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Multiparty Issues CERCLA Mining and Energy Sites

Elizabeth H. Temkin, Kristin Tita, Proceedings of 35th Annual Rocky Mountain Mineral Law Institute (1989)

The majority of sites that become the subject of administrative or judicial proceedings under the Comprehensive Environmental Response, Compensation, and Liability Act1 (CERCLA or the Superfund Act) are landfills or manufacturing facilities contaminated through dumping or spillage of chemical wastes. As a result, much of the developing body of legal authority and commentary focuses on technical and legal issues presented by these chemical soup CERCLA sites. CERCLA mining and energy sites differ from these sites in significant ways and hence present, in addition to now fairly routine issues, an array of unusual substantive and procedural problems for governmental entities seeking to force a CERCLA cleanup and for those parties to whom the government or other entities are looking for cleanup financing and implementation.

This paper examines both the typical and the anomalous substantive and procedural issues presented by CERCLA mining and energy sites,2 particularly where multiple parties are involved. The discussion begins with a brief summary of the CERCLA litigation and settlement framework and a description of mining and energy sites in general and particular issues they raise in the CERCLA context. The authors next detail the problems and questions typically encountered in the multiparty CERCLA litigation and settlement arenas. In each case, the focus is on the prac