ELR Citation: ELR 20274
No(s). 99-3084 (3d Cir. Dec 28, 1999)

The court reverses a district court decision dismissing the U.S. Environmental Protection Agency's (EPA's) complaint to enforce a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §106 unilateral administrative order (UAO) against a potentially responsible party (PRP) that arranged for the disposal of hazardous substances at the Centre County Kepone Superfund site in State College, Pennsylvania. EPA issued the UAO against the arranger after EPA and the owner of the site entered into a consent decree requiring the owner to perform remedial work and to pay past response costs. The court first upholds EPA's interpretation of CERCLA §113(f)(3)(A) that the government is entitled to no further relief only when the cleanup has been fully accomplished and paid for. EPA's argument that it has not obtained complete relief until the endangerment has been abated is consistent not only with CERCLA's language and objectives but also with common law. The court also holds that EPA's order appropriately documented the presence of hazardous substances at the site and their likelihood of endangering public health, thereby satisfying the necessity requirement of CERCLA §106. Moreover, even if the court were not fully persuaded that this suit is authorized by §122(c)(2), the court holds that it must defer to EPA's interpretation of §113(f)(3)(A), as it is based on a reasonable construction of that provision and is consistent with the purposes of CERCLA.

Applying these legal precepts to the case, the court then holds that the district court erred in dismissing EPA's complaint. Although the owner agreed to perform all the work, it has not yet done so. Therefore, EPA is expressly authorized by CERCLA §§106 and 122 to issue the UAO to the arranger, requiring it to jointly perform the necessary work and to pay past response costs. Last, the court remands the case for a determination of the arranger's liability for future costs.

[A prior decision in this litigation is published at 29 ELR 20276.]

Counsel for Appellant
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellee
Larry D. Silver
Duane, Morris & Heckscher
One Liberty Pl., Ste. 4200, Philadelphia PA 19103
(215) 979-1000

Before Scirica and Shapiro,^* JJ.

Stapleton, J.: