Raiders of the Lost ARCO: Resolving the Partial Settlement Credit Issue in Private Cost Recovery and Contribution Claims Under CERCLA
66 Pages Posted: 15 Jan 2012
Date Written: 2000
This article addresses the issue of partial settlement credit in private CERCLA litigation -- a matter about which the federal courts remain divided. The author addresses the merits of, and rationale for, both the UCFA's proportionate share approach and the UCATA's dollar reduction rule.
Rather than determine the approach to partial settlement credit on the basis of the plaintiff's identity (government versus private), the author suggests that the nature of the claim should control the choice of law.
Application of the UCATA to all § 107 cost recovery claims, whether government-initiated or private, would better comport with CERCLA's statutory scheme, better effectuate Congress's intent to fill CERCLA's statutory gaps by reference to common law principles, better promote timely cleanup and voluntary settlement, and be more principled. Such an approach was recommended by Judge Wagner in the ARCO litigation, and thus would not be entirely without precedent.
Keywords: hazardous waste, Superfund, private cost recovery, claims settlement
JEL Classification: I28, K23, K32, K41
Suggested Citation: Suggested Citation