Reopener Liability Under Section 122 or CERCLA: "From Here to Eternity"

By: Frederick W. Addison, III
Southwestern Law Journal
Winter 1991

FINALITY: the end of litigation, the certainty of settlement. It is the goal of every client who finds himself in the unhappy arena of litigation.  Long recognized as a necessary component of the judicial system, Webster defines “finality” as “the character or condition of being final, . . . conclusive, irrevocable or complete: conclusion.” [FN1]

A dismissal with prejudice, a specific yet comprehensive release, the performance of tasks, the exchange of consideration, liability and responsibility are established and finalized. No admissions are made. Certainty replaces uncertainty. Business continues. Life continues.

No such finality or certainty exists when resolving [FN2] liability with the United States Environmental Protection Agency (EPA) under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). [FN3] Rather, settlement for cleanup at a Superfund [FN4] site is subject to both the narrow terms of the EPA's release, called a covenant not to sue, and by the application of several exceptions to covenants not to sue which further diminish the salutary benefits normally associated with settlement. [FN5] *1082 These exceptions, or “reopeners,” can be triggered by, inter alia, the discovery of unknown conditions, or a determination by the EPA that the remedy at the site has failed. [FN6]

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