Superfund and the Eleventh Amendment: Are the States Immune from § 107 Suits?

Frank M. Thomas, Jr.

Mr. Thomas is an attorney with Morgan, Lewis & Bockius in Philadelphia. Between 1980 and 1983, he served as Divisional Deputy City Solicitor (Special Projects) for the City of Philadelphia. He has published articles in the Environmental Law Reporter, the Pennsylvania Bar Association Quarterly, and the Journal American Water Works Association.

[14 ELR 10156]

By the literal terms of § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),¹ the states may be held strictly liable for costs incurred by private parties in responding to hazardous pollution incidents traceable to state-owned facilities. In United States v. Union Gas Co.,² however, a federal district court recently held that private party liability suits against the states are barred by the Eleventh Amendment. If other courts follow Union Gas, the states will be immune from cost recovery actions even though the states are "potentially responsible parties" at some of the nation's most notorious hazardous waste disposal sites.³ Congress did not intend such a result, and an analysis of CERCLA shows that Eleventh Amendment sovereign immunity should not be a defense to a § 107 suit.

The Legal Framework

The Eleventh Amendment provides the states with immunity from suits brought in the federal courts by private parties.⁴ States may waive this immunity,⁵ and in recent years the courts have recognized that Congress may create causes of action that abrogate the immunity. Because thiscongressional authority also derives from the Constitution — typically, the legislative power under the Commerce Clause, the War Powers Clauses, and the Fourteenth Amendment — the cases involve a balancing of fundamental constitutional principles.

The first time the Supreme Court confronted a situation where "a state's claim of immunity against suit by an individual [met] a suit brought upon a cause of action expressly created by Congress" was in Parden v. Terminal Railway Co.⁶ At issue was whether the employees of a state-owned railroad could maintain personal injury actions against the state under the Federal Employers' Liability Act (FELA). FELA provided that "every common carrier by railroad … shall be liable in damages to any person suffering injury while he is employed by such carrier."⁷ Focusing upon the word "every" and noting that most legislation regulating the railroad industry applied to state-owned railways, the Supreme Court concluded that Congress had intended to subject the states to FELA suits by private parties. The Court reasoned that the states surrendered part of their sovereignty to the Congress with the ratification of the Commerce Clause. Given the power conferred by that clause, Congress may condition a state's right to operate a railroad upon its amenability to suit in the federal courts.⁸ To reach an opposite conclusion would have resulted

in a right without a remedy; it would mean that Congress made "every" interstate railroad liable in damages to injured employees but left one class of such employees — those whose employers happen to be state owned — without any effective means of enforcing that liability. We are unwilling to conclude that Congress intended so pointless and frustrating a result.⁹

[14 ELR 10157]

Having found that Congress could override the Eleventh Amendment immunity, the Court nevertheless insisted that there also be some indication that the state had "consented" to the override. In Parden, the state's continued operation of its railroad after enactment of FELA indicated its consent to be regulated.¹⁰ The Parden decision closes with a favorable commentary on Congress' increasing reliance upon private party suits as an important regulatory tool:

States have entered and are entering numerous forms of activity which, if carried on by a private person or corporation, would be subject to federal regulation…. In a significant and increasing number of instances, such regulation takes the form of authorization of lawsuits by private parties. To preclude this kind of regulation in all cases of state activity would remove an important weapon from the congressional arsenal with respect to a substantial volume of regulable conduct. Where, as here, Congress by the terms and purposes of its enactment has given no indication that it desires to be thus hindered in the exercise of its constitutional power, we see nothing in the Constitution to obstruct its will.¹¹

Nine years after Parden, the Supreme Court again turned its attention to the tension between the Eleventh Amendment immunity and a congressionally-created cause of action in Employees v. Missouri Public Health Department.¹² There, employees of state health facilities sued Missouri for overtime compensation under § 16(b) of the Fair Labor Standards Act (FLSA). Citing Parden, the employees argued that the federal cause of action created by § 16(b) was available to them because Congress had amended the statutory definition of "employer" to include state-run health facilities.Disturbed by the implications of applying its earlier opinion to "problems that may well implicate elevator operators, janitors, charwomen, security guards, secretaries, and the like in every office building in a state's governmental hierarchy,"¹³ the Court distinguished Parden and held that Congress had not abrogated the states' immunity to FLSA suits.

While recognizing that the change in the definition of "employer" brought the states within the FLSA regulatory scheme, the Court in Employees declined to read this change as also extending § 16(b) liability to the states. Congress had originally excluded state-operated facilities from the statute; when it expanded the statute's coverage, it neither amended § 16(b) nor suggested in the legislative history that the states could now be sued in the federal courts. The Court cautioned that an override of the states' sovereign immunity should only be found when there is some indication by "clear language" that Congress intended such a result:

It would also be surprising in the present case to infer that Congress deprived Missouri of her constitutional immunity without changing the old § 16(b) under which she could not be sued or indicating in some way by clear language that the constitutional immunity was swept away. It is not easy to infer that Congress in legislating pursuant to the Commerce Clause, which has grown to vast proportions in its applications, desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution. Thus, we cannot conclude that Congress conditioned the operation of these facilities on the forfeiture of immunity from suit in a federal forum.¹⁴

The issue of congressional abrogation of Eleventh Amendment immunity surfaced again in Edelman v. Jordan.¹⁵ There, plaintiffs in a class action suit contended that Illinois was liable to them under the Social Security Act for both prospective and retroactive payment of wrongfully withheld disability benefits. Citing to parallel lines of decisions holding thatt the Eleventh Amendment barred retroactive but not prospective relief,¹⁶ the Court held that Illinois could be required to make prospective payments to private litigants but was immune from suit to recover retroactive benefits. The Court dismissed plaintiffs' contention that Illinois had waived its Eleventh Amendment immunity by consenting to participation in the federal disability benefits program, as follows:

[W]e do not think that the answer to the waiver question turns on the distinction between Parden, supra and Employees, supra. Both Parden and Employees involved a congressional enactment which by its terms authorized suits by designated plaintiffs against a general class of defendants which literally included States or state instrumentalities…. The question of waiver or consent under the Eleventh Amendment was found in those cases to turn on whether Congress had intended to abrogate the immunity in question, and whether the State by its participation in the program authorized by Congress had in effect consented to the abrogation of that immunity.

But in this case the threshold fact of congressional authorization to sue a class of defendants which literally includes States is wholly absent.¹⁷

The Court went on to hold that a state's mere participation in a federal assistance program did not constitute consent to be sued in the federal courts, at least where the "threshold fact" of congressional authorization was absent.

Since Edelman, cases involving the amenability of the states to suit under federal statutes have focused upon whether the states are literally included within the class of defendants established by the statute at issue and, if so, whether Congress intended to abrogate the Eleventh Amendment immunity.

Fitzpatrick v. Bitzer¹⁸ held that the Eleventh Amendment did not bar back pay awards to retired male employees who alleged that Connecticut's pension plan discriminated against them on the basis of sex. The empoloyees brought the action under a provision of the Civil Rights Act authorizing suit against employers for unlawful employment practices; they filed after amendment of the statutory definitions of "person" to include the states and "employees" to include civil servants. The Court found that these amendments satisfied the "'threshold fact of congressional authorization' … to sue the state."¹⁹ Since Congress passed the Civil Rights Act [14 ELR 10158] pursuant to its authority under § 5 of the Fourteenth Amendment, which by its terms contemplates limitations on state sovereignty, the Court held that Congress implicitly intended to abrogate the states' sovereign immunity. A similar result was reached in Hutto v. Finney,²⁰ which held that the Civil Rights Attorney's Fees Awards Act abrogated the states' sovereign immunity because the statute applies to "any" action and "contains no hint of an exception for States defending injunction actions."²¹

While the Supreme Court decisions regarding congressional abrogation of state sovereign immunity are not a model of clarity, they do appear to require a two-step inquiry, as follows:

1. Does the statute create a cause of action against a class of persons which literally includes the states?

2. If so, does the statutory language, legislative history, or problem being addressed indicate a congressional intention to make the states amenable to suits in the federal courts?

The earlier decisions suggested a third requirement, namely, state consent to a congressional override of immunity. However,

those Courts and commentators who have addressed the issue, have concluded that consent is no longer required when Congress enacts legislation pursuant to its Commerce Clause powers, so long as there exists a clear Congressional intent to abrogate the States' immunity.²²

Before applying this two-part test to CERCLA, it is necessary to discuss the recent federal district court decision holding thatt the states are immune from CERCLA § 107 suits.

The Union Gas Decision

On November 17, 1983, a federal district court held that the Eleventh Amendment barred a private party action against Pennsylvania brought pursuant to CERCLA § 107.²³ In that case, the United States sought reimbursement of response costs from the defendant Union Gas Company for the cleanup of coal tar wastes released into a stream. Union Gas filed a third party complaint against Pennsylvania and the Borough of Stroudsburg alleging that the state and the Borough were owners or operators of part of the property at issue and, as such, were "responsible parties" for purposes of CERCLA § 107 liability.²⁴ Pennsylvania moved to dismiss the complaint on the basis of its Eleventh Amendment immunity.²⁵

In granting Pennsylvania's motion, the district court reviewed the case law since Parden and "distilled" the holdings into a "clear statement rule" to the effect that

a state cannot be sued pursuant to the liability provisions of a federal law unless Congress provides a clear statement that it intended to abrogate the states' immunity with respect to that law.²⁶

Applying this rule, the district court concluded that the states were immune from CERCLA § 107 suits because there was no clear statement by Congress to the contrary.

A review of the Union Gas decision suggests that the district court erred on the sovereign immunity issue.First, Union Gas relies upon Employees for the proposition that inclusion of "States" within the definitional section of a statute is not evidence of "a congressional purpose to permit a citizen to sue the state in federal court."²⁷ This is too broad a reading of the Employees decision. In that case, the Supreme Court declined to interpret the FLSA liability provision as covering the states because the relevant definition had originally excluded the states and, when the definition was amended, no change was made in the liability provision. The Supreme Court saw the limited extent of the amendatory action as a congressional decision to continue the previous policy of insulating the states from FLSA liability. Other Supreme Court decisions make clear, however, thatt a statute's definitions may provide evidence of congressional intent to abrogate Eleventh Amendment immunity where (1) the states are literally included within the class of liable parties in the original legislation²⁸ or (2) the states are included by amendment of a statute that did not originally articulate a policy to insulate them from suit.²⁹

The Union Gas ruling is also problematic because of the brevity of its CERCLA analysis. As discussed below, the requisite congressional intent to abrogate state sovereign immunity is evident in several provisions of the statute. Had these been considered in Union Gas, the district court may have satisfied itself that its "clear statement" test had been met. Finally, the district court apparently misconstrued statements made during the congressional debate. The court relied on the remarks of Senator Randolph concerning financing of the Hazardous Substance Response Trust Fund by "industries and consumers" and [14 ELR 10159] the determination of liability issues by resort to "evolving principles of common law."³⁰ The district court apparently mistook the commentary regarding the mechanics of the Fund as descriptive of the only persons who could be held liable under CERCLA § 107.³¹ Similarly, Senator Randolph's remarks about evolving common law principles were interpreted as a reference to Eleventh Amendment immunity, when actually the Senator was discussing the controversy over the applicable standards of liability under CERCLA, i.e., strict and joint and several liability.

CERCLA and State Sovereign Immunity

Sectionn 107 imposes liability for releases or threatened releases of hazardous substances upon several classes of persons, including the "owner and operator of a … facility" and "any person" who owned or operated a facility at the time hazardous substances were disposed there.³² The operative terms of this liability provision are defined expansively such that

"Owner or Operator" includes "any person owning or operating a facility."³³

"Person" includes "State."³⁴

"Facility" means "(A) any building, structure, installation, equipment, pipe or 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, or otherwise come to be located; but does not include any consumer product in consumer use or vessel."³⁵

Under § 107, a private party may sue to recover its necessary costs of responding to a hazardous pollution incident, including expenses incurred for both "removal" and "remedial" actions.³⁶ Removfal actions are those taken initially to avert or minimize pollution damage, while remedial actions encompass measures designed to effect a permanent remedy.

As noted above, to hold a state liable under CERCLA § 107, two questions must be answered in the affirmative: Did Congress literally include the states within the class of persons who are potentially liable under the statute? If so, did Congress clearly intend to make the states amenable to suit in the federal courts? CERCLA's liability provision readily passes the first part of this inquiry. Under § 107, liability extends to a facility's "owner and operator" and to "any person." Both of these terms are defined so as to expressly include the states.³⁷ This all-inclusive language, incorporated into the legislation as originally enacted, clearly places the states within the class of defendants against whom Congress authorized suit.³⁸

An examination of the language and purposes of CERCLA provides ample evidence that the second part of the test is also met. Turning first to § 107(a), the express language provides the sort of universal coverage that in other cases has sufficiently demonstrated Congress' intent to abrogate the states' immunity.³⁹ Moreover, the literal inclusion of the states within this liability provision does not give rise to the problems of ambiguity of intent or intrusiveness into state affairs which troubled the Supreme Court in Employees.⁴⁰ Unlike the statute at issue in Employees, CERCLA has included the states within its scope from the beginning: there has been no history of state exclusion from coverage as would cast doubt upon Congress' intention to abrogate sovereign immunity. Additionally, liability under CERCLA arises from discrete occurrences and does not implicate or intrude upon the day-to-day functioning of state programs. To the extent that a state is responsible for the release of hazardous substances, its potential liability is site-specific and its financial exposure is limited to a reimbursement of response costs that are "consistent with the national contingency plan."⁴¹ Liability under CERCLA § 107 does not directly affect a state's administrative machinery and does not require any readjustment of the relationships between a state and its employees.

The language of CERCLA § 107(b) and (g) also suggests that Congress intended to include the states within the scope of the liability provision. Only three defenses to the absolute liability of § 107 are recognized, namely, act of God, act of war, or act or omission of an unrelated third party.⁴² There is no mention of an Eleventh Amendment defense. Such an omission may be taken as intentional and significant, given that private party suits against the states are typically limited under companion environmental statutes "to the extent permitted by the eleventh amendment to the Constitution."⁴³ Not only is this qualifying phrase missing from CERCLA, but the statute also expressly provides for private party suits against the federal government. By § 107(g), Congress subjected every "department, agency, or instrumentality of the executive, legislative and judicial branches of the Federal Government" to § 107 liability.⁴⁴ It is doubtful that Congress would impose strict liability on the federal [14 ELR 10160] government for hazardous substance releases from federal fracilities and yet exempt state fracilities from coverage. Such a reading of the statute results in the "right without a remedy" anomaly deplored in Parden.⁴⁵ It would mean that Congress had made the recovery of response costs contingent upon who owned the offending facility rather than upon the nature and extent of the hazardous pollution incident. Nothing in the statute or the legislative history suggests that Congress intended such a result.

Congress' intention to hold the states accountable for releases from state-owned or operated facilities is also evident from CERCLA § 104. Where a release occurs "at a facility that was owned at the time of any disposal of hazardous substances therein by the state," § 104(c)(3) requires the state to assume at least 50% of the remedial expenses as a prerequisite to obtaining federal assistance for any cleanup.⁴⁶ This state share requirement applies even if the state is innocent of any wrongdoing; indeed, the President may insist that a state contribute more than 50% of the cleanup costs after "taking into account the degree of responsibility of the State" in creating a particular hazardous pollution problem.⁴⁷ Sectionn 104(a)(3) is pertinent to the Eleventh Amendment inquiry in two respects. First, it demonstrates Congress' awareness that pollution incidents may originate at state-owned or operated facilities. Second, it shows that Congress did expect the states to bear financial responsibility for releases of hazardous substances from their facilities. In the context of § 104, that financial responsibility apparently extends even to situations where the pollution incident is not the result of a state's active conduct. In any event, CERCLA § 104 clearly indicates Congress' intent to hold the states financially accountable for hazardous substance releases from their facilities.

Congress understood CERCLA as a comprehensive mechanism for assuring prompt and efficient cleanups of hazardous pollution incidents:

[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 clean up 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….⁴⁸

During the deliberations on the legislation that ultimately became CERCLA, Congress expressed concern that "there is no general federal law establishing liability in the case of accident or other incident involving hazardous substances" and that existing federal and state legal authority in this area was iandequate.⁴⁹ The legal gaps prompted the drafting of a statute to

provide incentive for maximum care in handling hazardous substances and for minimizing the effects of any releases by establishing strict liability for responsible parties for cleanup costs, mitigation, and third party damages.⁵⁰

Among the elements considered essential to an effective program was "assuring that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their action."⁵¹ At no point in the legislative process was there any suggestion that the federal interest in prompt and efficient responses to hazardous pollution incidents should give way where an Eleventh Amendment issue arises.⁵² Given that the states have engaged in a variety of activities involving the handling, storage, treatment, or disposal of hazardous substances, CERCLA's objectives cannot be fully realized if the states may successfully assert sovereign immunity as a defense to pollution damage caused by state-owned facilities.

By its literal terms, CERCLA subjects the states to potential liability for releases of hazardous substances from state-owned or operated facilities. The language and legislative history of the statute demonstrate Congress' intent to allow private party suits against the states under CERCLA § 107. The Eleventh Amendment, as currently interpreted, should not bar such actions.

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

2. 575 F. Supp. 949, 14 ELR 20246 (E.D. Pa. 1983).

3. For example, a counterclaim has been asserted against California in the litigation over the Stringfellow site and a third-party complaint has been filed against South Carolina with respect to the Fort Lawn site. In Union Gas, the third-party complaint against Pennsylvania involved a claim based in part upon excavation activities. See discussion, infra.

4. The Eleventh Amendment reads as follows:

The Judicial power of the United States shall not be constured to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

While the Eleventh Amendment speaks only of suits against a state by citizens of another state, the Supreme Court has long held that the jurisdictional principle embodied in the Eleventh Amendment also precludes suit in a federal court brought by a citizen against his own state. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Hans v. Louisiana, 134 U.S. 1 (1890).

5. Edelman v. Jordan, 415 U.S. 651 (1974); Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275 (1959); Clark v. Barnard, 108 U.S. 436, 447 (1883). A state statute waiving sovereign immunity in the state's own courts does not operate as a waiver of Eleventh Amendment immunity unless there is an explicit provision to that effect. Florida Dep't of Health v. Florida Nursing Home Ass'n, 450 U.S. 147, 150 (1981) (per curiam).

6. Parden v. Terminal Railway Co., 377 U.S. 184, 187 (1964).

7. 45 U.S.C. § 51.

8. Parden, 377 U.S. at 191-96.

9. Id. at 190.

10. Id. at 192.

11. Id. at 197-98.

12. Employees v. Missouri Public Health Dep't, 411 U.S. 279 (1973).

13. Id. at 285.

14. Id.

15. Edelman v. Jordan, 415 U.S. 651 (1974).

16. Compare Ex Parte Young, 209 U.S. 123 (1908) and its progency with Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459 (1945) and its progency.

17. Edelman, 415 U.S. at 672.

18. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).

19. Id. at 452.

20. Hutto v. Finney, 437 U.S. 678 (1978).

21. Id. at 694. See also, Quern v. Jordan, 440 U.S. 332 (1979) (states cannot be sued in federal court under 42 U.S.C. § 1983 because nothing contained therein or in the legislative history evidences an intention to arogate Eleventh Amendment immunity); Oneida Indian Nation of New York v. New York, 520 F. Supp. 1278, 1305 (N.D.N.Y. 1981), aff'd in part and rev'd in part on other grounds, 691 F.2d 1070 (2d Cir. 1982) (Eleventh Amendment did not bar suit by Indian Nations with respect to tribal property rights where "inclusive statutory language," the legislative history, and the special status of Indian tribes "supplies sufficient evidence of a clear intent to make the State amenable to suit in Indian land claim actions"); Peel v. Florida Dep't of Transportation, 600 F.2d 1070 (5th Cir. 1979) (lost wages and benefits could be obtained in suit against a state based upon the Veterans' Reemployment Rights Act); Jennings v. Illinois Office of Education, 589 F.2d 935 (7th Cir. 1979), cert. denied, 441 U.S. 967 (1979) (same result as Peel).

22. Oneida Indian Nation of New York v. New York, 520 F. Supp. 1278, 1307 (N.D.N.Y. 1981) (citations omitted).

23. United States v. Union Gas Co., 575 F. Supp. 949, 14 ELR 20246 (E.D. Pa. 1983).

24. The Union Gas decision does not discuss the applicability of the Eleventh Amendment to the borough. The Supreme Court has held repeatedly and unequivocally that Eleventh Amendment immunity does not extend to political subdivisions of a state. Mt. Healthy City School District v. Doyle, 429 U.S. 274, 280 (1977); Lincoln County v. Luning, 133 U.S. 529, 530 (1890).

25. Union Gas Company apparently argued that the state and borough were responsible parties because they owned the stream bed and permanent easements over the adjacent bank and because they had contributed to the coal tar discharges by excavating an earthen barrier between the coal tar and the stream and had taken other actions to alter the stream bed.

26. Union Gas, 575 F. Supp. at 950, 14 ELR at 20247.

27. Id. at 953, 14 ELR at 20248.

28. Hutto v. Finney, 437 U.S. 678 (1978); Parden v. Terminal Railway Co., 377 U.S. 184 (1964).

29. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).

30. Union Gas, 575 F. Supp. at 953, 14 ELR at 20248; see 126 CONG. REC. S14963-64 (daily ed. Nov. 24, 1980).

31. The district court also overlooked the following comment of Senator Randolph as to one of the purposes of CERCLA:

First, to make those who release hazardous substances strictly liable for cleanup costs, mitigation and third party damages. Thus, it assures that the cost of chemical poison releases are borne by those responsible for the releases.

126 CONG. REC. S14964 (daily ed. Nov. 24, 1980).

32. 42 U.S.C. § 9607(a), ELR STAT. 41947.

33. 42 U.S.C. § 9601(20)(A), ELR STAT. 41943.

34. 42 U.S.C. § 9601(21), ELR STAT. 41943.

35. 42 U.S.C. § 9601(9), ELR STAT. 41943.

36. See generally, Thomas, Municipal and Private Party Claims Under Superfund, 13 ELR 10272 (1983).

37. See 42 U.S.C. § 9601(20)(A) & (21), ELR STAT. 41943.

38. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Edelman v. Jordan, 415 U.S. 651 (1974); Parden v. Terminal Railway Co., 377 U.S. 184 (1964).

39. Hutto v. Finney, 437 U.S. 678 (1978); Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Parden v. Terminal Railway Co., 377 U.S. 184 (1964).

40. Employees v. Missouri Public Health Dep't, 411 U.S. 279 (1973).

41. 42 U.S.C. § 9607(a), ELR STAT. 41947.

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

43. See, e.g., Resource Conservation and Recovery Act, 42 U.S.C. § 6972, ELR STAT. 41921; Clean Water Act, 33 U.S.C. § 1365, ELR STAT. 42147; Clean Air Act, 42 U.S.C. § 7604, ELR STAT. 42256; and the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1270, ELR STAT. 42421.

44. 42 U.S.C. § 9607(g), ELR STAT. 41948.

45. Parden, 377 U.S. at 190, discussed supra in text accompanying notes 6-11.

46. 42 U.S.C. § 9604, ELR STAT. 41945.

47. The Senate Report discussed the language that became CERCLA § 104(c)(3):

[I]t allows the President to recover more than 50 percent of the costs of removal at a facility or site which was owned by a State or local government at the time of any disposal of hazardous substances. Such recovery is to be from the State or from the local government which owned the facility or site. It is not intended that more than 50 percent of the costs of removal be recovered in those instances in which the State or local government ownership results from a non-discretionary transfer to title such as a lien transfer for unpaid taxes, a required dedication, or a transfer of title as a result of abandonment.

S. REP. NO. 848, 96th Cong., 2d Sess. 58-59 (July 11, 1980).

48. City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 1142-43, 12 ELR 20915, 20917 (E.D. Pa. 1982).

49. Senate Report, supra note 47, at 10-12.

50. Id. at 11-12 (emphasis supplied).

51. Id. at 13.

52. Another district court discussed this substantial federal interest in the following terms:

The improper disposal or release of hazardous substances is an enormous and complex problem of national magnitude involving uniquely federal interests. … The polltion of land, groundwater, surface water and air as a consequence of this dumping presents potentially interstate problems. A driving force toward the development of CERCLA was the recognition that a response to this pervasive condition at the state level was generally iandequate….

United States v. Chem-Dyne Corp., 572 F. Supp. 802, 808, 13 ELR 20986, 20988 (S.D. Ohio 1983) (emphasis supplied).