Municipal and Private Party Claims Under Superfund

Frank M. Thomas, Jr.

Editors' Summary: Actions by municipalities and nongovernmental entities to recover the costs of responding to hazardous waste releases are authorized by the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), but the authority has not been utilized heavily.The author, who brought such a suit on behalf of the City of Philadelphia, reviews the relevant provisions of CERCLA, outlining the types of response costs that may be recoverable. He analyzes the two avenues of recovery made available: actions directly against persons responsible for releases under § 107 or claims against the "Superfund" under § 112. The author presents a step-by-step guide to developing a § 107 action or § 112 claim and highlights key problems, such as the time limitations of §§ 111(d)(1) and 112(d) and the restrictive regulations governing claims promulgated by EPA.

Mr. Thomas recently joined the firm of Morgan, Lewis & Bockius in Philadelphia after serving three years as Divisional Deputy, City Solicitor, for Special Projects. Mr Thomas was lead counsel for the city in City of Philadelphia v. Stepan Chemical Co.

[13 ELR 10272]

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)¹ is generally viewed as establishing a mechanism for federal and state government responses to pollution incidents involving inactive or abandoned waste disposal sites or spills of hazardous materials. Largely overlooked is the usefulness of CERCLA to local governments or private parties² who initiate cleanup or mitigation activities in order to protect or restore their own property. Recent court decisions, most notably City of Philadelphia v. Stepan Chemical Co.,³ confirm that municipalities and private parties who incur expenses in responding to releases of hazardous substances may assert claims under CERCLA § 107 against the persons responsible for such releases. Additionally, the Hazardous Substance Response Trust Fund (the Fund) created under CERCLA⁴ may allow private parties to be reimbursed for certain expenditures.⁵ The availability of these two cost recovery options is especially important to local governments whose lands have been used illegally for the disposal of hazardous wastes and to public water systems whose sources of water supply are contaminated or threatened with contamination by hazardous substances.

Response Actions: Compensable Costs

With the enactment of CERCLA, Congress sought to encourage prompt and efficient responses to hazardous pollution incidents. In most instances, this objective is to be accomplished by federal and state agencies which have been given the legal authority to take effective action whenever hazardous substances are released into the environment. CERCLA's liability and cost recovery provisions have been drafted broadly, however, so that private cleanup initiatives are possible. As a result, property owners who have the financial resources to develop and implement cleanup plans — e.g., local governments and public utilities — may be able to recover part or all of their costs.

CERCLA provides for the recovery of two types of costs incurred in responding to a hazardous pollution incident, "removal" and "remedial" actions. Removal actions are those taken initially to avert or minimize pollution damage. The activities covered encompass not only the physical removal of hazardous substances but also the monitoring and evaluation of the nature and extent of the release and "such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environmental."⁶ Specifically listed as compensable removal expenses are the provision of alternative water supplies, temporary evacuation and housing, and security fencing. Congress understood "removal" actions to include

[13 ELR 10273]

Mitigation … activities such as spill containment measures; measures required to warn the public of, and protect it from acute danger; temporary evacuation and housing; activities necessary to close an existing public water supply system and provide and monitor the quality of temporary water supplies for humans, livestock, and crops forming part of the human food chain; monitoring for spread of the hazardous substances; biological and other monitoring to determine the extent of the contamination; physical measures to identify and contain substances contaminated by a release, discharge or disposal; providing security fencing, navigational cautions or other means of separation; providing efforts to raise sunken vessels or to right or seal transport vehicles which contain the hazardous substance; [and] implementation of emergency treatment facilities … Mitigation may also include efforts necessary to locate the source of the release, discharge or disposal and identify properties of the substances released. The costs of such measures, efforts and activities are recoverable.⁷

The second category of compensable costs are those associated with remedial actions, which are actions designed to effect a permanent remedy. Included are

such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances or contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment.⁸

Operation and maintenance costs necessary to the continued effectiveness of hazardous waste containment measures should also be recoverable, e.g., "repair of clay caps and eroded dikes, operation and maintenance of a treatment system, and maintenance of a reverse hydraulic head in contaminated groundwater."⁹

The statutory definition of "remedial action" makes explicit reference to the "provision of alternative water supplies" as a recognized means for assuring that the public health or welfare is not endangered. Interestingly, the early Senate version of the Superfund legislation defined "remedial action" so that the cost of providing a permanent alternative drinking water supply could be recovered only if the President determined that the development of such a supply was more cost-effective than other remedial actions and that it was necessary to protect the public health or welfare.¹⁰ At the time, the Senate Committee expressed its intention as follows:

Provision of permanent alternative drinking water supplies for humans may be provided as remedial action only if the President determines that, as compared with other remedial actions, such provision is more cost-effective, considering capital, operating, maintenance and replacement costs.¹¹

This requirement of a cost-effectiveness determination by the President did not survive the last-minute redrafting of the legislation. Instead, the phrase "provision of alternative water supplies" was inserted within the list of remedial actions that can be taken without Presidential review and approval.

In sum, where a hazardous substance contaminates or threatens to contaminate a private party's property or source of water supply, that party may be able to recover its costs of responding to the pollution incident, including the costs of:

identifying the source of the contamination;

identifying the physical characteristics of the harmful substance;

securing the site;

protecting the property or water supply source through removal or containment of the hazardous substance;

temporarily evacuating and housing persons at risk or exposure;

temporarily replacing a contaminated water supply source (e.g., by purchasing water from another public water system);

developing a permanent replacement source of water supply, including new wells, new reservoir, or interconnection with another public water system; and

operating and maintaining containment structures and treatment facilities.

Asserting a CERCLA Claim

Two cost recovery options may be available to a private party who initiates a response action: suit may be filed in federal district court against persons "responsible" for the pollution under CERCLA or a claim for payment from the Fund may be submitted to the Environmental Protection Agency (EPA). Recovery is by no means certain, however. A decision as to which option to pursue — i.e., which is most likely to result in reimbursement of response costs — can only be made after a careful evaluation of the particular circumstances confronting the municipality or private party.

The Claim Letter

In those instances where the persons responsible for a hazardous waste release are known, CERCLA requires that a claim letter be sent to those person before a statutory remedy is pursued.¹² The claim letter should indicate the nature of the damage suffered, the types of expenses for which reimbursement is sought (e.g., monitoring, cleanup, temporary source replacement, etc.) and the known or estimated costs. Specific reference to CERCLA should be made in the claim letter so that there can be no dispute as to the adequacy of notice. Once a claim letter [13 ELR 10274] has been presented, the recipient has 60 days in which to respond. "Where the claim has not been satisfied" within that time, the claimant "may elect to commence an action in court" against the person responsible for the hazardous substance release "or [may] present the claim to the Fund for payment."¹³

Cost Recovery from Responsible Parties: § 107 Liability

A private party that has incurred response costs due to the release of a hazardous substance may assert a CERCLA § 107 claim against the person responsible for the release. Under § 107, persons whose handling of hazardous substances¹⁴ results in the release or threatened release of such materials into the environment are strictly liable¹⁵ for the "necessary costs of response incurred as the result of the release, assuming those expenses were "consistent with the national contingency plan."¹⁶ A "release" includes any "spilling, leaking, escaping, leaching, dumping or disposing."¹⁷ Liability attaches to persons who own or operate hazardous waste facilities,¹⁸ persons who transport the wastes to such a facility, and persons who arrange for disposal or treatment, i.e., the "generators" of the hazardous substances. Persons who are potentially liable under CERCLA § 107 are often referred to as "responsible parties." Generally, they can avoid liability only by demonstrating that the release was caused solely by an act of God, by war, or by certain acts or omissions of third parties who have no business relationship with them.¹⁹

If a private party decides to litigate its CERCLA claim, it must file in federal district court rather than in state court.²⁰ Suit must be initiated "within three years of the date of discovery of the loss or December 11, 1980, whichever is later." That is, where the loss was known before CERCLA was enacted, the claimant has only until December 11, 1983 to pursue a CERCLA remedy.²¹ If both the release of the hazardous substance and the injury occurred "wholly" before the enactment of CERCLA, no claim may be asserted.²² CERCLA does not provide a mechanism for recovering expenses due to "old" pollution incidents. However, a claim may be asserted even though the release of the hazardous substance occurred prior to December 11, 1980 as long as some or all of the damage was suffered after that date.

The first judicial decision regarding liability under CERCLA § 107 was issued on August 4, 1982 in City of Philadelphia v. Stepan Chemical Co.²³ That case involves a claim by Philadelphia against numerous generators of hazardous wastes for damage suffered when waste haulers employed by the generators illegally disposed of chemical wastes on city-owned property. Thecity is seeking full recovery of its costs — currently estimated at over $15 million — for cleanup, site closure, and monitoring of a 60-acre parcel.

On pre-trial motion in City of Philadelphia, defendants argued that the city had no cause of action under CERCLA § 107. In rejecting the defendants' argument, the court held that a private party does have a statutory right to assert a claim for "response costs" against persons responsible for the release of hazardous substances. In the words of the Court:

[I]t is clear from the discussions which preceded the passage of CERCLA that the statute is designed to achieve one key objective — to facilitate the prompt cleanup of hazardous dumpsites by providing a means of financing both governmental and private responses and by placing the ultimate financial burden upon those responsible for the danger. The liability provision is an integral part of the statute's method of achieving this goal for it gives a private party the right to recover its response costs from responsible third parties which it may choose to pursue rather than claiming against the fund.²⁴ [13 ELR 10275] Moreover, a city's or private party's right to bring a § 107 action against hazardous waste generators is not precluded by the fact that it is potentially liable to the federal government as the owner of a contaminated site, at least insofar as the private party did not create the hazardous condition:

While the City is admittedly the owner of the Enterprise site, and might have been liable to the federal or state governments had those entities commenced the clean up, the dispositive consideration is that the City did not operate a hazardous waste disposal facility on the premises and its asserts that it did not voluntarily permit the placement of the hazardous substances on its property. Moreover, it has undertaken to clean up the ensuing damage and now seeks to recover its response costs from parties which were allegedly involved in the illegal dumping and which are made expressly liable for response costs. I cannot conclude that the City's right to maintain this action is barred by the hypothetical possibility that had the federal or state government brought this suit, the City too would be liable. The parade of horrors posited by defendants does not counsel against such a result. The simple fact is that there has been no expenditure of superfund monies nor have the federal or state governments commenced an action against the City or anyone else. Rather, a party which has incurred response costs seeks to recover them from responsible parties, an action expressly authorized by CERCLA. This action is not barred because of some theoretical inconsistencies with statutory provisions which have not been made operative in this case.²⁵

Assuming other courts follow the lead of the Eastern District of Pennsylvania, municipalities and private parties who initiate response actions will be able to invoke CERCLA § 107 in suits against hazardous waste generators and transporters for recovery of removal or remedial expenses consistent with the national contingency plan.²⁶

Shortly after the City of Philadelphia decision was issued, the federal district court in Minnesota also recognized the validity of an action under CERCLA § 107 in United States v. Reilly Tar and Chemical Corp.²⁷ In that case, the federal, state, and local governments sued a wood products firm whose operations had resulted in groundwater contamination. Two municipalities had been forced to close drinking water wells, and the drinking water supply for the Minneapolis-St. Paul region was threatened with contamination through leaching and migration.

Reilly Tar sought to limit its CERCLA liability by arguing that the only response costs subject to recovery were those which qualified as § 111 expenditures and that the existence of a cooperative agreement between the state and the federal government pursuant to § 104 was a condition to § 107 liability. The court refused to recognize any such limitations:

Reilly Tar's complex analysis of the Act is incorrect. Most importantly, Reilly Tar errs in attempting to link liability under Section 107 to the authorized uses of the Fund provided in Section 111. Liability under Section 107(a) is independent of the authorized uses of the Fund under Section 111 and of the cooperative agreement called for by Section 104(c)(3).

… Section 107(a) was meant to stand by itself; liability under it can be determined without the numerous inquiries suggested by the defendant. The plain language of the statute says so. Liability for the specified response costs under Section 107(a) is absolute, subject only to the defenses listed in Section 107(b), which are acts of God, acts of war, and certain acts or omissions of third parties.²⁸

The Reilly Tar decision is significant because it does not restrict the plaintiff's damages to only those costs that are reimbursable from the Fund. Extending the ruling to private plaintiffs, remedial action costs may be sought in litigation against the responsible parties even though EPA will not make a Fund award to a private party for such costs.²⁹

The emerging law under CERCLA thus appears to provide ample authority for local governments and nongovernmental entities to recover their response costs from responsible parties. The principal limits on this authority are that the responses must involve the types of actions described in the statute and must be consistent with the national contingency plan. The biggest obstacle to recovery by private parties under § 107 may prove to be not the lack of legal authority, but the difficulty of identifying responsible parties who have the financial ability to make full reimbursement.

Recovery from the Fund

As an alternative to initiating a lawsuit, a claim may be presented to EPA for payment from the Hazardous Substance Response Trust Fund.³⁰ The procedures for presenting a claim are detailed at CERCLA § 112(b).³¹ For reasons discussed below, however, obtaining reimbursement from the Fund is likely to be considerably more difficult than is suggested by the language of the statute.

The statutory procedure for filing a claim is relatively simple. As noted above, the claimant must first make a demand on known responsible parties and wait 60 days to see whether they will satisfy the claim. If they do not, a claim may then be filed with EPA provided that the claim is filed "within three years of the date of the discovery of the loss or December 11, 1980, whichever is later."³² The filing of a claim triggers an obligation on EPA's part to attempt to arrange a settlement between the claimant and the responsible parties. Any settlement reached is final [13 ELR 10276] and binding, with the claimant waiving all recourse against the Fund.³³

Where a settlement cannot be reached within 45 days, or where the claimant has been unable to identify the parties responsible for the pollution incident, CERCLA provides for an award from the Fund "for necessary response costs incurred … as a result of carrying out the national contingency plan."³⁴ Any potential claims against responsible parties are subrogated to the federal government upon receipt of Fund assistance.³⁵

EPA has the discretion to reject a claim, in which case the matter is submitted to a Board of Arbitrators for resolution.³⁶ The Board's decision is a final administrative action and, as such, may be appealed within 30 days to the federal district court in the district where the arbitration hearing occurred. The court's scope of review is narrow, however, since the Board's decision "shall not be overturned except for arbitrary or capricious abuse of … discretion."³⁷ As a practical matter, Board decisions will thus be difficult to overturn.

Where EPA decidesto pay a claim from the Fund but the claimant is dissatisfied with the amount awarded, an appeal may be filed in federal district court. As with an arbitration award, the scope of judicial review is narrow and EPA's decision will be overturned only upon a showing of arbitrary and capricious conduct.³⁸

In crafting the claims procedure, Congress intended that claims be processed promptly:

The purpose of the claims process is to assure prompt payment of valid claims where the claimant has been unable to obtain satisfaction from a liable party and has elected to pursue his claim against the Fund, rather than in a court action against the liable party for the same costs or damages. The President is given latitude in promulgating specific procedures aimed at achieving this end. It is intended that the procedures be as streamlined as possible, consistent with the necessity of fairly assessing the validity of claims presented and with sound financial accountability.³⁹

It is uncertain whether this objective will be met. To date, EPA has not prepared claims forms or issued claims procedures as required by the statute.⁴⁰ A short memorandum entitled "Interim Guidance on Claims or Inquiries About Claims Against the Fund" was sent to all EPA Regional Administrators on August 31, 1981.⁴¹ That memorandum advises that the Agency "will require preauthorization by EPA before a third party may initiate cleanup resulting in a claim" and indicates that the Washington, D.C. office will process all claims because "very few, if any, preauthorizations are anticipated and those that are granted will occur under extraordinary circumstances."

The difficulty in obtaining a Fund award does not arise from the claims procedure established by the statute but rather from EPA's restrictive interpretation of the types of claims a private party may present. As noted above, the response costs reimbursable from the Fund are those incurred "as a result of carrying out the national contingency plan" which are approved and certified by EPA.⁴² This certification requirement has been interpreted by EPA as follows:

If any person other than the Federal government or a State or person operating under contract or cooperative agreement with the United States, takes response action and intends to seek reimbursement from the Fund, such actions to be in conformity with this Plan for purposes of section 111(a)(2) of CERCLA may only be undertaken if such person notifies the Administrator of EPA or his/her designee prior to taking such action and receives prior approval to take such action.⁴³

When a private party intends to take removal action (i.e., a short-term, immediate response to a pollution incident), EPA approval should be forthcoming provided the private party demonstrates an awareness of, and willingness to follow, the technical requirements of the national contingency plan (NCP).⁴⁴ To assure that short-term responses are not transformed into remedial actions, the NCP contemplates termination of removal operations after $1 million have been spent or more than six months have elapsed from the start of cleanup.⁴⁵ Absent unusual circumstances, expenditures which exceed the limitations will probably not be reimbursed.

The NCP requirements governing remedial actions (i.e., permanent remedies) virtually preclude private parties from obtaining fund reimbursement for taking such actions. First, the NCP restricts "remedial actions" to "those responses to releases on the National Priorities List."⁴⁶ Unless the contaminated area already appears on the list, or the private party undertakes the administrative burden of having the area listed, EPA will not recognize the claim. Second, EPA has taken the position that fund assistance for remedial actions is only available where the requirements of CERCLA § 104(c)(3) are met.⁴⁷ That provision requires the state in which the hazardous substance release occurs to pay 10 percent of the total cost of remedial action⁴⁸ and to enter into a formal agreement with the federal government whereby the state assures proper [13 ELR 10277] operation and maintenance of the site until all work is completed.⁴⁹ It is unlikely that a municipality, much less a nongovernmental entity, will be able to convince the state to accept such responsibilities on its behalf. Thus a private party may find it difficult to recover response costs from the Fund, and as a practical matter may be more likely to obtain reimbursement in a § 107 action.⁵⁰

Conclusion

In determining which cost recovery mechanism to pursue — litigation or Fund assistance — consideration must be given to a variety of factors, including the nature and extent of the contamination or threat of contamination, the ability to identify the persons who released the hazardous substances and the sufficiency of evidence tying them to the pollution incident, the financial ability of the private party to "front" the cost of cleanup and related activity, and the severity of the threat to the public health relative to other pollution incidents statewide or nationally. Evaluation of these and other pertinent factors should occur at the early stages of planning a response to a pollution incident. In that way, the private party can devise a cleanup and cost recovery strategy which will increase its prospects for obtaining a substantial reimbursement of expenses. Given the inherent risks of litigation and the possibility that a claim on the Fund will be rejected, full cost recovery is not guaranteed. Nevertheless, the remedies provided by CERCLA are substantial and merit close attention by anyone contemplating a response action.

1. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941-55.

2. For convenience, the term private party will be used in the following pages to describe both local governments and nongovernmental entities.

3. 544 F. Supp. 1135, 12 ELR 20915 (E.D. Pa. 1982).

4. Sections 221-223, 42 U.S.C. §§ 9631-9633, ELR STAT. 41953.

5. CERCLA § 111(a)(2), 42 U.S.C. § 9611(a)(2), ELR STAT. 41950.

6. CERCLA § 101(23), 42 U.S.C. § 9601(23), ELR STAT. 41943-44.

7. S. REP. NO. 848, 96th Cong., 2d Sess. 53-54 (1980) [hereinafter cited as SENATE REPORT], reprinted in ELI, SUPERFUND: A LEGISLATIVE HISTORY, Vol. II, at 503 (1982) [hereinafter cited as LEGISLATIVE HISTORY].

8. CERCLA § 101(24), 42 U.S.C. § 9601(24), ELR STAT. 41944.

9. SENATE REPORT at 56, reprinted in LEGISLATIVE HISTORY, Vol. II, at 504.

10. See § 2(b)(7) of S. 1480 as reported by the Committee on Environment and Public Works on July 11, 1980, Calendar No. 933, reprinted in LEGISLATIVE HISTORY, Vol. I, at 562.

11. SENATE REPORT at 55, reprinted in LEGISLATIVE HISTORY, Vol. II, at 504.

12. Section 112(a), 42 U.S.C. § 9312(a), ELR STAT. 41951. See City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. at 1143-44, 12 ELR at 20918, where the court declined to dismiss the city's complaint for failure to plead the § 112(a) notice.

13. Section 112(a), 42 U.S.C. § 9612(a), ELR STAT. 41951.

14. The term "hazardous substance" includes any substance designated as hazardous or toxic under §§ 311 or 307, respectively, of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1317, 1321, ELR STAT. 42129, 42132; any air pollutant designated as hazardous under § 112 of the Clean Air Act, 42 U.S.C. § 7412, ELR STAT. 42215; any waste identified or listed as hazardous under § 3001 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6921, ELR STAT. 41908; any substance will respect to which EPA has taken action under § of the Toxic Substances Control Act, 15 U.S.C. § 2606, ELR STAT. 41343; and any substance designated pursuant to CERCLA § 102, 42 U.S.C. § 9602, ELR STAT. 41944. Petroleum and natural gas are specifically excluded. CERCLA § 101(14), 42 U.S.C. § 9601(14), ELR STAT. 41943.

15. The terms "liable" and "liability" are defined in CERCLA § 101(32), 42 U.S.C. § 9601(32), ELR STAT. 41943, as "the standard of liability which obtains" under § 311 of the FWPCA, 33 U.S.C. § 1321, ELR STAT. 42132. The courts have construed § 311 as a strict liability provision. See United States v. LbBeouf Brothers Towing Co., 621 F.2d 787, 10 ELR 20548 (5th Cir. 1980), cert. denied, 452 U.S. 906, 10 ELR 20548 (1981); Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 6 ELR 20237 (4th Cir. 1979); Burgess v. M/V Tamano, 564 F.2d 964 (1st Cir. 1977), cert. denied, 435 U.S. 941 (1978).

16. 42 U.S.C. § 9607, ELR STAT. 41947.

17. CERCLA § 101(22), 42 U.S.C. § 9601(22), ELR STAT. 41943.

18. A "facility" is defined broadly to include

(A) any building, structure, installation, equipment, pipe, pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed ….

CERCLA § 101(9), 42 U.S.C. § 9601(9), ELR STAT. 41943.

19. CERCLA § 107(b), 42 U.S.C. § 9607(b), ELR STAT. 41947.

20. CERCLA § 113(b), 42 U.S.C. § 9613(b), ELR STAT. 41952.

21. CERCLA § 112(d), 42 U.S.C. § 9612(d), ELR STAT. 41952. An alternate reading of § 112(d) has been suggested to the author which makes that provision inapplicable to actions for § 107 response costs. That reading interprets the phrase "no claim may be presented" as referring only to claims upon the Fund (i.e., not to § 107 claims) on the basis that § 112 details the procedures for obtaining Fund reimbursement. The § 112(d) time limitation on actions for "damages" is then interpreted as pertaining only to natural resources losses by reading the § 101(6) definition of "damages" narrowly. Thus, claims for response costs are said not to be affected by § 112(d). This reading appears to require that the § 101(4) definition of "claim" as "a demand in writing for a sum certain" be disregarded for § 112(d) purposes. See also Draft Memorandum, Guidance on Pursuing Cost Recovery Actions Under CERCLA, from Courtney M. Price, Acting Associate Administrator for Legal and Enforcement Counsel, and Lee M. Thomas, Acting Assistant Administrator for Solid Waste and Emergency Response, to Enforcement Counsel, Regional Administrators, Regional Counselor, et al., undated, wherein EPA takes the position that the statute of limitations applicable to § 107 actions brought by the federal government is found in 28 U.S.C. § 2415 (actions by the United States for money damages). Regardles of the interpretation ultimately adopted by the courts, however, private parties should not unduly delay the presentation of claims for response costs because of the risk that they will be time barred.

22. CERCLA § 111(d)(1), 42 U.S.C. § 9611(d)(1), ELR STAT. 41950.

23. 544 F. Supp. 1135, 12 ELR 20915 (E.D. Pa. 1982).

24. Id. at 1142-43, 12 ELR at 20917 (emphasis supplied).

25. Id. at 1143, 12 ELR at 20917.

26. The court in City of Philadelphia v. Stephan Chemical Co. declined to rule on defendants' argument that plaintiff's complaint was fatally deficient due to its failure to demonstrate consistency with the national contingency plan. The court stated that "[e]ven assuming that consistency with the plan goes to the existence of a claim for relief under CERCLA as opposed to the recoverability of various items of costs, this is not an issue which can be resolved on the pleadings." 544 F. Supp. at 1144, 12 ELR at 20918 (citations omitted).

27. 546 F. Supp. 1100, 12 ELR 20954 (D. Minn. 1982).

28. 546 F. Supp. at 1118, 12 ELR at 20960.

29. See also United States v. Hardage, 13 ELR 20188 (W.D. Okla. 1982) (owner/operator of a hazardous waste disposal site which was causing groundwater contamination held liable under CERCLA § 107 "for all costs of removal or remedial action incurred" by the federal government); United States v. Wade, 546 F. Supp. 785, 792-93, 12 ELR 21051, 21054 (E.D. Pa. 1982) (a suit initiated by the federal government wherein the court stated that "Section 107 clearly includes generators of hazardous waste among those potentially liable to be sued for clean up costs.").

30. Management of the Fund and responsibility for processing claims was delegated by the President to EPA on August 14, 1981 pursuant to Exec. Order No. 12,316. See 46 Fed. Reg. 42237 (1981).

31. 42 U.S.C. § 9612(b), ELR STAT. 41951.

32. CERCLA § 112(d), 42 U.S.C. § 9612(d), ELR STAT. 41951.

33. CERCLA § 112(b)(2)(A), 42 U.S.C. § 9612(b)(2)(A), ELR STAT. 41951.

34. CERCLA § 111(a)(2), 42 U.S.C. § 9611(a)(2), ELR STAT. 41950.

35. CERCLA § 112(c)(1), 42 U.S.C. § 9612(c)(1), ELR STAT. 41952.

36. CERCLA § 112(b)(3), 42 U.S.C. § 9612(b)(3), ELR STAT. 41951.

37. CERCLA § 112(b)(4)(G), 42 U.S.C. § 9612(b)(4)(G), ELR STAT. 41951.

38. CERCLA § 112(b)(3), 42 U.S.C. § 9612(b)(3), ELR STAT. 41951.

39. SENATE REPORT at 80, reprinted in LEGISLATIVE HISTORY, Vol. II, at 516.

40. CERCLA § 112(b)(1), 42 U.S.C. § 9612(b)(1), ELR STAT. 41951.

41. See Memorandum, Interim Guidance on Claims or Inquiries About Claims Against the Fund, from Michael B. Cook, Director, Office of Emergency and Remedial Response, to Regional Administrators, Superfund Coordinators (Aug. 31, 1981). [The full text of the memorandum is available from ELR (2 pp. $1.00, ELR Order No. A-1025) — Ed.]

42. CERCLA § 111(a)(2), 42 U.S.C. § 9611(a)(2), ELR STAT. 41951. The National Contingency Plan, as revised to meet the requirements of CERCLA, became effective December 31, 1982. See 47 Fed. Reg. 31180 (1982).

43. 40 C.F.R. § 300.25(d).

44. See generally 40 C.F.R. pt. 300, subpt. F.

45. 40 C.F.R. § 300.65(d).

46. 40 C.F.R. § 300.68(a). The National Priorities List, which specified over 400 sites nationwide, was published as a proposed rule on December 30, 1982. See 47 Fed. Reg. 58476 (1982).

47. 40 C.F.R. § 300.62.

48. The state share must be at least 50 percent of the costs "in response to a release at a facility that was owned at the time of any disposal of hazardous substances therein by the State or a political subdivision thereof." 42 U.S.C. § 9604(c)(3)(C)(ii), ELR STAT. 41945.

49. CERCLA § 104(c)(3), 42 U.S.C. § 9604(c)(3), ELR STAT. 41945.

50. While EPA approval of privately sponsored remedial actions is certainly justifiable in order to assure proper and cost-effective responses to pollution incidents, both the language and legislative history of CERCLA's claims provision suggest that Congress did not intend to preclude private party claims on the Fund. See, e.g., SENATE REPORT at 80, reprinted in LEGISLATIVE HISTORY, Vol. II, at 516. The authority for EPA's regulations in this regard is thus questionable.