCUIT AND A BROAD READING OF CERCLA §113(F)(3)(B)

Note Written By: Stephen F Soltis

During its haste to establish itself as a prominent industrial power, the United States lacked the enforcement power necessary to protect its environmental assets and natural resources. Industrial centers were left largely unchecked for the majority of the twentieth century and the pollutants remaining on these sites produced a lasting negative impact for generations. The Love Canal is the most famous instance of these industrial sites polluting without regard for the natural resources surrounding them. In 1980, Congress enacted the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) to facilitate the cleanup of these sites.

There are three provisions in CERCLA that keep the Superfund-a federal program created to fund the cleanup of hazardous waste-at a sustainable level. Each provision entails the liability of potentially responsible parties. First, an action filed pursuant to §107(a) allows an entity that has incurred response costs consistent with the NCP to sue for restitution of those costs from potentially responsible parties Next, a § 113(f)(1) action allows a potentially responsible party to sue another party for contribution, but only if a suit was brought against the first potentially responsible party.3 Finally, under § 113(f)(3)(B), a potentially responsible party can settle with the state or federal government. Subsequently, the settling party can file a contribution suit against other potentially responsible parties.

This note addresses the discrepancy between circuits in the timing of a contribution suit brought under § 113(f)(3)(B) after a potentially responsible party has settled its state law liability claims. This note will propose that allowing a potentially responsible party to bring a contribution suit whenever that party has settled a state or federal liability claim is the interpretation most consistent with the intent of CERCLA.

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