ELR Citation: ELR 21345
No(s). 92-1517 (3d Cir. Aug 12, 1993)

The court holds that government oversight costs incurred in monitoring a private hazardous waste cleanup under the Resource Conservation and Recovery Act (RCRA) are not recoverable under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court applies a standard of review based on National Cable Television Ass'n v. United States, 415 U.S. 336 (1974) (NCTA), which the U.S. Supreme Court has stated stands for the proposition that Congress must indicate clearly its intention to delegate to the executive branch the discretionary authority to recover administrative costs not inuring directly to the benefit of regulated parties. The court holds that the NCTA standard is applicable because the oversight costs at issue are costs incurred by the government in monitoring private parties' compliance with their legal obligations, and are intended to protect the public interest. The court holds that §107 does not provide for the recovery of the government's oversight costs because the government oversight at issue does not unambiguously qualify as a removal action under CERCLA §101(23). There is no support in the text or legislative history of CERCLA for the suggestion that oversight activity on the part of the government is a removal. Moreover, CERCLA's definition of removal does not encompass the government's activity in overseeing removal or remedial action paid for and conducted by private parties. Also, nowhere in CERCLA's definition of removal did Congress mention oversight or government activities conducted under CERCLA §106, which authorizes administrative orders to compel private parties to clean up wastes at their own expense. Further, various statutory provisions and the general structure of CERCLA suggests that Congress did not intend to include oversight in the definition of removal. The court concludes this discussion by discussing the statutory distinctions between recoverable and non-recoverable costs.

The court next holds that an owner of less than 10 percent of the contaminated property may be jointly and severally liable under §107. Although there are apparent inequities with such a system, the potential unfairness is solved through apportionment and contribution where appropriate. Addressing apportionment claims of the partial owner, the court holds that this party failed to prove that the harm is divisible and that the damages are capable of some reasonable apportionment. The partial owner must show a reasonable basis for determining the contribution of each cause to a single harm. Finally, the court holds that equitable factors are not relevant to the apportionment inquiry and do not alter the partial owner's joint and several liability. Also, although such factors are relevant to contribution actions, there is no such action before the court, and, therefore, the district court was correct in holding the partial owner jointly and severally liable for any costs that the government is entitled to under §107.

Counsel for Appellee
Debra L. Cohn, Ass't U.S. Attorney
U.S. Attorney's Office
3310 U.S. CtHse., 601 Market St., Philadelphia PA 19106
(215) 597-7704

John G. Harkins
Pepper, Hamilton & Scheetz
3000 Two Logan Sq., Philadelphia PA 19103
(215) 981-4000

Counsel for Appellants
John T. Subak, Ellen S. Friedell
Rohm and Haas Company
Independence Mall W., 6th & Market Sts., Philadelphia PA 19105
(215) 592-3000

Kenneth A. Rubin, Michael W. Steinberg
Morgan, Lewis & Bockius
1800 M St. NW, Ste. 800, Washington DC 20036
(202) 467-7000

Before Cowen and Barry,^* JJ.