Super Settlements for a Superfund: A New Paradigm for Voluntary Settlement?

Abstract

Despite some recent improvements, cleanup of hazardous waste sites across the United States remains slow and very expensive, especially in terms of legal costs. In response to the continuing gridlock, those involved in settlement negotiations at various cleanup sites, including the Environmental Protection Agency, other federal and state government agencies, and private potentially responsible parties (PRPs), are exploring new arrangements of liability and cleanup responsibility under the existing legal and regulatory framework. One emerging response is the “Super Settlement” concept. Under a Super Settlement, a single entity agrees with all, or at least a sufficient preponderance, of the PRPs at a given cleanup site to assume all of their cleanup–related liability in exchange for a fixed and permanent cash–out amount. The Comment examines the Super Settlement concept in light of the current status of federal and state cleanup–related law. The Comment also identifies the trends that have made the concept possible and the issues that remain to be addressed. Finally, the Comment concludes by predicting that the Super Settlement concept will be put into widespread use across the United States as its advantages become better known.