When many parties are jointly and severally liable for the same contamination problem, not every one of those parties can pay more than its fair share of that joint liability in a settlement. Section 113(f)(2) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”) assures that the non-settling parties get the benefit of any over-payment, and at least one of them may therefore end up paying less than its share. But what if an overpayment goes to the state or to natural resource trustees, and the remaining claims belong to the Environmental Protection Agency or other response agency? How do you know whether there was an overpayment in an earlier settlement?
I consider these issues in this month’s Legal Intelligencer/Pennsylvania Law Weekly column. Read Credits for Superfund Settlement Payments and What That Means for Settlement Strategy, 42 Pa. L. Weekly 429 (May 7, 2019), by clicking here.
Only one court seems to have addressed the accounting under section 113(f)(2) across sovereigns and claims. However, when the non-settling party in that case itself settled, it agreed that the court’s interlocutory opinions on the accounting would be withdrawn as part of the settlement. Interlocutory opinions of district courts are binding, if at all, only on the parties, so the persuasive value of these opinions is whatever it was. They are both in United States v. NCR Corp., No. 1:10-cv-910-WCG (E.D. Wis.). The first denies the United States’ motion for summary judgment on its costs claim in part, and was issued February 5, 2018. The second denies the United States’ motion for reconsideration on July 13, 2018.