An approach to expedite the cleanup of contaminated property and reduce associated claims litigation

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The equitable allocation of remedial response costs is the central objective of much litigation involving the cleanup of contaminated property. In reality, this objective is seldom achieved and with the strict, joint and several liability standards in CERCLA, response costs are often distributed to present owners, even though they may have no connection to historic chemical releases on the property. A recent shift in California regulatory policy is intended to expedite privately funded cleanups and reduce the transaction costs typically associated with multi‐party efforts. Sites designated for these reforms are subject to an alternative liability scheme, reduced levels of regulatory oversight, and a simplified investigative and remedial process. Through the early identification of all parties associated with the site, the parties may resolve disputes and allocate responsibility through a mediation process with the agency. De minimis settlements, contribution protection, and government funding for any orphan shares in allocated costs are also available to the parties. Beyond expediting the cleanup process, these reforms are intended to encourage the early participation of potentially responsible parties so that remedial and cost allocation issues are resolved during the investigation and cleanup, thereby reducing the need for subsequent claims litigation.