19 ELR 10430 | Environmental Law Reporter | copyright © 1989 | All rights reserved

…But Were Afraid to Ask: Superfund Case Law, 1981-1989

Editors' Summary: CERCLA, otherwise known as the full employment act for lawyers, has generated a prodigious amount of litigation since its enactment in 1980. Coherently summarizing the entirety of CERCLA case law in one article is a monumental task. Undaunted, the authors have produced an overview of the eight years of CERCLA litigation, covering everything from abatement actions to transporter liability.

Mr. Jones is an Assistant to the General Counsel, Department of the Army. Mr. McSlarrow is an Assistant to the Special Counsel to the Secretary of Defense. The authors would like to extend their grateful appreciation to Corinna Pagano for her tireless assistance. The views expressed in this Article are those of the authors and do not necessarily represent the views of any government agency.

[19 ELR 10430]

By now it is a commonplace that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),¹ enacted in 1980, was both badly drafted and, to the glee of lawyers, silent on many important issues. Those issues were a primary focus of Congress' legislative overhaul of CERCLA, eventually enacted as the Superfund Amendments and Reauthorization Act of 1986 (SARA).² The result is eight years of litigation, the review of which is the subject of this Article.

The enactment of SARA, of course, marks an important divide in the case law, but it has not worked a revolution. Two reasons, in our opinion, go far to explain why. First, in enacting SARA, Congress attempted to codify much of the prior case law. The outstanding example is § 113, which for the most part continues to protect the government's ability to clean up first and seek reimbursement later without interference from responsible parties or the courts.³ Second, where SARA does grapple with issues that CERCLA largely ignored, those issues very often are of a type that would tend only to be disputed toward the end of the remedial phase. Lamentably, this is a stage of the cleanup process rarely reached so far. Section 121 on cleanup standards⁴ and § 120 on federal facilities⁵ are examples. Both promise to be the source of much litigation in the future.

One note of caution. We do not pretend to present a complete picture of CERCLA. The contours of CERCLA discussed in this Article are, in part, the result of how parties frame contested issues and, in part, the consequence of whether and how courts choose to address them. Please think of this Article as merely an exciting dash through the case law of the last eight years.⁶

The CERCLA Program

Constitutional Challenges

Since 1981, the federal judiciary generally has been CERCLA's best friend. Where constitutional attacks have been mounted, there has been near unanimity in the courts' refusal to find the CERCLA program constitutionally infirm.

CERCLA's reach is very broad. One court has found that there exists a rational basis to conclude that wholly intrastate disposal affects interstate commerce, and is thus within Congress' power under the Commerce Clause.⁷ The reach of CERCLA, moreover, has not been constrained by tight judicial scrutiny. With the enactment of § 113(h) in SARA (restricting the timing of judicial review to five statutory exceptions), constitutional challenges can in certain circumstances be deferred until an enforcement suit for reimbursement is brought by the government.⁸ Precluding [19 ELR 10431] judicial review, in the view of the Third Circuit, is itself constitutional in this context because "due process does not require access to the courts before final administrative action."⁹

But most courts faced with constitutional claims have heard and then dismissed them. The most frequent attack comes under the Due Process Clause of the Fifth Amendment and centers on the retroactive application of liability to activities that were lawful prior to 1980.¹⁰ Earlier district court decisions rejected due process and other arguments,¹¹ and in 1986 the Eighth Circuit in United States v. Northeastern Pharmaceutical and Chemical Co. (NEPACCO)¹² held that the retroactive application of CERCLA was a legitimate legislative purpose achieved in a rational manner. Therefore, it did not violate due process. Courts have consistently adhered to this reading of CERCLA,¹³ though some courts do not consider CERCLA retroactive in a constitutional sense because it is prospective in application.¹⁴ Another aspect of retroactive applicability is the government's ability to recover response costs incurred before the enactment of CERCLA. United States v. Shell Oil,¹⁵ a seminal 1985 district court decision, upheld this scheme, as did the Eighth Circuit in NEPACCO.¹⁶

Due process arguments have also appeared in cases that concerned the government's right to seek monetary penalties when faced with noncompliance by private parties. Private parties that challenged an administrative order issued under § 106 found themselves placed between the Scylla of penalties for non-compliance and the Charybdis of compliance. But most courts were quick to allow a "good faith" defense, reading it into both § 106(a) on daily fines and § 107(c)(3) on treble damages.¹⁷ These courts held that good faith challenges to § 106 orders constituted "sufficient cause" under the treble damages provision.¹⁸ Prior to SARA, the daily fines provision required only a "willful" violation, but it now also includes the requirement that noncompliance be "without sufficient cause."¹⁹

The Second Circuit, in a pre-SARA decision, adopted the "good faith" exception for both the daily fines and treble damages provisions.²⁰ The Eighth Circuit, in the context of treble damages, has more recently held that if CERCLA or applicable regulations did not provide "meaningful guidance as to the validity or applicability of the EPA order," then EPA must show that the challenging party lacked an "objectively reasonable belief" in the validity of the order. With that reading, CERCLA satisfied due process.²¹

Other provisions of the CERCLA program have been attacked on various constitutional grounds.²² Where the [19 ELR 10432] owner of a site was not provided a hearing before the site was included on the National Priorities List (NPL) to be the subject of a remedial action, one court found no violation of due process.²³ Notice and comment before listing, and review afterwards under § 113(a) (review of regulations) or § 107 (government cost recovery action) was enough.²⁴ Nor did EPA violate the separation of powers doctrine by acting without congressional authorization when it began a remedial investigation/feasibility study (RI/FS) before the site was actually on the NPL.²⁵ The argument that fund-financed remedial actions could only be initiated after listing on the NPL was answered by the court's conclusion that a RI/FS is really a "removal" action with no such limitations.²⁶

Arguments that the imposition of strict, joint, and several liability is a bill of attainder²⁷ or amounts to an ex post facto²⁸ law have also failed.²⁹ Where EPA issued an administrative order seeking access to property under §§ 106(a) and 104(a), (b), and (e), the Claims Court held that losing the right to exclude others from private party does not constitute a taking under the Fifth Amendment.³⁰ On the other hand, a permanent physical presence is to be considered a taking.³¹ For temporary physical invasions, the Claims Court would apply a balancing test that would take into account the activity, its duration, the degree of interference with the property, and the economic impact of the physical invasion.³²

State and Federal Interaction

Whether CERCLA preempts state or local actions under the Supremacy Clause³³ has been the subject of several cases. The Supreme Court had ruled that § 114(c), as originally enacted, preempted the states' ability to raise funds for the same purposes as CERCLA and that went beyond the mandatory state share provided in CERCLA.³⁴ The Superfund Amendments, however, deleted § 114(c) in its entirety, apparently with the express purpose of overturning the Supreme Court's decision.³⁵ Before SARA, courts tended to treat § 114(c) as the exception, holding, for example, that the common law of nuisance was not preempted.³⁶ Admittedly, itmust be difficult for courts to rule otherwise given the presence of § 114(a) which states, "[n]othing in this chapter shall be construed as preempting any state from imposing any additional liability …,"³⁷ but some statements seem unnecessarily broad on this point.³⁸

One court, for example, flatly stated that "CERCLA preempts state tort claims statutes."³⁹ Thus noncompliance with a state claims act could not bar a defendant's claim for contribution.⁴⁰ Another court has ruled that § 309, added by SARA to address statutes of limitations, preempted a state statute of limitation that barred recovery of property damages caused by hazardous substances.⁴¹ Similarly, the Delaware Tort Claims Act, which extended immunity from suits for cost recovery to the counties of the state, was held preempted because liability under CERCLA extended to "any person" including a "political subdivision of a State."⁴²

More recently, preemption has been the focus in the context of the EPA's Superfund Innovative Technology Evaluation Determination program. Section 311(b), added by SARA, encourages the development of innovative technologies. Where local permit procedures included conditional use permits, accompanied by completely discretionary review and the ability to deny a permit application on vague health and environmental grounds, one court found a de facto bar that frustrated Congress' intent, and the procedures were therefore preempted.⁴³

[19 ELR 10433]

Questions surrounding the Eleventh Amendment have recently become more settled. In the 1989 decision of Pennsylvania v. Union Gas Co.,⁴⁴ the Supreme Court ruled that CERCLA permitted a private party to sue a state for monetary damages under § 107. By contrast, the Third Circuit has concluded that, whatever the case may be with § 107 liability, the citizen suit provision added by SARA does not abrogate states' Eleventh Amendment immunity.⁴⁵

The Pennsylvania v. Union Gas Co. Court confronted two questions: whether Congress intended to waive Eleventh Amendment immunity; and whether Congress had the authority to do so.⁴⁶ As to the first issue, the Court found dispositive the inclusion of "states" in the definition of "persons" found in § 101(21) and in the definition of "owners or operators" added by SARA in § 101(20)(D).⁴⁷ The Court also supported its decision by pointing to the language of the citizens suit provision added by SARA, stating "[t]he reservation of states' rights under the Eleventh Amendment would be unnecessary if Congress had not elsewhere in the statute overridden the states' immunity from suit.⁴⁸

A recent district court decision, conceding that Congress intended to waive Eleventh Amendment immunity to § 107 liability, had questioned Congress' authority to do so under the Commerce Clause.⁴⁹ This question the Pennsylvania v. Union Gas Co. Court has now resolved. The Court reasoned that Congress' power under the Commerce Clause would be incomplete without the authority to subject states to suits for damages.⁵⁰ CERCLA liability was necessary, in part because prior statutes such as RCRA "had failed in large part because they focused on preventive measures to the exclusion of remedial ones."⁵¹

CERCLA and Other Statutes

Courts have generally interpreted the interaction between CERCLA⁵² and other statutes in such a way as to allow state and federal governments to proceed with the cleanup of hazardous wastes. For example, § 362 of the Bankruptcy Code⁵³ provides for a stay of the commencement of all proceedings against a debtor except, inter alia, a proceeding by the government to enforce a "police or regulatory power."⁵⁴ One court noted that this clause had been interpreted to apply to proceedings that seek to protect the health and safety of the public, not the government's "pecuniary interest."⁵⁵ Nonetheless, the court held that a CERCLA suit to recover response costs, impose fines, and obtain injunctive relief seeks to protect public health and safety, if only by deterring conduct that adversely affects public health and safety.⁵⁶

Under the discretionary function exception of the Federal Tort Claims Act (FTCA)⁵⁷ recovery from the government is barred for even negligent acts: "Where there is room for policy judgment and decision there is discretion."⁵⁸ The Third Circuit recently held on this basis that the government was not liable for injuries that occurred during a removal action at which the On Scene Coordinator had to make decisions, however imperfectly.⁵⁹ On the other hand, an earlier decision held that the FTCA would not bar a suit that was directed to the government's failure to use reasonable care in the choice of an independent contractor who transported hazardous wastes, if, on that basis, the government would be liable under state law.⁶⁰

In many ways, the purposes and provisions of CERCLA and the Resource Conservation and Recovery Act (RCRA)⁶¹ overlap. Courts have attempted to integrate the two statutes. In a recent district court case,⁶² the federal government argued that a CERCLA cleanup directed at an ongoing cleanup of an entire federal facility preempted a state RCRA enforcement action directed toward the only portion of that site not listed on the NPL.⁶³ Among other arguments, the government pointed to EPA's ultimate control of the cleanup of a federal facility under § 120,⁶⁴ and to CERCLA's numerous provisions addressing state involvement.⁶⁵ However, the court found § 120(a)(4) dispositive. This section expressly allows state laws concerning removal and remedial action, including enforcement, to apply to federal facilities not listed on the NPL.⁶⁶

[19 ELR 10434]

In the same spirit, another recent decision held that an owner/operator of a RCRA interim status facility was not precluded by RCRA from recovering CERCLA response costs.⁶⁷ The court rejected the argument that RCRA applied to active sites whereas CERCLA applied only to abandoned sites.⁶⁸ The court also pointed to the language of § 107, which states that liability attaches "[n]othwithstanding any other provision or rule of law …"⁶⁹ Thus, where a present owner incurred costs to close a site in compliance with RCRA, those costs were held to be recoverable under § 107.⁷⁰ The court noted that RCRA was specifically exempted from the notice, but not the liability, provisions of CERCLA.⁷¹

Finally, a court discussed the relationship between CERCLA and the National Environmental Policy Act in Idaho v. Hanna Mining Co.,⁷² where the State of Idaho sued a mining company for natural resource damages under § 107. The company claimed that the damages had been anticipated, were fully set forth in an environmental impact statement (EIS), and were therefore exempt from liability under § 107(f).⁷³ That section provides an exception to liability where damages are "specifically identified as an irreversible and irretrievable commitment of natural resources" in an EIS.⁷⁴ The court held that the terms "irreversible" and "irretrievable" had to appear in connection with each effect of the activity in order to qualify for the exception.⁷⁵ The court also held that damages caused by a "federally permitted release" must be recovered under other state or federal causes of action in lieu of CERCLA.⁷⁶ Thus, where a National Pollutant Discharge Elimination System (NPDES) permit covers "point source" discharges, claims derived from releases under an NPDES permit are properly brought under the Federal Water Pollution Control Act (FWPCA).⁷⁷

The National Contingency Plan

The National Contingency Plan (NCP)⁷⁸ provides guidance on how to carry out response actions and is the standard against which those actions are measured — the concept of "consistency."⁷⁹ There is thus a great deal of litigation over whether response actions have been done properly — by either the government or a private party. Since the NCP has undergone several major revisions and is more or less continually under review, courts, including the Ninth Circuit, have confronted the question of "which" NCP is controlling. The have concluded that "consistency" with the NCP should be determined by the NCP that is in effect when response costs are incurred, not when the response action commences, nor when the claims are evaluated.⁸⁰

When the government seeks recovery of its costs, the burden is on the other party⁸¹ to show that the government's costs were inconsistent with the NCP. To establish that a government expense fails to satisfy the NCP's cost effectiveness requirement, a party must show that the expense was "arbitrary or capricious."⁸² Response costs attributable to sole-source contracts, and overhead costs not entirely attributable to a response action, have been held to pass this standard.⁸³

The NCP incorporates a Hazardous Ranking System (HRS) to assist in determining those sites that are to be placed on the NPL. The NCP, HRS, and the NPL are regulations⁸⁴ and, as such, are accompanied by concerns relating to the timing of, and the appropriate standards for, judicial review. The courts, reflecting not a little impatience with EPA in its promulgation of CERCLA's regulatory structure, have been more easily disposed to accept arguments that incorporate at least some participation by the public in the comment process. Thus, the D.C. Circuit allowed review of the preauthorization requirement contained in the 1985 NCP even though the same requirement existed in the prior version of the NCP.⁸⁵ The requirement under § 113(a) that review must be had within ninety days of the promulgation of a regulation was satisfied by being brought within that period of time after promulgation of the 1985 NCP.⁸⁶ On the other hand, the D.C. Circuit rejected an assertion by the owners of a site listed on the NPL that their claim for review of the HRS became "ripe" only when their site was listed; failure to seek review within ninety days after the HRS was first promulgated did not comply with § 113(a).⁸⁷

The HRS has been extended a measure of solicitude by the courts, particularly by the D.C. Circuit. In 1985, the [19 ELR 10435] D.C. Circuit in Eagle-Picher Industries v. U.S. Environmental Protection Agency⁸⁸ held that the application of different threshold criteria for determining response actions and for listing on the NPL was a "reasonable interpretation" of CERCLA. The Eagle-Picher court applied an "arbitrary and capricious" standard, and upheld the HRS because it reflected only a "preliminary decision" that determined which sites were worthy of further study, rather than which sites warranted response action.⁸⁹ The D.C. Circuit has repeatedly given the EPA leeway in applying the HRS.⁹⁰ The court noted in a recent case EPA's need to reconcile speed with an admittedly imperfect methodology.⁹¹

Listing on the NPL has been granted similar deference.⁹² The Eagle-Picher⁹³ court described listing as an informal rulemaking subject to an "arbitrary and capricious" standard under the Administrative Procedure Act.⁹⁴ A party that comments on rulemaking such as the NPL must clearly and specifically state "why and how" submitted documentation is relevant to the scoring of a site; failure to do so during rulemaking precludes later review on that issue.⁹⁵ The D.C. Circuit's characterization of listing — that it is merely the first st + f Bci E / & Q W a K u 4q 4 4 ; dCUU f d] cc a+ hh may determine subsequently whether an "imminent and substantial endangerment" exists. Although EPA's response authority for "pollutants or contaminants" under § 104(1)(B) exists only where there is an "imminent and substantial endangerment," the D.C. Circuit upheld the listing of a site where only "pollutants or contaminants" were presently identified, supporting its decision by this characterization of the NPL's purpose.⁹⁶

Section 104 — Response Actions

Authority to Respond

Section 104 grants the government broad authority to carry out response actions. It may respond either when 1) there is a release, or substantial threat of a release, of a hazardous substance into the environment, or 2) there is a release, or substantial threat of a release, of a pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare.⁹⁷ These are alternative authorities,⁹⁸ and, in part, because the authority relating to the release of pollutants or contaminants also carries within it a requirement that there exist an "imminent and substantial danger," challenges have been more frequently brought concerning the proper scope of "hazardous substances."⁹⁹

"Hazardous substances" are defined in several ways in § 101(14), and courts have consistently given that section the broadest possible reading. The term includes hazardous wastes regulated under RCRA.¹⁰⁰ Substances listed under FWPCA § 307¹⁰¹ are included even though they may not be present in quantities necessary to involve the reporting requirements of the FWPCA.¹⁰² Nor does CERCLA "distinguish hazardous substances on the basis of quantity or concentration" generally.¹⁰³ Moreover, the petroleum exclusions¹⁰⁴ found in both sections 101(14) and 104(a)(2) are not applicable to listed substances that are found in excess of the amounts that occur during the oil refining process.¹⁰⁵

One frequently litigated issue over the scope of "hazardous substances" concerns the meaning of § 101(14)(c). That section exempts substances the regulation of which has been suspended by Congress. Asbestos mine and mill waste qualify for the exclusion under § 101(14)(c), but have been held to be included under sections 101(14)(D) and (E) since they are listed under other environmental statutes.¹⁰⁶ Similarly, the D.C. Circuit, despite an exemption under § 101(14)(c), and despite legislative history that pointed toward a total exemption from the scope of § 101(14), held that mining wastes and fly ash could be "hazardous substances" if they otherwise qualified under any of the criteria in that section.¹⁰⁷

[19 ELR 10436]

Entry and Access Issues

The government's rights to obtain access to privately owned property and to information under § 104 are often the first, and frequently the most sensitive, issues that courts have had to confront. In addition, the enactment of SARA has widened the permissible scope of activities conducted under the authorities provided in § 104. Prior to the enactment of SARA, the Seventh Circuit had held that § 104, unlike § 106, did not provide EPA with a right to enter property and commence response actions, as opposed to merely gathering information.¹⁰⁸ SARA, however, added § 104(e)(3)(D) which explicitly allowed entry for such purposes,¹⁰⁹ and EPA's ability to enter and commence response actions has been more recently upheld in the courts.¹¹⁰ A pre-SARA decision that held that EPA's authority to seek information under § 104(e)(1) did not extend to information gathered for a future cost recovery action,¹¹¹ was overruled legislatively by SARA. CERCLA now specifically authorizes access to information "relating to the ability of a person to pay for or to perform a cleanup."¹¹²

When the government requests and is denied entry under § 104(e)(3), it may either obtain an administrative order that is then enforceable in court, or proceed directly to court in order to procure an injunction against interference.¹¹³ In order to procure access under § 104(e), EPA must show only that is has a "reasonable basis" for believing that a release or threatened release of hazardous substances exist, whereas an "imminent and substantial danger" to the public health or welfare must exist when responding to releases of "pollutants or contaminants."¹¹⁴ To obtain an injunction to compel compliance with an entry request, the government must show some interference with the entry request, and the request itself must pass the arbitrary or capricious standard.¹¹⁵ One court declined to find interference where a private party allowed EPA access to its property but refused to immediately cease all landfilling operations.¹¹⁶ But noncompliance is risky. Thus, telephone responses to information requests that required responses in writing have been held to give rise to civil penalties,¹¹⁷ under the strict liability standard of CERCLA.¹¹⁸

Access authority extends to "any property," and this includes adjacent as well as source property.¹¹⁹ Where EPA obtains entry to conduct a response action, it may supplement its authority by requiring access to be given to third-parties with whom it has signed a consent decree, under § 106(a), which allows the President to secure such relief as may be necessary "to abate" the threat of a release.¹²⁰ Arguments that access will operate to exclude the owner from the property and thus constitute a "taking," are properly brought under the Tucker Act¹²¹ in a suit for compensation. Section 104(j), addressing the government's acquisition of property, expressly precludes a cause of action to compel the government to acquire property, and a taking under that section can only be determined by the EPA.¹²² The vast scope of EPA's access authorities was recognized by the Seventh Circuit, which declared that the EPA may, by seeking access, violate a consent decree signed four years before SARA in order to obey the direction of Congress under § 104.¹²³

Judicial Review

CERCLA places a great deal of discretion in the government's hands in its determination on how best to conduct a cleanup. Courts have consistently rejected arguments that EPA must give potentially responsible parties (PRPs) the opportunity to clean up a site at their own expense before EPA undertakes a response action.¹²⁴ EPA may also revoke its prior agreement under § 122 (which addresses settlements) to allow a PRP to perform a RI/FS at its site.¹²⁵ Perhaps the best measure of EPA's discretion to conduct response actions is reflected in those provisions that preclude judicial review of its activities until such time as EPA initiates court action. Thus, for example, in the case discussed above on revocation of a PRP's ability to conduct an RI/FS, the court supported its decision by citing § 122(a), which states that a decision "to use or not to use [19 ELR 10437] the procedures" contained in that section is not subject to judicial review.¹²⁶

With the enactment of SARA, the rule on judicial review of response actions carried out under § 104 is clear: review is precluded by § 113(h) until the government institutes a cost recovery action or pursuant to a citizen's suit.¹²⁷ Courts reached the same result before SARA, though often by different routes. Because CERCLA, prior to SARA, didnot explicitly address judicial review in the context of § 104, some courts ruled that response actions were not "final agency action" reviewable under the Administrative Procedures Act;¹²⁸ the government still had yet to institute a court recovery action.¹²⁹ Others concluded that CERCLA itself precluded review;¹³⁰ thus the APA was not available because a statutory preclusion existed.¹³¹

Since § 113(h) now explicitly precludes review, courts that have faced the question have also rejected alternative review under the APA on the grounds that a statutory preclusion existed.¹³² Where EPA combined a § 107 claim with a § 104(e) access claim, one court held that the two claims were independent and should therefore be addressed separately.¹³³ The exception contained in § 113(h) for review of § 107 actions, the court concluded, did not overcome the preclusion of review of § 104 response actions.¹³⁴ However, one court held that § 113(h) cannot bar a request to join EPA in a review of the progress of consent decree signed in 1982, because that section was intended to prevent delays in cleanup and EPA's arguments of exclusive jurisdiction to initiate review would achieve quite the opposite result.¹³⁵

The addition of the citizen suit provision by SARA does not permit a PRP to execute an end run around the other provisions limiting judicial review.¹³⁶ Section 113(h)(4) does allow for citizen suits that allege that a "removal or remedial action taken … was in violation of" CERCLA.¹³⁷ One court has concluded, however, that in order for this section to be consistent with the other provisions on judicial review, § 113(h)(4) must be read to apply to claims not otherwise deferred under § 113(h)(1), (2), (3) or (5).¹³⁸ By "deferred," another decision implies, is meant "only once a remedial action or discrete phase of a remedial action has been completed."¹³⁹ Nor does the citizen suit provision confer jurisdiction on courts to review the obligations required by the National Environmental Policy Act.¹⁴⁰ Thus, where plaintiffs sought review of EPA's alleged failure to prepare an EIS on a cleanup, the court dismissed for lack of jurisdiction.¹⁴¹

Section 106 — Abatement Actions

Section 106 Authorities

The authorities found in § 104 are supplemented by those in § 106. Where an "imminent and substantial endangerment to the public health or welfare or the environment" exists, the government may "secure such relief as may be necessary to abate such danger or threat."¹⁴² There is a strong tincture of equity present in most decisions that address § 106, in part because of the wording of that section,¹⁴³ and because injunctive relief is the usual and practical recourse of the government when seeking relief.

Meeting the threshold requirement of an "imminent and substantial endangerment" poses little difficulty for the government. It is not limited to emergency situations. One recent decision equated "endangerment" with "potential harm"; though the risk must be "imminent," the harm need not be realized for years.¹⁴⁴ An earlier decision held that the threshold showing was met where there "may be risk of harm," and that, whatever "substantial" might mean in other contexts, the risk need not be quantified.¹⁴⁵ The standard for injunctive relief is thus a showing of imminent and substantial endangerment and traditional injunction inquiries; however, a showing of irreparable harm [19 ELR 10438] is not required.¹⁴⁶ Endangerment to either the public health or welfare will suffice.¹⁴⁷ Moreover, "public welfare" has been given expansive scope, defined by one court as including "health and safety, recreational, aesthetic, environmental and economic interests."¹⁴⁸

As with § 104, the scope of the government's authority contained in § 106 has been interpreted broadly by the courts. Not only does it authorize entry by EPA, it does so for other parties to a consent decree: "EPA is authorized to remedy the situation. Nothing in [CERCLA] restricts EPA's choice of parties by which to do so."¹⁴⁹ Nonetheless, courts have refused to read into § 106 an implied cause of action for private parties,¹⁵⁰ pointing out that by its terms only the Attorney General may bring such an action.¹⁵¹ The majority of courts have held that § 106 applies to inactive, as well as active, sites.¹⁵² An administrative hearing is not required before EPA issues an administrative order under § 106(a).¹⁵³ Nor are the procedures required in either § 104 or § 112(a) applicable to abatement actions under § 106.¹⁵⁴

Despite one court's conclusion that § 106 does not provide the government an alternative means of reimbursement,¹⁵⁵ the vast majority of decisions have made an explicit connection between § 106 and the liability provisions contained in § 107. Most courts, therefore, have concluded that the scope of liability under § 107 is applicable to § 106.¹⁵⁶ Thus, § 106 authorities encompass past generators, because they are liable under § 107(a).¹⁵⁷ And liability is strict, and joint and several,¹⁵⁸ although equitable principles will affect the apportionment of damages.¹⁵⁹ § 106 does not, however, create a right of contribution or indemnity.¹⁶⁰

Judicial Review

Prior to the enactment of SARA, courts had repeatedly refused preenforcement review of an administrative order.¹⁶¹ However, one decision qualified this rule slightly, holding out the possibility of review where allegations were made that EPA "had absolutely no rational basis for undertaking a response action and that no preliminary assessment had been made."¹⁶² And, in one case, a challenge to a § 106 order that compelled action at one site but not at another was characterized as not challenging the scope of the order because, if successful, the result would only be to add to the order.¹⁶³ The addition of § 113(h) to CERCLA has, as with § 104, codified the rule against preenforcement review,¹⁶⁴ withdrawing jurisdiction for review until the government seeks to enforce an order or to recover a penalty,¹⁶⁵ seeks reimbursement,¹⁶⁶ seeks to [19 ELR 10439] compel a remedial action,¹⁶⁷ or when a citizen suit is brought.¹⁶⁸

Procedure and Section 113

Subject-Matter Jurisdiction

Section 113(a) provides that review "of any regulation" promulgated under CERCLA may be had only in the D.C. Circuit Court of Appeals.¹⁶⁹ Otherwise, U.S. district courts have "exclusive original jurisdiction over all controversies arising" under CERCLA.¹⁷⁰ The most visible rulemaking procedure is the NPL; because it is a regulation,¹⁷¹ site listing is reviewed in the D.C. Circuit.¹⁷² Despite the D.C. Circuit's exclusive right to review regulations, one court has concluded that district courts have jurisdiction to consider the constitutionality of regulations because the district courts review the constitutionality of the process of promulgation rather than the merits of that process.¹⁷³

Personal Jurisdiction

Personal jurisdiction under CERCLA is potentially as straightforward as subject matter jurisdiction. SARA added § 113(e) which provides for nationwide service of process, and very few cases now confront this aspect of personal jurisdiction. Those that do, however, are cases in which the action was filed before SARA, and in which courts have refused to give § 113(e) retroactive effect.¹⁷⁴ The exercise of personal jurisdiction before SARA was far from uniform. Courts had generally concluded that § 107 did not authorize nationwide service of process nor could it be implied.¹⁷⁵ Courts split, however, over whether § 106 impliedly authorized nationwide service of process.¹⁷⁶ In the absence of a provision for nationwide service of process, courts look to the jurisdictional statute in the state in which they sit,¹⁷⁷ though one decision held that a decision to "pierce the corporate veil" was a matter of federal common law.¹⁷⁸

State long arm statutes must meet the due process guarantees of the Fourteenth Amendment.¹⁷⁹ A recent case considering the question held that there must be shown "continuous and systematicgeneral business contacts" with the forum.¹⁸⁰ In practice, this is a more difficult question when the exercise of jurisdiction is general — when the contacts with the forum are unrelated to the cause of action.¹⁸¹ But, because CERCLA is a strict liability statute, a generator need not actually pick the hazardous waste site. Thus, the generator can "reasonably anticipate" being sued in any state where the hazardous substances are formed.¹⁸²

Under Rule 17(b) of the Federal Rules of Civil Procedure, the law of the state in which a corporation is organized determines whether a corporation has capacity to sue or be sued. The NEPACCO court followed this direction and analyzed Delaware law in finding that a corporation that had not voluntarily dissolved, but merely entered a "state of coma" through forfeiture of its charter, could be revived and found to have capacity to be sued.¹⁸³

In apparent accord with NEPACCO, the Ninth Circuit construed California law under Rule 17(b) of the Federal Rules of Civil Procedure as preventing a plaintiff from bringing an action that arose three years after a potentially responsible corporation had dissolved.¹⁸⁴ The Ninth Circuit pointedly rejected the plaintiff's argument that CERCLA should preempt state laws that defeat the broad remedial purposes of the statute, recalling that NEPACCO had applied state law in deciding a similar capacity-to-be-sued question. Moreover, the Ninth Circuit distinguished between state laws that limit liability, which CERCLA may well preempt, and state laws that simply address capacity to be sued.

This refusal to preempt state corporation law was criticized in United States v. Sharon Steel Corp.,¹⁸⁵ in which the court held that when "the effect of a state capacity statute is to limit the liability of a party Congress meant to hold liable for cleanup costs, Congress intended [19 ELR 10440] CERCLA to preempt it."¹⁸⁶ Calling the Ninth Circuit's distinction between laws that limit liability and laws that limit capacity one without a difference, the Sharon Steel court concluded that a state capacity-to-sue law will affect liability, since the surest way of limiting liability is to become immune to judicial process. The Sharon Steel court also pointed out that NEPACCO is dubious support for limiting liability based on a state corporation law, since NEPACCO concluded that Delaware law recognized the corporation's capacity to be sued.

Statutes of Limitations

Statutes of limitation were also added to CERCLA as § 113(g) by SARA.¹⁸⁷ One court has since held that the time limitations in § 113(g) do not apply retroactively to actions involving the recovery of response costs under § 107 incurred prior to SARA's enactment, reasoning that this would subvert Congress' intent to hold responsible parties liable.¹⁸⁸ Another court held, in the context of a private cost recovery action for a removal action, that § 113(g)(2)(A), which requires an action of this type to be brought within three years "after completion of the removal action,"¹⁸⁹ did not begin to run until SARA was enacted into law.¹⁹⁰ For ongoing contamination, statutes of limitation may not be much of a limitation. One district court has held that the statutes of limitation found in § 113(g) are "triggered anew by each release" into the environment.¹⁹¹ Finally, § 113(g) is the exclusive provision for limitations on civil actions for damages or reimbursement. Thus the sixty day notice requirement in § 112 has consistently been held to apply only to claims for reimbursement from the Superfund, not to actions for recovery of response costs¹⁹² or natural resource damages.¹⁹³

The Administrative Record

The last major procedural additions provided by SARA, §§ 113(j) and (k), focus on administrative record review. Section 113(j) limits judicial review "of any issues concerning the adequacy of any response action taken or ordered by the President" to review of "the administrative record."¹⁹⁴ The standard of review on the administrative record is a demonstration that the decision was "arbitrary and capricious or otherwise not in accordance with the law."¹⁹⁵ Because of the rather long gestation period for SARA, the government quite frequently established an administrative record in anticipation of SARA becoming law. An administrative record prepared before SARA was enacted has met with differing responses by the courts.

One of the first of these decisions, United States v. Hardage,¹⁹⁶ addressed a § 106 action to compel defendants to implement the government's remedy. The court in Hardage ruled that since SARA was enacted after the complaint was filed, § 113(j) should not be applied retroactively.¹⁹⁷ Nonetheless, the court went on to rule that a court injunction, as the government sought, was not an "action taken or ordered by the President" as required by § 113(j).¹⁹⁸ The court concluded that review should not be on the administrative record, but rather de novo.¹⁹⁹ The court's reasoning on §§ 106 and 113(j) appears to be dicta, but a later ruling in the same case fails to resolve that point.²⁰⁰ Nevertheless, Hardage appears to make an important distinction between cases where EPA itself implements a remedy and those where EPA seeks to compel others to implement the remedy it selected.

Later decisions have applied § 113(j) retroactively as the law "in effect at the time of decision."²⁰¹ One court found support for this position in § 113(k)(2)(c),²⁰² which by its terms contemplates the existence of administrative records [19 ELR 10441] before regulations are promulgated that guide the process and compilation of such records.²⁰³ Nonetheless, the other procedural rules established in § 113(k) may operate to dilute a decision on retroactivity. Although there need not be an "adjudicatory hearing,"²⁰⁴ where other procedures were not followed, and the defendants allowed only five days to submit comments on the proposed remedy,²⁰⁵ one court remanded for further development of the record.²⁰⁶ Finally, a subsequent district court decision rejected the Hardage court's alternative ruling on the applicability of § 113(j) to § 106 injunctive actions.²⁰⁷

When the administrative record is properly before a court, the practical consequence is that it defines what issues and facts are before the court. It is thus an enormously important weapon in the government's CERCLA arsenal. However, supplementation of the record may be had, when "the record" does not disclose the factors considered or the agency's construction of the evidence;²⁰⁸ or when the agency's asserted reasons are inadequate.²⁰⁹ Another decision adds to these factors instances in which the record is incomplete or there is a strong showing of agency bad faith.²¹⁰ It is for the court, not a party, to obtain supplementary information. Thus depositions by a party are inappropriate.²¹¹

Procedure

The courts have not looked favorably on involuntary joinder of government parties under Rule 19 of the Federal Rules of Civil Procedure. The EPA has usually been able to avoid involuntary joinder by asserting that it was not a party necessary for just adjudication and that its sovereign immunity prevented involuntary joinder.²¹² Similarly, the State of Missouri was able to avoid involuntary joinder by asserting that it was not an indispensable party.²¹³

In a departure from this line of cases, the court allowed the joinder of EPA in O'Leary v. Moyer's Landfill, Inc.²¹⁴ The O'Leary court, without citing the courts that had concluded otherwise, held that the United States waived its sovereign immunity from equitable suits in APA § 702 and was a necessary party in order to relieve the litigants from the risk of inconsistent obligations. The action arose when EPA tried to assert its CERCLA authority over the cleanup of a landfill that was being remediated pursuant to a consent decree. The court joined EPA to the action to ensure that financial obligations which were to be paid under the consent decree would be carried out without disruption.²¹⁵

Counterclaims against the United States for recoupment provide another issue involving waiver of federal or state sovereign immunity. The courts have held that when the government institutes a cost recovery action, it thereby waives sovereign immunity as to compulsory counterclaims seeking to diminish or defeat the government's recovery that arise out of the same transaction or occurrence that underlie the government's action.²¹⁶ For example, the court in United States v. Moore²¹⁷ allowed a defendant to counterclaim against the United States, asserting that the United States effected an uncompensated taking of property at the time of the cleanup and that it contributed to the contamination problem.

One court has held that Rule 34 of the Federal Rules of Civil Procedure entitles a plaintiff to enter the property of the defendant to take soil samples as part of its discovery proceedings.²¹⁸ The court also interpreted Rule 34 as restricting a defendant's ability to impose conditions on the plaintiff's entry.

[19 ELR 10442]

The unavailability of a jury trial in cost recovery actions has been settled without division among the courts. Citing the Supreme Court's decision in Tull v. United States,²¹⁹ the lower courts have construed the seventh amendment as mandating jury trials only in actions that are analogous to suits at common law. The Seventh Amendment does not require jury trials for suits that sound in equity. Since CERCLA suits seek the equitable remedy of restitution in the form of response costs, CERCLA actions are not analogous to common law suits; hence, no right to jury trial attaches.²²⁰ However, one court has held that parties in Natural Resource Damage actions under § 107(a)(4)(C) may have a Seventh Amendment guarantee to a jury trial depending on the type of damages being sought.²²¹

District court references to special masters under Rule 53(b) of the Federal Rules of Civil Procedure have engendered disagreement between the Eighth and Sixth Circuits. In In re Armco,²²² the Eighth Circuit denied a special master the authority to preside at trial and rule on the merits. However, the Eighth Circuit did allow the special master to hear and make recommendations on summary judgment motions and evidentiary matters, reasoning that these were pretrial matters appropriate for a special master. The Sixth Circuit disagreed. Relying on guidance provided by the Supreme Court in La Buy v. Howes Leather Co.,²²³ the In re United States²²⁴ court held that the district court had failed to articulate exceptional conditions warranting reference to the special master.²²⁵ The Sixth Circuit explicitly disagreed with the In re Armco holding, finding that the Eighth Circuit had improperly classified summary judgment motions as nondispositive in nature. To the Sixth Circuit, summary judgment motions were dispositive and should not be referenced. The Sixth Circuit concluded by positing that in nonjury trials, such as CERCLA cost recovery actions, district courts should refer only nondispositive discovery matters to a special master.²²⁶

Section 107 — Liability

While §§ 104 and 106 give the government the tools it needs to remediate contaminated sites, § 107 provides the means to pay for those tools. By enabling government and private parties²²⁷ to impose strict liability²²⁸ on a set of "covered persons,"²²⁹ Congress sought to ensure that those responsible for creating contamination problems pay for cleaning them up.²³⁰ The courts have breathed fiery life into the liability and cost recovery provisions of § 107 by giving them a "broad and liberal construction."²³¹

The Elements of Liability

Before awarding response costs to government or private plaintiffs, the courts generally regard the following elements as necessary to establish a prima facie case under § 107: (1) the subject site is a "facility"; (2) a "release or threatened release"²³² of a "hazardous substance" occurred at the facility; (3) the defendant fits into one of the four categories of "covered persons"; (4) the plaintiff incurred costs in responding to the release; and (5) the costs are consistent with the NCP.²³³ Both government and private plaintiffs have the burden of proving by a preponderance of the evidence that the first four elements of liability are satisfied.²³⁴ The burden of proof is, however, [19 ELR 10443] different for the fifth element — consistency — depending on whether the plaintiff is the government or a private party. Based on the wording of § 107, government plaintiffs enjoy a rebuttable presumption that the costs they incur are "not inconsistent" with the NCP; private plaintiffs must demonstrate affirmatively that their response costs are consistent with the NCP.²³⁵

"Facility" and "Release or Threatened Release"

The first two elements of liability have not proved a difficult obstacle for plaintiffs, with courts defining broadly "facility," 'release or threatened release," and "hazardous substance."²³⁶ For example, the court determined in United States v. Conservation Chemical Co.²³⁷ that a "facility" includes "every place where hazardous substances come to be located."²³⁸ Some of the more interesting "facilities" include a residential subdivision, horse stables, spray trucks, a dragstrip, and a trailer park.²³⁹

Courts have found a "release" when hazardous substances are found in soil and groundwater samples,²⁴⁰ blown about by the wind,²⁴¹ sprayed as a dust suppressant,²⁴² emitted into the air,²⁴³ or carried out of a manufacturing plant by a product or on the clothes and bodies of workers.²⁴⁴ "Threatened releases" will be found when hazardous substances are stored in deteriorating and corroding drums and tanks,²⁴⁵ stored without proper supervision,²⁴⁶ stored in an unsafe manner,²⁴⁷ or when a regulating agency has a "reasonable belief" that a release may occur in the future.²⁴⁸ Moreover, the timing of the release has been found immaterial for liability purposes. As discussed earlier, in NEPACCO,²⁴⁹ the Eighth Circuit concluded that CERCLA imposes liability for preenactment [19 ELR 10444] conduct. Nonetheless, liability for past conduct is often based on the assumption of current or continuing releases.²⁵⁰

Section 107(a) and "Covered Persons"

Owner and Operator Liability. Congress imposed § 107 liability on four categories of "covered persons." The first category, § 107(a)(1), is comprised of current owners and operators of a facility,²⁵¹ and may include bankruptcy estates,²⁵² absent landowner/lessors,²⁵³ lessees,²⁵⁴ and foreclosing banks.²⁵⁵ Although written in the conjunctive, courts have held that liability will extend to persons who either currently own or operate a facility.²⁵⁶ The importance of the first category is that it imposes liability without reference to hazardous substances. Current owners and operators will be held liable even though they were not owners or operators at the time hazardous substances were disposed of at the facility.²⁵⁷

By contrast, the second category, § 107(a)(2), imposes liability on persons who owned or operated a facility at the time of disposal of hazardous substances.²⁵⁸ Interpreting the term "at the time of disposal," one court held that it excludes from liability those past owners who may have owned a facility after wastes were disposed on it, did not know of the disposal, did not themselves engage in disposal activity, and innocently sold the property to a current owner.²⁵⁹

Most of the litigation over the first two liability categories has centered on the question of whether a person exercised the requisite control over a facility to be considered an owner or an operator. Courts have held that corporate officers who exercise control over waste disposal operations may be individually liable apart from the corporate entity.²⁶⁰ Additionally, courts will hold corporate parents liable for the activities of their subsidiaries. As an example, the court held in Idaho v. Bunker Hill Co.²⁶¹ that a parent company was an owner/operator of its subsidiary's facility because the parent was familiar with the subsidiary's hazardous waste disposal practices, had the authority and capacity to make decisions regarding those practices, controlled pollution control capital expenditures greater than $ 500, and controlled a majority of the subsidiary's board of directors.²⁶² The Bunker Hill court cautioned, [19 ELR 10445] however, that "care must be taken so that the 'normal' activities of a parent with respect to its subsidiary do not automatically warrant finding the parent an owner or operator."²⁶³

The Seventh Circuit found that the scope of owner/operator status has its limits, holding that a person who designs a manufacturing facility and trains the facility's workers does not exercise control over the facility's operations and therefore is not an "operator" under CERCLA.²⁶⁴ The Seventh Circuit discussed the relationship between the facility owner and the defendant in terms of independent contractor and joint venturer. As to the former, the court found that the defendant was an independent construction contractor who built a turnkey facility for the owner to operate. As an independent contractor engaged in a non-hazardous construction activity, the defendant was not liable for the torts — releases — of the facility owner/employer. Moreover, the court rejected any claim that the two parties were joint venturers, finding that the defendant did not express a willingness to enter into a joint venture, did not participate in operational control of the facility, and did not share in profits or contribute to losses. Lacking these elements, the defendant's contractual right to inspect the facility was not enough to transform the relationship into a joint venture; thus, the defendant was not liable as an operator.²⁶⁵

Also finding a limit to owner/operator status, the court in United States v. Fleet Factors Corp.²⁶⁶ ruled that a person who held an unforeclosed security interest in a facility was not a current owner, since he did not participate in the management of the facility. The court based its decision on the definition of "owner or operator" contained in § 101(20)(iii), which exempts from liability a person "who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect his security interest."²⁶⁷ The court interpreted § 101(20)(iii) as allowing a secured party "to provide financial assistance and general, even isolated instances of specific, management advice to its debtors without risking CERCLA liability, if the secured creditor does not participate in the day-to-day management of the business."²⁶⁸ Similarly, a state agency's regulatory activities that do not amount to "hands-on-control" over a facility will not impose operator status on a state.²⁶⁹

Generator Liability. The third category, § 107(a)(3), imposes liability on persons, usually generators of hazardous wastes, who arrange for the treatment or disposal of hazardous substances at any facility containing such hazardous substances from which there is a release of a hazardous substance.²⁷⁰ The Fourth Circuit in United States v. Monsanto Co.²⁷¹ explained that plaintiffs must show that a defendant shipped its wastes "to a site and that hazardous substances similar to those contained in the defendant's waste remained present at the time of release."²⁷² Rejecting a "proof of ownership" defense, the Monsanto court held that plaintiffs do not need to demonstrate that the defendants owned the specific wastes at the facility; rather, plaintiffs must show simply that wastes chemically similar to the defendant's wastes were at the facility.²⁷³

Courts have limited the scope of liability under § 107(a)(3) when defendants can show that they sold hazardous substances as a raw material or finished product [19 ELR 10446] for use by another party and were not motivated in part by a desire to dispose of hazardous substances. In Edward Hines Lumber Co. v. Vulcan Materials Co.,²⁷⁴ the defendants were chemical manufacturers who sold hazardous substances as raw material for use in lumber processing by the plaintiff. The processing resulted in wastes containing the hazardous substances sold by the defendant. The plaintiffs urged the court to construe § 107(a)(3) liability as extending "to any transaction in a hazardous substance that later contaminates a facility." The court refused to accept this construction, holding that § 107(a)(3) liability was limited to transactions for the disposal or treatment of hazardous substances.²⁷⁵

Defendants can also escape liability if the defendant did not "own or possess" the hazardous substances²⁷⁶ or if there is no evidence that the defendant's wastes were actually shipped to the facility in question.²⁷⁷ However, defendants cannot avoid liability by asserting that they did not choose the ultimate disposal site, or even by showing that they had taken reasonable steps to ensure safe disposal practices.²⁷⁸ In O'Neil v. Picillo,²⁷⁹ for example, the defendants had arranged for a contractor to place their hazardous wastes in licensed Pennsylvania and New Jersey facilities. Without informing the defendants, the contractor took some of the wastes instead to a Rhode Island facility from which releases occurred. Notwithstanding the evident care they had taken to dispose of their wastes safely, the court held the defendants liable under § 107(a)(3).²⁸⁰ Finally, as in owner/operator cases, the courts will not hesitate to extend liability to individual corporate officers and corporate successors.²⁸¹

* Transporter Liability. The fourth category, § 107(a)(4), mandates liability for individuals who transport hazardous substances to treatment or disposal facilities. To impose liability, the courts have interpreted the language of § 107(a)(4) as requiring plaintiffs to demonstrate that the transporter choose the treatment or disposal facility.²⁸²

[19 ELR 10447]

Causation and Scope of Liability

Under all four liability categories, the courts have held unanimously that CERCLA imposes strict liability and does not require plaintiffs to demonstrate traditional common law notions of causation, subject only to some limited affirmative defenses.²⁸³ Although plaintiffs do not have to prove that a defendant caused the release, there must be an indication that the defendant's release or threatened release caused the response costs to be incurred.²⁸⁴ An interesting variation to the causation rule occurs when two or more pollution sources contribute to contamination at one site; in those instances, the defendant's hazardous substances must be a substantial factor in causing plaintiffs to incur response costs.²⁸⁵ The courts have also held that liability under CERCLA is joint and several when the harm caused by a release is indivisible.²⁸⁶ Indeed, even de minimis contributors to a site may be held liable for the entire cost of cleanup.²⁸⁷

Incurred Costs of Response

Plaintiffs must demonstrate that they have incurred costs of response to satisfy the fourth part of the prima facie case for recovery of response costs.²⁸⁸ CERCLA does not [19 ELR 10448] define response costs, but it does define response actions as "removal or remedial actions." Removal actions are short-term measures necessary to monitor, assess, and abate the immediate effects of a contamination problem.²⁸⁹ Remedial actions are the long-term cleanup solutions that are decided upon after a detailed administrative process.²⁹⁰ With a nimbleness developed from solving innumerable CERCLA mysteries,²⁹¹ the courts have creatively defined response costs as those costs incurred in performing a specified removal or remedial action.²⁹²

As construed by the courts, allowable costs of response may include monitoring and investigation costs,²⁹³ prejudgment interest,²⁹⁴ time spent by corporate officials involved in the cleanup,²⁹⁵ security and fencing costs,²⁹⁶ RCRA closure costs,²⁹⁷ and temporary relocation costs.²⁹⁸ Private [19 ELR 10449] parties will not receive legal costs and attorney's fees,²⁹⁹ but the government may recover those costs.³⁰⁰ Finally, courts will generally allow government and private plaintiffs to bring a cost recovery action after they incur preliminary removal costs.³⁰¹

As noted by the Supreme Court in Exxon Corp. v. Hunt,³⁰² CERCLA does not provide relief for "economic harms that result from discharge of hazardous substances."³⁰³ Accordingly, the courts have not allowed plaintiffs to recover for diminution in value of property, economic loss, and medical or personal injury expenses.³⁰⁴ An area of recent controversy has been the recovery of medical monitoring costs, with courts disagreeing over whether these costs are closer to allowable investigatory/monitoring costs or unallowable medical/personal injury expenses.³⁰⁵

Consistency with the NCP

There has been some apparent judicial disagreement as to whether plaintiffs need to satisfy the "consistency with the NCP" element before prevailing in a cost recovery action. However, [19 ELR 10450] the disagreement stems from the procedural posture of the cases and whether plaintiffs are seeking simply a determination of liability or an award of response costs, rather than from any real dispute over the elements of the prima facie case. In Artesian Water Co. v. New Castle County,³⁰⁶ for example, the court ruled that in a summary judgment motion for award of specific response costs, private plaintiffs must demonstrate consistency with the NCP as part of their prima facie case. The court distinguished cases purportedly stating otherwise by noting that they only stood for the proposition that consistency is a fact question that cannot be resolved in a motion to dismiss on the pleadings. When a sufficient factual record has been developed, the question of consistency becomes both ripe for decision and necessary before a court can award response costs.³⁰⁷

By contrast, courts have determined that they can decide the issue of liability without requiring the plaintiffs to make a showing of consistency with the NCP.³⁰⁸ Plaintiffs may therefore find it advantageous to seek summary judgment on liability alone, since a determination of liability may be obtained at an earlier stage of the process and could provide a powerful inducement for the litigants to reach a settlement on the response costs.³⁰⁹

The courts have been united in their determination that consistency with the NCP does not require compliance with other provisions of CERCLA unrelated to § 107 actions, such as inclusion of the site on the National Priorities List, the § 112(a) sixty-day notice for actions seeking reimbursement from the Superfund, or prior government approval of response costs.³¹⁰ Of course, PRPs must obtain prior approval of remedial actions when either the President, or a PRP subject to an administrative order or consent decree, has initiated an RI/FS at a facility.³¹¹ Yet courts will not require strict compliance with NCP provisions that are unrelated to removal or remedial actions.³¹² Instead, courts will examine the factual record and the NCP in effect when the plaintiff incurred response costs to determine whether the subject response action resulted in costs that are inconsistent with the NCP.³¹³

[19 ELR 10451]

In Versatile Metals, Inc. v. Union Corp.,³¹⁴ the court provided a thorough discussion of what constitutes consistency with the NCP.³¹⁵ The court indicated that plaintiffs will find it easier to prove the consistency of short-term removal actions than long-term remedial actions, particularly in view of the procedural hurdles one must clear before implementing a remedial action.³¹⁶ Noting that another court had ruled in a similar fashion,³¹⁷ some commentators have suggested that private parties who do not mirror the cleanup procedures employed by EPA may face a high risk of not recovering their response costs.³¹⁸

Contribution

As amended by SARA, § 113(f) specifically authorizes liable parties that are not intentional tortfeasors³¹⁹ to seek contribution from other PRPs.³²⁰ Under § 113(f), courts use such equitable factors as comparative fault and the increase in value of the property after cleanup to apportion response costs among the responsible parties, thereby alleviating somewhat the board scope of CERCLA liability.³²¹

[19 ELR 10452]

Courts may also apportion liability according to indemnification, subrogation, or hold harmless agreements between responsible parties. In Versatile Metals, Inc. v. Union Corp.,³²² the court recognized that under § 107(e) a "person that is liable under the terms of the Act may by agreement be held harmless or indemnified by another party."³²³ The courts determine the effectiveness of these agreements by looking to state law, as opposed to fashioning a uniform rule of federal common law.³²⁴

Finally, responsible parties may apportion their liability to the United States or a state through administrative or judicially approved settlement agreements.³²⁵ When approving settlements, courts look for fairness, adequacy, reasonableness, and consistency with the NCP.³²⁶ These agreements effect non-settling parties by reducing their potential liability by the settlement amount³²⁷ and preventing them from filing contribution actions against the settling parties.³²⁸ One recent decision distinguished those settlements that involve long-term response plans from those that simply apportion monetary liability.³²⁹ In the latter situation, the court found support in § 122 for holding that monetary settlements do not require the same degree of scrutiny, such as public notice and review, that response plan settlements require.³³⁰

Other Remedies: Declaratory Judgment, Injunctive Relief, and Natural Resource Damages

In addition to seeking recovery of response costs, plaintiffs may also be entitled to a declaratory judgment for future response costs.³³¹ When filing an action at the removal action stage in the cleanup process, plaintiffs will often couple their cost recovery claims with a request for [19 ELR 10453] declaratory judgment as to future removal and remedial costs.³³² Courts will find that an action is ripe for declaratory judgment when the plaintiff has incurred at least some costs of response.³³³ Defendants may still contest whether the costs of response are consistent with the NCP when the plaintiff seeks to enforce a declaratory judgment.³³⁴

As noted earlier in this article, injunctive relief is apparently unavailable for private parties.³³⁵ However, some courts have reasoned that since CERCLA does not expressly abrogate their equitable authority, it follows that the federal judiciary retains its traditional power to grant injunctive relief.³³⁶ However, these courts have reserved determining the scope of their equitable powers until faced with an actual case in which the remedy at law has proved inadequate.³³⁷ To date, no such case requiring the use of equitable powers has arisen.

A special remedy available only to government parties³³⁸ is the recovery of natural resource damages (NRDs).³³⁹ The government may bring an action for NRDs before expending any money to respond to the damage,³⁴⁰ and may establish liability by demonstrating the same elements as in response cost recovery action.³⁴¹

[19 ELR 10454]

After liability has been fixed, the question of how to value damages to natural resources has been fiercely contested. Pursuant to a mandate in CERCLA, the Interior Department promulgated regulations in an attempt to identify the best procedures for assessing NRDs. Among other things, the regulations dictated that NRDs would be assessed as the lesser of restoration value or use value.³⁴² The regulations were immediately challenged by state officials and environmental and industry groups in Ohio v. United States Department of the Interior.³⁴³ Although the regulations were attacked on eleven different grounds, the principal issue was whether Congress, through CERCLA, expressed a preference for assessing NRDs based on their restoration value rather than their use value. In a painstaking examination of CERCLA and its legislative history, the D.C. Circuit held that Congress favored strongly the restoration value for NRDs and thus rejected the "lesser of" rule. The court therefore ordered Interior to fashion regulations that reflect the preference for restoration value and limit implementation of use value to circumstances in which restoration was infeasible or grossly more expensive.³⁴⁴

The courts have recognized three significant limitations to recovery of NRDs. First, the language of § 107(f) precludes the recovery of NRDs if the release and resulting damage occurred before December 11, 1980, when CERCLA was enacted.³⁴⁵ Second, just as with response cost-recovery actions, plaintiffs may not bring a CERCLA action for NRDs when the release that caused the damage was permitted under other federal statutes.³⁴⁶ Finally, § 107(f) exempts from recovery damages to natural resources that have been committed after their identification as irreversible and irretrievable in an environmental impact statement or equivalent document.³⁴⁷

The Comprehensive General Liability Insurance Cases

One special aspect of liability, and one of the more difficult issues to face the courts, is whether standard Comprehensive General Liability (CGL) policies obligate an insurer to defend and hold harmless an insured who is potentially responsible for CERCLA response costs.³⁴⁸ The courts have agreed that CERCLA response costs are restitutional, and therefore equitable in nature.³⁴⁹ CGL policies require insurers to "pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of … property damage."³⁵⁰ The courts have split over the meaning to be given the term "as damages." Some courts have found that "as damages" is an unambiguous term of art in the insurance context that obligates insurers to pay only legal damages, thereby precluding payment of CERCLA response costs which are equitable.³⁵¹ Other courts have held that the term is open to interpretation, and when the law of the applicable state mandates a layperson's reading, courts allow recovery of response costs.³⁵²

In resolving the question, courts have claimed that they based their decisions on applicable state law. Yet, the courts have reached different results interpreting the same state's law. Indeed, the court found in Jones Truck Lines v. Transport Insurance Co.³⁵³ that the Eighth Circuit had "clearly misread state law" in deciding Continental Insurance Companies v. Northeastern Pharmaceutical & [19 ELR 10455] Chemical Company,³⁵⁴ and refused to be bound by their interpretation of Missouri law.³⁵⁵ The Jones court, agreeing with the dissent in Continental, held that under Missouri's rule that gives insurance terms a layperson's understanding, "damages" should not be interpreted as excluding the costs of equitable relief.³⁵⁶

Bankruptcy Cases

The primary issues in bankruptcy cases have been whether the contaminated property can be abandoned, whether response costs are administrative expenses of the estate, and whether an estate is a "covered person." One court addressed all three of these issues in In re Peerless Plating Co.³⁵⁷ The Peerless court began by finding that the estate's potential CERCLA liability was a core issue that the bankruptcy court was empowered to decide.³⁵⁸ Applying the standard established in Midlantic National Bank v. New Jersey Department of Environmental Protection,³⁵⁹ the court denied the bankruptcy trustee's motion to abandon the contaminated property as burdensome to the estate.³⁶⁰ Since the property could not be abandoned, cleanup became a necessary cost of preserving the estate and was therefore recoverable as an administrative expense. Finally, the court held that the estate was the current owner of the property and therefore became strictly liable for paying the cleanup costs.³⁶¹

Defenses

Statutory Defenses

CERCLA provides for limited exceptions to liability in § 107(b).³⁶² Given the strict liability of CERCLA, they are affirmative defenses to strict liability only.³⁶³ Defenses based on an absence of negligence or on the use of due care are unavailable,³⁶⁴ though they may be used to apportion liability.³⁶⁵

The most frequently litigated statutory defense is the "third-party" defense to liability found in § 107(b)(3).³⁶⁶ Under this defense, a defendant carries the burden of demonstrating that a "totally unrelated third party is the sole cause of the release."³⁶⁷ This burden is as heavy as it appears. Where, for example, no evidence existed that linked a licensed disposer, with whom a defendant contracted for disposal, to the disposal site, the fact that defendant's waste was found at the site required him to prove that the licensed disposer did not dispose of his waste at that site.³⁶⁸ Even if a generator arranged to have the wastes disposed elsewhere, and a transporter diverted the wastes without authorization, the § 107(b)(3) defense is unavailable.³⁶⁹ The underlying theme to the third-party defense is, as the Fourth Circuit in United States v. Monsanto recently stated, a showing of "a complete absence of causation."³⁷⁰

A third party must be "other than one whose act or omission occurs in connection with a contractual relationship [19 ELR 10456] existing directly or indirectly, with the defendant."³⁷¹ A lease is such a "contractual relationship,"³⁷² as are deeds.³⁷³ Under § 107(b)(3), the defendant must also show by a preponderance of the evidence that he exercised "due care with respect to the hazardous substance concerned," and that he "took precautions against foreseeable acts or omissions of any such third party."³⁷⁴ In Monsanto, owners leased a site to a chemical manufacturer, but did not thereafter inspect the site; the court held that they failed to take "precautions against foreseeable acts."³⁷⁵ Similarly, the Second Circuit found "foreseeability" where a purchaser was aware of the tenants' dumping activities before closing on the sale of the property, and could expect that those activities would continue until they were evicted.³⁷⁶ Where an owner sold a fill containing hazardous substances, which were already present when the owner bought it, but did not warn the subsequent purchaser, he failed to meet the requirement of "due care."³⁷⁷ § 107(b)(3) also states that "an employee or agent of the defendant" is not a third party for the purposes of a defense.³⁷⁸ Nonetheless, in one case, the City of Philadelphia argued that because its employees accepted bribes for illegal disposal, they acted beyond the scope of their employment, and thus the City could not be held liable.³⁷⁹ The court rejected this application of the common law, stating that it was inconsistent with the legislative history, which indicated that "no connection" is necessary between defendant and the third party.³⁸⁰

In § 101(35), SARA added a provision that further defined the term "contractual relationship," and codified the innocent landowner defense.³⁸¹ Prior to SARA's enactment, at least one court had implied that a § 107(b)(3) defense was available to a purchaser of land on which hazardous substances were placed without his knowledge, who did not add to them, and who exercised due care with respect to them.³⁸² CERCLA now requires that the purchaser, to qualify for the defense, show that he "did not know and had no reason to know that any hazardous substance … was disposed of on, in, or at the facility."³⁸³ Perhaps because the requirements are so difficult to fulfill, there are few cases of "innocent purchasers." A recent decision concludes that, where a purchaser assumed the seller's obligations under a consent decree order to abate air and water pollution, these facts may imply that the purchaser "had reason to know" that hazardous substances were also disposed of at that site.³⁸⁴

Equitable Defenses

In general, equitable defenses are also available under CERCLA, especially where § 106 is concerned. United States v. Conservation Chemical³⁸⁵ is illustrative. The Conservation Chemical court held that § 106(a) incorporates traditional equitable defenses, which are proper in determining liability, the nature of the remedy, and the amount of damages.³⁸⁶ Reversing the order in which courts had applied § 107 liability to § 106, the Conservation Chemical court concluded that equitable defenses were also available in § 107 actions, characterizing cost recovery actions as, in essence, suits for equitable restitution.³⁸⁷ More recent decision reject equitable defenses for § 107 as being precluded by the exclusive affirmative defenses present in § 107(b), at least where liability is concerned.³⁸⁸

Prior to SARA, laches was held in a few instances to be applicable to § 107 cost recovery actions.³⁸⁹ In two recent cases in which the courts had previously declined to apply the statutes of limitations added by § 113(g) retroactively, the outcome was determined by whether the parties were public or private. Thus, one decision held that while laches was theoretically available, it was not a bar [19 ELR 10457] where the United States brought suit in its sovereign capacity.³⁹⁰ In the other decision, the court applied laches to a suit between private parties, but concluded that a "worst-case" of three years before filing suit was not barred by laches.³⁹¹

The equitable doctrines of waiver, unclean hands, and estoppel are not automatically barred from use against the United States,³⁹² though one recent decision held that the government may not be equitably estopped when exercising its sovereign powers unless there is a showing of compelling government misconduct.³⁹³ Another recent decision held that mere negligence on the part of a state is not enough to bar recovery under the doctrine of unclean hands.³⁹⁴ But, as between private responsible parties, the doctrine of unclean hands is potentially available.³⁹⁵ The Third Circuit recently expressed its opinion that the doctrine of unclean hands does not comport with CERCLA's purposes,³⁹⁶ and held that caveat emptor is not a defense to liability for contribution.³⁹⁷ And finally, a de minimis defense to liability is not available under CERCLA.³⁹⁸

1. 42 U.S.C §§ 9601-9675, ELR STAT. CERCLA 001-075.

2. Pub. L. No. 99-499, 100 Stat. 1613 (1986). See Atkeson et al., An Annotated Legislative History of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 16 ELR 10363 (Dec. 1986).

3. See infra notes 124-141 and accompanying text.

4. 42 U.S.C. § 9621, ELR Stat. CERCLA 051.

5. 42 U.S.C § 9620, ELR Stat. CERCLA 048.

6. For earlier analyses of CERCLA case law, see Comment, CERCLA Litigation Update: The Emerging Law of Generator Liability, 14 ELR 10224 (June 1984); Comment, CERCLA 1985: A Litigation Update, 15 ELR 10395 (Dec. 1985).

7. Missouri v. Independent Petrochemical Corp., 17 ELR 20958 (E.D. Mo. Dec. 15, 1986); U.S. CONST. art. I. In Pennsylvania v. Union Gas Co., 109 S. Ct. 2273, 19 ELR 20974 (June 13, 1989), the Supreme Court also characterizes CERCLA as founded under Congress' Commerce Power.

8. South Macomb Disposal Authority v. United States Environmental Protection Agency, 681 F. Supp. 1244, 18 ELR 20841 (E.D. Mich. 1988). The South Macomb court followed Lone Pine Steering Committee v. United States Environmental Protection Agency, 600 F. Supp. 1487, 15 ELR 20109 (D.N.J. 1985), aff'd, 777 F.2d 882, 16 ELR 20009 (3d Cir. 1985), cert. denied, 476 U.S. 1115 (1986). The South Macomb court concluded that the enactment of § 113(h) was intended to codify Lone Pine.

9. Lone Pine Steering Committee v. United States Environmental Protection Agency, 777 F.2d 882, 16 ELR 20009 (3d Cir. 1985), cert. denied, 476 U.S. 1115 (1986).

10. U.S. CONST. amend. V. Early decisions that found CERCLA liability retroactive include Jones v. Inmont Corp., 584 F. Supp. 1425, 14 ELR 20485 (S.D. Ohio 1984) and Ohio ex rel. Brown v. Georgeoff, 562 F. Supp. 1300, 13 ELR 20457 (N.D. Ohio 1983).

11. See United States v. Bliss, 108 F.R.D., 16 ELR 20368 (E.D. Mo. Nov. 1, 1985); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (rejecting "facial" attack on CERCLA, and finding "rational purposes" that do not violate due process); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985); United States v. Stringfellow, 14 ELR 20388 (C.D. Cal. Apr. 9, 1984).

The Stringfellow court stated that a legitimate question existed as to whether retroactive application violated the Contracts Clause, U.S. CONST. art. I, § 10, noting that the Ninth Circuit has interpreted the Fifth Amendment to include elements of the Contracts Clause in its application to federal legislation. The Conservation Chemical court summarily rejected the relevance of the Contracts Clause (it applies only to the states), the Ex Post Facto clause, U.S. CONST. art. I, § 9, cl. 3 (it applies only to criminal punishment), and the Equal Protection Clause, U.S. CONST. amend. XIV. In United States v. South Carolina Recycling and Disposal, Inc., 14 ELR 20272 (D.S.C. Feb. 23, 1984), the court rejected a Contracts Clause argument, both because it applied only to states, and because there could be no impairment of contract where a party had the right to seek indemnification from the other party to the contract. United States v. Dickerson, 640 F. Supp 448, 16 ELR 20970 (D. Md. 1986), also upheld retroactive application against both due process and "right to contract" claims (though it is not clear whether a "right to contract" is intended to suggest the Contracts Clause or an extension of the Due Process Clause).

12. 810 F.2d. 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 108 S. Ct. 146 (1987) (hereinafter cited as NEPACCO). The NEPACCO court also rejected an argument that retroactive liability violated the Takings Clause of the Fifth Amendment, refusing to find the property owner deprived of any property interest.

13. See United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 57 U.S.L.W. (June 12, 1989); United States v. Hooker Chemical Plastics Corp., 680 F. Supp. 546, 18 ELR 20580 (W.D.N.Y. 1988); O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988); United States v. Tyson, 17 ELR 20527 (E.D. Pa. Aug. 21, 1986); Missouri v. Syntex (U.S.A.), Inc., 17 ELR 21013 (E.D. Mo. Mar. 20, 1987) (citing NEPACCO); United States v. Bliss, 17 ELR 21217 (E.D. Mo. June 15, 1987) (citing NEPACCO); Wehner v. Syntex Corp., No. 83-642 C(2) (E.D. Mo. Apr. 13, 1988).

14. United States v. Miami Drum Services, Inc., 17 ELR 20539 (S.D. Fla. Dec. 12, 1986). See also United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984, 14 ELR 20272 (D.S.C. 1984), aff'd on other grounds sub. nom., United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988) (CERCLA not retroactive in the "constitutional sense"), cert. denied, 57 U.S.L.W. 3812 (June 12, 1989).

15. 605 F. Supp. 1064, 15 ELR 20337 (D. Colo. 1985). See also United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985) (citing Shell Oil). But see United States v. Wade, 14 ELR 20437 (E.D. Pa. Mar. 23, 1984) (finding liability for preenactment activity but not for preenactment response costs).

16. NEPACCO, 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 108 S. Ct. 146 (1987). See also United States v. Hooker Chemicals Plastics Corp., 680 F. Supp. 546, 18 ELR 20580 (W.D. N.Y. 1988); United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988).

17. See Aminoil, Inc. v. United States Environmental Protection Agency, 646 F. Supp. 294, 17 ELR 20377 (C.D. Cal. 1986); Wagner Seed Co. v. Daggett, 800 F.2d 310, 16 ELR 21001 (2d Cir. 1986); Wagner Electric Corp. v. Thomas, 612 F. Supp. 736, 15 ELR 20977 (D. Kan. 1985); United States v. Reilly Tar & Chemical Corp., 606 F. Supp. 412, 15 ELR 20348 (D. Minn. 1985). But see Aminoil, Inc. v. United States Environmental Protection Agency, 599 F. Supp. 69, 14 ELR 20801 (C.D. Cal. 1984) (earlier Aminoil ruling issued a preliminary injunction against imposing fines and penalties).

The subsequent Aminoil decision, 646 F. Supp. 294, 17 ELR 20377 (C.D. Cal. 1986) also rejected a claim that the threatened imposition of § 107(c)(3) treble damages violated plaintiff's First Amendment right to petition. The court noted that those rights were exercised by challenging the issues in court. Id.

18. CERCLA § 107(c)(3), 42 U.S.C. § 9607(c)(3), ELR STAT. CERCLA 025.

19. CERCLA § 106(b)(1), 42 U.S.C. § 9606(b)(1), ELR STAT. CERCLA 024. Under § 106(b)(2), added by SARA, a defendant may now comply with an administrative order and then seek reimbursement later from the Superfund. See Wagner Seed Co. v. Bush, 709 F. Supp. 249, 19 ELR 20950 (D.D.C. 1989) (holding that § 106(b)(2) does not apply if cleanup was already underway when SARA was enacted).

20. Wagner Seed Co. v. Daggett, 800 F.2d 310, 16 ELR 21001 (2d Cir. 1986).

21. Solid State Circuits, Inc. v. United States Environmental Protection Agency, 812 F.2d 383, 17 ELR 20453 (8th Cir. 1987). See also Comment, Preenforcement Review Under CERCLA: Potentially Responsible Parties Seek An Early Day in Court, 16 ELR 10093 (Apr. 1986).

22. In Chemical Waste Management, Inc. v. United States Environmental Protection Agency, 673 F. Supp. 1043, 18 ELR 20307 (D. Kan. 1987), the court concluded that the off-site policy contained in § 121(d)(3) and EPA guidance documents was so confusing as to likely be unconstitutionally vague and ambiguous in violation of the Due Process Clause. The court declined, however, to issue an injunction, urging instead that EPA and the corporation resolve the issues.

23. SCA Services of Indiana, Inc. v. Thomas, 634 F. Supp. 1355, 17 ELR 20129 (N.D. Ind. 1986). The constitutional attack was both facial and as applied. The court explicitly refused to rule on the context of a removal action, though presumably they would be more easily defended as emergency situations.

24. Id. Due process is also satisfied by a limited agency hearing prior to the assessment of cost against potentially responsible parties (PRPs). Lone Pine Steering, 777 F.2d 882, 16 ELR 20009. See also United States v. Rohm and Haas Co., 669 F. Supp. 672, 18 ELR 20221 (D.N.J. 1987). In Rohm and Haas, the court first held that the standard of review was the "arbitrary and capricious" standard mandated by SARA. But, since the administrative procedures present at the time the response action was developed fell short of the new requirements of SARA, defendants argued that due process at least demanded a de novo review. The court disagreed, stating that defendants were not "constitutionally entitled to the full, trial-type hearing" they sought.

25. SCA Services, 634 F. Supp. 1355, 17 ELR 20129. The National Contingency Plan (NCP) currently restricts remedial actions that are to be fund-financed to sites listed on the NPL. 40 C.F.R. § 300.68. The proposed revisions to the NCP also continue this restriction. See National Oil and Hazardous Substances Pollution Contingency Plan (proposed rule), 53 Fed. Reg. 51391, 51502 (1988).

26. Id.

27. U.S. CONST. art. I, § 9, cl. 3.

28. Id.

29. United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 57 U.S.L.W. 3812 (June 12, 1989); United States v. Tyson, 17 ELR 20527 (E.D. Pa. Aug. 21, 1986).

30. Hendler v. United States, 11 Cl. Ct. 9, 17 ELR 20678 (Cl. Ct. 1986).

31. Id.

32. Id. Hendler was decided within days of the enactment of SARA, which amended CERCLA to add § 104(j). That section precludes suits that would compel the government to acquire an interest in land.

33. U.S. CONST. art. VI.

34. Exxon Corp. v. Hunt, 475 U.S. 355, 16 ELR 20396 (1986). Those purposes included remedial costs for sites on the NPL, or for removal costs for sites that are eligible under the NCP for compensation from the Superfund. See Comment, CERCLA Reauthorization: The Wise Demise of § 114(c) and Exxon v. Hunt, 16 ELR 10286 (Oct. 1986).

35. See 135 CONG. REC. S14912 (daily ed. Oct. 3, 1986) (statement of Senator Lautenburg). The New Jersey Supreme Court on remand held that preemption ended October 27, 1986, the date of SARA's enactment. Exxon Corp. v. Hunt, 534 A.2d. 1, 18 ELR 20412 (N.J. 1987).

36. Missouri v. Independent Petrochemical Corp., 17 ELR 20958 (E.D. Mo. Dec. 15, 1986).

37. CERCLA § 114(a), 42 U.S.C. § 9614(a), ELR STAT. CERCLA 041.

38. See, e.g., New York v. United States, 620 F. Supp. 374, 16 ELR 20142 (E.D.N.Y. 1985) ("CERCLA does not preempt state laws.")

39. United States v. Seymour Recycling Corp., 686 F. Supp. 696, 19 ELR 20523 (S.D. Ind. 1988).

40. Id.

41. Electric Power Board of Chattanooga v. Monsanto Co., 17 ELR 20526 (E.D. Tenn. Dec. 5, 1986).

42. Artesian Water Co. v. Government of New Castle County, 605 F. Supp. 348, 15 ELR 20577 (D. Del. 1985). See CERCLA §§ 101(21), 107; 42 U.S.C. §§ 9601(21), 9607; ELR STAT. CERCLA 008, 024.

43. Ogden Environmental Services, Inc. v. City of San Diego, 692 F. Supp. 1222, 19 ELR 20012 (S.D. Cal. 1988). The court also held that injunctive relief against the implementation of the conditional use ordinance was appropriate.

44. 109 S. Ct. 2273, 19 ELR 20974 (June 13, 1989). The history of the case is somewhat convoluted, and is as follows: United States v. Union Gas Co., 575 F. Supp. 949, 14 ELR 20246 (E.D. Pa. 1983), aff'd, 792 F.2d 372, 16 ELR 20818 (3d Cir. 1986), vacated and remanded sub. nom., Union Gas Co. v. Pennsylvania, 107 S. Ct. 865 (1987), rev'd, 832 F.2d 1343, 18 ELR 20046 (3d Cir. 1987), aff'd, 109 S. Ct. 2273, 19 ELR 20974 (June 13, 1989); See also Wickland Oil Terminals v. Asarco, Inc., 654 F. Supp. 955, 17 ELR 20688 (N.D. Cal. 1987).

45. United States v. Union Gas Co., 832 F.2d 1343, 18 ELR 20046 (3d Cir. 1987). This aspect of the Third Circuit's opinion was not the subject of the Supreme Court's recent decision. See CERCLA § 310(a)(1), 42 U.S.C. § 9659(a)(1), ELR STAT. CERCLA 067, which provides for suits "to the extent permitted by the Eleventh Amendment to the Constitution."

46. 109 S. Ct. 2273, 19 ELR 20974 (June 13, 1989).

47. Id.

48. Id.

49. United States v. Freeman, 680 F. Supp. 73, 18 ELR 20832 (W.D.N.Y. 1988).

50. 109 S. Ct. 2273, 19 ELR 20974 (June 13, 1989).

51. Id.

52. The Emergency Planning and Community Right-to-Know Act of 1986, though passed as Title III of SARA, is an entirely independent statute. A.L. Laboratories, Inc. v. Environmental Protection Agency, 826 F.2d 1123, 17 ELR 21093 (D.C. Cir. 1987).

53. 11 U.S.C. § 362(a)(1), (b)(4).

54. Id.

55. United States v. Mattiace Industries, Inc., 73 Bankr. 816, 17 ELR 21004 (E.D.N.Y. 1987).

56. Id. See also United States v. Nicolet, Inc., 857 F.2d 202, 18 ELR 21411 (3d Cir. 1988).

57. 28 U.S.C. § 2680(a).

58. United States Fidelity & Guaranty Co. v. United States, 837 F.2d 116, 18 ELR 20612 (3d Cir.), cert. denied, 108 S. Ct. 2902 (1988) (quoting Dalehite v. United States, 346 U.S. 15 (1953)).

59. Id.

60. New York v. Shore Realty Corp., 648 F. Supp. 255, 17 ELR 20588 (E.D.N.Y. 1986).

61. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-050.

62. Colorado v. United States Department of the Army, 707 F. Supp. 1562, 19 ELR 20815 (D. Colo. 1989).

63. Id. The site at the time was proposed for listing on the NPL. It has subsequently been added to the NPL.

64. See CERCLA § 120(e), 42 U.S.C. § 9620(e), ELR STAT. CERCLA 049.

65. See CERCLA §§ 120(f) and 121(f), 42 U.S.C. §§ 9620(f) and 9621(f), ELR STAT. CERCLA 050 and 053.

66. CERCLA § 120(a)(4), 42 U.S.C. § 9620(a)(4), ELR STAT. CERCLA 048. For another view of the interaction between RCRA and SARA §§ 120 and 121, see McSlarrow, The Department of Defense Environmental Cleanup Program: Application of State Standards to Federal Facilities After SARA, 17 ELR 10120 (Apr. 1987).

67. Chemical Waste Management, Inc. v. Armstrong World Industries, 669 F. Supp. 1285, 18 ELR 20191 (E.D. Pa. 1987).

68. Id.

69. Id. (quoting CERCLA § 107(a)).

70. Mardan Corp. v. C.G.C. Music, Ltd., 600 F. Supp. 1049, 15 ELR 20370 (D. Ariz. 1984), aff'd, 804 F.2d 1454, 17 ELR 20209 (9th Cir. 1986). See CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B), ELR STAT. CERCLA 024.

71. Id.

72. 699 F. Supp. 827, 18 ELR 20360 (D. Idaho 1987).

73. Id.

74. 42 U.S.C. § 9607(f)(1), ELR STAT. CERCLA 026.

75. Idaho v. Hanna Mining Co., 699 F. Supp. 827, 18 ELR 20360 (D. Idaho 1987).

76. ID. See CERCLA § 107(j), 42 U.S.C. § 9607(j), ELR STAT. CERCLA 027.

77. See FWPCA § 402, 33 U.S.C. § 1342, ELR STAT. FWPCA 051.

78. The current version is now found at 50 Fed. Reg. 47912 (1985). Proposed revisions that respond to the enactment of SARA may be found at 53 Fed. Reg. 51391 (1988). Final regulations are expected to issued by February 1990. The proposed amendments are analyzed in detail in Freedman, Proposed Amendments to the National Contingency Plan: Explanation and Analysis, 19 ELR 10103 (Mar. 1988).

79. See infra notes 306-318 and accompanying text.

80. See N.L. Industries v. Kaplan, 792 F.2d 896, 16 ELR 20749 (9th Cir. 1986); Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 16 ELR 20754 (9th Cir. 1986); Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 19 ELR 20472 (E.D. Pa. 1988); Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987), aff'd on other grounds, 851 F.2d 643, 18 ELR 21012 (3d Cir. 1987).

81. NEPACCO, 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 108 S. Ct. 146 (1987) (interpreting the "not inconsistent with the NCP" language of § 107(a)(4)(A)).

82. United States v. Northernaire Plating Co., 685 F. Supp. 1410, 18 ELR 21338 (W.D. Mich. 1988).

83. Id.

84. See, e.g., SCA Services of Indiana, Inc. v. Thomas, 634 F. Supp. 1355, 17 ELR 20129 (N.D. Ind. 1986).

85. Ohio v. United States Environmental Protection Agency, 838 F.2d 1325, 18 ELR 20479 (D.C. Cir. 1988).

86. Id.

87. Eagle-Picher Industries v. United States Environmental Protection Agency, 759 F.2d 922, 15 ELR 20460 (D.C. Cir. 1985).

88. Id.

89. Id.

90. Eagle-Picher, 822 F.2d 132, 17 ELR 21108 (D.C. Cir. 1987).

91. City of Stoughton v. United States Environmental Protection Agency, 858 F.2d 747, 19 ELR 20054 (D.C. Cir. 1988).

92. Though disclaiming jurisdictional authority to issue an injunction, one district court found listing by the name of one set of owners not to be "arbitrary of capricious." D'Imperio v. United States, 575 F. Supp. 248, 14 ELR 20248 (D.N.J. 1983).

93. 822 F.2d 132, 17 ELR 21108 (D.C. Cir. 1987) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971)).

94. 5 U.S.C. § 706(2)(A), ELR STAT. ADMIN. PROC. 007.

95. Northside Sanitary Landfill, Inc. v. Thomas, 849 F.2d 1516, 18 ELR 21032 (D.C. Cir. 1988), cert. denied, 109 S. Ct. 1528 (1989).

96. Eagle-Picher, 759 F.2d 922, 15 ELR 20460 (D.C. Cir 1985) The Eagle-Picher court also held that EPA has the authority to list inactive uranium sites that are licensed by the states, though not by the Nuclear Regulatory Commission.

97. CERCLA § 104, 42 U.S.C. § 9604, ELR STAT. CERCLA 012.

98. See United States v. Hardage, 13 ELR 20188 (W.D. Okla. Sept. 29, 1982).

99. EPA need only have a "reasonable basis" for believing that a release or threatened release of hazardous substances exist. Dickerson v. Administrator, 834 F.2d 974, 18 ELR 20305 (11th Cir. 1987). "Hazardous substances" are also, unlike "pollutants and contaminants," the focus of the liability provisions found in § 107.

100. See United States v. A & F Materials, Inc., 582 F. Supp. 842, 14 ELR 20432 (S.D. Ill. 1984).

101. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 001-065.

102. United States v. Wade, 577 F. Supp. 1326, 14 ELR 20096 (E.D. Pa. 1983). See also United States v. Carolawn Co., 14 ELR 20696 (D.S.C. June 15, 1984).

103. United States v. Carolawn Co., 14 ELR 20696 (D.S.C. June 15, 1984).

104. Leaded gasoline is comprehended by the petroleum exclusion. Wilshire Westwood Associates v. Atlantic Richfield Corp., No. CV 87-2210-RMT (JRX) (C.D. Cal. Jan. 22, 1988).

105. Washington v. Time Oil Co., 687 F. Supp. 529, 18 ELR 21376 (W.D. Wash. 1988).

106. United States v. Metate Asbestos Corp., 584 F. Supp. 1143, 15 ELR 20467 (D. Ariz. 1984). The court cited the general exclusion provided to petroleum products under § 101(14) as evidence that Congress intended only a specific exclusion in § 101(14)(c) that did not preclude coverage under other criteria. See also United States v. Union Gas, 586 F. Supp. 1522, 14 ELR 20491 (E.D. Pa. 1984).

107. Eagle-Picher Industries, Inc. v. United States Environmental Protection Agency, 759 F.2d 922, 15 ELR 20467 (D.C. Cir. 1985). Accord United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985); Idaho v. Bunker Hill Co., 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986); Idaho v. Hanna Mining Co., 699 F. Supp. 827, 18 ELR 20360 (D. Idaho 1987); Atlantic States Legal Foundation, Inc. v. Tyson Foods, Inc., 682 F. Supp. 1186, 18 ELR 20924 (N.D. Ala. 1988).

108. Outboard Marine Corp. v. Thomas, 773 F.2d 883, 15 ELR 21094 (7th Cir. 1985), vacated, 479 U.S. 1002 (1986) (vacated in light of the enactment of SARA).

109. 42 U.S.C § 9604(e)(3)(D), ELR STAT. CERCLA 015.

110. B.F. Goodrich v. Murtha, 697 F. Supp. 89, 19 ELR 20357 (D. Conn. 1988); United States v. Charles George Trucking Co., 682 F. Supp. 1260, 18 ELR 20886 (D. Mass. 1988).

111. United States v. Charles George Trucking Co., 624 F. Supp. 1185, 16 ELR 20495 (D. Mass. 1986), aff'd, 823 F.2d 685, 17 ELR 21152 (1st Cir. 1987).

112. CERCLA § 104(e)(2)(c), 42 U.S.C. § 9604(e)(2)(c), ELR STAT. CERCLA 015.

113. United States v. Charles George Trucking, 682 F. Supp. 1260, 18 ELR 20886 (D. Mass. 1988); see CERCLA § 104(e)(5)(B), 42 U.S.C. § 9604(e)(5)(B), ELR STAT. CERCLA 015. The court in Charles George Trucking noted that Dickerson v. Administrator, 834 F.2d 974, 18 ELR 20305 (11th Cir. 1987) apparently assumed jurisdiction to issue an original court order without expressly addressing the question.

114. Dickerson v. Administrator, 834 F.2d 974, 18 ELR 20305 (11th Cir. 1987).

115. United States v. Northside Sanitary Landfill, Inc., 18 ELR 20850 (S.D. Ind. Apr. 12, 1988). The court held that its jurisdiction to compel compliance with an entry request did not run afoul of § 113(h), which precludes early review of the technical merits of a response decision.

116. Id. The court focused on whether continued operation of the landfill would delay the cleanup, and concluded that it would not.

117. Penalties are provided in § 104(e)(5).

118. United States v. Crown Roll Leaf, Inc., 19 ELR 20262 (D.N.J. Oct. 20, 1988). Where information requests are authorized by both CERCLA and RCRA, failure to respond can subject a defendant to RCRA's civil penalties. See United States v. Charles George Trucking Co., 642 F. Supp. 329, 17 ELR 20085 (D. Mass. 1986).

119. United States v. Charles George Trucking Co., 682 F. Supp. 1260, 18 ELR 20886 (D. Mass. 1988). The standard for adjacent, as with source, property is a "reasonable belief." Id.

120. B.F. Goodrich v. Murtha, 697 F. Supp. 89, 19 ELR 20357 (D. Conn. 1988). The court rejected arguments that only § 104(e) authorizes access, which would limit access to government representatives, interpreting § 106(a) broadly to also include access by private parties.

121. 28 U.S.C. § 1491.

122. United States v. Charles George Trucking Co., 682 F. Supp. 1260, 18 ELR 20886 (D. Mass. 1988).

123. United States v. Fisher, 864 F.2d 434, 19 ELR 20233 (7th Cir. 1988).

124. See United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988); United States v. Miami Drum Services, Inc., 17 ELR 20539 (S.D. Fla. Dec. 12, 1986); United States v. Medley, 17 ELR 20299 (D.S.C. July 1, 1986); United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985).

125. United States v. Vineland Chemical Co., 692 F. Supp. 415, 19 ELR 20160 (D.N.J. 1988).

126. Id. However, the context of the judicial review provision suggests that it was intended to address only the initial decision to enter into a settlement under § 122. See § 122(c)(1), for example, which contemplates judicial review on covenants not to sue in consent decrees entered into under § 122.

127. 42 U.S.C. § 9613(h), ELR STAT. CERCLA 040. In Thompson v. Thomas, 680 F. Supp. 1, 18 ELR 20802 (D.D.C. 1987), the court dismissed a citizen's suit, noting that § 310(e) requires 60 days notice before commencement of the action, and that under § 310(a)(2) the suit can only apply to mandatory duties imposed by CERCLA on the EPA Administrator or any other officer of the United States government.

128. 5 U.S.C. § 704, ELR STAT. ADMIN. PROC. 007.

129. J.V. Peters & Co. v. Administrator, 767 F.2d 263, 15 ELR 20646 (6th Cir. 1985) (citing Lone Pine Steering Committee v. United States Environmental Protection Agency, 600 F. Supp. 1487, 15 ELR 20109 (D.N.J. 1985) and Aminoil, Inc. v. United States Environmental Protection Agency, 599 F. Supp. 69, 14 ELR 20801 (C.D. Cal. 1984)). See also Wheaton Industries v. United States Environmental Protection Agency, 781 F.2d 354, 16 ELR 20260 (3d Cir. 1986) (EPA's refusal to allow PRP to perform and control the RI/FS not subject to review); and United States v. United Nuclear Corp. 610 F. Supp. 527, 15 ELR 20442 (D.N.M. 1985) (response actions prior to a ROD are not final agency action, and thus not reviewable).

130. Lone Pine Steering Committee v. United States Environmental Protection Agency, 777 F.2d 882, 16 ELR 20009 (3d Cir. 1985) (where EPA rejects PRP's work plans and substitutes its own, that decision not reviewable until § 107 action), cert. denied, 476 U.S. 1115 (1986).

131. B.R. MacKay & Sons, Inc. v. United States, 633 F. Supp. 1290, 16 ELR 20842 (D. Utah 1986); APA § 701(a)(2), ELR STAT. ADMIN. PROC. 007. The MacKay court rejected judicial review where a party sought a declaratory judgment on liability after the government had completed cleanup but had not yet instituted a cost recovery action. See also Jefferson County, Missouri v. United States, 644 F. Supp. 178, 17 ELR 20122 (E.D. Mo. 1986) (holding that the court did not have subject matter jurisdiction to review an on-site removal action).

132. Dickerson v. Administrator,834 F.2d 974, 18 ELR 20305 (11th Cir. 1987); Schalk v. Thomas, 19 ELR 20381 (S.D. Ind. Dec. 6, 1988); Frey v. Thomas, 19 ELR 20383 (S.D. Ind. Dec. 6, 1988).

133. United States v. Charles George Trucking Co., 682 F. Supp. 1260, 18 ELR 20886 (D. Mass. 1988).

134. Id.

135. O'Leary v. Moyer's Landfill, Inc., 677 F. Supp. 807, 18 ELR 21257 (E.D. Pa. 1988).

136. CERCLA § 310, 42 U.S.C. § 9659, ELR STAT. CERCLA 067.

137. 42 U.S.C. § 9613(h)(4), ELR STAT. CERCLA 040.

138. Cabot Corp. v. United States Environmental Protection Agency, 677 F. Supp. 823, 18 ELR 20835 (E.D. Pa. 1988).

139. Schalk v. Thomas, 19 ELR 20381 (S.D. Ind. Dec. 6, 1988), Frey v. Thomas, 19 ELR 20383 (S.D. Ind. Dec. 6, 1988).

140. Id. See NEPA § 102(c), 42 U.S.C. § 4332(c), ELR STAT. NEPA 003.

141. Schalk, 19 ELR at 20381; Frey, 19 ELR at 20383.

142. CERCLA § 106(a), 42 U.S.C. § 9606(a), ELR STAT. CERCLA 024.

143. See id., which grants district courts jurisdiction "to grant such relief as the public interest and the equities of the case may require."

144. B.F. Goodrich v. Murtha, 697 F. Supp. 89, 19 ELR 20357 (D. Conn. 1988).

145. United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (emphasis in original).

146. B.F. Goodrich v. Murtha, 697 F. Supp. 89, 19 ELR 20357 (D. Conn. 1988).

147. United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985); see CERCLA § 106(a), 42 U.S.C. § 9606(a), ELR STAT. CERCLA 024.

148. Id. (quoting City of El Paso v. Reynolds, 597 F. Supp. 694 (D.N.M. 1984)).

149. Id.; see also Pollution Control Industries of America, Inc. v. Reilly, No. 89C 4036 (N.D. Ill. June 26, 1989) (holding that § 106 is broad enough to authorize EPA to issue an order disapproving a contractor for removal activities).

150. See T&E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988); Cadillac Fairview/California, Inc. v. Dow Chemical Co., 14 ELR 20376 (C.D. Cal. Mar. 5, 1984), aff'd, 840 F.2d 691, 18 ELR 20470 (9th Cir. 1988); Velsicol Chemical Corp. v. Reilly Tar & Chemical Corp., 15 ELR 20103 (E.D. Tenn. Aug. 16, 1984); United States v. Westinghouse Electric Corp., 14 ELR 20483 (S.D. Ind. June 29, 1983).

151. CERCLA § 106, 42 U.S.C. § 9606, ELR STAT. CERCLA 024.

152. NEPACCO, 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984), aff'd on other grounds, 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 108 S. Ct. 146 (1987); United States v. A&F Materials Co., 582 F. Supp. 842, 14 ELR 20432 (S.D. Ill. 1984); but see United States v. Wade, 546 F. Supp. 785, 12 ELR 21051 (E.D. Pa. 1982) (finding that § 106(a) does not apply to inactive sites).

153. Wagner Electric Corp. v. Thomas, 612 F. Supp. 736, 15 ELR 20977 (D.Kan. 1985).

154. United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

155. United States v. Stringfellow, 14 ELR 20385 (C.D. Cal. Apr. 5, 1984).

156. United States v. Hardage, 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985); NEPACCO, 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984), aff'd on other grounds, 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 108 S. Ct. 146 (1987); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985); Cadillac Fairview/California, Inc. v. Dow Chemical Co., 14 ELR 20376 (C.D. Cal. Mar. 5, 1984); United States v. A&F Materials Co., 582 F. Supp. 842, 14 ELR 20432 (S.D. Ill. 1984); United States v. Price, 577 F. Supp. 1103, 13 ELR 20843 (D.N.J. 1983); United States v. Outboard Marine Corp., 556 F. Supp. 54, 12 ELR 21153 (N.D. Ill. 1982); United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 12 ELR 20954 (D. Minn. 1982).

157. See United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985); NEPACCO, 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984), Aff'd on other grounds, 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 108 S. Ct. 146 (1987); United States v. Price, 577 F. Supp. 1103, 13 ELR 20843 (D.N.J. 1983); United States v. Outboard Marine Corp., 556 F. Supp. 54, 12 ELR 21153 (N.D. Ill. 1982); United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 12 ELR 20954 (D. Minn. 1982). But see United States v. Wade, 546 F. Supp. 785, 12 ELR 21051 (E.D. Pa. 1982) (concluding that § 106 focuses on current situations, and thus does not confer liability on past generators).

158. See United States v. Hardage, 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985); NEPACCO, 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984), aff'd on other grounds, 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert denied, 108 S. Ct. 146 (1987); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985); But see United States v. Stringfellow, 14 ELR 20385 (C.D. Cal. Apr. 5, 1984).

159. See United States v. Hardage, 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

160. United States v. Westinghouse Electric Corp., 14 ELR 20483 (S.D. Ind. June 29, 1983).

161. See Wagner Seed Co. v. Daggett, 800 F.2d 310, 16 ELR 21001 (2d Cir. 1986); Barnes v. United States District Court for the Western District of Washington, 800 F.2d 822, 16 ELR 21004 (9th Cir. 1986); Wagner Electric Corp. v. Thomas, 612 F. Supp. 736, 15 ELR 20977 (D. Kan. 1985); Earthline Co. v. Kin-Buc, Inc., 15 ELR 20315 (D.N.J. Apr. 13, 1984); Aminoil, Inc. v. United States Environmental Protection Agency, 599 F. Supp. 69, 14 ELR 20801 (C.D. Cal. 1984). In Wagner Seed, the court refused jurisdiction, despite plaintiff's claim that the release was caused by a lightening bolt; and thus it had an absolute defense under § 107(b)(1). See Comment, supra note 21.

162. Lone Pine Steering Committee v. United States Environmental Protection Agency, 600 F. Supp. 1487, 15 ELR 20109 (D.N.J. 1985), aff'd, 777 F.2d 882, 16 ELR 20009 (3d Cir. 1985), cert. denied, 476 U.S. 1115 (1986).

163. Fishel v. Westinghouse Electric Corp., 617 F. Supp. 1531, 16 ELR 20001 (M.D. Pa. 1985).

164. See Solid State Circuits, Inc. v. United States Environmental Protection Agency, 812 F.2d 383, 17 ELR 20453 (8th Cir. 1987). See also United States v. Hardage, 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987) (rejecting review under the APA).

165. 42 U.S.C. § 113(h)(2), ELR STAT. CERCLA 040.

166. 42 U.S.C. § 113(h)(3), ELR STAT. CERCLA 040.

167. 42 U.S.C. § 113(h)(5), ELR STAT. CERCLA 040.

168. 42 U.S.C. § 113(h)(4), ELR STAT. CERCLA 040.

169. 42 U.S.C. § 113(a), ELR STAT. CERCLA 038. Thus, in United States v. Ottati & Goss, Inc., 18 ELR 20773 (D.N.H. 1988), the court refused, based on § 113(a), to review an EPA decision to list two sites as a single NPL listing. The court's decision may also have been based on the fact that review was not sought within ninety days of the promulgation of the regulation in question, a requirement also found in § 113(a).

170. CERCLA § 113(b), 42 U.S.C. § 9613(b), ELR STAT. CERCLA 038. See T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988).

171. SCA Services of Indiana, Inc. v. Thomas, 634 F. Supp. 1355, 17 ELR 20129 (N.D. Ind. 1986); D'Imperio v. United States, 575 F. Supp. 248, 14 ELR 20248 (D.N.J. 1983); Tinkham v. Reagan, 13 ELR 20553 (D.N.H. Apr. 14, 1983).

172. SCA Services of Indiana, Inc. v. Thomas, 634 F. Supp. 1355, 17 ELR 20129 (N.D. Ind. 1986).

173. Id.

174. See, e.g., United States v. Consolidated Rail Corp., 674 F. Supp. 138, 18 ELR 20405 (D. Del. 1987); In Re Acushnet River and New Bedford Harbor: Proceedings re Alleged PCB Pollution, 675 F. Supp. 22, 18 ELR 20543 (D. Mass. 1987).

175. See United States v. Consolidated Rail Corp., 674 F. Supp. 138, 18 ELR 20405 (D. Del. 1987) (citing Violet v. Picillo, 613 F. Supp. 1563, 16 ELR 20331 (D.R.I. 1985); and Wehner v. Syntex Agribusiness, 616 F. Supp. 27, 15 ELR 20346 (E.D. Mo. 1985)); Missouri v. Bliss, 16 ELR 20361 (E.D. Mo. Dec. 16, 1985).

176. Compare In Re Acushnet River, 675 F. Supp. at 22, 18 ELR at 20543 (§ 106 does not impliedly authorize nationwide service of process) with United States v. Bliss, 108 F.R.D. 127, 16 ELR 20368 (E.D. Mo. 1985).

177. See United States v. Consolidated Rail Corp., 674 F. Supp. 138, 18 ELR 20405 (D. Del. 1987); Missouri v. Bliss, 16 ELR 20361 (E.D. Mo. Dec. 16, 1985).

178. In Re Acushnet River, 675 F. Supp. at 22, 18 ELR at 20543 (listing seven factors to be considered as federal common law).

179. U.S. CONST. amend. XIV.

180. United States v. Consolidated Rail Corp., 674 F. Supp. 138, 18 ELR 20405 (D. Del. 1987) (citing Helicopters Nacionales de Columbia v. Hall, 466 U.S. 408 (1984)).

181. See United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985), which attaches jurisdictional "significance" to the exercise of general jurisdiction. For an example of an exercise of specific jurisdiction, see Violet v. Picillo, 613 F. Supp. 1563, 16 ELR 20331 (D.R.I. 1985).

182. Id.; Accord O'Neill v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988). These cases follow the "foreseeability" requirement of World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980).

183. United States v. Northeastern Pharmaceutical and Chemical Co., 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 108 S. Ct. 146 (1987).

184. Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448, 17 ELR 20737 (9th Cir. 1987) (citing NEPACCO as supporting the use of FED. R. CIV. P. 17(b) and state law to determine a corporation's capacity to be sued in a CERCLA action).

185. 681 F. Supp. 1492, 18 ELR 20242 (D. Utah 1987).

186. Id. The Sharon Steel court began its analysis by observing that Congress has "plenary power to supersede any of the Federal Rules of Civil Procedure by statute," citing United States v. Gustin-Bacon Division, Certain-Teed Products Corp., 426 F.2d 539 (10th Cir.), cert. denied, 400 U.S. 832 (1970). The court then found that CERCLA liability will attach notwithstanding any other provision of law, and joined the courts that have given CERCLA the broadest reach to effect the goals of the Congress. The court therefore held that a state law that limits CERCLA liability will be preempted.

187. See § 113(g). Prior to SARA, there was no applicable statute of limitations with regard to § 107 cost-recovery actions. See, e.g., United States v. Mottolo, 605 F. Supp. 898, 15 ELR 20444 (D.N.H. 1985).

188. United States v. Moore, 698 F. Supp. 622, 18 ELR 21272 (E.D. Va. 1988). See also Merry v. Westinghouse Electronic Corp., 684 F. Supp. 852, 18 ELR 21220 (M.D. Pa. 1988).

189. 42 U.S.C. § 9613(g)(2)(A), ELR STAT. CERCLA 039.

190. T&E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988).

191. Missouri v. Syntex (U.S.A.), Inc., 17 ELR 21013 (E.D. Mo. Mar. 20, 1987).

192. United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (citing New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984). Accord In Re Acushnet River, 675 F. Supp. at 22, 18 ELR at 20543; United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986); Idaho v. Bunker Hill Co., 634 F. Supp. 800, 16 ELR 20715 (D. Idaho 1986).

193. Idaho v. Howmet Turbine Component Co., 814 F.2d 1376, 17 ELR 20659 (9th Cir. 1987); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 17 ELR 20223 (1st Cir. 1986).

194. 42 U.S.C. § 9613(j)(1), ELR STAT. CERCLA 040.

195. 42 U.S.C. § 9613(j)(2), ELR STAT. CERCLA 040.

196. 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987). This ruling denied a motion to reconsider an earlier ruling that held that "claims for injunctive relief pursuant to § 106 are not based on the administrative record," and therefore a de novo review of the remedy decision was appropriate. United States v. Hardage, 17 ELR 20242 (W.D. Okla. Dec. 11, 1986). The earlier ruling also found the APA inapplicable because the court found the administrative process to be "informal adjudication." Id. The second ruling was reaffirmed once again at 19 ELR 20254 (W.D. Okla. 1988).

197. United States v. Hardage, 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987).

198. Id.

199. Id. The court stated that pre-SARA case law established that § 106 claims should be resolved after full discovery and trial on remedy issue. But, in this case, the court noted, EPA had not yet certified the administrative record to the court.

200. See United States v. Hardage, 19 ELR 20254 (W.D. Okla. Sept. 9, 1988): "This court finds as a matter of law that § 106 claims must be resolved in traditional trials by federaldistrict courts after full discovery, and that retroactive application of § 113(j) of SARA is improper." (emphasis added).

201. United States v. Nicolet, Inc., 17 ELR 21091 (E.D. Pa. May 12, 1987) (citing Bradley v. Richmond School Board, 416 U.S. 696 (1974)); United States v. Rohm and Haas Co., 669 F. Supp. 672, 18 ELR 20221 (D.N.J. 1987) (specifically rejecting the reasoning of United States v. Hardage, 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987)); United States v. Seymour Recycling Corp., 679 F. Supp. 859, 18 ELR 20245 (S.D. Ind. 1987). In Seymour, the remedy decision was made after SARA's enactment. But see United States v. Ottati & Goss, Inc., 18 ELR 20773 (D.N.H. Mar. 17, 1988), which, though in general agreement with the decisions above, decided to apply the same standard of review it had applied in the liability phase of the trial before SARA to the remaining damages phase. It therefore did not limit its findings to the administrative record. ID.

202. 42 U.S.C. § 9613(k)(2)(c), ELR STAT. CERCLA 040.

203. United States v. Rohm and Haas Co., 669 F. Supp. 672, 18 ELR 20221 (D.N.J. 1987).

204. Id. See CERCLA § 113(k)(2)(c), 42 U.S.C. § 9613(k)(2)(c), ELR STAT. CERCLA 040.

205. See, e.G., CERCLA § 113(k)(2)(B)(i), 42 U.S.C. § 9613(k)(2)(B)(i), ELR STAT. CERCLA 040 (requiring a proposed remedy to be accompanied by a "brief analysis of the plan") and CERCLA §§ 117(a)(2) and 113(k)(2)(B)(ii), 42 U.S.C. §§ 9617(a)(2) and 9613(k)(2)(B)(ii), ELR STAT. CERCLA 042 and 040 (providing for on a "reasonable opportunity to comment").

206. United States v. Rohm and Haas Co., 669 F. Supp. 672, 18 ELR 20221 (D.N.J. 1987).

207. United States v. Seymour Recycling Corp., 679 F. Supp. 859, 18 ELR 20245 (S.D. Ind. 1987). The Seymour court distinguished Hardage, stating that in Hardage the defendants were not given an opportunity to comment on the government's RI/FS data.

208. United States v. Nicolet, Inc., 17 ELR 21091 (E.D. Pa. May 12, 1987) (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971)).

209. Id. (citing Camp v. Pitts, 411 U.S. 138 (1973)). Accord United States v. Seymour Recycling Corp., 679 F. Supp. 859, 18 ELR 20245 (S.D. Ind. 1987).

210. United States v. Seymour Recycling Corp., 679 F. Supp. 859, 18 ELR 20245 (S.D. Ind. 1987).

211. United States v. Nicolet, Inc., 17 ELR 21091 (E.D. Pa. May 12, 1987).

212. See Missouri v. Independent Petrochemical Corp., 17 ELR 20241 (E.D. Mo. Oct. 16, 1986) in which the court stated that the "forced joinder of the United States to litigate issues arising from its actions under CERCLA is in essence a preenforcement review of agency action precluded by CERCLA and therefore not within the APA's waiver of sovereign immunity. Since no waiver exists, the Court is without jurisdiction to force the joinder of the United States." Id., cited with approval in New Jersey Department of Environmental Protection v. Gloucester Environmental Management Services, Inc., 668 F. Supp. 404, 18 ELR 20112 (D.N.J. 1987). The Gloucester court found no distinction between the involuntary joinder of EPA as a plaintiff as opposed to a defendant, and held that sovereign immunity prevented the joinder of EPA to this action. See also In re Hemingway Transport, Inc., 70 Bankr. 549, 17 ELR 20709 (Bankr. D. Mass. 1987) (holding that sovereign immunity prevented the involuntary joinder of EPA).

213. United States v. Bliss, 17 ELR 21217 (E.D. Mo. June 15, 1987). The Bliss court found that the standard established under FED. R. CIV. P. 19(a)(2)(ii) for determining whether a party was indispensable required the court to decide if failure to join the state would subject the defendant to "a substantial risk of incurring double, multiple, or otherwise inconsistent obligations." FED. R. CIV. P. 19(a)(2)(ii). The court determined that the United States had not attempted to recover response costs that had been incurred by the state and therefore held that the trial could proceed without the state since the defendant did not face a risk of incurring multiple obligations.

214. 677 F. Supp. 807, 18 ELR 21257 (E.D. Penn. 1988).

215. Id.

216. See New York v. Johnstown, 701 F. Supp. 33, 19 ELR 20578 (N.D.N.Y. 1988) (allowing a defensive compulsory counterclaim under FED. R. CIV. P. 13(a) against a state arising from the same transaction as the state's suit); United States v. Moore, 703 F. Supp. 455, 18 ELR 21274 (E.D. Va. 1988) (allowing counterclaims for recoupment and denying counterclaims for tortious injury); United States v. Nicolet, Inc., 17 ELR 21088 (E.D. Pa. Mar. 19, 1987) (allowing counterclaims for recoupment and denying counterclaims for tortious injury as barred by the discretionary function exception to the Federal Tort Claims Act); United States v. Mottolo, 605 F. Supp. 898, 15 ELR 20444 (D.N.H. 1985) (allowing a defensive counterclaim against a state to offset extra costs incurred because of the state's inadequate supervision of cleanup operations).

217. 703 F. Supp. 455, 18 ELR 21274 (E.D. Va. 1988).

218. Missouri v. Independent Petrochemical Corp., 610 F. Supp. 4, 16 ELR 20352 (E.D. Mo. 1986).

219. 107 S. Ct. 831, 17 ELR 20667 (1987). See also Slavitt, Jury Trial Rights Under CERCLA: The Effects of Tull v. United States, 18 ELR 10127 (Apr. 1988).

220. United States v. Northeastern Pharmaceutical and Chemical Co., 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 108 S. Ct. 146 (1987), cited with approval in United States v. Northernaire Plating Co., 685 F. Supp. 1410, 18 ELR 21338 (W.D. Mich. 1988); Wehner v. Syntex Corp., 682 F. Supp. 39, 17 ELR 21218 (N.D. Cal. 1987). Even before the Supreme Court's Tull decision, courts had held that jury trials were not required by the Seventh Amendment in response cost recovery actions because they were equitable in nature. United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986).

221. See In re Acushnet River & New Bedford Harbor, 712 F. Supp. 994, 19 ELR 21198 (D. Mass. 1989), in which the court held that some measures of natural resource damages "are precisely the type a common law court award." Id. The court specified that "claims for the value of the natural resources that are forever lost, the value of the lost use of such resources over time, and the costs of assessing how much is lost forever or how much lost use there has been over time ('natural resource damages') present legal issues that must be tried to jury." Natural resource damages may also be measured in terms of restoration costs. See infra notes 338-347 and accompanying text. One may expect that courts will find restoration costs closer to response costs and therefore restitutional, resulting in no Seventh Amendment guarantee to a jury trial.

222. 770 F.2d 103, 15 ELR 20774 (8th Cir. 1985) (per curiam).

223. 352 U.S. 249 (1957).

224. 816 F.2d 1083, 17 ELR 20663 (6th Cir. 1987).

225. Id. The district court had cited five exceptional conditions that, in combination, warranted reference to the special master: (1) calendar congestion; (2) complexity of the issues; (3) likelihood of a lengthy trial; (4) difficulty in managing a case with 250 parties; and (5) public interest in reaching a speedy resolution of CERCLA cases. The In re United States court found that the first three conditions had been rejected by the Supreme Court in La Buy. The last condition was a restatement of calendar congestion, and the number of parties alone would not justify a reference.

226. Id. (citing 9 C. WRIGHT AND A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2605 (1971) (observing that the "use of a special master to supervise discovery may still be appropriate and useful in unusual cases.")).

227. Federal and state parties enjoy a rebuttable presumption that their response costs are "not inconsistent" with the NCP. All other parties have the burden of proving through a preponderance of the evidence that their response costs are "consistent" with the NCP. See supra notes 35-36 and accompanying text. Additionally, private plaintiffs must show that their response costs were necessary. See supra note 31 and accompanying text.

228. See infra notes 283-287 and accompanying text.

229. See infra notes 251-282 and accompanying text.

230. Chemical Waste Management, Inc. v. Armstrong World Industries, 669 F. Supp. 1285, 18 ELR 20191 (E.D. Pa. 1988) (divining goals of CERCLA by reviewing the statute and legislative history).

231. United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 12 ELR 20954 (D. Minn. 1982) (reasoning that CERCLA should not be read in a manner that frustrates the recovery of cleanup costs), cited in Pinole Point Properties v. Bethlehem Steel Corp., 596 F. Supp. 283, 15 ELR 20173 (N.D. Cal. 1984).

232. If the "release or threatened release" has the sanction of a federal permit, such as a National Pollution Discharge Elimination System point source permit under the Federal Water Pollution Control Act, then CERCLA § 107(j) bars the use of CERCLA to seek recovery for costs or damages. However, plaintiffs may seek recovery for their response costs or damages under any other applicable federal or state law, 42 U.S.C. § 9607(j), ELR STAT. CERCLA 027 (stating: "Recovery by any person (including the United States or any State or Indian tribe) for response costs or damages resulting from a federally permitted release shall be pursuant to existing law in lieu of [CERCLA] Section 107."), construed in Idaho v. Hanna Mining Co., 699 F. Supp. 827, 18 ELR 20360 (D. Idaho 1987).

233. For a discussion of whether consistency with the NCP is a part of the prima facie case under CERCLA, see infra notes 319-321 and accompanying text.

234. See generally United States v. Moore, 703 F. Supp. 455, 18 ELR 21274 (E.D. Va. 1988) (federal cost-recovery action); United States v. Serafini, 706 F. Supp. 346, 19 ELR 20828 (M.D. Pa. 1988) (federal cost-recovery action); New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20714 (N.D.N.Y. 1984) (state cost-recovery action); T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988) (private cost-recovery action); and Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987) (private cost-recovery action).

235. Compare CERCLA § 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A), ELR STAT. CERCLA 024, which states that liable defendants must pay "all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the [NCP]" (emphasis added), with CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B), ELR STAT. CERCLA 024, which states that liable defendants must pay "any other necessary costs of response incurred by any other person consistent with the [NCP]" (emphasis added). The Eighth Circuit in NEPACCO found that, based on this distinction, the government was entitled to a presumption that its costs were consistent with the NCP, while private plaintiffs had the burden of demonstrating consistency with the NCP. 810 F.2d at 726, 17 ELR at 20603. See also Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987) (holding that a private party has the burden of showing that its costs were consistent with the NCP).

236. For a discussion of what constitutes a "hazardous substance," see supra notes 100-107 and accompanying text.

237. 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

238. Id.

239. See Tanglewood East Homeowners v. Charles-Thomas Inc., 849 F.2d 1568, 18 ELR 21348 (5th Cir. 1988) (finding that a subdivision that contained hazardous substances in the soils constituted a "facility"); United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (finding that stables and roads where hazardous substances were sprayed to suppress dust constituted a "facility"; also finding that a defendant's spray trucks were "facilities under the broad definition of that term"); United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985) (finding that roadbeds sprayed with hazardous substances constituted a "facility"); New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984) (finding a dragstrip where hazardous substances released a "facility"); United States v. Metate Asbestos Corp., 584 F. Supp. 1143, 14 ELR 20433 (D. Ariz. 1984) (finding a trailer park where hazardous substances came to be placed a "facility"). Interestingly, the court in Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987) found that under the definition of "facility" found in CERCLA § 101(9)(A), a landfill was a " 'facility' regardless of whether hazardous substances were disposed of there."

240. New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (finding that leaking storage tanks and pipelines, leaching from past spills and leaking storage drums constitute a "release"); Washington v. Time Oil Co., 687 F. Supp. 529, 18 ELR 21376 (W.D. Wash. 1988) (finding that the "release" element of the prima facie case is satisfied when hazardous substances are found in soil and groundwater samples at a facility); United States v. Northernaire Plating Co., 670 F. Supp. 742, 18 ELR 20712 (W.D. Mich. 1987) (finding a "release" when hazardous substances are found in soils); United States v. Tyson, 17 ELR 20527 (E.D. Pa. Aug. 21, 1986) (dumping of hazardous substances into an unlined lagoon that leached into soils and groundwater constituted a "release"); Colorado v. Asarco, Inc., 616 F. Supp. 822, 16 ELR 20561 (D. Colo. 1985) (finding a "release" when hazardous substances leached from a lagoon into groundwater and surface water runoff swept hazardous substances out of the lagoon).

241. United States v. Metate Asbestos Corp., 584 F. Supp. 1143, 14 ELR 20433 (D. Ariz. 1984) (asbestos tailings in a waste pile seen blowing around by a light wind).

242. United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (finding a "release" when wastes containing hazardous substances sprayed in stables and along a road to suppress dust); United States v. Ward, 618 F. Supp. 884; 16 ELR 20127 (E.D.N.C. 1985) (finding a "release" when wastes containing hazardous substances sprayed along road beds to suppress dust); New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984) (spraying of oil contaminated with PCBs, a hazardous substance, to suppress dust at a dragstrip constituted a "release").

243. United States v. Medley, 17 ELR 20297 (D.S.C. Nov. 4, 1986) (finding that emission from storage drums of volatile organics into the ambient air constituted a "release").

244. BCW Associates, Ltd. v. Occidental Chemical Corp., Civ. No. 86-5947 (E.D. Pa. Sept 30, 1988); Vermont v. Staco, Inc., 684 F. Supp. 822, 18 ELR 20589 (D. Vt. 1988) (finding that a hazardous substance, mercury, was carried out of a manufacturing plant on the clothes and bodies of workers and was then released into plumbing and sewer systems).

245. New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (finding "threatened release" when hazardous substances were stored in corroding drums and tanks); O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988) (construing "threatened release" as including storage drums with minute, pinprick leaks which have not yet, but in the near future could, result in a release).

246. New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (finding a "threatened release" when defendant lacked training and expertise in storing hazardous substances and did not have a license to operate a hazardous waste disposal facility); United States v. Northernaire Plating Co., 670 F. Supp. 742, 18 ELR 20712 (W.D. Mich. 1987) (finding a "threatened release" when hazardous wastes were found at a facility and no one would assume responsibility for properly storing and safeguarding the wastes).

247. Velsicol Chemical Corp. v. Reilly Tar & Chemical Corp., 15 ELR 20103 (E.D. Tenn. Aug. 16, 1984) (finding a "threatened release" when defendant stored hazardous substances in a manner that "may reasonably be anticipated to pose a threat to the environment"). See also United States v. Metate Asbestos Corp., 584 F. Supp. 1143, 14 ELR 20433 (D. Ariz. 1984) (observing that the possibility of asbestos tailing being blown about by the wind constituted a "threatened release").

248. United States v. Northside Sanitary Landfill, Inc., 18 ELR 20850 (S.D. Ind. Apr. 12, 1988) (finding that the standard is "not whether there will be environmental harm, but is whether there may be a threat of harm from the release." (emphasis in original)).

249. 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986).

250. See O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988) (interpreting the same cases as the NEPACCO court and concluding that CERCLA imposes liability for preenactment "releases"); United States v. South Carolina Recycling & Disposal, Inc., 653 F. Supp. 984, 14 ELR 20272 (D.S.C. 1984) (finding that CERCLA does not need to impose liability on past conduct because it imposes liability for present or future releases that are the result of the past conduct), aff'd sub nom., United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 57 U.S.L.W. 3812 (June 12, 1989).

251. For general discussions of owner/operator liability, see United States v. Northeastern Pharmaceutical and Chemical Co., 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 108 S. Ct. __(1987); New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985); and City of Philadelphia v. Stepan Chemical Co., 18 ELR 20133 (E.D. Pa. July 28, 1987).

252. In re T.P. Long Chemical Inc., 45 Bankr. 278, 15 ELR 20635 (Bankr. N.D. Ohio 1985) (holding that a bankruptcy estate may become an owner of a facility).

253. United States v. Argent, 14 ELR 20616 (D.N.M. May 4, 1984) (holding an absent owner who leased the facility to another party liable as an owner/operator).

254. United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 999, 14 ELR 20895 (D.S.C. 1984) (holding that a lessee of a facility may be an owner/operator, particularly when lessee had authority to sublet).

255. United States v. Maryland Bank & Trust Co., 632 F. Supp. 573, 16 ELR 20557 (D. Md. 1986) (holding that a bank that foreclosed on a facility, purchased it at the foreclosure sale, and owned the facility for four years was liable as a current owner); but see United States v. Mirabile, 15 ELR 20994 (E.D. Pa. 1985) (holding that a bank that foreclosed on a facility but assigned its right to purchase to another party was not liable as an owner).

For analysis of these cases, see Burcat, Foreclosure and United States v. Maryland Bank & Trust: Paying the Piper or Learning How to Dance to a New Tune?, 17 ELR 10098 (Apr. 1987); Reed, Fear of Foreclosure: United States v. Maryland Bank & Trust Co., 16 ELR 10165 (July 1986).

256. In United States v. Moore, 703 F. Supp. 455, 18 ELR 21272 (E.D. Va. 1988), the court noted: "Interestingly, it has been held that current ownership, without more, is sufficient to create liability under section [107(a)(1)], notwithstanding the 'and.'" Id. (citing United States v. Maryland Bank & Trust Co., 632 F. Supp. 573, 16 ELR 20557 (D. Md.1986)). See also United States v. Tyson, 17 ELR 20527 (E.D. Pa. Aug. 21, 1986) (holding current owner/operators liable even though they never operated the facility as a waste dump or disposed of wastes at the facility) (citing New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985)). Cf. Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 18 ELR 21348 (5th Cir. 1988) (citing Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987) (rejecting argument that liability may be imposed only on those who both own and operate a facility), aff'd, 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988)).

257. New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (holding that § 107(a)(1) liability included current owners or operators by interpreting definition of the terms in CERCLA § 101(20)). See also Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 18 ELR 21348 (5th Cir. 1988).

258. Smith Land & improvement Corp. v. Celotex Corp., 851 F.2d 86, 18 ELR 21026 (3d Cir. 1988) (holding liable current owner and past owner at time of disposal); United States v. Hooker Chemicals & Plastics Corp., 680 F. Supp. 546, 18 ELR 20580 (W.D.N.Y. 1988) (holding liable past owner at time of disposal); Versatile Metals, Inc. v. The Union Corp., 693 F. Supp. 1563, 19 ELR 20472 (E.D. Pa. 1988) (same); United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988) (same); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (same); Velsicol Chemical Corp. v. Reilly Tar & Chemical Corp., 15 ELR 20103 (E.D. Tenn. Aug. 16, 1984) (same).

259. See Cadillac Fairview/California, Inc., v. Dow Chemical Co., 14 ELR 20376 (C.D. Cal. Mar. 5, 1984).

260. In United States v. Carolawn Co., 14 ELR 20699 (D.S.C. June 15, 1984), the court held corporate officers who exercised control or authority over the activities of a facility personally liable as operators. The court found that it could hold the corporate officers personally liable without piercing the corporate veil in light of CERCLA's definition of "owner or operator" as construed in United States v. Northeasten Pharmaceutical and Chemical Company, Inc., 579 F. Supp. 823, 14 ELR 20212 (W.D.Mo. 1984) (adopting the definition of "person in charge" as used in the Federal Water Pollution Control Act and finding an analogy with the tort doctrine of holding individual corporate officers liable for their negligent conduct) and United States v. Wade, 577 F. Supp. 1326, 14 ELR 20096 (E.D. Pa. 1983). See also New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (holding individually liable a corporate officer who participated in operations); Vermont v. Staco, Inc., 684 F. Supp. 822, 18 ELR 20589 (D. Vt. 1988) (holding owning and managing stockholders personally liable as operators without piercing corporate veil); United States v. Northernaire Plating Co., 670 F. Supp. 742, 18 ELR 20712 (W.D. Mich. 1987) (holding personally liable a corporate officer who was in control of disposal operations); United States v. Medley, 17 ELR 20297 (D.S.C. Nov. 4, 1986) (holding liable a corporate officer who participated in operations of a farm facility that received hazardous substances). But see Joslyn Corp. v. T. L. James & Co., 696 F. Supp. 222, 19 ELR 20518 (W.D. La. 1988) (rejecting NEPACCO, holding that CERCLA has not destroyed the corporate veil, and using veil to shield from liability a corporate officer who did not participate in day-to-day operations of a facility).

261. 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986).

262. Id. In addition to the Bunker Hill factors, the court in Colorado v. Idarado Mining Co., 18 ELR 20578 (D. Colo. Apr. 29, 1987) found pertinent to the question of parent liability the percentage of the subsidiary's stock owned by the parent, the control over marketing exercised by the parent, whether the parent exercised any of its authority to execute contracts for the subsidiary, and whether the parent controls selection, supervision, and transfer of the subsidiary's employees, citing United States v. Conservation Chemical Co., 628 F. Supp. 391 at 416, 17 ELR 20167 (W.D. Mo. 1985) (suggesting that liability may be imposed without piercing the corporate veil if sufficient control is exercised by the defendant).

See United States v. Nicolet, Inc., 712 F. Supp. 1193, 19 ELR 21192 (E.D. Pa. 1989), in which the court determined that a federal common law rule of decision should be used when attaching CERCLA liability to corporate parents of subsidiaries, to wit:

Where a subsidiary is or was at the relevant time a member of one of the classes of persons potentially liable under CERCLA; and the parent had a substantial financial or ownership interest in the subsidiary; and the parent corporation controls or at the relevant time controlled the management and operations of the subsidiary, the parent's separate corporate existence may be disregarded.

Id. See also Rockwell International Corp. v. IU International Corp., 702 F. Supp. 1384, 19 ELR 20908 (N.D. Ill. 1988) (listing similar factors as being relevant to question of parent's control, and thus liability, over its subsidiary). But see Joslyn Corp. v. T.L. James & Co., 696 F. Supp 222, 19 ELR 20518 (W.D. La. 1988) (holding that liability could not be imposed on a parent without piercing the corporate veil and finding that since the parent did not exercise complete control over its subsidiary, the corporate veil shielded the parent from liability).

263. Bunker Hill, 635 F. Supp. 655, 16 ELR 20879.

264. Edward Hines Lumber Co. v. Vulcan Materials Co., 685 F. Supp. 651, 18 ELR 21223 (N.D. Ill. 1988) (citing United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) and New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985)), aff'd, 861 F.2d 155, 19 ELR 20187 (7th Cir. 1988)).

265. Id.

266. 19 ELR 20529 (S.D. Ga. Dec. 22, 1988).

267. Id. (discussing 42 U.S.C. § 9601(20)).

268. Id. The Fleet court concluded, though, by deferring until trial the question of whether the secured party exercised control over the facility when he foreclosed on the interest he had in the debtor's inventory. The debtor claimed that the secured party released friable asbestos when he moved barrels around the facility in anticipation of a foreclosure auction. The court denied the secured party's summary judgment motion because the facts were in question.

269. United States v. Dart Industries, 847 F.2d 144, 18 ELR 21084 (4th Cir. 1988).

270. United States v. Monsanto Co., 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 57 U.S.L.W. 3812 (June 12, 1989). See also Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 18 ELR 21348 (5th Cir. 1988) (holding that construction and grading crews who redispose of or treat hazardous wastes by making the wastes nonhazardous may have § 107(a)(3) liability); United States v. Aceto Agricultural Chemicals Corps., 699 F. Supp. 1384, 18 ELR 21008 (S.D. Iowa 1988), aff'd, 872 F.2d 1373, 19 ELR 21038 (8th Cir. 1989) (denying summary judgment motion since chemical supplier/manufacturer defendant may be liable under § 107(a)(3) as the employer of an independent contractor engaged in an ultrahazardous activity); United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (holding that mere control, not ownership, of the hazardous substances is sufficient, court finds liable a person who acted as a broker for the owner of the hazardous substances and the ultimate transporter/disposer); United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 999, 14 ELR 20895 (D.S.C. 1984) (holding defendant liable for moving wastes from one facility to another). See also Comment, "Arranging for Disposal" Under CERCLA: When is a Generator Liable?, 15 ELR 10160 (June 1985).

271. 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 57 U.S.L.W. 3812 (June 12, 1989).

272. Id.

273. Id. (citing United States v. Wade, 577 F. Supp. 1326, 14 ELR 20096 (E.D. Pa. 1983) (stating that to "require a plaintiff under CERCLA to 'fingerprint' wastes is to eviscerate the statute.")).

274. 685 F. Supp. 651, 18 ELR 21223 (N.D. Ill. 1988), aff'd on other grounds, 861 F.2d 155, 19 ELR 20187 (7th Cir. 1988).

275. Accord C. Greene Equipment Corp. v. Electron Corp., 697 F. Supp. 983, 19 ELR 20502 (N.D. Ill. 1988) (holding that liability will not arise based solely on a sale of usable, nonleaking transformers containing hazardous substances since the sale was not motivated in part by a desire to dispose of the hazardous substances); Florida Power & Light v. Allis-Chalmers Corp., 18 ELR 20998 (S.D. Fla. Mar. 22, 1988) (holding that sale of a useful product (transformers) containing hazardous substances to buyer who used product in ordinary course of business was not an arrangement for disposal; hence, no CERCLA liability); Jersey City Redevelopment Authority v. PPG Indus., 655 F. Supp. 1257, 17 ELR 20763 (D.N.J. 1987) (holding that sale of land that contained mud contaminated with hazardous substances was not an arrangement for treatment or disposal); United States v. Westinghouse Electric Corp., 14 ELR 20483 (S.D. Ind. June 29, 1983) (holding that selling of hazardous substances for use in manufacturing will not give rise to CERCLA liability).

The Hines court recognized that United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985), could be read as rejecting an inquiry into the "primary nature of the transaction from the defendant's viewpoint to determine whether the defendant was acting with the intent to dispose." Conservation Chemical, 619 F. Supp. at 241, 16 ELR at 20229. After an attempt to reconcile with the earlier decision, the Hines court stated flatly that it disagreed with the holding in Conservation Chemical to the extent that it did not support an inquiry into the motivations behind a transaction in hazardous substances.

The courts have been wary about granting this exception, looking at the intent of the transaction to determine whether the arrangement was motivated, at least in part, by a desire to treat or dispose of hazardous substances. In United States v. A & F Materials Co., Inc., 582 F. Supp. 842, 14 ELR 20432 (S.D. Ill. 1984), the defendants produced a hazardous waste that had commercial value. The plaintiffs bought the wastes for use in their manufacturing process. The court did not heed the defendants' argument that they had simply sold plaintiffs a process material, holding that the defendants were motivated to enter the transaction by a desire to dispose of their wastes. See, e.g., United States v. Farber, 18 ELR 20854 (D.N.J. Mar. 16, 1988) (denying a summary judgment motion because of a factual dispute regarding whether defendant engaged in a "mere sale" of hazardous substances or a disposal arrangement); United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985) (holding that defendant cannot avoid liability by characterizing the transaction as a sale; court finds that motivation behind the sale was disposal of hazardous substances); and New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984) (holding that defendants cannot escape liability by disingenuously labeling an arrangement for disposal a "sale").

276. New York v. Johnstown, 701 F. Supp. 33, 19 ELR 20578 (N.D.N.Y. 1988). The court held that § 107(a)(3) liability will not attach to a state, acting in its regulatory capacity, when it permits or directs the disposal of wastes in a landfill to remediate a contamination problem. Finding that the state never owned or possessed the hazardous substances, as required by § 107(a)(3), the court held that the state "cannot be considered in the class of liable parties." Id.

277. In United States v. Wade, 14 ELR 20436 (E.D. Pa. Mar. 8, 1984), the court refused to grant a motion for summary judgment when the plaintiff had not demonstrated that the defendant's wastes were delivered to a facility at which a release of hazardous substances occurred. The plaintiffs had proved only that the defendants contracted with a disposal company that occasionally disposed of contract wastes at the subject facility. The defendants had countered with evidence that the disposal company had placed their wastes at another site. The court reserved the issue for factual development at trial. See also United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (citing Wade as establishing a limit to liability, but holding that the defendants had failed to prove that their hazardous wastes were not in a tank from which releases had occurred).

278. United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (holding that liability will attach regardless of whether the defendants knew where their hazardous substances would be disposed); United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985) (holding that liability does not hinge on whether the defendant selected the disposal site); Missouri v. Independent Petrochemical Corp., 610 F. Supp. 4, 15 ELR 20161 (E.D. Mo. 1985)(holding that redisposal of defendant's hazardous wastes to a second site unknown by defendant did not preclude liability).

279. 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988).

280. Id.

281. United States v. Northeastern Pharmaceutical and Chemical Co., 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986) (holding that since legal title to waste was unnecessary to impose liability, individual corporate officers were liable when responsibilities included arranging for disposal of hazardous substances), cert. denied, 108 S. Ct. 146 (1987); United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988) (holding corporate officers personally liable and stating that "CERCLA places no importance on the corporate form."); United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985) (holding individual corporate officers liable who exercised authority over the company's operations and participated in arranging for disposal of hazardous substances); Smith Land & Improvement Corp. v. Rapid-American Corp., 851 F.2d 86, 18 ELR 21026 (3d Cir. 1988) (applying traditional law of successor liability, court holds successors who formed by merger or consolidation responsible for previous corporation's CERCLA liability) (citing Barnard, EPA's Policy of Corporate Successor Liability Under CERCLA, 6 STAN. ENVTL. L.J. 78 (1986-87) and Note, Successor Corporate Liability for Improper Disposal of Hazardous Waste, 7 W. NEW ENG. L. REV. 909 (1985)); (United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (holding that, under either Missouri law or CERCLA federal common law, when circumstances indicate that a purchasing company is a continuance of the previous company, then the successor company is responsible for the previous company's liabilities).

282. Jersey City Redevelopment Authority v. PPG Industries, 18 ELR 20364 (D.N.J. Sept. 3, 1987) (holding that a defendant was not liable as a transporter because he did not choose the site) )citing United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985); United States v. Northeastern Pharmaceutical and Chemical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984); and D. STEVER, LAW OF CHEMICAL REGULATION & HAZARDOUS WASTE, § 607, at 689 (1987)). See also United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (holding liable a defendant who accepted hazardous wastes for transportation and disposal at sites chosen by defendant); Eddy & Riendl, Transporter Liability Under CERCLA, 16 ELR 10244 (Sept. 1986).

283. In United States v. Miami Drum Services, Inc., 17 ELR 20539 (S.D. Fla. Dec. 12, 1988), the court stated: "Every court to consider this issue has concluded that, unless one of the defenses under Section 107(b) of CERCLA applies, a party identified as responsible under section 107(a) is strictly liable, regardless of fault, for response costs…." Id. (citing New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (finding that a causation requirement would make the § 107(b) defenses "surplusage"); United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985)).

One court explained the basis for strict liability in United States v. Medley, 17 ELR 20297 (D.S.C. Nov. 4, 1986). The Medley court pointed out that the CERCLA § 101(32) definition of "liability" incorporated the strict standard of liability set forth in FWPCA § 311, 33 U.S.C. § 1321, ELR STAT. FWCPA 039. Accord United States v. Northeastern Pharmaceutical and Chemical Co., 579 F. Supp. 845, 14 ELR 20212 (W.D. Mo. 1984) (discussing application of FWPCA strict liability standard to CERCLA § 107(a) actions). See generally United States v. Stringfellow, 661 F. Supp. 1053, 17 ELR 21134 (C.D. Cal. 1987) (holding that court's inquiry into causation is restricted to determining whether the defendant fits into one of the four categories of covered person); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985) (rejecting a requirement that plaintiffs show that the defendant's wastes caused the environmental harm).

284. E.g., Idaho v. Bunker Hill Co., 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986) (stating that "the damage for which recovery is sought must still be causally linked to the act of the defendant); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985) (holding that plaintiffs must demonstrate that the release for which defendant is responsible caused the incurrence of response costs). See also United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988) (finding that § 107(b) defenses are causation oriented, placing burden on defendant to show that the harm suffered by plaintiff was caused by acts of war, God, or third parties with whom defendant does not have a contractual relationship), cert. denied, 57 U.S.L.W. 3812 (June 12, 1989); United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (holding that proximate cause test does not apply, but that defendant may attempt to prove that the harm was caused by a third party under § 107(b)).

285. Dedham Water Co. v. Cumberland Farms, Inc., 689 F. Supp. 1223, 19 ELR 20487 (D. Mass. 1988). In Dedham, a plaintiff assertedthat releases from the defendant's facility caused the plaintiff to incur response costs. The defendant demonstrated, however, that hazardous substances found at the plaintiff's site did not match hazardous substances released by the defendant, nor would the defendant's contamination have had time to migrate to the plaintiff's site. Moreover, the defendant had a groundwater collection system that would have prevented hazardous substances from migrating to the plaintiff's site and there was strong evidence that a separate plume caused the plaintiff to incur response costs. Finally, a layer of peat below the surface of defendant's facility made it unlikely that any hazardous substances would have leached into the groundwater. The court therefore found that the defendant satisfied its burden of proving that its releases did not cause the plaintiff to incur response costs. See also Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987). The Artesian court held that when two sources of contamination contribute to the harm at one site, the causation requirement is satisfied if the defendant's conduct was a substantial factor in causing plaintiff to incur response costs. Plaintiffs must show that releases occurred at the defendant's facility that caused the plaintiff to incur costs. The defendant then has the burden of proving that its hazardous substances were not the cause in fact or a substantial factor of the harm at the plaintiff's site.

286. The court observed in United States v. Northeastern Pharmaceutical and Chemical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984) that, while CERCLA itself does not establish expressly joint and several liability, Congress intended the courts to determine the scope of liability using common law principles and previous statutory law. The NEPACCO court then held that joint and several liability was mandated by the traditional rule that joint and several liability should attach when the acts of two or more parties combine to create an indivisible harm as well as by the standard of liability contained in the FWPCA. See also United States v. Chem-Dyne Corp., 572 F. Supp. 802, 13 ELR 20986 (S. Ohio 1983), in which the court used the RESTATEMENT (SECOND) OF TORTS as its guide in establishing a presumption of joint and several liability in CERCLA cases. The court found that a defendant has the burden of proving that the harm is capable of apportionment, at least as to that defendant. When CERCLA was undergoing reauthorization, Congressman Eckart stated that noting in the reauthorization bill was "intended to change the application of the Federal rule of joint and several liability enunciated by the Chem-Dyne court." 131 CONG. REC. H11073 (daily ed. Dec. 5, 1985).

In a post-SARA case, the Fourth Circuit specifically adopted the Chem-Dyne court's analysis in United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988) (noting that the Chem-Dyne approach was "confirmed as correct in [Congress'] consideration of SARA's contribution provisions," and holding that under the standard in RESTATEMENT (SECOND) OF TORTS § 433B, defendants have the burden of proving divisibility of harm). See generally United States v. Miami Drum Services, Inc., 17 ELR 20539 (S.D. Fla. Dec. 12, 1986) (citing numerous courts that have incorporated the Chem-Dyne standard).

As to divisibility of the harm, one court has observed that "the volume of waste of a particular generator is not an accurate predictor of the risk associated with the waste because the toxicity or migratory potential of a particular hazardous substance generally varies independently of the volume. Such arbitrary or theoretical means of cost apportionment do not diminish the invidisibility of the underlying harm…." United States v. South Carolina Recycling and Disposal, 653 F. Supp. 984, 14 ELR 20272 (D.S.C. 1984).

287. In United States v. Contribution Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985), the court rejected the defendants' argument that, under the doctrine of de minimis non curat lex, they should not be held liable for response costs. The court found that Congress intended CERCLA to impose liability on covered persons regardless of their volumetric contributions to a site; moreover, the court reminded the parties that it took only a small amount of a hazardous substance to create a serious threat to human health and the environment. See also O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988) (holding defendants strictly liable for cleanup costs and reserving for a latter apportionment action their de minimis arguments).

288. The court held in McGregor v. Industrial Excess Landfill, Inc., 856 F.2d 39, 19 ELR 20189 (6th Cir. 1988) that a plaintiff must allege an approximation of costs incurred or, at a minimum, the actions that the plaintiff took in response to the release. The Sixth Circuit emphasized the requirement that the plaintiff must allege costs that it incurred; private plaintiffs may not simply articulate the government's costs of response without any allegations about the plaintiff's costs and hope to survive a motion attacking the sufficiency of the pleadings. Also discussing pleadings, the Ninth Circuit held that a plaintiff's complaint does not have to contain "a specific allegation of either the manner in which a release occurred or the type of response cost incurred." Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 19 ELR 20374 (9th Cir. 1989) (distinguishing McGregor on the grounds that in Ascon, the plaintiffs did allege response costs that they had incurred in a manner sufficient to satisfy notice requirements).

Additionally, private parties must add to their pleadings an allegation that their costs of response were "necessary." Compare CERCLA § 107(a)(4)(A), 42 U.S.C. §9607(a)(4)(A), ELR STAT. CERCLA 024 (stating that government plaintiffs may recover "all costs of removal or remedial action") with CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B), ELR STAT. CERCLA 024 (stating that all other parties may recover "necessary costs of response"). The term "necessary" has not received much judicial attention, with courts concentrating instead on whether the costs were incurred as part of an allowable removal or remedial action, but one court has suggested that necessary means "logically unavoidable but at the same time uncompelled by the USEPA." Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 19 ELR 21254 (N.D. Ill. 1988). Another court found that costs were "necessary" because state and local authorities ordered the particular action. NL Industries v. Kaplan, 792 F.2d 896, 16 ELR 20749 (9th Cir. 1986).

289. See CERCLA § 101(23), 42 U.S.C. § 9601(23), ELR STAT. CERCLA 008 (defining removal actions as, among other things, "such actions as may be necessary to monitor, assess, and evaluate [releases]," actions necessary to "prevent, minimize, or mitigate damage to the public health or welfare or to the environment," erecting "security fencing or other measures to limit access, provision of alternative water supplies, temporary evacuation and housing of threatened individuals," and "actions taken under section 104(b)" of CERCLA).

290. See CERCLA § 101(24), 42 U.S.C. § 9601(24), ELR STAT. CERCLA 009 (defining remedial actions as, among other things, "those actions consistent with permanent remedy taken instead of or in addition to removal action.").

291. See Brewer v. Ravan, 680 F. Supp. 1176, 18 ELR 20799 (M.D. Tenn. 1988) (stating that "[b]ecause CERCLA does not define the term "necessary costs of response," … courts have had considerable difficulty in applying section 9607(a)." (citing Jones v. Inmont Corp., 584 F. Supp. 1425, 14 ELR 20485 (S.D. Ohio 1984) (finding that one must reach a definition of "response costs" through a circuitous, fog-enshrouded route)).

292. E.g., T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20927 (D.N.J. 1988) (accommodating the omission of a definition for response costs by reciting the definitions of removal and remedial actions and allowing the costs incurred for those actions).

293. E.g., Rockwell International Corp. v. IU International Corp., 702 F. Supp. 1384, 19 ELR 20908 (N.D. Ill. 1988) (finding ample support for allowing plaintiffs to claim monitoring and assessment costs); Brewer v. Ravan, 680 F. Supp. 1176, 18 ELR 20799 (M.D. Tenn. 1988) (stating that "most courts agree that on-site testing and investigative costs are recoverable" under CERCLA) (citing Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 16 ELR 20754 (9th Cir. 1986); City of New York v. Exxon Corp., 633 F. Supp. 609, 16 ELR 20850 (S.D.N.Y. 1986) (allowing groundwater sampling and migration studies); and Velsicol Chemical Corp. v. Reilly Tar & Chemical Corp., 15 ELR 20103 (E.D. Tenn. 1984)).

In Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 18 ELR 21348 (5th Cir. 1988), the court explained that investigations, soil and groundwater samplings, and evaluations are removal actions, since that term includes actions to "monitor, assess, and evaluate" a release. Accord Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987), aff'd, 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988). See generally Cadillac Fairview/California v. Dow Chemical Co., 840 F.2d 691, 18 ELR 20470 (9th Cir. 1988) (allowing monitoring costs); United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988) (allowing investigatory costs); Vermont v. Staco, Inc., 684 F. Supp. 822, 18 ELR 20589 (D. Vt. 1988) (allowing assessment and monitoring costs).

294. Before SARA, two courts had split on the award of prejudgment interest. In United States v. Northeastern Pharmaceutical and Chemical Co., 579 F. Supp. 823, 14 ELR 20212, aff'd in part and rev'd in part on other grounds, 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), the court had held that prejudgment interest was compensatory and necessary to fulfill the restitutional purposes of CERCLA cost recovery actions. On the other hand, the court in United States v. South Carolina Recycling and Disposal, Inc., (SCRDI), 653 F. Supp. 984 at 1006, 17 ELR 20843 (D.S.C. 1985), refused to award prejudgment interest because the defendants had been cooperative and reasonable at trial.

During the period when the parties were appealing SCRDI, SARA amended § 107 by making clear that prejudgment interest should be awarded in cost recovery actions. The Fourth Circuit therefore remanded SCRDI and directed the district court to award prejudgment interest "absent a convincing argument to the contrary." United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 57 U.S.L.W. 38129 (June 12, 1989). See also United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988) (applying the SARA amendment to § 107 and awarding prejudgment interest); United States v. Northernaire Plating Co., 685 F. Supp. 1410, 18 ELR 21338 (W.D. Mich. 1988) (finding that the SARA amendment to § 107 mandates award of prejudgment interest). But see United States v. Ottati & Goss, Inc., 694 F. Supp. 977, 18 ELR 20773 (D.N.H. 1988) (without remarking on the SARA amendment to § 107, reducing award of prejudgment interest to the United States because of uncooperative behavior of Justice Department attorneys).

295. T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988) (finding that time spent by a company's president in monitoring, assessing, and evaluating a cleanup action may be recoverable).

296. Cadillac Fairview/California v. Dow Chemical Co., 840 F.2d 691, 18 ELR 20470 (9th Cir. 1988) (finding that since "remedial actions" include security measures, plaintiff could recover for security expenses); United States v. Ottati & Goss, Inc., 694 F. Supp. 977, 18 ELR 20773 (D.N.H. 1988) (awarding, without comment, costs incurred in fencing a hazardous waste site).

297. See Chemical Waste Management, Inc. v. Armstrong World Industries, 669 F. Supp. 1285, 18 ELR 20191 (E.D. Pa. 1987) (holding that certain costs that are required under RCRA — such as inspection, monitoring, and closure costs — may be recoverable as response costs under CERCLA if they are ultimately adjudged consistent with the NCP); Mardan Corp. v. C.G.C. Music, Ltd., 600 F. Supp. 1049, 15 ELR 20370 (D. Ariz. 1984) (holding that RCRA closure costs may be recoverable), aff'd on other grounds, 804 F.2d 1454, 17 ELR 20209 (9th Cir. 1986).

298. In Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 18 ELR 21348 (5th Cir. 1988), the court held that since the § 101(24) definition of remedial action specifically mentions relocations, relocation costs are recoverable. However, the Tanglewood court did not discuss the § 101(24) requirement that only the President may authorize permanent relocations of businesses and residences; moreover, the president must conclude that a relocation is cost-effective or necessary to protect the public health or welfare. 42 U.S.C. § 9601(24), ELR STAT. CERCLA 009 construed in T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988) (rejecting a claim for recovery of relocation costs because plaintiff did not have a presidential authorization and a determination of cost-effectiveness).

Using a different approach, one court characterized a relocation as a § 101(23) removal action necessary to "prevent, minimize or mitigate" danger to the plaintiffs. Lykins v. Westinghouse Electric Corp., 18 ELR 21498 (E.D. Ky. Feb. 29, 1988). In this way, the plaintiffs were able to avoid the § 101(24) requirement that the president authorize permanent relocations and justify them with a cost effectiveness analysis or a finding that permanent relocation is necessary to protect public health or welfare.

It is unclear from the Lykins decision whether the plaintiffs sought recovery for permanent or temporary relocation costs. Section 101(23) specifically authorizes "temporary evacuation and housing of threatened individuals." If the plaintiffs had indeed incurred only temporary costs, then one may wonder why the Lykins court hung its ruling on the amorphous "prevent, minimize or mitigate" hook of § 101(23) rather than the direct "temporary evacuation" provision.

299. In T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988), the court held that § 104 refers only to the legal fees of the United States and found no parallel provision in CERCLA authorizing private attorneys fees. Under the American rule, therefore, attorneys fees will not be awarded to private parties in CERCLA actions. Id. (citing Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240 (1975) (holding that a party cannot receive attorneys fees unless provided for in a statute or a contract).

300. United States v. Northeastern Pharmaceutical and Chemical Co., 579 F. Supp. 823, 14 ELR 20212, aff'd in part and rev'd in part on other grounds, 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 108 S. Ct. 146 (1987). The NEPACCO court wasone of the first to conclude that the United States could recover attorneys fees under CERCLA. The court explained that the definition of removal actions included "action taken under section 104(b)" of CERCLA. Section 104(b) authorizes the United States to "undertake such planning, legal, fiscal, economic, engineering, architectural, and other studies or investigations." 42 U.S.C. § 9604(b). Thus, legal activities were removal actions and therefore were eligible for cost recovery.

See also United States v. Northernaire Plating Co., 685 F. Supp. 1410, 18 ELR 21338 (W.D. Mich. 1988) (holding that the United States may recover its indirect costs, administrative expenses, and attorneys fees); United States v. Ottati & Goss, Inc., 694 F. Supp. 977, 18 ELR 20773 (D.N.H. 1988) (recognizing NEPACCO holding that United States may recover attorneys fees, but awarding only half of fees requested because of uncooperative behavior of Justice Department attorneys); United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984 at 1006, 17 ELR 20843 (D.S.C. 1985) (holding that the definition of removal actions incorporates the actions of the United States under § 104(b) and therefore awarding attorneys fees to the United States), rev'd in part and remanded on other grounds sub nom., United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 57 U.S.L.W. 3812 (June 12, 1989).

301. In Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 19 ELR 20733 (D.N.J. 1988), the court rejected expressly a defendant's argument that actual cleanup or remedial costs had to be incurred before a cost recovery action could be brought. The Southland court held that costs of investigation, a removal action, "were sufficient, without more, for recovery under CERCLA." Id. (citing Artesian Water Co. v. New Castle County, 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988) (holding that a summary judgment motion was ripe for adjudication because the plaintiff had incurred costs in investigating the site).

One court did hold that a private plaintiff must incur remedial costs before bringing an action under § 107. Standard Equipment, Inc. v. Boeing Co., 16 ELR 20246 (W.D. Wash. 1985). However, later courts have followed Southland and have refused to erect such a barrier to cost recovery actions, thereby ignoring the Standard Equipment decision. See also Lykins v. Westinghouse Electric Corp., 18 ELR 21498 (E.D. Ky. Feb. 29, 1988) (holding that plaintiffs do not have to delay their cost-recovery actions until a remedial action is underway but can sue when they incur any response costs); Brewer v. Ravan, 680 F. Supp. 1176, 18 ELR 20799 (M.D. Tenn. 1988) (stating that a "private citizen seeking to recover expenses or obtain declaratory relief under section 9607(a) 'must affirmatively demonstrate that it has incurred' at least some necessary response costs consistent with the national contingency plan." Id.) (quoting Chaplin v. Exxon Corp., 25 Envt. Rep. Cas. (BNA) 2009, 2013 (S.D. Tex. 1986)).

302. 475 U.S. 355, 16 ELR 20396 (1986).

303. Id. In fact, Senator Randolph made clear that Congress had "deleted the federal cause of action for medical expenses or property or income loss." 126 CONG. REC. S14964 (daily ed. Nov. 24, 1980). See also Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1985) (stating that "Congress in enacting CERCLA clearly manifested an intent not to provide compensation for economic losses or for personal injury resulting from the release of hazardous substances."), aff'd, 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988).

304. Artesian Water Co. v. New Castle County, 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988) (holding that inability to pump water at full capacity was an unrecoverable economic loss); Piccolini v. Simon's Wrecking, 686 F. Supp. 1063, 18 ELR 21326 (M.D. Pa. 1988) (holding that CERCLA's broad definition of response costs refers to costs of cleanup and does not include diminution in property value or lost income); Wehner v. Syntex Corp., 681 F. Supp. 651, 18 ELR 20469 (N.D. Cal. 1987) (holding that plaintiffs cannot seek recovery under CERCLA for costs of medical exams, diminished value of property, and loss of home caused by release of hazardous substances).

305. To date, three courts have found that plaintiffs may recover medical monitoring costs: Williams v. Allied Automotive, 704 F. Supp. 782, 19 ELR 20689 (N.D. Ohio 1988) (holding that "costs of future medical monitoring are not categorically unrecoverable as response costs … [if] such costs are necessary and consistent with the NCP." Id.); Lykins v. Westinghouse Electric Corp., 18 ELR 21498 (E.D. Ky. Feb. 29, 1988); and Brewer v. Ravan, 680 F. Supp. 1176, 18 ELR 20799 (M.D. Tenn. 1988). Of the three, Brewer provides the most cogent rationale for its holding. The Brewer court acknowledged that CERCLA did not create a right to recover "medical expenses incurred in the treatment of personal injuries or disease." Id. (emphasis in original). However, the court held that plaintiffs could recover "the cost of medical testing and screening conducted to assess the effect of the release or discharge on public health or to identify potential public health problems." Id. (emphasis in original). The court predicated its decision on the assertion that "[p]ublic health related medical tests and screening clearly are necessary to 'monitor, assess, [or] evaluate a release' and, therefore, constitute 'removal' under section 9601(23)." Id. (citing 42 U.S.C. § 9601(23), ELR STAT. CERCLA 008).

Alternatively, two courts have held that medical monitoring costs cannot be recovered under CERCLA: Wehner v. Syntex Corp., 681 F. Supp. 651, 18 ELR 20469 (N.D. Cal. 1987) and Coburn v. Sun Chemical Corp., 19 ELR 20256 (E.D. Pa. Nov. 9, 1988). The Wehner court found persuasive Congress' refusal to include a proposed medical monitoring provision in CERCLA as ultimately enacted. See S. REP. No. 848, 96th Cong., 2d Sess., 54, reprinted in 1 LEGIS. HIST. 308, 360-61, S. 1480. Likewise, the Coburn court was impressed by Congress' intent that CERCLA "'only provides for the cleanup of toxic substances from the environment.'" Coburn, 19 ELR at 20258 (quoting Wehner, 681 F. Supp. at 653, 18 ELR at 20470). Finding that the Brewer holding "contravenes the plain meaning" of removal action, the Coburn court concluded by finding it "difficult to understand how future medical testing and monitoring of persons who were exposed to contaminated well water … will do anything to 'monitor, assess, [or] evaluate a release' of contamination from the site." Id.

306. 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987).

307. Id. (citing Mola Development Corp. v. United States, 15 ELR 21029 (C.D. Cal. July 30, 1985)). Accord Williams v. Allied Automotive, 704 F. Supp. 782, 19 ELR 20689 (N.D. Ohio 1988) (holding that in a summary judgment motion to recover response costs, plaintiffs must show consistency with the NCP as part of their prima facie case).

308. See United States v. Medley, 17 ELR 20297 (D.S.C. Nov. 4, 1986), in which the court held that "consistency or inconsistency with the NCP is not a necessary element of the [plaintiff's] motion for partial summary judgment on liability under § 107(a) of CERCLA and relates only to the recoverability of various cost items which will be addressed in later proceedings." Id. (citing United States v. Wade, 577 F. Supp. 1326, 14 ELR 20096 (E.D. Pa. 1983); and New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984)).

Similarly, the court in United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985), granted the plaintiff United States' motion for summary judgment as to liability, but reserved for trial the question of whether the response costs were consistent with the NCP and therefore allowable. See also United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988) (finding that "summary judgment may be rendered as to liability even if there is a genuine issue as to appropriate damages) (citing FED. R. CIV. P. 56(c)); Williams v. Allied Automotive, 704 F. Supp. 782, 19 ELR 20689 (N.D. Ohio 1988) (holding that liability for future costs and declaratory relief can be granted without a showing of consistency with the NCP); United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (W.D. Mo. 1987) (holding that the prima facie case for liability does not require a demonstration of consistency with the NCP). The ruling in Artesian does not contradict these holdings; in fact, the Artesian court implicitly found the defendant liable, but limited that liability to costs that were consistent with the NCP.

309. See Fishel v. Westinghouse Electric Co., 640 F. Supp. 442, 16 ELR 20634 (M.D. Pa. 1986) (postulating that an early determination of liability will encourage the litigants to settle, thereby mooting the necessity of a trial on the issue of allowable response costs).

310. Walls v. Waste Resource Corp., 823 F.2d 977, 17 ELR 20954 (6th Cir. 1987) (holding that § 112(a) sixty day notice provision is inapplicable in § 107 cost recovery actions); Idaho v. Howmet Turbine Component Co., 814 F.2d 1376, 17 ELR 20659 (9th Cir. 1987) (holding that § 112(a) sixty day notice provision does not apply to natural resource damage claims and § 107 response cost recovery actions); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 17 ELR 20223 (1st Cir. 1986) (holding that § 112(a) sixty-day notice provision applied to Superfund recoveries, not § 107 cost recovery actions); New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (holding that inclusion of a site on the NPL is not a requirement of the NCP and therefore not a requirement in a § 107 cost recovery action); Lykins v. Westinghouse Electric Corp., 18 ELR 21498 (E.D. Ky. Feb. 29, 1988) (holding that plaintiffs may bring a cost recovery action without first obtaining government approval of their response costs); Interchange Office Park, Ltd. v. Standard Industries, 654 F. Supp. 166, 17 ELR 20840 (W.D. Tex. 1987) (holding that inclusion of a site on the NPL is not a requirement of the NCP); United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986) (holding that the § 112(a) sixty-day notice provision and § 112(d) statute of limitations do not apply to § 107 cost recovery actions); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (holding that inclusion of a site on the NPL and the sixty-day notice provision contained in § 112(a) pertain only to actions seeking recovery from the Superfund, not to § 107 cost recovery actions) (citing New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984) (holding that § 107 liability attaches "notwithstanding any other provision," including provisions of CERCLA not expressly applicable)); Pinole Point Properties v. Bethlehem Steel Corp., 596 F. Supp. 283, 15 ELR 20173 (N.D. Cal. 1984) (holding that a prima facie case does not require government approval of response costs or listing of site on the NPL).

311. See 42 U.S.C. § 9622(e)(6), construed in Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 19 ELR 21254 (N.D. Ill. 1988). The Allied court painstakingly reviewed the applicability of § 122(e)(6), which was added by SARA, finding any costs a PRP incurred in performing remedial actions that had not been approved by EPA were per se inconsistent with the NCP. Moreover, the court determined that "passive acquiescence" would not constitute approval; instead, the court would look for formal approval by EPA, such as a consent order to perform certain remedial work. Finally, the Allied court held that 122(e)(6) did not apply retroactively to invalidate pre-SARA remedial costs, but became effective on October, 17, 1986, the date of SARA's enactment.

312. NL Industries v. Kaplan, 792 F.2d 896, 16 ELR 20749 (9th Cir. 1986) in which the court held that a private plaintiff can satisfy the consistency element of the prima facie case without proving strict compliance with the NCP. In the instant action, the Ninth Circuit found that the plaintiffs' failure to notify EPA about a release, as required by the NCP, did not result in the plaintiffs incurring higher, inconsistent costs and would not bar them from recovering their response costs.

313. Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 19 ELR 20473 (E.D. Pa. 1988) ("Consistency with the NCP should be determined in light of the NCP in effect at the time the response costs were incurred, not when the response actions were initiated or when the claims for cost recovery are evaluated.") (citing Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 16 ELR 20754 (9th Cir. 1986); NL Industries v. Kaplan, 792 F.2d 896, 16 ELR 20749 (9th Cir. 1986)). See Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987) (holding that consistency with the NCP is determined after developing a sufficient factual record and using the NCP in effect when the costs are incurred), aff'd on other grounds, 851 F.2d 643 (3d Cir. 1988). In reaching its decision, the Artesian court cited with approval New York v. Shore Realty Corp., 648 F. Supp. 255, 17 ELR20588 (E.D.N.Y. 1986); Pinole Point Properties v. Bethlehem Steel Corp., 596 F. Supp. 283, 15 ELR 20173 (N.D. Cal. 1984); and City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 12 ELR 20915 (E.D. Pa. 1982). See also Walls v. Waste Resources Corp., 16 ELR 20797 (E.D. Tenn. Oct. 11, 1985) (holding that consistency with the NCP is a factual question that requires development of a sufficient record) (citing Jones v. Inmont Corp., 584 F. Supp. 1425, 14 ELR 20485 (C.D. Ohio 1984)).

314. 693 F. Supp. 1563, 19 ELR 20473 (E.D. Pa 1988).

315. In discussing removal actions, the court found that they "are not subject to the lengthy procedural requirements of the NCP since they are taken in response to an immediate threat." Accordingly, the court indicated that approval of removal costs will turn in large part on the immediacy and seriousness of the threat that the plaintiffs faced.

Conversely, the court stressed the procedural obstacles that plaintiffs must overcome to prove that their remedial costs were consistent with the NCP. The court found that a plaintiff's remedial action will be consistent with the NCP if the plaintiff:

(A) Provides for appropriate site investigation and analysis of remedial alternatives;

(B) Complies with the [NCP format for Remedial Investigations];

(C) Selects a cost-effective response;

(D) Provides an opportunity for appropriate public comment concerning the selection of a remedial action.

Id. (citations omitted).

316. Id. The Versatile Metals court warned that the "distinction between remedial and removal actions is crucial in certain cases where the failure to fulfill the more detailed procedural and substantive provisions of the NCP with regard to 'remedial' actions becomes a barrier to recovery of response costs.".

317. See Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987) (finding that a report which did not evaluate alternative remedial actions was inconsistent with the NCP; therefore, plaintiffs could not prove that their remedial action was consistent with the NCP).

318. Martin, Lucy, & Green, Private Cost-Recovery Actions under CERCLA § 107, 1 ENVTL. CLAIMS J. 377 (1989). The authors, after discussing the requirements of the 1985 and proposed NCP, suggested that private parties may wish to "wait for an EPA administrative consent order under CERCLA § 106(a) or a consent decree pursuant to CERCLA § 122 before beginning a cleanup." The authors point out that consent orders and decrees are recognized as consistent with the NCP in the proposed revisions. See Proposed Revisions to the NCP, 53 Fed. Reg. 51394, 51461-62 (Dec. 21, 1988).

319. In United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985), the court found that § 886A(3) of the RESTATEMENT (SECOND) OF TORTS did not sanction the use of contribution by intentional tortfeasors. Accordingly, the court held that a person convicted of illegal dumping was estopped from contesting his status as an intentional tortfeasor and could not, therefore, seek contribution from other PRPs.

However, the equitable doctrines of unclean hands and caveat emptor will not prevent a liable party from seeking contribution. See Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 18 ELR 21026 (3d Cir. 1988) (refusing to bar a contribution action based on the doctrine of caveat emptor, but suggesting that it may be an equitable factor in apportioning liability); Chemical Waste Management v. Armstrong World Industries, 669 F. Supp. 1285, 18 ELR 20191 (E.D. Pa. 1987) (admonishing that "the 'unclean hands' doctrine … has no place in CERCLA actions.").

320. Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 19 ELR 20783 (D.N.J. 1988) (finding that § 113(f) "provides an express right to seek contribution from 'any other person who is liable or potentially liable under section 107(a).'" Id. (quoting 42 U.S.C. § 9613(f)); PVO International, Inc. v. Drew Chemical Corp., 19 ELR 20077 (D.N.J. June 27, 1988) (finding that § 113(f) provides for a right of contribution among liable parties). Cf. Rockwell International Corp. v. IU International Corp., 702 F. Supp. 1384, 19 ELR 20908 (N.D. Ill. 1988) (finding that parties who are jointly and severally liable may seek a declaratory judgment as to future contribution for response costs); New York v. Johnstown, 701 F. Supp. 33, 19 ELR 20578 (N.D.N.Y. 1988) (holding that a contribution action may be brought only by joint tortfeasors responsible for the same general harm; denying a contribution action brought against a non-liable party).

Even before SARA, though, courts had recognized the right of liable parties to seek contribution from other PRPs. See United States v. New Castle County, 642 F. Supp. 1258, 16 ELR 21007 (D. Del. 1986) (finding a right to contribution from an examination of CERCLA's structure, congressional intent, and federal interests), cited with approval in Sand Springs Home v. Interplastic Corp., 670 F. Supp. 913, 17 ELR 20775 (N.D. Okla. 1987) (finding that § 113(f) unequivocally provides for a right of contribution and holding that the Restatement (Second) of Torts § 886A provides the standard for adjudicating contribution).

In a curious decision, the court held in United States v. Seymour Recycling Corp., 686 F. Supp. 696, 19 ELR 20523 (S.D. Ind. 1988), that § 113(f)(3)(B) does not allow a party to seek contribution until they have settled their liabilitywith the government. The Rockwell court found this reading of § 113(f)(3)(B) untenable, and refused to accept the holding as persuasive precedent.

321. Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 18 ELR 21026 (3d Cir. 1988) (holding that liability among parties should be apportioned according to relative culpability and other equitable factors that a district court may find relevant); United States v. Monsanto Co., 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988) (observing that § 113(f) "reveals Congress' concern that the relative culpability of each responsible party be considered in determining the proportionate share of costs each must bear."), cert. denied, 57 U.S.L.W. 3812 (June 12, 1989); Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100 (N.D. Ill. 1988) (finding the Gore factors relevant to apportioning liability, which include identifiability of wastes contributed, cooperation of parties with regulators, divisibility of culpability, care exercised by parties, volumetric contribution, and toxicity of hazardous substances (citing United States v. A & F Materials Co., 578 F. Supp. 1249, 14 ELR 20105 (S.D. Ill. 1984)); PVO International, Inc. v. Drew Chemical Corp., 19 ELR 20077 (D.N.J. June 27, 1988) (holding that since the buyer may have paid a discounted price for property because of its contaminated condition, one of the equitable factors the court will consider is the "increase in the value of the property which will result if it is rid of hazardous wastes."); Jersey City Redevelopment Authority v. PPG Industries, 18 ELR 20464 (D.N.J. Sept. 3, 1987) (finding that "the general trend in the common law is toward a comparative fault approach to allocation of damages.") (citing Note, Developments in the Law — Toxic Waste Litigation, 99 HARV. L. REV. 1458, 1538 (1986), AND RESTATEMENT (SECOND) OF TORTS § 886A comment h).

A district court judge retains the discretion of when a contribution action may be brought. In United States v. Monsanto Co., 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 57 U.S.L.W. 3812 (June 12, 1989), the court upheld, but did not necessarily agree with, a district court decision to finish the instant action involving the parties' liability to the United States before proceeding in a subsequent case to decide the contribution issues raised by the liable parties.

For an insightful discussion of CERCLA contribution, see Garber, Federal Common Law of Contribution Under the 1986 CERCLA Amendments, 14 ECOLOGY L.Q. 365 (1987).

322. 693 F. Supp. 1563, 19 ELR 20473 (E.D. Pa. 1987) (finding that the buyer violated a condition of the subject indemnity clause and thereby nullified its effectiveness).

323. The court cited for support FMC Corp. v. Northern Pump Co., 668 F. Supp. 1285, 18 ELR 20293 (D. Minn. 1987) (holdingthat a lease provision that absolved the lessor of liabilities caused by lessee's activities barred lessee from bringing a contribution claim); Chemical Waste Management v. Armstrong World Indus., 669 F. Supp. 1285, 18 ELR 20191 (E.D. Pa. 1987) (holding that warranty and indemnity provisions must be express and unequivocal before they will bar CERCLA liability; court will not imply these provisions).

Other courts that have construed § 107(e) include: Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 19 ELR 20733 (D.N.J. 1988) (holding that an "as is" clause only precludes claims based on breach of warranty and is not sufficient to transfer liability from the seller to the buyer); Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 17 ELR 20209 (9th Cir. 1986) (affirming lower court holding that had barred a contribution action based on the release provisions of a purchase contract); and United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984 at 1010, 17 ELR 20845 (D.S.C. 1985) (after finding that seller did not misrepresent condition of property, court held that buyer assumed CERCLA liabilities of seller in sales contract).

324. See Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 17 ELR 20209 (9th Cir. 1986), in which the Ninth Circuit counseled that it was undesirable to have uniform federal rules, like those governing CERCLA liability, in the commercial context of indemnity clauses. Instead, the Ninth Circuit incorporated the law of the appropriate state to interpret the clause, finding this consistent with traditional federal court practice and with the effective implementation of CERCLA. See also Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 19 ELR 20472 (E.D. Pa. 1988) (using state law to interpret a warranty provision); Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 19 ELR 20733 (D.N.J. 1988) (using state law to interpret contractual release and warranty provisions).

325. CERCLA § 113(f), 42 U.S.C. § 9613(f)(2), ELR STAT. CERCLA 039. Although the language of § 113(f) refers only to settlements with "the United States Government or a State," one court has interpreted the definition of "State" to include settlements with municipalities. City of New York v. Exxon Corp., 698 F. Supp. 677, 19 ELR 20332 (S.D.N.Y. 1988). Of course, a settlement agreement may also address liability to a federal or state trustee for natural resource damages. In re Acushnet River & New Bedford Harbor, 712 F. Supp. 1019, 19 ELR 21210 (D. Mass. 1989).

326. In City of New York v. Exxon Corp., 697 F. Supp. 677, 19 ELR 20332 (S.D.N.Y. 1988), the court engaged in an exhaustive review of the standards courts should use when passing on a settlement agreement. The court began by mentioning that CERCLA itself does not provide any brightline standards by which to judge settlements. Nevertheless, the court cited with approval the factors enunciated in United States v. Conservation Chemical Co., 628 F. Supp. 391, 17 ELR 20158 (W.D. Mo. 1985) (finding that courts should judge settlements on the basis of fairness, adequacy, reasonableness, consistency with the Constitution, and consistency with congressional intent) (citing United States v. Seymour Recycling Corp., 554 F. Supp. 1334, 13 ELR 20192 (S.D. Ind. 1982)). See also In re Acushnet River & New Bedford Harbor, 712 F. Supp. 1019, 19 ELR 21210 (D. Mass. 1989) (applying the factors above, but holding that the public interest demands that settlement agreements include a "reopener" provision which would override a covenant not to sue and allow the government to sue the settling parties for future costs arising from presently unknown conditions); H.R. REP. No. 253(III), 99th Cong., 2d Sess., reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 2835 (stating that courts should satisfy themselves that a settlement is "reasonable, fair, and consistent with the purposes the CERCLA is intended to serve."). The Exxon, Conservation Chemical, and Acushnet courts agreed that the ultimate test is whether the settlement is in the public interest, while keeping in mind the CERCLA goal of encouraging settlements.

327. To determine the effect of a settlement on non-settling parties, the courts have looked for guidance to the Uniform Comparative Fault Act of 1977 (UCFA). The UCFA reduces the total claim of the releasing party by the released party's equitable share of fault. See City of New York v. Exxon Corp., 697 F. Supp. 677, 19 ELR 20332 (S.D.N.Y. 1988) (adopting UCFA for purposes of determining effect of a settlement on non-settling parties); Lyncott Corp. v Chemical Waste Management, Inc., 690 F. Supp. 1409 (E.D. Pa. 1988) (same); Hines Lumber Co. v. Vulcan Materials Co., 685 F. Supp. 651, 18 ELR 21223 (N.D. Ill. 1987) (same); and United States v. Conservation Chemical Co., 628 F. Supp. 391, 17 ELR 20158 (W.D. Mo. 1985) (same).

The court in O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988), did not adopt or reject the UCFA, but held that under the plain language of $ 113(f), the total claim of the releasing party for past costs was reduced by the amount paid by the released parties.

328. See CERCLA § 113(f)(2), 42 U.S.C. § 9613(f)(2), ELR STAT. CERCLA 039, which states: "A person who has resolved his liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement." Construed in City of New York v. Exxon Corp., 697 F. Supp. 677, 19 ELR 20332 (S.D.N.Y. 1988); United States v. Seymour Recycling Corp., 686 F. Supp. 696, 19 ELR 20523 (S.D. Ill. 1988) (holding that parties who entered a consent decree with the government that did not resolve the parties' liability to the government would not receive protection under § 113(f)(2) from contribution actions brought by non-settlers).

329. City of New York v. Exxon Corp., 697 F. Supp. 677, 19 ELR 20332 (S.D.N.Y. 1988).

330. Id. The Exxon court found that settlements which include remedial action plans must meet the procedural requirements that remedial action plans in general must meet, such as development of an administrative record and extensive public review and comment opportunities, in addition to independent judicial review. Contrarily, § 122 allows the Administrator of EPA to accept a monetary settlement without judicial review and limited public comment. Since the Exxon court believed that it had a sufficient factual record to review the monetary settlement at bar in light of the factors discussed above, the court found no need to engage in a separate evidentiary hearing.

331. See CERCLA § 113(g)(2), 42 U.S.C. § 9613(g)(2), ELR STAT. CERCLA 039 (stating that "the court shall enter a declaratory judgment on liability for response costs or damages that will be binding on any subsequent action or actions to recover further response costs or damages.").

332. See, e.g., Williams v. Allied Automotive, 704 F. Supp. 782, 19 ELR 20689 (N.D. Ohio 1988) (holding once liability for some costs is established, then a party may obtain declaratory judgment for future costs consistent with the NCP); Lykins v. Westinghouse Electric Corp., 18 ELR 21498 (E.D. Ky. Feb. 29, 1988) (holding that once a plaintiff has incurred some response costs, "the controversy is sufficiently real to allow the Court to determine defendants' liability for future costs as well." Id.) (citing Jones v. Inmont Corp., 584 F. Supp. 1425, 14 ELR 20485 (S.D. Ohio 1984)); T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988) (holding defendants liable for past and future response costs, based on a finding that plaintiff has incurred some removal costs); Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988) (finding that "declaratory judgments as to future removal costs are consistent with CERCLA's purpose of encouraging prompt, remedial action") (citing United States v. Northeastern Pharmaceutical and Chemical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984) and State ex rel. Brown v. Georgeoff, 562 F. Supp. 1300, 13 ELR 20457 (N.D. Ohio 1983)); Sunnen Products Co. v. Chemtech Industries, 658 F. Supp. 276, 17 ELR 20884 (E.D. Mo. 1987) (holding that a buyer of contaminated property could receive a declaratory judgment on the liability of the seller for past and future response costs); United States v. Conservation Chemical Co., 628 F. Supp. 391, 17 ELR 20158 (W.D. Mo. 1985) (holding that settling parties are entitled to a declaratory judgment on the liability of non-settling parties for future response costs).

333. See Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 18 ELR 20470 (9th Cir. 1988) (holding that "the essential fact establishing a CERCLA plaintiff's right to declaratory relief is the alleged disposal of hazardous substances at the site in question." Id.) (citing Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 16 ELR 20754 (9th Cir. 1986)); Rockwell International Corp. v. IU International Corp., 702 F. Supp. 1384, 19 ELR 20908 (N.D. Ill. 1988) (holding that a sufficient controversy exists for a party to bring a declaratory judgment action once any response costs are incurred; also, observing that no one has followed Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F. Supp. 1437, 15 ELR 20151 (S.D. Fla. 1984) (holding that plaintiffs may not ask for declaratory judgment until they have incurred remedial costs); Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 19 ELR 20733 (D.N.J. 1988) (same holding as Rockwell) (distinguishing United States v. Price, 577 F. Supp. 1103, 14 ELR 20501 (D.N.J. 1983) (finding declaratory judgment not ripe because no specific allegation of response costs); and D'Imperio v. United States, 575 F. Supp. 248, 14 ELR 20248 (D.N.J. 1983) (finding declaratory judgment not ripe because party faced no immediate threat of liability and thus no controversy)); Brewer v. Ravan, 680 F. Supp. 1176, 18 ELR 20799 (M.D. Tenn. 1988) (finding that a declaratory judgment action is appropriate when the plaintiff has incurred "at least some necessary costs of response." Id.).

Alternatively, courts will allow defendants to seek declaratory judgment on liability when their "fears [are] sufficiently real and immediate" based on actions taken by potential plaintiffs. Levin Metals Corp. v. Parr-Richmond Terminal Co., 799 F.2d 1312, 16 ELR 20954 (9th Cir. 1986) (finding a declaratory judgment action ripe when defendant received notice from plaintiffs of their pending claim for response costs; defendant did not have to wait until plaintiffs actually filed suit) (citing D'Imperio v. United States, 575 F. Supp. 248, 14 ELR 20248 (D.N.J. 1983)), cited with approval in Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 16 ELR 20754 (9th Cir. 1986). But see In re Combustion Equipment Associates, Inc., 838 F.2d 35, 18 ELR 20494 (2d Cir. 1988) (holding that a party's motion for declaratory relief does not ripen with the receipt of a PRP letter from EPA because EPA could decide not to pursue a cost-recovery action against the party).

334. In T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988), the court assured the defendants that a declaratory judgment for future costs was not "tantamount to writing a 'blank check,'" since plaintiffs would eventually have to show that the costs were consistent with the NCP. See also Sunnen Products Co. v. Chemtech Indus., 658 F. Supp. 276, 17 ELR 20884 (E.D. Mo. 1987) (holding that a defendant liable for future response costs will be able to contest consistency with the NCP when the plaintiff incurs the costs); United States v. Conservation Chemical Co., 628 F. Supp. 391, 17 ELR 20158 (W.D. Mo. 1985) (holding that any future costs must be consistent with the NCP). Cf. United States v. Wade, 14 ELR 20437 (E.D. Pa. 1984) (holding that response costs incurred before promulgation of the NCP may be recoverable if the are eventually determined to be consistent with the NCP). See also Babich & Hanson, Injunctive and Declaratory Relief for States Under CERCLA, 18 ELR 10216 (June 1988).

335. See supra notes 150-151 and accompanying text.

336. T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988) (holding that CERCLA has not affected the equitable powers of the federal courts); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (holding that CERCLA enhances federal district courts' inherent equitable authority and finding that the existence of an available remedy at law does not, without more, preclude the exercise of equitable jurisdiction).

337. In T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988), the court determined: "Other forms of injunctive relief could be granted to compel defendants to 'comply with their obligations,' which may be limited to simply reimbursing plaintiff for 'necessary costs.' Thus, plaintiff's claim for injunctive relief will not be dismissed at this time." Id. See also United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (waiting for a factual record to develop before deciding whether an equitable remedy is appropriate and necessary).

338. United States v. Southeastern Pennsylvania Transportation Authority, 17 ELR 20001 (E.D. Pa. 1986) (holding that §§ 107(a)(4)(c) and 107(f) clearly allow only federal and state governments to recover NRDs; private cause of action for NRDs does not exist).

However, two courts have held that in addition to federal and state governments, municipalities may also recover damages to natural resources over which they exercise management or control. See City of New York v. Exxon Corp., 633 F. Supp. 609, 16 ELR 20850 (S.D.N.Y. 1986) (holding that purposes of CERCLA were furthered by a broad definition of "state"); Town of Boonton v. Drew Chemical Co., 621 F. Supp. 663, 16 ELR 20328 (D.N.J. 1985) (same); Maraziti, Local Government: Opportunities to Recover for Natural Resource Damages, 17 ELR 10036 (Feb. 1987).

339. The seminal article on NRDs is Breen, CERCLA's Natural Resource Damage Provisions: What Do We Know So Far?, 14 ELR 10304 (Aug. 1984). See also Anderson, Natural Resource Damages, Superfund, and the Courts, 16 B.C. ENVTL. AFF. L. REV. 405 (1989); Carlson, Making CERCLA Natural Resource Damage Regulations Work: The Use of the Public Trust Doctrine and Other State Remedies, 18 ELR 10299 (Aug. 1988); Cross, Natural Resource Damage Valuation, 42 VAND. L. REV. 269 (1989); AND Johnson, Natural Resource Damage Assessments Under CERCLA: Flawed Regulations May Limit Recovery, 12 CHEM. WASTE LIT. REP. 47 (1987).

340. New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984) (holding that claims for NRDs may be prospective because § 107(f) does not require a plaintiff to expend money before bringing a recovery action).

341. Colorado v. Asarco, Inc., 616 F. Supp. 822, 16 ELR 20561 (D. Colo. 1985).

342. Restoration value is the cost of restoring, replacing, or acquiring the equivalent of a damaged natural resource. Use value is calculated by determining the market value of a natural resource. For example, if a hazardous substance spill destroyed seals and a seal habitat, restoration value would be the cost of repopulating the habitat and making it flourish again or of acquiring an equivalent habitat. Use value would be the market value of the lost seals (based on the price of seal pelts) plus the market value of comparable habitat. The regulations can be found at 43 C.F.R. §§ 11.10-11.93.

343. 19 ELR 21099 (D.C. Cir. July 14, 1989). See also Colorado v. United States Department of the Interior, 19 ELR 21127 (D.C. July 14, 1989) (companion case concerning simplified "Type A" regulations).

344. In a decision that predated Interior's regulations, a district court adopted the "lesser of" rule as a part of CERCLA federal common law. Idaho v. Bunker Hill Co., 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986). The Bunker Hill court bemoaned the lack of clear guidelines in CERCLA for assessing the dollar value of NRDs. Turning to legislative history, the court found persuasive the view of Senator Simpson that NRDs should be measured using traditional tort rules for calculating damages, which awarded the lesser of diminution in value or, where possible, restoration costs. Id. (citing 126 CONG. REC. S1500 (daily ed. Nov. 24, 1980) (statement of Sen. Simpson)). While failing to mention Bunker Hill, the D.C. Circuit did discuss Senator Simpson's remarks, dismissing them as the grumblings of a vocal opponent of CERCLA who apparently did not share Congress' dissatisfaction with common law remedies.

345. 42 U.S.C. § 9607(f), ELR STAT. CERCLA 026 (stating that CERCLA does not authorize the recovery of natural resource damages "where such damages and the release of a hazardous substance from which such damages resulted have occurred wholly before December 11, 1980."). This provision has been construed in Idaho v. Bunker Hill Co., 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986), in which the court found that if the release occurred before enactment but the damage occurred after enactment, then § 107(f) would not bar recovery. Id.

The court in United States v. Wade, 14 ELR 20435 (E.D. Pa. Feb. 2, 1984) also had occasion to construe § 107(f), finding that its preenactment bar was not triggered simply because a defendant stopped dumping hazardous substances before December 11, 1980. The Wade court reasoned that releases such as leaching may occur long after a hazardous substance has been dumped.

346. See supra notes 72-77 and accompanying text.

347. Idaho v. Hanna Mining Co., 699 F. Supp. 827, 18 ELR 20360 (D. Idaho 1987). See supra notes 72-75 and accompanying text.

348. Hoskins, Striking a Balance: The Pollution Clause in Comprehensive General Liability Policies, 19 ELR 10351 (Aug. 1989); and Cheek, Graham and Wardzinski, Insurance Coverage for Superfund Liability Defense and Cleanup Cost, 19 ELR 10203 (May 1989).

349. Recall that the Seventh Amendment guarantee of a jury trial does not attach in cost recovery actions because the courts have determined that response costs are equitable in nature and do not afford a remedy at law. See supra notes 219-221 and accompanying text.

350. The CGL policy contains standard clauses and disclaimers. See Continental Insurance Cos. v. Northeastern Pharmaceutical and Chemical Co., 842 F.2d 977, 18 ELR 20819 (8th Cir. 1988) (noting that CGL policies contain standard-form language).

351. See, e.g., Continental Insurance Cos. v. Northeastern Pharmaceutical and Chemical Co., 842 F.2d 977, 18 ELR 20819 (8th Cir. 1988) (holding that under "Black letter insurance law," the term "pay as damages" limits the obligation of the insurer to reimburse the insured only for legal damages, not equitable response costs); Maryland Casualty Co. v. Armco, Inc., 822 F.2d 1348, 17 ELR 21277 (4th Cir. 1987) (limiting recovery in CGL policies to legal damages and relieving insured from the obligation of paying equitable response costs). See also Cincinnati Insurance Co. v. Milliken and Co., 857 F.2d 979, 19 ELR 20118 (4th Cir. 1988) (citing Continental and Armco in reaching the same conclusion).

352. New Castle County v. Hartford Accident & Indemnity Co., 673 F. Supp. 1359, (D. Del. 1987) (interpreting Delaware law as requiring courts to give insurance contract provisions a "plain meaning" and finding that a layperson would include equitable from legal relief in a definition of damages); Jones Truck Lines v. Transport Insurance Co., 19 ELR 21169 (E.D. Pa. May 9, 1989) (same, interpreting Missouri law).

353. 19 ELR 21169 (E.D. Pa. May 9, 1989).

354. 842 F.2d 977, 18 ELR 20819 (8th Cir. 1988).

355. The Continental court acknowledged that Missouri followed the layperson's reading rule, but then adopted the technical meaning of "damages" as it is used in the insurance context. Making the same leap, the Fourth Circuit in Armco and Milliken recognized that Maryland and South Carolina law required terms in insurance contracts to be given a popular, normal meaning; nevertheless, the court adopted the technical meaning of the term "damages" in finding that the CGL policy did not cover response costs.

356. The Jones court, citing Robin v. Blue Cross Hospital Service, Inc., 637 S.W.2d 695 (Mo. 1982) (en banc), determined that under Missouri law "the rules of construction applicable to insurance contracts require that the language used be given its plain meaning."

357. 73 Bankr. 943, 17 ELR 20826 (Bankr. W.D. Mich. 1987).

358. Id. (applying 11 U.S.C. § 157) (citing In re Franklin Signal Corp., 65 Bankr. 268, 17 ELR 20369 (Bankr. D. Minn. 1986)).

359. 474 U.S. 494, 16 ELR 20278 (1986). See Morris, State Enforcement of Environmental Laws Against Bankrupt Entities, 16 ELR 10143 (June 1986). The court's use of Midlantic is a bit curious, since the court was determining the relationship between two federal statutes and the Supreme Court was concerned with the relationship between the federal Bankruptcy Code and New Jersey's environmental laws. Perhaps the Peerless court found federal preemption doctrine analogous to repeal by implication analysis.

360. The Peerless court found that under Midlantic, the Bankruptcy Code would allow a trustee to abandon contaminated property if: (1) the environmental law preventing abandonment was so onerous as to interfere with the bankruptcy or adjudication itself; (2) the environmental law preventing abandonment was not reasonably designed to protect public health and safety from imminent or identified environmental hazards; or (3) the violation caused by abandonment would only be speculative.

Applying these factors, the Peerless court held that CERCLA would not interfere with depletion of the estate, that CERCLA was designed to protect public health, and that abandonment would result in an immediate violation of CERCLA. Thus, the trustee could not abandon the property.

The Peerless court noted that it disagreed with a prior ruling that had allowed the abandonment of contaminated property subject to certain conditions. In re Franklin Signal Corp., 65 Bankr. 268, 17 ELR 20369 (Bankr. D. Minn. 1986). The Franklin court decided that it had satisfied the Midlantic factors by determining that abandoning the contaminated property would not violate the Wisconsin Hazardous Waste Management Act. As long as the trustee investigates the property to identify the hazardous substances that burden the property and notifies appropriate state and federal agencies of the impending abandonment, the Franklin court found that the trustee had taken "adequate precautionary measures to ensure that there is no imminent danger to the public as a result of abandonment." Id.

361. See re T.P. Long Chemical, Inc., 45 Bankr. 278, 15 ELR 20635 (Bankr. N.D. Ohio 1985) (holding the estate is imputed with the same owner/operator liability as the bankrupt owner).

362. 42 U.S.C. § 9607(b), ELR STAT. CERCLA 025.

363. United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985). See also Washington v. Time Oil Co., 687 F. Supp. 529, 18 ELR 21376 (W.D. Wash. 1988).

364. See, e.g., United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986).

365. Id.; United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

366. 42 U.S.C. § 9607(b)(3), ELR STAT. CERCLA 025. Section 107(b)(1), the Act of God defense, has been the subject of one decision. In that case the court held that heavy but foreseeable rains are not contemplated by the term "Act of God." United States v. Stringfellow, 661 F. Supp. 1053, 17 ELR 21134 (C.D. Cal. 1987).

367. O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988) (quoting United States v. Stringfellow, 661 F. Supp. 1053, 17 ELR 21134 (C.D. Cal. 1987)).

368. Id.

369. O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988) (citing Violet v. Picillo, 613 F. Supp. 1563, 16 ELR 20331 (D.R.I. 1985)).

370. United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 57 U.S.L.W. 3812 (June 12, 1989). Accord New York v. Shore Realty Corp., 759 F.2d. 1032, 15 ELR 20538 (2d Cir. 1985). See also United States v. Hooker Chemicals & Plastics Corp., 680 F. Supp. 546, 18 ELR 20580 (W.D.N.Y. 1988) (defendant must show that it was "totally blameless" with respect to the release to qualify for § 107(b)(3)).

371. CERCLA § 107(b)(3), 42 U.S.C. § 9607(b)(3), ELR STAT. CERCLA 025.

372. See United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 57 U.S.L.W. 3812 (June 12, 1989); United States v. Northernaire Plating Co., 670 F. Supp. 742, 18 ELR 20712 (W.D. Mich. 1987); United States v. Argent Corp., 14 ELR 20616 (D.N.M. May 4, 1984).

373. United States v. Hooker Chemicals & Plastics Corp., 680 F. Supp. 546, 18 ELR 20580 (W.D.N.Y. 1988). In Hooker, defendant, a prior owner, argued that when it transferred the property, the landfill was secure. It is unclear why the court did not also cite § 107(a)(2), which imposes liability on any owner at the time disposal of hazardous substances took place, without reference to when a release took place.

374. CERCLA § 107(b)(3)(a) and (b), 42 U.S.C. § 9607(b)(3)(a) and (b), ELR STAT. CERCLA 025.

375. United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 57 U.S.L.W. 3812 (June 12, 1989).

376. New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985).

377. United States v. Hooker Chemicals & Plastics Corp., 680 F. Supp. 546, 18 ELR 20580 (W.D.N.Y. 1988).

378. 42 U.S.C. § 9607(b)(3), ELR STAT. CERCLA 025. See, e.g., United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985) (transporter either an employee or agent of the defendant).

379. City of Philadelphia v. Stepan Chemical Co., 18 ELR 20133 (E.D. Pa. July 28, 1987).

380. Id. (citing 126 CONG. REC. 26783 (1980) (statement by former Rep. Gore)). But see Violet v. Picillo, 648 F. Supp. 1283, 17 ELR 20629 (D.R.I. 1986), which states that the third party defense incorporates "general principles of vicarious liability." If the facts and result of the City of Philadelphia case seem remorseless already, it will not surprise the reader to find that the City's liability was established on a counterclaim by the company after the City sued under CERCLA. City of Philadelphia, 18 ELR at 20133.

381. See CERCLA §§ 101(35) and 107(b)(3), 42 U.S.C. §§ 9601(35) and 9607(b)(3), ELR STAT. CERCLA 009, 025.

382. See, e.g., United States v. Mirabile, 15 ELR 20994 (E.D. Pa. Sept. 4, 1985).

383. CERCLA § 101(35)(A)(i), 42 U.S.C. § 9601(35)(A)(i), ELR STAT. CERCLA 009.

384. PVO International, Inc. v. Drew Chemical Corp., 19 ELR 20097 (D.N.J. June 27, 1988). See also United States v. Serafini, 706 F. Supp. 346, 19 ELR 20828 (M.D. Pa. 1988); Wickland Oil Terminals v. Asarco, Inc., 19 ELR 20855 (N.D. Cal. Feb. 23, 1988); United States v. Pacific Hide and Fur Depot, Inc., 19 ELR 20897 (D. Idaho Mar. 13, 1989).

385. 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

386. Id. But see United States v. Hardage, 116 F.R.D. 460, 17 ELR 20738 (W.D. Okla. 1987) (equitable defenses unavailable for purposes other than liability).

387. Id. See also O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988).

388. Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 19 ELR 20472 (E.D. Pa. 1988); United States v. Stringfellow, 661 F. Supp. 1053, 17 ELR 21134 (C.D. Cal. 198() (cf. New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20538 (2d Cir. 1985) (each of the defenses in § 107(b) "carves out from liability an exception based on causation"), quoted in United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 57 U.S.L.W. 3812 (June 12, 1989); Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 19 ELR 20733 (D.N.J. 1988) (equitable defenses "go to the issue of damages").

389. See United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986); United States v. Mottolo, 605 F. Supp. 898, 15 ELR 20444 (D.N.H. 1985).

390. United States v. Moore, 703 F. Supp. 455, 18 ELR 21274 (E.D. Va. 1988). See also United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986); United States v. Mottolo, 605 F. Supp. 898, 15 ELR 20444 (D.N.H. 1985); Violet v. Picillo, 613 F. Supp. 1563 (D.R.I. 1985). But see United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985), where the court notes that laches is not automatically barred against the United States.

In dicta, the Moore court states that if called to look for an analogous federal statute of limitation as guidance to the application of laches, it would be the six years for implied-in-law contracts under 28 U.S.C. § 2415(a), not the three year tort limitation in 28 U.S.C. § 2415(b). Accord United States v. Mottolo, supra; But see United States v. Wade (E.D. Pa. 1984) (finding 28 U.S.C. § 2415 inapplicable in any event).

391. Merry v. Westinghouse Electric Corp., 684 F. Supp. 852, 18 ELR 21220 (M.D. Pa. 1988).

392. See United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1988); United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986). But see Mardan Corp. v. C.G.C. Music, Ltd., 600 F. Supp. 1049, 15 ELR 20370 (D. Ariz. 1984), aff'd on other grounds, 800 F.2d 310, 17 ELR 20209 (9th Cir. 1986), ruling that the doctrine of unclean hands could bar a private party, but not the government.

393. United States v. Vineland Chemical Co., 692 F. Supp. 415, 19 ELR 20160 (D.N.J. 1988). But cf. United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985) (estoppel may apply to government actions, conduct, or statements by its employees).

394. O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988).

395. Mardan Corp. v. C.G.C. Music, Ltd., 600 F. Supp. 1049, 15 ELR 20370 (D. Ariz. 1984), aff'd on other grounds, 800 F.2d 310, 17 ELR 20209 (9th Cir. 1986). But see Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 19 ELR 21254 (N.D. Ill. 1988). The Allied court stated that Marden "goes too far." Id. The court reasoned that the language of § 107 allowed "any person" to recover costs, that this language "overrides any common law rules to the contrary," and, thus, precludes the application of the unclean hands doctrine. Id.

396. Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 18 ELR 21026 (3d Cir. 1988).

397. Id.; Sunnen Products Co. v. Chemtech Industries, 658 F. Supp. 276, 17 ELR 20884 (E.D. Mo. 1987). The court in Smith Land, supra, did note, however, that caveat emptor could be considered as a mitigating factor in determining the amount of contribution. But cf. Mardan Corp. v. C.G.C. Music, Ltd., 800 F.2d 310, 17 ELR 20209 (9th Cir. 1986) ("nothing in CERCLA suggests that it was intended to offer special protection to unwary purchasers of businesses").

398. See United States v. Tyson, 17 ELR 20527 (E.D. Pa. Aug. 21, 1986); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985). SARA added § 122(g) which provides for expedited settlements with de minimis contributors in certain narrow circumstances.

19 ELR 10430 | Environmental Law Reporter | copyright © 1989 | All rights reserved