Natural Resource Recovery by Federal Agencies -- A Roadmap To Avoid Losing Causes of Action

Natural Resource Recovery by Federal Agencies — A Roadmap To Avoid Losing Causes of Action

Barry Breen

Editors' Summary: On December 11, 1983, the clock will run out for certain natural resource damage recovery actions under CERCLA. Section 107 of the Act allows state and federal agencies to recover natural resource damages from anyone who is a "responsible party" under the Act. However, much of the attention to date in implementing CERCLA has been on the response, enforcement, and cost recovery provisions of §§ 104, 106, and 107. In the meantime, a three year limit on actions for recovery of natural resource damages which were discovered prior to enactment of CERCLA on December 11, 1980 approaches. The author outlines the natural resource damage recovery provisions of CERCLA, analyzes the impact of the timeliness provisions of the Act, and describes the steps taken by the Department of the Army to identify and act on potential natural resource damage claims before expiration of the deadline.

Barry Breen, Assistant to the General Counsel, Department of the Army, is a graduate of Princeton University and Harvard Law School. The views expressed are those of the author and do not necessarily represent the views of the Department of the Army or any other government agency.

[13 ELR 10324]

Natural resource damage recovery actions are an important, but underutilized component of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).¹ Congress enacted CERCLA to address "the tragic consequences of improperly, negligently, and recklessly hazardous waste disposal practices known as the 'inactive hazardous waste site problem.'"² CERCLA provides federal authority to respond to releases or threatened releases of hazardous substances,³ and makes "responsible" parties liable for federal and state costs incurred.⁴ CERCLA also makes responsible parties liable for natural resource damage, and permits federal and state agencies to recover for damages to natural resources within their jurisdiction.⁵ Because of the intricate operations of CERCLA's statute of limitations clause, some causes of action for natural resources damage will expire in December 1983.

This article provides a step-by-step guide to natural resource damage recovery actions under CERCLA. It outlines the operation of CERCLA's natural resource damage liability provisions along with the natural resource trusteeship responsibilities CERCLA places on federal agencies, and examines their relationship to the statute's timeliness requirements for enforcement actions. It describes what costs are recoverable and explains the types of actions that must be brought before the December deadline. The article also sets forth and answers likely defenses to such actions. Finally, it outlines procedures being employed by one agency — the Department of the Army — to ensure that natural resource damage recovery opportunities will not be lost in December 1983.

Natural Resource Damage Recovery

CERCLA makes virtually everyone connected with the unsafe disposal of hazardous substances liable for many kinds of natural resource damages, and leaves them very few defenses. It makes "responsible parties" liable for "damages for injury to, destribution of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss," caused by a "release" of a hazardous substance.⁶ "Release" is defined to include the full range of events through which hazardous substances can get into the environment. "Natural resources" is defined very broadly, including virtually anything not man-made:

"natural resources" means land, fish, wildlife, biota, air, water, groundwater, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States (including the resources of the fishery conservation zone established by the Fishery Conservation and Management Act of 1976), any State or local government, or any foreign government.⁷

Four classes of persons are responsible parties and thus liable for natural resource damages:

present owners and operators of vessels or facilities from which a hazardous substance is released;

persons who owned or operated a facility in the past when a hazardous substance was disposed in the facility, which substance is later released;

persons who arrange for the disposal or treatment of a hazardous substance with is later released;

persons who transport a hazardous substance to facilities they select from which there is later a release.⁸

"Hazardous substance" also is broadly defined, by reference to chemicals designated under other environmental statutes.⁹ Approximately 700 chemicals are thus [13 ELR 10325] specifically designated as hazardous substances, and chemicals not listed which exhibit specified hazardous characteristics also qualify as hazardous substances.¹⁰

Subject to certain high monetary ceilings¹¹ and very narrow defenses,¹² responsible parties are strictly liable for damage.¹³ Liability is to "the United States Government and to any State for natural resources within the State or belonging to, managed by, controlled by, or appertaining to such State."¹⁴

An Opportunity for Federal Agencies

The basic implementing regulations of CERCLA are the Environmental Protection Agency's "National Oil and Hazardous Substances Contingency Plan" (NPC).¹⁵ The NCP sets out four classes of federal agencies that are trustees for natural resources:¹⁶

Federal land managing agencies, as trustees for the land they manage, including any resources above or under the land. This includes wildlife, vegetative cover, underground water supplies, and other resources of federally owned land. Surface waters navigable by deep draft vessels are excluded.

Federal resource protection agencies, for the resources they protect by statutory authority. Surface waters navigable by deep draft vessels are excluded.

The Commerce Department and the Department of the Interior, for resources subject to federal protection and in or under navigable waters, and certain upland habitats.

The Department of the Interior, for resources protected by treaty with Native Americans or on land held in trust for Native Americans.

The federal government owns — and individual agencies manage on its behalf — approximately a third of the nation's land.¹⁷ These agencies are thus federal trustees for all resources — except navigable water — under category 1, above. The largest land managersinclude the Interior Department (491 million acres), the Agriculture Department (191 million acres), the Army (19 million acres), the Air Force (8 million acres), the Navy (3 million acres), the Energy Department (1.6 million acres), and the Tennessee Valley Authority (1 million acres). By comparison, the State of Delaware is 1.3 million acres in size, and Rhode Island is 677,000 acres. Even some federal agencies not usually associated with land managing activities are nonetheless comparatively large landholders: the Transportation Department (190,000 acres), the National Aeronautics and Space Administration (130,000 acres), and even the State Department (120,000 acres).

Federal agencies such as these thus have a unique opportunity — and responsibility — to pursue recovery for damage to the natural resources of their land. For resources under their trusteeship, agencies are responsible for assessing damage, seeking recovery, and devising and carrying out restoration plans.¹⁸ Depending on the circumstances, a federal agency may be a co-trustee with another federal agency or with a state government, in which case these multiple trustees are to coordinate their efforts in meeting these responsibilities.¹⁹

The Recovery Opportunity for Some Damage Will Expire in December 1983

CERCLA has two provisions dealing with the timing of enforcement actions for natural resource damage. Section 107(f)²⁰ provides: "There shall be no recovery under the authority of subparagraph (C) of subsection (a) [the provision permitting recovery for natural resource damage] where such damages and the release of a hazardous substance from which such damages resulted have occurred wholly before the enactment of this Act." Section 112(d)²¹ provides: "no claim may be presented nor may an action be commenced for [natural resource] damages under this title, unless that claim is presented or action commenced within three years from the date of the discovery of the loss or the date of enactment of this Act, whichever is later …."

The date of enactment for CERCLA was December 11, 1980.²² Thus the timing limitations on natural resource damage actions are as follows:

If all damage from a particular release occurred before December 1980, recovery damage is no available.

If damage began before December 11, 1980 and continued after that date, recovery is available for all of the damage. However, if this damage was discovered by [13 ELR 10326] the trustee agency before December 11, 1980, recovery action must be filed by December 11, 1983. If damage was discovered after December 11, 1980, a recovery action must be filed within three years of the date of discovery.

If all damage occurred after December 11, 1980, recovery is available for all of the damage, and an action must be filed within three years of the date of discovery.²³

It is damage in category 2 for which causes of action may be lost in December 1983. Potentially this is a very large category. There are thousands of disposal sites from which hazardous substances were released prior to enactment of CERCLA²⁴ and the damage from such releases is likely to continue for a long time unless corrected. For example, contamination of groundwater is very persistent. These underground "streams" typically travel at rates of speed measured in yards or even only feet per year. A chemical spill which occurred years before 1980 could well be continuing to contaminate larger and larger reaches of groundwater as the chemicals are steadily carried throughout the aquifer. Similarly, chemicals lying on the bottom of a river of stream bed could continue to damage fish and birds as the chemicals are assimilated into the food chain.

What Costs Are Recoverable for Natural Resource Damage?

The statute simply makes recovery for "damages" available, without further definition except to note that "the measure of such damages shall not be limited by the sums which can be used to restore or replace such resource."²⁵ The President was charged by the statute to promulgate regulations by December 1982, specifying how to assess damages, and the President assigned this responsibility to the Interior Department.²⁶ As of this writing, the Interior Department has not proposed regulations, though in January 1983 it announced it intended to develop such regulations, and sought general public comment.²⁷

Once promulgated, the Interior Department regulations will establish a rebuttable presumption in favor of the plaintiff agency that the damage determination is correct.²⁸ However, these regulations will almost certainly not be promulgated by December 11, 1983, when the first causes of action will expire. This should not deter resource trustee agencies; promulgation of the regulation is not a prerequisite to recovery actions.²⁹ The statute does not specify, however, whether recovery actions brought before the regulations are promulgated will have the benefit of the rebuttable presumption.³⁰

Without the Interior Department regulations in place, how is natural resource damage to be measured? There are a number of possibilities, including attributing a dollar value to each organism lost; the cost of restoration to the pre-pollution status quo; the imputed market value of lost benefits; and the imputed decrease in market value of the resources themselves.³¹

No cases have yet been reported setting forth a judicial judgment on permissible methods of evaluating natural resource damage under CERCLA.³² Thus, until the Interior Department regulations are promulgated, trustees will have to proceed on a case-by-case basis, employing the best available scientific and economic data to the facts at hand, in light of available guidance from the statute and its legislative history.

Why Sue Under CERCLA?

CERCLA is not the only avenue for recovery of damage to natural resources. Section 302(d)³³ preserves "obligations or liabilities of any person under other Federal or State law, including common law." Even so, CERCLA may preempt federal common law in the field.³⁴

Regardless of preemption, CERCLA offers very important advantages to natural resource trustees, compared to other available causes of action, such as nuisance, trespass, or similar tort law. These advantages include the following:

CERCLA imposes strict liability with only very limited defenses.³⁵ Negligence need not be shown.

CERCLA makes many parties liable which might otherwise not be liable at all.³⁶

The Justice Department is willing to assert that co-defendants are jointly and severally liable for indivisible [13 ELR 10327] harm.³⁷ This effectively increases the number of "deep pockets" from which recovery can be sought.

The trustee agency is able to assign monetary values to the resources damaged.³⁸

Money recovered is to be returned to the trustee agency for use to restore the natural resources lost, rather than deposited into the Miscellaneous Receipts Account of the Treasury Department.³⁹

Federal trustees may make a claim against CERCLA's $1.6 billion "Superfund" if responsible parties decline to pay. In these cases, the Superfund and the Justice Department are expected to seek recovery from the responsible parties to reimburse the Superfund.⁴⁰

Debunking Anticipated Objections to Natural Resource Damage Recovery

Defendants in natural resource damage recovery actions may be expected to resist assertions of their liability, particularly since under CERCLA, liability has been liberalized so that those who must pay may not have done anything "wrong."⁴¹ Some CERCLA defenses are of course fact-specific — a defendant may argue that it was not the generator or transporter of the hazardous substances whose release caused the damage, that the chemicals in a particular release are not hazardous, or that the resources were not actually damaged. These fact-specific defenses must be dealt with on a case-by-case basis by trustee agencies.

Other defenses are more general, contesting not the facts asserted but the legal right of the trustee agency to assert liability at all. Based upon behavior of CERCLA defendants since the statute's enactment in 1980, several such defenses may be anticipated. While insufficient precedent is available to say that responses to such defenses are "settled," the following discussion presents some of the most frequently employed defenses and responses which trustee agencies should consider.

Defense: "Recovery for natural resource damage is barred until the Interior Department promulgates regulations for assessing damages."

The method of calculating damage will be subject to very close scrutiny by defendants. They may challenge its scientific validity or the facts on which it is based. This challenge goes deeper, however, asserting that suits must be dismissed because agencies have no cause of action until regulations are promulgated.

As noted earlier, this defense is likely to fail; federal agencies need not delay recovery while regulations are developed.⁴² While assessment of damages may be more difficult without standardizing regulations, existence of such regulations is not a prerequisite. In United States v. Reilly Tar & Chemical Corp.,⁴³ defendant Reilly Tar raised this argument in a motion to dismiss. After reviewing the relevant legislative history and the statute's provision concerning the effective date of the Act, the court rejected this argument and concluded that the trustee could seek natural resource damage recovery.

Defense: "Federal agencies cannot sue to recover when the government itself is a 'responsible party' under the liability provisions of CERCLA." It is possible, depending upon the circumstances, that the government would itself bear potential liability under CERCLA.⁴⁴ The list of potentially responsible parties under CERCLA is very expansive, with relatively few defenses. A federal agency thus may be liable as a waste generator, transporter, or the operator of its own disposal facility. In addition, an agency might be liable for the acts of others. CERCLA makes the present owner and operator of a facility liable for releases of hazardous substances from the facility. This provision makes the government potentially liable in some circumstances: the damage may be the result of operations of a private party leasing land from the government.Though the actual generating and releasing of the waste are acts of the private lessee, the government is still the "owner."

Similarly, in cases where third party "midnight dumpers" travel onto federal land illegally to dispose of their waste along secluded roadsides, the government itself is a responsible party as owner of the facility unless it can avail itself of the third party defense. To do this, it must show that the midnight dumper was not an employee, agent, or otherwise acting pursuant to a contractual relationship. The government must also affirmatively establish by a preponderance of the evidence that the government acted with due care in handling the hazardous substance and that the government took precautions against foreseeable acts of midnight dumping. While one would expect, at least in classic midnight dumping cases, that the government would be able to avail itself of this third party defense, the affirmative nature and burden of proof of the defense may often be [13 ELR 10328] enough to permit at least the assertion that the government is itself liable. Moreover, it is easy to hypothesize the facts under which government actions shade closer and closer to those making the defense unavailable. For example, consider the case of the open government land known to be a popular area for local citizens to (illegally) dispose of their refuse, thus cluttering it with litter and trash. Has the government taken precautions against foreseeable acts when it finds that midnight dumpers have disposed of hazardous waste at such sites?

While a government agency may be a "responsible party" under CERCLA, this alone does not appear to bar it from seeking to recover natural resource damages. CERCLA itself does not answer the question of whether one potentially responsible party may sue another. However, this defense was raised in City of Philadelphia v. Stepan Chemical Corp.,⁴⁵ in which defendants claimed that Philadelphia itself was a responsible party and thus barred from suing to recover response costs. After reviewing the legislative history, the court rejected the argument. Other courts are likely to reach similar conclusions in future cases where a government agency which might be indirectly liable under CERCLA sues to recover costs or damages from a private party whose connection to the release is more direct. Indeed, developing law in this area seems to be that recovery among liable parties will be according to allocable individual responsibility.⁴⁶

Denfense: "Imposition of CERCLA liability for acts which occurred before the statute was enacted would be unconstitutionally retroactive."

Defendants in CERCLA natural resource damage actions may invoke constitutional challenges claiming (1) that retroactive application of CERCLA violates the prohibition on ex post facto laws; (2) that retroactive application of CERCLA violates the ban on laws impairing the obligation of contracts (by making indemnification agreements ineffective); and (3) that retroactive application of CERCLA violates due process requirements.⁴⁷ While at least one federal court has found that Congress intended CERCLA to impose liability retroactively,⁴⁸ no reported case has directly considered the constitutionality of retroactive application of CERCLA's liability provisions. This is a defense raised by defendants and responsed to by the government in United States v. Conservation Chemical Co., but not yet decided as of this writing.⁴⁹ The issue has been raised by several commentators.⁵⁰

Despite the lack of judicial precedent directly on point, there is little doubt that retroactive application is nonetheless constitutional. Although during the latter part of the nineteenth century the Supreme Court hinted that the ex post facto prohibition extended to a wide range of civil matters, by the middle of the twentieth century Supreme Court cases exhibited an agreement that the prohibition applies to criminal punishment only.⁵¹ The ban on impairment of contracts by its own terms applies only to State legislation.

Due process analysis is slightly more complex. In Usery v. Turner Elkhorn Mining Co.,⁵² coal mine operators challenged as violative of the Fifth Amendment due process clause certain provisions of the Federal Coal Mine Health and Safety Act. The provisions required the operators to compensate former employees for black lung disease, even though the employees terminated their employment before the statute was passed. In words strikingly similar to those which might be expected from responsible parties under CERCLA § 107, the Court noted "the Operators complain that to impose liability upon them for former employees' disabilities is impermissibly to charge them with an unexpected liability for past, completed acts that were legally proper and, at least in part, unknown to be dangerous at the time."⁵³

The Court began by noting that Congress has great latitude in commercial legislation:

It is by now well established that legislative Act adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way …. [O]ur cases are clear that legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. This is true even though the effect of the legislation is to impose a new duty or liability based on past acts.⁵⁴

The Court then proceeded to consider the Federal Coal Mine Health and Safety Act by this "arbitrary and irrational" standard. It found that "the imposition of liability for the effects of disabilities bred in the past is justified as a rational measure to spread the costs of the employees' disabilities to those who have profited from the fruits of their labor — the operators and the coal consumers."⁵⁵ [13 ELR 10329] The coal mine operators argued that there are more economically efficient cost-spreading mechanisms; the Court, however, was "unwilling to assess the wisdom of Congress' chosen scheme" to that degree.⁵⁶ "It is enough to say that the Act approaches the problem of cost spreading rationally; whether a broader cost-spreading scheme would have been wiser or more practical under the circumstatnces is not a question of constitutional dimension."⁵⁷ The Court noted that the statute was not an income transfer measure, but was rather designed to allocate to the mine operator an "actual, measurable cost of his business."⁵⁸

The analogy to CERCLA is close. Like the Federal Coal Mine Health and Safety Act, CERCLA's liability provisions can make responsible parties liable to compensate for releases which occurred before the statute was passed. Nonetheless, CERCLA is not arbitrary and irrational as a legislative measure to spread the costs of hazardous waste to the chemical industry and its customers. While there might have been better mechanisms for dealing with the issue, CERCLA is rational.⁵⁹

Knowing How and When to Sue — An Information Management Problem

As noted earlier, CERCLA's three-year statute of limitations begins to run on the day of discovery of the damage, with the first causes of action expiring in December 1983. Many federal agencies are so large — in terms of number of employees, geographical dispersion, and total acreage held — that damage could be "discovered" by employees in field offices or local facilities and never come to the attention of headquarters officials. There is a distinct danger that the field employees know the facts but not that natural resource damage recovery under CERCLA is available, and that the reverse is true of headquarters officials. Similarly, field employees may be so occupied with the day-to-day operations of the agency that they are unable to reserve sufficient time to evaluate the longer term protection of natural resources and initiate the aggressive legal actions necessary to recover for the damage. Finally, in a fledgling field such as this, there is the possibility of "bureaucratic inertia" — procedures for processing action may not yet be sufficiently routinized to permit agency offices to respond swiftly to damage.

It is thus imperative that senior personnel of trustee agencies assure themselves that they know of all damage to natural resources in their custody and are prepared to seek recovery before the causes of action expire by operation of the statute of limitations. How best to address this problem of information management? The Department of the Army has initiated a review process that may be a useful model for other agencies.

The Army Effort: Natural Resources Damage Review

The Army is the third largest land manager in the federal government, responsible for approximately 19 million acres.⁶⁰ Like many federal agencies, its structure consists of a headquarters in Washington, "field offices" (installations) which are very widely dispersed, and a series of intermediate management levels.

The Army has designed and is implementing the Natural Resources Damage Review. In this survey, field offices and intermediate management levels are called upon to report all known instances of natural resource damage to land under Army trusteeship, which are potentially enforceable under CERCLA. For each such instance, reporting offices are to identify the following information:

when and how damage occurred and when it was first discovered by federal personnel;

a detailed description of the natural resources affected;

the damage inflicted to the natural resources and the estimated cost to restore or replace. If possible, damage inflicted is to be described quantitatively, e.g., type and number of habitats or species, acreage involved, or volume of water or soil damaged or lost;

the responsible party, if known;

a summary of previous, on-going, or planned efforts to pursue reimbursement or restitution from responsible parties;

a summary of response measures taken and total response costs; and

other information deemed relevant by the reporting office.⁶¹

Although the impetus for conducting the Natural Resources Damage Review at this time is to ensure that causes of action due to expire in December 1983 are not lost, for administrative economy field offices are to report all known instances of natural resources damage. The purpose is to reduce the frequency of such reviews needed in the future.

This data will be collated and analyzed to determine agency-wide enforcement priorities. The first step in enforcement is formally to request payment from all parties which may be liable. If the claim has not been satisfied, the trustee agency may choose to either enforce against potentially responsible parties or present the claim to the Hazardous Substance Response Fund.⁶² If enforcement is chosen, the Justice Department must conduct or approve the litigation.⁶³ Although sending a claim letter to the responsible party could well be enough to preserve the cause of action, no judicial decisions are available to confirm this. Agencies might consider also filing summary pleadings by December 11, to amended later as necessary [13 ELR 10330] to add detail. If presentation to the Fund is selected, procedures to be followed are set out in § 112 of CERCLA, and, if payment is made, the Fund will acquire by subrogation the cause of action to enforce against responsible parties.

Conclusion

CERCLA presents federal agencies — even some of those unaccustomed to being plaintiffs in environmental actions — with unprecedented opportunities to protect natural resources within their control. However, causes of action for CERCLA natural resource damage action will begin to expire in December 1983. To prevent the inadvertent loss of recovery opportunities, trustee agencies should consider systematic audits of potential enforcement actions, such as the Army's Natural Resources Damage Review.

1. 42 U.S.C. §§ 9601-9657; Pub. L. No. 96-510, 94 Stat. 2767, ELR STAT. 41941-55.

2. H. REP. NO. 1016, pt. 1, 96th Cong., 2d Sess. 17 (1980), reprinted in ELI, 2 SUPERFUND: A LEGISLATIVE HISTORY 437 (1982).

3. CERCLA § 104, 42 U.S.C. § 9604, ELR STAT. 41945.

4. CERCLA § 107, 42 U.S.C. § 9607, ELR STAT. 41947.

5. CERCLA $107(a) & (f), 42 U.S.C. § 9607(a) & (f), ELR STAT. 41947, 41948.

6. CERCLA § 107(a)(4)(C), 42 U.S.C. § 9607(a)(4)(C), ELR STAT. 41947.

7. CERCLA § 101(16), 42 U.S.C. § 9601(16), ELR STAT. 41943.

8. CERCLA § 107(a)(1)-(4), 42 U.S.C. § 9607(a)(1)-(4), ELR STAT. 41947.

9. CERCLA § 101(14), 42 U.S.C. § 9601(14), ELR STAT. 41943.

10. See 48 Fed. Reg. 23552 (May 25, 1983) (Environmental Protection Agency listing of hazardous substances and proposed rule governing notification requirements activated by releases of such substances).

11. CERCLA § 107(c)(1) & (2), 42 U.S.C. § 9607(c)(1) & (2), ELR STAT. 41947.

12. CERCLA § 107(b), 42 U.S.C. § 9607(b), ELR STAT. 41947. Acts of God, acts of war, and certain acts or omissions of third parties are the only defenses. For an explanation of the third party defense, see Note, Generator Liability Under Superfund for Clean-up of Abandoned Hazardous Waste Dumpsites, 130 U. PA. L. REV. 1229, 1259 (1982). For natural resources damage, an additional defense is that the damage was identified in an environmental impact statement and authorized in a license or permit. CERCLA § 107(f), 42 U.S.C. § 9607(f), ELR STAT. 41947.

13. The term "strict liability" is not used in the statute; instead the statute provides that the same standard of liability applies as that which exists under § 311 of the Federal Water Pollution Control Act. CERCLA § 101(32), 42 U.S.C. § 9601(32), ELR STAT. 41944. See, Hinds, Liability Under Federal Law for Hazardous Waste Injuries, 6 HARV. ENVTL. L. REV. 1, 26 (1982), and authority cited therein. See also Comment, Conservation Chemical: Generator Liability for Imminent Hazards on the Docket, 13 ELR 10208 (July 1983). The United States has taken the position that liability under CERCLA § 107 is joint and several as well; see infra note 37.

14. CERCLA § 107(f), 42 U.S.C. § 9607(f), ELR STAT. 41948.

15. 40 C.F.R. pt. 300. Until this title of the Code of Federal Regulations is reprinted, the NCP may be found at 47 Fed. Reg. 31180 (1982). It became effective on December 10, 1982. See 47 Fed. Reg. 55488 (1982). See also Comment, EPA Proposes Court-Ordered Contingency Plan Revisions Under "Superfund;" Stresses Flexible Cleanup Standards, 12 ELR 10040 (1982).

16. 47 Fed. Reg. 31219 (1982) (to be codified at 40 C.F.R. § 300.72).

17. Federal ownership comprises 32.5 percent of the nation's land. See COUNCIL ON ENVIRONMENTAL QUALITY, 1982 ENVIRONMENTAL QUALITY 245, 246 (1983).

18. 47 Fed. Reg. 31219 (1982) (to be codified at 40 C.F.R. § 300.74(a)).

19. 47 Fed. Reg. 31219 (1982) (to be codified at 40 C.F.R. § 300.74(b)).

20. 42 U.S.C. § 9607(f), ELR STAT. 41948.

21. 42 U.S.C. § 9612(d), ELR STAT. 41952. For a further discussion of the impact of this section, see Thomas, Municipal and Private Party Claims Under Superfund, 13 ELR 10272 (Sept. 1983).

22. See note in 1980 U.S. CODE CONG. & AD. NEWS reprint of Pub. L. No. 96-510, 94 Stat. 2747, 2811. Cf. codification in 42 U.S.C. §§ 9607(f), 9612(d), ELR STAT. 41948, 41952.

23. See United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1120, 12 ELR 20954, 20961 (D. Minn. 1982). Cf. R. ZENER, GUIDE TO FEDERAL ENVIRONMENTAL LAW 379 (1981).

24. It was in response to the revelation that there were so many unsafe disposal sites that CERCLA was enacted. See HOUSE COMM. ON INTERSTATE AND FOREIGN COMMERCE, SUBCOMM. ON OVERSIGHT AND INVESTIGATIONS, HAZAROUS WASTE DISPOSAL (Comm. Print 96-IFC 31).

25. CERCLA § 107(a)(4)(C), (f), 42 U.S.C. § 9607(a)(4)(C), (f), ELR STATE 41947, 41948.

26. CERCLA § 301(c), 42 U.S.C. § 9651, ELR STAT. 41954. Exec. Order No. 12316, § 8(c)(3), 46 Fed. Reg. 42237 (1981).

27. 48 Fed. Reg. 1084 (Jan. 10, 1983). See also 48 Fed. Reg. 34768 (Aug. 1, 1983) (announcement summarizing current progress and describing comments received).

28. CERCLA § 111(h), 42 U.S.C. § 9611(h), ELR STAT. 41950. See generally Menefee, Recovery for Natural Resource Damages Under Superfund: The Role of the Rebuttable Presumption, 12 ELR 15057 (1982).

29. United States v Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1118-20, 12 ELR 20954, 20960-61 (D. Minn. 1982).

30. CERCLA § 111(h)(2) says, "Any determination or assessment of damages … shall have the force and effect of a rebuttable presumption …." 42 U.S.C. § 9611(h)(2), ELR STAT. 41950 (emphasis added). However, it is not clear from context whether Congress intended the scope of this statement to include pre-promulgation recovery actions.

31. For a discussion of these approaches, see E. YANG, R. DOWER, M. MENEFEE, THE USE OF ECONOMIC ANALYSIS IN VALUING NATURAL RESOURCES DAMAGES: AN OVERVIEW (forthcoming, NOAA 1983). See also Frost & Cross, Recovery of Natural Resource Damages Under Superfund, ENVTL. ANALYST, Dec. 1982, at 8.

32. Judicial construction of natural resource provisions of the Clean Water Act are available. See Puerto Rico v. SS Zoe Colocotroni, 628 F.2d 652, 10 ELR 20882 (1980). However, the Clean Water Act provision has some important differences; for example, it provides liability for costs of restoration or replacement rather than damage per se. See Menefee, Recovery for Natural Resource Damages Under Superfund: The Role of the Rebuttable Presumption, 12 ELR 15057, 15057 n.5 (1982).

33. 42 U.S.C. § 9652, ELR STAT. 41955.

34. See Dore, The Standard of Civil Liability for Hazardous Waste Disposal Activity: Some Quirks of Superfund, 57 NOTRE DAME LAW. 260, 262-63 (1981); Hinds, Liability Under Federal Laws for Hazardous Waste Injuries, 6 HARV ENVTL. L. REV. 1, 9-13 (1982).

35. See supra note 13.

36. See supra text acompanying note 8.

37. The federal government has alleged joint and several liability under § 107 in a number of pending lawsuits. In United States v. Chem-Dyne Corp., No. C-1-82-840 (S.D. Ohio, filed Aug. 26, 1982), ELR PEND. LIT. 65763, industry defendants have sought early determination of the issue, ELR PEND. LIT. 65787. The issue has been briefed in United States v. Conservation Chemical Co., No. 82-0983-CV-W-5 (W.D. Mo., filed Nov. 22, 1982), ELR PEND. LIT. 65791. See Comment, Conservation Chemical: Generator Liability for Imminent Hazards on the Docket, 13 ELR 10208 (July 1983). See also 1A F. GRAD, TREATISE ON ENVIRONMENTAL LAW § 4A.04(f) (1982). See generally Miller, Superfund; Who Pays? The Elusive Issues of Joint and Several Liability and the Right to Contribution, ENVTL. ANALYST, Sept. 1982, at 3; Note, Generator Liability Under Superfund for Clean-up of Abandoned Hazardous Waste Dumpsite, 130 U. PA. L. REV. 1229 (1982).

38. See supra text accompanying notes 25-32.

39. CERCLA § 107(f), 42 U.S.C. § 9607(f), ELR STAT. 41948. Cf. S. REP. NO. 848, 96th Cong., 2d Sess. 84 (1980), reprinted in ELI, 2 SUPERFUND: A LEGISLATIVE HISTORY 477 (1982); Menefee, Recovery for Natural Resource Damages Under Superfund: The Role of the Rebuttable Presumption, 12 ELR 15057, 15058 (1982).

40. CERCLA §§ 111(c)(2), 112(a) & (c), 42 U.S.C. §§ 9611(c)(2), 9612(a) & (c), ELR STAT. 41950, 41951; 47 Fed. Reg. 31219 (1982) (to be codified at 40 C.F.R. § 300.74(a)). See also infra text accompanying notes 62-63.

41. See supra text accompanying note 8.

42. See supra text accompanying notes 25-32.

43. 546 F. Supp. 1100, 1118-20, 12 ELR 20954, 20960-61 (D. Minn. 1982).

44. CERCLA § 101(21), 42 U.S.C. § 9601(21), ELR STAT. 41943, defines "person" to include the United States government. If that did not make the potential liability of the federal government clear, § 107(g), 42 U.S.C. § 9607(g), ELR STAT. 41948, expressly makes every "department, agency, or instrumentality" of the federal government subject to all the procedural and substantive requirements of the Act, including those governing liability.

45. 544 F. Supp. 1135, 1140-43, 12 ELR 20915, 20917 (E.D. Pa. 1982).

46. See Mott, Liability for Cleanup of Inactive Hazardous Waste Disposal Sites, 14 NAT. RESOURCES LAW. 379, 416-17 (1982).

47. The relevant constitutional provisions are at U.S. CONST. art. I, § 9, cl. 3; art. I, § 10, cl. 1; and amend. V.

48. Ohio ex rel. Brown v. Georgeoff, 13 ELR 20457 (N.D. Ohio May 3, 1983).

49. No. 82-0983-CV-W, ELR PEND. LIT. 65791 (W.D. Mo., filed Nov. 22, 1982). See supra note 37. The case refers to § 106 of CERCLA (the imminent hazard provision), 42 U.S.C. § 9606, ELR STAT. 41947, and not § 107 (the liability provision). Depending upon the scope of the court's ruling, it may or may not deal with constitutional issues present in retroactive application of § 107.

50. See, e.g., Hall, The Problem of Unending Liability for Hazardous Waste Management, 38 BUS. LAW. 593, 605 (1983); Baise & Bourdeau, EPA's Implementation of the Superfund Response Program, ENVTL. REG. ANALYST, May 1982, at 3, 8; Weinberg, Environmental Audit Plays Important Superfund Role, Legal Times of Washington, Feb. 1, 1982, at 16. Cf. Hinds, Liability Under Federal Law for Hazardous Waste Injuries, 6 HARV. ENVTL. L. REV. 1, 26 (1982) (recovery for pre-CERCLA acts may be "unfairly retroactive").

51. See L. TRIBE, AMERICAN CONSTITUTIONAL LAW 479-81 (1978), and cases cited therein. See also SUPERFUND SECTION 301(E) STUDY GROUP, 97TH CONG., 2D SESS., INJURIES AND DAMAGES FROM HAZARDOUS WASTES — ANALYSIS AND IMPROVEMENT OF LEGAL REMEDIES, pt. 2, at 293-94 (Comm. Print of Sen. Comm. on Environment and Public Works, 1982). While there may be disagreement over where the line is drawn between "civil" and "criminal," and the Congress certainly cannot impose otherwise prohibited criminal penalties by labelling them civil, it seems clear that CERCLA § 107 is so distant from reasonably raising these issues that no federal court will likely find it violative of the ex post facto clause. Cf. Weinberg, Environmental Audit Plays Important Superfund Role, Legal Times of Washington, Feb. 1, 1982, at 16.

52. 428 U.S. 1 (1976). Eight Justices participated in the decision. Six concurred in Part IV, relevant to the issue here. A seventh Justice concurred in the judgment of Part IV but not the opinion. The eight Justice concurred in the entire judgment but not in any opinion.

53. Id. at 15.

54. Id. at 15-16 (citations omitted, emphasis added).

55. Id. at 18.

56. Id. at 18-19.

57. Id. at 19.

58. Id.

59. Professor Tribe suggests that Usery v. Turner Elkhorn Mining Co. can also be explained by a tendency on the part of the Supreme Court to give greater latitude to regulation of health concerns than to "purely economic" matters. L. TRIBE, AMERICAN CONSTITUTIONAL LAW 49 (1979 Supp.). If so, such a rationale applies equally to CERCLA.

For a more complete analysis of the constitutionality of retroactive application of CERCLA, see Note, Generator Liability Under Superfund for Clean-Up of Abandoned Hazardous Waste Dumpsites, 130 U. PA. L. REV. 1229 (1982).

60. See supra text accompanying note 17.

61. In order to conserve administrative and legal resources, reporting offices are not required to identify instances of damage when both response cost and restoration cost are less than $10,000, unless special circumstances warrant.

62. CERCLA § 112(a), 42 U.S.C. § 9612(a), ELR STAT. 41951.

63. Exec. Order No. 12316, § 8(a), 46 Fed. Reg. 42237 (1981).