When EPA Makes A Superfund Mistake: Judicial Review Problems Under SARA

Alfred R. Light

Editors' Summary: The Superfund Amendments and Reauthorization Act of 1986 (SARA) resolved some of the questions raised under the 1980 Act, including the controversy surrounding the availability of preenforcement review. SARA, however, also raises a host of new questions concerning the timing, scope, and standard of judicial review. The author, an experienced Superfund defense counsel, uses a series of hypotheticals to illustrate the difficulties potentially responsible parties may face under SARA if EPA adheres to its current prosecutorial strategy. The hypotheticals involve administrative cleanup orders, citizen suits, administrative subpoenas, de minimis contributors, contribution protection, joinder of the federal government in actions brought by states, state land bans, contractor indemnification, preauthorization, and cost recovery actions. The author offers possible solutions and concludes that the system can work efficiently and equitably only if there are judicial, administrative, or private accommodations permitting cleanup to go forward.

Mr. Light is an associate with the law firm of Hunton & Williams in Richmond, Virginia.

[17 ELR 10148]

The liberal philosophy holds that enduring governments must be accountable to someone beside themselves; that a government responsible only to its own conscience is not for long tolerable. — Walter Lippman (1934)¹

The most remarkable feature of the Superfund Amendments and Reauthorization Act of 1986 (SARA)² is that it resolves so little of the controversy that surrounded the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).³ The Environmental Protection Agency (EPA) and the Department of Justice would have the rest of us believe that the 181-page amendments simply "clarify and confirm" the programmatic and enforcement positions with which they proselytized the courts under the old Act.

Hurricane SARA's "clarifying" force does not, however, universally affirm or adopt the preferences of the EPA bureaucracy and its prosecutors. Moreover, where the new law ends — leaving open important matters to be resolved by the courts — the policy choices to be made run perilously close to that Plimsoll line that marks the boundaries of due process required by the Constitution.⁴ If EPA blindly adheres to its past strategy of preserving maximum Agency and prosecutorial discretion at all costs, without consideration of the principles of equity and efficiency that underlie this nation's legal and economic systems, EPA may finally discover the limits of these larger systems' tolerance for the "Superfund" phenomenon. It is more likely, however, that the courts will make the Superfund regime reasonably tolerable through plausible constructions of the new statute and interstitial lawmaking. The role of the courts thereafter will be a more traditional one — curbing the occasional abuses inevitable in any large, complicated public works program.

In the meantime, there is much controversy over the timing, scope, and standard of review under SARA. Because of the way relevant sections of the amended Act are structured, this controversy is different from the "pre-enforcement review" disputes under CERCLA of the early 1980s.⁵ The following illustrative situations might be avoided under SARA in the event of reasoned rulemaking and judicious exercise of prosecutorial discretion. Or they might well end up in court.

The Unilateral Order

Lee. Early one frosty morning, Lee unexpectedly receives greetings from the EPA Regional Administrator instructing [17 ELR 10149] that he is to undertake remedial action at the Gettysburg site in Pennsylvania. The order asserts Lee's responsibility based on his predecessor's use of the site to dispose of hazardous munitions in 1863. Despite Lee's attempted compliance, Adolph the on-scene coordinator frustrates his every effort by changing technical requirements under the order every few days.⁶ Adolph informs Lee on a weekly basis of costs his office has incurred as a result of Lee's failure to comply fully with his instructions and the amount of daily fines that have accrued as a result of his noncompliance. EPA policy guidance, which Lee obtained under the Freedom of Information Act, indicates that the Agency will not sue to recover costs associated with the order until completion of the cleanup.⁷ The periodic demands for reimbursement, even if futile, begin the accrual of interest on the amounts expended.⁸ The guidance indicates that the recipient of a unilateral order is entitled to no Agency hearing, adjudicatory or otherwise,⁹ and that CERCLA expressly precludes any judicial review unless and until the Agency seeks judicial enforcement of the order or recovery of the Agency's costs and/or the daily fines.¹⁰

Historically, EPA unilateral administrative orders (AOs) under CERCLA § 106 have been issued without any opportunity for a hearing. Before SARA, courts addressing situations in which recipients sought judicial review of such orders after issuance expressed considerable sympathy for their plight.¹¹ After one court enjoined the imposition of fines and punitive damages,¹² the Agency typically avoided constitutional difficulties with the AO regime by declaring at the time a recipient filed an action seeking declaratory relief that it would not seek imposition of a fine as a result of any violation of the order prior to EPA's initiation of an enforcement action.¹³ By mooting the issue of fines, EPA's attorneys avoided constitutional difficulties. Because punitive damages could not, even under the 1980 Act, be imposed when a respondent resisted an order with "sufficient cause,"¹⁴ several courts held the "sufficient cause" exception to provide a constitutionally sufficient "good faith" defense to their assessment — one which permitted the regime to satisfy the due process standards of Ex parte Young.¹⁵

SARA resolves the constitutional controversy over unilateral administrative orders in the following ways. First, new CERCLA § 113(h) contemplates their use only to compel the relatively limited "removal" action as defined under the statute rather than the more expensive and longer term "remedial action."¹⁶ Consistent with SARA's requirement that all remedial action settlements be subjected to judicial oversight in consent decrees,¹⁷ CERCLA § 106 suits to compel remedial actions are to be in the form of the traditional injunctive relief actions with which Superfund lawyers became so familiar under the 1980 Act.¹⁸ Compulsion of removals is to be accomplished through enforcement of administrative orders,¹⁹ but unilateral administrative orders to compel remedial actions, seldom attempted under the 1980 Act, are inconsistent with SARA.

Second, in the removal context, SARA does not appear to require AO recipients to wait until EPA initiates enforcement action to protest an administrative order. If a recipient does not wish to rely on the "sufficient cause" defense, which applies both to penalties and damages under the amended Act,²⁰ he may instead choose to comply with the order under protest and petition the Administrator for reimbursement of costs incurred from the Superfund, with interest.²¹ So long as the petition is filed before 60 days after completion of the response, it is timely. If the petition is denied, there is an immediate right to judicial review.²² The amended statute thus encourages compliance with unilateral orders for those willing to defer their disputes over remedy for the sake of expeditious removal actions.²³

Citizen Suit

Ike. Ike bought a portion of the Gettysburg site in 1953. Although he did not know or suspect at the time he acquired his farm that hazardous materials were buried there, he had read of the unpleasantness of the last century through which the materials actually had come to be located in the general region. Ike originally welcomed EPA's remedial investigation but came to regret the moon-suited cost-plus contractors as they sampled every square foot of his soil, first preventing a fall harvest and, then, the spring planting. When Ike finally objected to EPA's continued presence, EPA condemned an easement allowing it to continue its investigatory activity indefinitely²⁴ and filed a lien in the county recorder's office on the property for all costs incurred to date as well as future costs associated with the remedial action.²⁵ EPA's draft Record [17 ELR 10150] of Decision proposes to construct a high-temperature incinerator capable of destroying every molecule of hazardous material found at the farm at a cost of $20 million. Unfortunately, the incineration will also destroy all useful organic material in the soil as well, rendering it useless to grow crops, at least for the next several years.

Although SARA enhances EPA's ability to obtain interests in property for the sake of effectuating remedial action, it does not authorize arbitrary or capricious bureaucratic behavior. EPA here is exercising its new access authorities under CERCLA § 104(e) and condemnation authority under CERCLA § 104(j).²⁶ It is at least conceivable that Ike falls within the category of "innocent landowners" exempted from liability under SARA, i.e., a person who acquires contaminated property without knowledge of its past use for hazardous waste disposal.²⁷ It is difficult to fathom how the acts or omissions causing the release of hazardous substances from the farm could be said to have occurred "in connection with" Ike's acquisition of the property such as to prevent his successful assertion of CERCLA's "third party" defense.²⁸

Ike's immediate problem, however, is not whether he must reimburse EPA for its activities or instead has a defense but rather whether he can obtain independent judicial oversight over the bureaucracy before it destroys his farm, despite the fact that EPA had not sued. The timing of citizen suits is governed by SARA's jurisdictional section, § 113(h)(4):²⁹

No Federal court shall have jurisdiction under Federal law … to review any challenges to removal or remedial action selected under section [104] … in any action except …

(4) An action under section [310] (relating to citizen suits) alleging that the removal or remedial action taken under section [104] … was in violation of any requirement of this [Act].

The ConferenceReport indicates that this language means that review "under section 310 would lie following completion of each distinct and separable phase of the cleanup."³⁰ The Report is equivocal at best about whether prohibitory injunctive relief is available, stating, "[a]ny challenge under this provision to a completed phase of a response action shall not interfere with those stages of the response action which have not been completed."³¹

Additional "legislative history" of the provision conflicts.³² Some "legislative history" indicates that a challenge to EPA action under state nuisance law is available, notwithstanding a general proscription on preenforcement review.³³ That is, the "no preenforcement review" language precludes jurisdiction to review EPA actions only in the federal courts and does not preempt state court jurisdiction. Disputes arising under state law over EPA's remedy could be justiciable in state court and not even subject to removal to federal court by virtue of the language of CERCLA § 113(h). Since § 6001 of the Solid Waste Disposal Act has waived the United States' immunity from suit with respect to enforcement of state hazardous waste law against it, arguably there is no barrier to Ike's suing EPA in state court to abate a nuisance it is creating on his property under state law.

Lynch. Lynch, Lee's financial advisor, receives an administrative subpoena for all of Lee's files, relating to his financial statement, investments, taxes, and plans for building a beach house water treatment system at his summer cottage on Cape Cod. The subpoena also specifically identifies documents concerning Lee's military background, particularly his service with the Engineers Branch at West Point. When Lynch denies access to certain of these documents, EPA issues certain "findings" of violations of its order and notifies Lynch that $25,000-per-day fines are accruing as a result of his resistance.

SARA expands the categories of information that can be secured administratively under CERCLA § 104(e).³⁴ For example, it authorizes EPA to request information on a company's financial condition and insurance coverage ("ability to pay for or perform a cleanup").³⁵ This information will be fed into EPA's settlement model to decide how much a defendant can afford to pay.³⁶ SARA may circumscribe somewhat a private party's ability based on a claim of privilege to withhold information.³⁷ In addition, SARA establishes a broad new EPA subpoena power to obtain information on volumes, toxicity, mobility, ability to pay, litigative risks, inequities, and other factors that may be relevant to allocating responsibility among liable parties.³⁸

These information and access authorities may be enforced through issuance of administrative compliance orders, with civil penalties of up to $25,000 per day for each day a person "unreasonably fails" to comply.³⁹ Nevertheless, civil penalties for failure to comply can only be assessed judicially.⁴⁰ Despite this latter qualification, there is a substantial question whether the apparent authorization of warrantless EPA searches or seizures violates the Fourth Amendment. Unless EPA obtains constitutionally sufficient warrants prior to exercise of its § 104(e) authorities, it risks transgressing boundaries it delicately avoided under other statutes, such as the Clean Air Act.⁴¹

[17 ELR 10151]

De Minimis

Annie. Annie was a nurse, wounded in the great battle at Antietam. Reportedly, she cast several minnie balls, which surgeons had extracted from her patients, on the ground. Lee having been bankrupted by the Gettysburg remedial investigation/feasibility study, EPA is looking to Annie to pay for the remedial action. Under an EPA cooperative agreement, Maryland sues Annie seeking cost recovery and injunctive relief under CERCLA to clean up Antietam.

SARA continues the congressional default on practically all the key liability questions that arose under the original CERCLA. EPA and the Justice Department in the early 1980s succeeded in avoiding resolution of many of these key issues in the courts by either settling the complex cases or by allowing them to proceed in incessant pretrial maneuvering. Thus, very few final judgments were ever rendered, such that the key issues might be presented to the courts of appeal. During the congressional debate, government representatives conceded time and again that de minimis contributors should not, and indeed would not, be held liable for the entire costs of a Superfund cleanup under CERCLA § 107.⁴² In litigation, however, the government has never conceded that liability of any party, however slight, might be other than joint and several.⁴³

Although SARA strongly encourages EPA to completely release minimal contributors from liability as early as possible in the remedial action process,⁴⁴ the Act does not establish a clear threshold below which a contributor may escape liability, or even joint and several liability. Case law on the matter presently is confused because of some district courts' adoption of EPA's theory that CERCLA liability may be imposed even though there is no proven contribution of the defendant to the site hazard whatsoever.⁴⁵

Until the courts definitively resolve the matter of whether there is a threshold of "significant" contribution below which de minimis contributors have an equitable defense under CERCLA or, at least, a basis for limiting their liability to an appropriate equitable share, there is no clear answer to Annie's dilemma. Perhaps with the increased size of the Superfund, there will be less judicial reluctance under the new Act to rule against the application of joint and several liability to minor contributors and thus to cause the Fund to bear the "orphan share" of missing, insolvent, or de minimis contributors.⁴⁶

Contribution Protection

Johnny and Billy. Annie discovers two solvent users of the Antietam site and sues them for contribution. Johnny, a Reb, had entered into a settlement and release agreement with the United States in which he paid $5,000 to finance removal of some drums in exchange for a release from liability. Billy, a Yank, paid $5,000 to EPA as part of a verbal interagency memorandum of understanding.

SARA encourages parties to settle with EPA and its state partners through the protection of settlors from contribution actions by nonsettlors. CERCLA § 113(f) (2) states:

(2) Settlement — A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.⁴⁷

SARA expressly imposes on courts the obligation to apportion responsibility among liable parties "using such equitable factors as the court determines are appropriate."⁴⁸ This codified the holdings of courts that had found an equitable right to contribution under the 1980 Act, similar to that established under the Uniform Comparative Fault Act.⁴⁹ The legislative history of SARA endorses judicial use of the so-called "Gore" factors in equitably apportioning responsibility.⁵⁰

SARA is somewhat equivocal about the "sweetheart deal" problem with which Annie is potentially confronted. Under SARA, it is clear that the liability of nonsettlors is reduced at least by the amount of a settlement, such that the United States cannot recover the same amount twice. It appears, however, that liability can be reduced further should the court find that the settlors' equitable share exceeds the amount that the United States obtained in settlement. This explains the use of the adjective "potential" to modify "liability" in CERCLA § 113(f) (2) and is consistent with the Uniform Comparative Fault Act.⁵¹ Annie thus should not be penalized because of allegedly sweetheart deals between the United States and Johnny or Billy.

Joinder

Amicus Sam. Although Uncle Sam files several amicus briefs urging particular interpretations of SARA in Maryland's case, it resists Annie's attempt to join it to the action as an additional party plaintiff. In its amicus brief, Sam argues that the parties must wait for EPA to complete its remedy selection process before it commences with the remedy phase of the trial.

Annie's problem with amicus curiae Uncle Sam focuses on a fundamental internal inconsistency in the approach the United States is taking in CERCLA litigation. On the one hand, the United States permits, indeed at times encourages, [17 ELR 10152] the states to bring cost recovery actions under CERCLA independently of the federal government for cleanup projects being conducted under EPA-state cooperative agreements or contracts.⁵² Under SARA, these state enforcement activities may be financed with federal money.⁵³ On the other hand, the United States has resisted its joinder as a plaintiff to CERCLA actions brought by states on the grounds of the United States' immunity from suit.⁵⁴ Through its regulations, EPA even has attempted to thwart discovery of EPA in such suits where it is a nonparty.⁵⁵

Amicus Uncle Sam is even more likely to show up in a case in which it is not a party under SARA than under the old CERCLA because the new Act requires that the Attorney General be notified whenever anybody files an action seeking relief or cost recovery under the statute.⁵⁶ The prototype amicus brief is that which the United States filed in State of Ohio ex rel. Celebrezze v. Georgeoff in July 1986.⁵⁷ There EPA asserted that "the remedial evaluation and selection process set forth in the NCP [National Contingency Plan] requires U.S. EPA to address precisely the kind of technical, factual questions that call for judicial deference under the doctrine of primary jurisdiction."⁵⁸ Thus, "when EPA selects a remedy for a hazardous waste site pursuant to the NCP, review of the Agency's remedial determination is properly confined to the administrative record which forms the … basis for the Agency's decision."⁵⁹

EPA would have courts defer to its administrative decisions about a site under the doctrine of primary jurisdiction but would resist being bound by the court's judgment under the doctrine of sovereign immunity. At one and the same time, "the absence of the United States would not prevent a complete determination of the rights between the State and the Defendants,"⁶⁰ but discovery cannot proceed in the state's case pending decisions of the United States in developing an administrative record for remedy review.⁶¹

In my opinion, SARA, in CERCLA § 113(h), resolves this fundamental inconsistency by affirming federal court jurisdiction to review "challenges to removal or remedial action selected by the President under section 104" in several circumstances, including "[a]n action under section 107 to recover response costs …."⁶² Whatever the case law prior to SARA, this affirmation constitutes an express waiver of the United States' immunity from suit under CERCLA in all cost recovery actions. The only question is whether EPA is a necessary party that should be joined under Federal Rule of Civil Procedure 19. At least where remedy review is to be conducted on EPA's administrative record, there is little doubt in my view that the United States is necessary within the meaning of that rule.

Land Ban

Nimby. Maryland's Attorney General, Nimby, proposes to excavate the Antietam site and transport the contaminated soil to the Gettysburg incinerator, now in full operation. In response, Pennsylvania enacts a new statute barring land disposal within the state of all "Superfund" wastes generated in remedial actions outside the state. The Commonwealth subsequently intervenes in Maryland's suit against Annie in an attempt to prevent the court from ordering Annie to conduct Maryland's proposed operation.

SARA's answer to the state land ban riddle is probably found in CERCLA § 121(d)(2)(C).⁶³ The obscure drafting style employed in this paragraph in SARA defies the skills of even the most careful reader. It is possible that the draftsmen intended, through deft employment of "negative implications," to authorize state discrimination against interstate commerce otherwise proscribed by the dormant commerce clause. Thus, whenever land disposal is EPA's chosen option for wastes found within "such State," the ability of the state to prohibit such disposal is limited but by implication is unlimited where the wastes to be disposed of are not found within "such State."⁶⁴ Some courts, however, might seek a more express congressional indication that the dormant commerce clause, which otherwise would prevent such discrimination, has been overcome.⁶⁵

Contractor Indemnification, Eleventh Amendment

TMI. TMI, operator of the incinerator on behalf of the Commonwealth of Pennsylvania, experiences a power outage, causing an explosion in which poisonous fumes descend upon residents of the area. In addition to personal injury suits, citizens file endangerment suits to compel the state to clean up the mess caused by its accident.

Under the old CERCLA, citizens might not have had recourse against the Commonwealth of Pennsylvania because of the Eleventh Amendment.⁶⁶ Under SARA, however, a state operator of a site that causes or contributes to the release of a hazardous substance clearly is liable under § 107 for cost recovery.⁶⁷ SARA's legislative history indicates that Eleventh Amendment immunity is also abrogated with respect to contribution suits under CERCLA.⁶⁸

Just as important for potentially responsible parties (PRPs), however, are the bizarre indemnification arrangements that may exist among EPA, the state, its contractor, and, by operation of law, PRPs. Under SARA, EPA cannot indemnify response action contractors against strict [17 ELR 10153] liability claims under state law, but it may indemnify such contractors for their own negligence from the Fund.⁶⁹ Where the contractor solely causes a release and persons and property are injured because of his negligence, PRPs for the site can have no "third party" defense under CERCLA § 107(b)(3). Because the response action contractor was negligent, the PRPs must reimburse the government for both the response costs and private claims that are paid out as a result of its indemnification arrangement with its contractor.

Whether the citizen endangerment suit may lie, while EPA's contractor continues his response, is a variation of the citizen suit question discussed above with respect to Ike.

Preauthorization

The County. Transit County conducts an emergency removal action to clean up a spill of toxic material en route to Gettysburg from Antietam at the county's train station. Considering EPA to be responsible for the entire enterprise, the County files a claim against the Superfund for reimbursement.

The history of the CERCLA § 112 claims mechanism has been a sad one, in which EPA defaulted in producing the regulations for submission of such claims for over six years and during which it never paid a claim against the Fund. In 1986, Congress passed amendments proposed by EPA to simplify and streamline the Fund claims mechanism and to eliminate the settlement-arbitration scheme found in the 1980 Act.⁷⁰

The conferees omitted a major feature of EPA's proposed reform of § 112, however. EPA had by regulation added a requirement to § 112 that the responsible federal official certify costs in advance of their incurrence, i.e., "preauthorize" a response, as a prerequisite to a subsequent claim against the Fund.⁷¹ Whether EPA can so limit claims was raised by an industry petition to review the amended NCP in 1986.⁷²

In SARA, the conferees made clarifying changes to CERCLA § 112(a), which EPA opposed and which casts doubt on EPA's previous construction of the provision to allow for a "preauthorization" requirement. The change indicates, "[n]o claim against the Fund may be approved or certified during the pendency of an action by the claimant in court to recover costs that are the subject of the claim."⁷³ This language clearly contemplates that claims may be certified after a pending action is terminated, perhaps by a judgment for the defendant.⁷⁴ If claims against the Fund always must be certified before costs are incurred, the qualifying sentence in § 112(a) would make no sense since no claim could ever be approved and certified once a cause of action under § 107 accrued, i.e., after the time when costs were incurred. A "preauthorization" requirement thus appears inconsistent with SARA.

Whether Transit may recover from the Fund depends upon whether the "preauthorization" requirement and other limitations on Fund claims in the NCP are valid bases to deny payment. Denial of its claim is subject to immediate, but limited, judicial review.⁷⁵

Cost Recovery

Finale. Six years and a hundred million dollars later, EPA sues Annie for recovery of its costs.

Arguably, there was no cost recovery statute of limitations under the 1980 Act.⁷⁶ Under SARA, however, EPA may no longer delay indefinitely in bringing its cost recovery suits and the accompanying opportunities for challenges of its decisions. SARA commences the running of a six-year statute of limitations period for remedial actions at the "initiation of physical on-site construction" of the remedy.⁷⁷ SARA commences a three-year limitations period for removal actions at the completion of the removal, but starts a special six-year limitations period whenever the one-year or two-million-dollar limitations on removal have been waived.⁷⁸ Where a remedial action is commenced during the period in which the cost recovery suit for a prior removal action at the site may be brought, the plaintiff may recover the costs of the removal in his action to recover costs of the remedial action.⁷⁹

It is important to remember, moreover, that unlike EPA's remedy selection decision, "record review" does not apply to the incurrence of specific costs under SARA. As the Government itself has noted —

[M]ost agency actions inevitably involve additional steps toward implementation. However, these day-to-day ministerial steps are not themselves "agency action" for purposes of review…. It is therefore open to [defendants] to pursue discovery of … details of the … process if it believes that would be helpful.⁸⁰

In fact, the scope of SARA's "record review" limitation in CERCLA § 113(j) is quite narrow, applying only to EPA decisions to select a remedy or to issue an order where administrative law principles do not allow for supplementation of the record.⁸¹ The provision does not limit a court's review of remedy issues in EPA actions seeking injunctive relief under CERCLA § 106.⁸²

As Superfund expenditures mount over the next few [17 ELR 10154] years, the number of cost recovery actions brought to recover some of those expenditures should also increase substantially. The defense attorney's main job in these suits may often be the thorough examination of the costs asserted to be recoverable. The EPA Inspector General's 1986 report on CERCLA removal actions found many examples of substantial overruns and excessive contractor mark-ups.⁸³ EPA's possible move to a cost-plus contracting mechanism,⁸⁴ should only increase the need for defendants' vigilance in discovery and trial of cost recovery suits.

SARA changes little about the way these suits will be tried. The Eighth Circuit recently held that CERCLA's "statutory scheme … supports allocation of the burden of proof of inconsistency with the NCP upon the defendantswhen the government seeks recovery of its response costs."⁸⁵ The issues of whether an action is "necessary" or "cost-effective" is part of the determination of consistency with the NCP.⁸⁶ The burden of proof may be shifted to the government, however, where CERCLA "is silent or ambiguous, and the EPA has failed to promulgate regulations or to issue position statements that could allow a party to weigh in advance the probability that the cleanup is valid or applicable."⁸⁷ While there is also still some question about whether defendants have the burden of persuasion regarding these matters when a party other than the United States undertakes cleanup under a cooperative agreement,⁸⁸ defendants always will need to aggressively pursue their rights of discovery against the government to ensure that they do not pay costs alleged which are not properly recoverable.

The NCP is "specifically required by CERCLA to include 'methods and criteria for determining the appropriate extent of removal, remedy, and other measures' and 'means of assuring that remedial action measures are costeffective.'"⁸⁹ The NCP is also supposed to include "provision for identification, procurement, maintenance, and storage of response equipment and supplies."⁹⁰ Even though EPA in large measure defaulted with respect to these NCP requirements in its 1985 regulations, the requirements remain in the statute. Moreover, EPA is not exempt from the complex regulatory scheme that applies to any government agency's procurement of services.⁹¹ While EPA's internal cost documentation procedures have not been promulgated as regulations, its numerous internal guidances should prove useful to PRPs seeking to avoid large undocumented expenditures or expenses not properly allocable to the cleanup project they are allegedly responsible for.⁹² Where these internal guidances diverge from the usual government procurement methods,⁹³ costs asserted may not be recoverable.

Conclusion

The 1986 amendments to CERCLA are lengthy and convoluted. Their legislative history, like that of the 1980 Act, is conflicting and confused. This Article has focused on some of the interstices where there may be judicial, administrative, or indeed "private" accommodations permitting cleanup to go forward despite the statutory ambiguities. While possible solutions to the various controversies under SARA were provided, these are only one set of possible solutions from among those that courts might plausibly adopt.

The problem areas discussed are in reality battlegrounds in which none of the differing interests involved in the legislative process that shaped SARA were vindicated. The EPA bureaucracy, and its lawyers in the Department of Justice, as noted above, have already taken varying positions on many of the issues raised. The real question for the Superfund practitioners (lawyers, engineers, and public servants alike) is whether the system can be made to work efficiently and equitably despite SARA's increased stakes and increased complexity.

1. In Defense of Liberalism, VANITY FAIR (Nov. 1934).

2. Pub. L. 99-499, 100 Stat. 1613 (1986). For a detailed analysis of the amendments, see Atkeson et al., An Annotated Legislative History of the Superfund Amendments and Reauthorization Act, 16 ELR 10360 (Dec. 1986).

3. 42 U.S.C. §§ 9601-9675, ELR STAT. 44001.

4. Fikes v. Alabama, 352 U.S. 191, 198-99 (1957) (Frankfurter, J. concurring).

5. See, e.g., Comment, CERCLA 1985 Litigation Update, 15 ELR 10395 (Dec. 1985); Comment, Preenforcement Review Under CERCLA: Potentially Responsible Parties Seek an Early Day in Court, 16 ELR 10093 (Apr. 1986).

6. See Industrial Park Development Co. v. Environmental Protection Agency, 604 F. Supp. 1136, 15 ELR 20573 (E.D. Pa. 1985).

7. Compare EPA Memorandum from Lee M. Thomas, Acting Assistant Administator, OSWER, Use and Issuance of Administrative Orders Under § 106(a) of CERCLA (Sept. 8, 1983).

8. CERCLA § 107(a), 42 U.S.C. § 9607(a), ELR STAT. 44024.

9. CERCLA § 113(k)(2)(C), 42 U.S.C. § 9613(k)(2)(C), ELR STAT. 44043.

10. CERCLA § 113(h), 42 U.S.C. § 9613(h), ELR STAT. 44042.

11. E.g., Industrial Park Development Co. v. Environmental Protection Agency, 604 F. Supp. 1136, 15 ELR 20573 (E.D. Pa. 1985), supra.

12. Aminoil, Inc. v. United States Environmental Protection Agency, 599 F. Supp. 69, 14 ELR 20801 (C.D. Cal. 1984).

13. E.g., Wagner Electric Corp. v. Thomas, 612 F. Supp. 736, 740, 15 ELR 20977, 20978 (D. Kan. 1985).

14. CERCLA § 107(c)(3), 42 U.S.C. § 9607(c)(3), ELR STAT. 44025.

15. 209 U.S. 123 (1908); see Solid State Circuits, Inc. v. United States Environmental Protection Agency, 17 ELR 20453 (8th Cir. Feb. 18, 1987); Aminoil, Inc. v. United States, No. CV84-5863-KN (C.D. Cal. June 30, 1986); Wagner Electric, 612 F. Supp. at 736, 15 ELR at 20977; United States v. Reilly Tar & Chemical Corp., 606 F. Supp. 412, 416, 15 ELR 20348, 20352 (D. Minn. 1985).

16. CERCLA § 101(23), (24), 42 U.S.C. § 9601(23), (24), ELR STAT. 44007.

17. CERCLA § 122(d)(1)(A), 42 U.S.C. § 9622(d)(1)(A), ELR STAT. 44058.

18. See CERCLA § 113(h)(5), 42 U.S.C. § 9613(h)(5), ELR STAT. 44042.

19. CERCLA § 113(h)(2), 42 U.S.C. § 9613(h)(2), ELR STAT. 44042.

20. See CERCLA §§ 106(b)(1), 107(c)(3), 42 U.S.C. §§ 9606(b)(1), 9607(c)(3), ELR STAT. 44023, 44025.

21. CERCLA § 106(b)(2), 42 U.S.C. § 9606(b)(2), ELR STAT. 44023.

22. See CERCLA §§ 106(b)(2)(B), 113(h)(3), 42 U.S.C. §§ 9606(b)(2)(B), 9613(h)(3), ELR STAT. 44023, 44042.

23. Congress probably intended that the administrative order reimbursement scheme under § 106(b)(2) be integrated with the revised mechanism for claims against the Fund under § 112. This may be necessary because of the way SARA's tax title is linked with the rest of the new Act. See CERCLA § 111(a), 42 U.S.C. § 9611(a), ELR STAT. 44034; SARA §§ 517(c), 531.

24. CERCLA § 104(j), 42 U.S.C. § 9604(j), ELR STAT. 44021.

25. CERCLA § 107(l), 42 U.S.C. § 9607(l), ELR STAT. 44029.

26. 42 U.S.C. § 9604(e), (j), ELR STAT. 44014, 44021.

27. See CERCLA § 101(35), 42 U.S.C. § 9601(35), ELR STAT. 44008 (defining "contractual relationship" for purposes of CERCLA § 107(b)(3) defense).

28. See CERCLA § 107(b)(3), 42 U.S.C. § 9607(b)(3), ELR STAT. 44024.

29. 42 U.S.C. § 9613(h)(4), ELR STAT. 44042.

30. H.R. CONF. REP. NO. 962, 99th Cong., 2d Sess. 224 (1986).

31. Id.

32. Compare 132 CONG. REC. S14929 (daily ed. Oct. 3, 1986) (Simpson and Thurmond); 132 CONG. REC. H9582-83 (daily ed. Oct. 8, 1986) (Glickman) with 132 CONG. REC. H9587 (daily ed. Oct. 6, 1986) (Florio); 132 CONG. REC. H9600 (daily ed. Oct. 8, 1986) (Roe).

33. See 132 CONG. REC. S14899-900 (daily ed. Oct. 3, 1986) (Stafford); id. at S14917 (Mitchell).

34. 42 U.S.C. § 9604(e), ELR STAT. 44015.

35. CERCLA § 104(e)(2)(C), 42 U.S.C. § 9604(e)(2)(C), ELR STAT. 44015.

36. See Butler, Superfund Financial Models, NAT. RESOURCES & ENV'T, Fall 1985, at 23.

37. Cf. CERCLA § 122(e)(1), 42 U.S.C. § 9622(e)(1), ELR STAT. 44059 (expressly preserving privileges) with CERCLA § 104(e)(5), 42 U.S.C. § 9604(e)(5), ELR STAT. 44015 (no such express preservation).

38. CERCLA § 122(e)(3)(B), 42 U.S.C. § 9622(e)(3)(B), ELR STAT. 44060.

39. CERCLA § 104(e)(5), 42 U.S.C. § 9604(e)(5), ELR STAT. 44015.

40. H.R. CONF. REP. NO. 962, 99th Cong., 2d Sess. 207 (1986).

41. See Public Service Co. of Indiana, Inc. v. EPA, 509 F. Supp. 720, 11 ELR 20534 (S.D. Ind. 1981), aff'd, 682 F.2d 626, 12 ELR 20928. (7th Cir. 1982); see generally Marshall v. Barlow's, Inc., 436 U.S. 307, 8 ELR 20434 (1978); See v. City of Seattle, 387 U.S. 541, 543 (1967).

42. E.g., Senate Hearing 413, 99th Cong., 1st Sess. 36-37 (1985); Senate Hearing 61, 99th Cong., 1st Sess. 13 (1985).

43. See Light, A Defense Counsel's Perspective on Superfund, 15 ELR 10203, 10206 (1985).

44. See CERCLA § 122(g), 42 U.S.C. § 9622(g), ELR STAT. 44061.

45. E.g., United States v. South Carolina Recycling and Disposal, Inc., 14 ELR 20272 (D.S.C. Feb. 23, 1984), appeal pending No. 86-1261(L) (4th Cir.), ELR PEND. LIT. 65943.

46. Professor Richard Epstein convincingly demonstrates the administrative inefficiency and perverse incentives of strict, joint and several liability under CERCLA in Epstein, Two Fallacies in the Law of Joint Torts, in CAUSATION AND FINANCIAL COMPENSATION 307 (Georgetown University Medical Center 1986).

47. 42 U.S.C. § 9613(f)(2), ELR STAT. 44041.

48. CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1), ELR STAT. 44041.

49. See United States v. Conservation Chemical Co., 628 F. Supp. 391, 401-2, 17 ELR 20158, 20163 (W.D. Mo. 1985).

50. H.R. REP. NO. 253 (Part 3), 99th Cong., 1st Sess. 18-19 (1985), citing United States v. A&F Materials Co., 578 F. Supp. 1249, 1256, 14 ELR 20105, 20108 (S.D. Ill. 1984).

51. UCFA § 6, reprinted in 12 U.L.A. CIVIL PROC. & REM. LAWS 38 (SUPP. 1986).

52. See CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B), ELR STAT. 44024.

53. CERCLA § 104(d)(1)(A), 42 U.S.C. § 9604(d)(1)(A), ELR STAT. 44014; EPA, State Participation in the Superfund Remedial Program, "CERCLA Funding of State Enforcement Activities at National Priorities List (NPL) Sites — Interim Draft Guidance" (Oct. 1, 1986).

54. Missouri v. Independent Petrochemical Corp., 17 ELR 20241 (E.D. Mo. Oct. 16, 1986).

55. 40 C.F.R. §§ 2.402(b), 2.405 (1986).

56. CERCLA § 113(l), 42 U.S.C. § 9613(l), ELR STAT. 44043.

57. No. C81-1961 (N.D. Ohio brief filed July 1, 1986).

58. Georgeoff brief, at 14.

59. Id., at 23 n.14.

60. Missouri v. Independent Petrochemical Corp., 17 ELR at 20242.

61. Georgeoff brief.

62. CERCLA § 113(h)(1), 42 U.S.C. § 9613(h)(1), ELR STAT. 44042.

63. 42 U.S.C. § 9621(d)(2)(C), ELR STAT. 44055.

64. See Light, Federal Preemption, Federal Conscription Under the New Superfund Act, 38 MERCER L. REV. __ (1987).

65. See City of Philadelphia v. New Jersey, 437 U.S. 617, 8 ELR 20540 (1978).

66. See United States v. Union Gas Co., 792 F.2d 372, 16 ELR 20818 (3d Cir. 1986).

67. CERCLA § 101(20)(A)(iii), 42 U.S.C. § 101(20)(A)(iii), ELR STAT. 44006.

68. H.R. CONF. REP. 962, 99th Cong., 2d Sess. 185-86 (1986).

69. CERCLA § 119(b), 42 U.S.C. § 9619(b), ELR STAT. 44049.

70. SARA § 112, amending CERCLA § 112, 42 U.S.C. § 9612, ELR STAT. 44038.

71. 40 C.F.R. § 300.71 (1986).

72. Ohio v. EPA, No. 86-1096 and consolidated cases (D.C. Cir.)

73. CERCLA § 112(a), 42 U.S.C. § 9612(a), ELR STAT. 44038.

74. See also CERCLA § 111(o), 42 U.S.C. § 9611(o), ELR STAT. 44038 (requiring notice to state and local officials of limitations on paying claims); H.R. CONF. REP. 962, 99th Cong. 2d Sess. 218 (1986) (clarifying that the § 111(o) change does not relate to preauthorization and expressing satisfaction with "current law" on that issue).

75. CERCLA § 112(b)(5), 42 U.S.C. § 9612(b)(5), ELR STAT. 44040.

76. United States v. Mottolo, 605 F. Supp. 898, 15 ELR 20444 (D.N.H. 1985).

77. CERCLA § 113(g), 42 U.S.C. § 9613(g), ELR STAT. 44041.

78. CERCLA § 113(g)(2)(A), 42 U.S.C. § 9613(g)(2)(A), ELR STAT. 44042.

79. CERCLA § 113(g)(2)(B), 42 U.S.C. § 9613(g)(2)(B), ELR STAT. 44042.

80. United States' Supplemental Reply Memorandum in Opposition to Occidental Chemical Corporation's Motion to Compel Production of Documents Withheld by New York on the Basis of Deliberative Privilege, United States v. Occidental Chemical Corp., No. 79-99C (JTC) (W.D.N.Y. filed Dec. 10, 1985), at 3 n.4; cf. United States Fidelity & Guaranty Co. v. United States, 638 F. Supp. 1968, 17 ELR 20259, 20261 (M.D. Pa. 1986) (distinguishing on-scene coordinator's role in a cleanup operation as not falling within discretionary function exception to Federal Tort Claims Act).

81. See CERCLA § 113(h), (j)(1), 42 U.S.C. § 9613(h), (j)(1), ELR STAT. 44042.

82. United States v. Hardage, 17 ELR 20242 (W.D. Okla. Dec. 11, 1986).

83. Bradley, Audit Report No. E5E26-05-0101-XXXXX, Report on Audit of EPA's Planning, Negotiation, Awarding and Administering of Emergency Response Cleanup Services Contracts (ERCS Report) (1986).

84. 13 CHEM. WASTE LITIG. REP. 411 (Feb. 1987).

85. United States v. Northeastern Pharmaceutical & Chemical Co. [NEPACCO], 810 F.2d 726 (8th Cir. 1986) (emphasis in original).

86. Id., 810 F.2d at 747.

87. Solid State Circuits, Inc. v. United States Environmental Protection Agency, 17 ELR 20453, 20456 (8th Cir. Feb. 18, 1987).

88. United States v. Miami Drum Services, Inc., No. 85-0038-Civ. (S.D. Fla. Dec. 12, 1986).

89. NEPACCO, 810 F.2d at 748.

90. CERCLA § 105(a)(5), 42 U.S.C. § 9605(a)(5), ELR STAT. 44021.

91. See also CERCLA § 119(f), 42 U.S.C. § 9610(f), ELR STAT. 44051 (regarding contractor competition).

92. See, e.g., EPA, State Participation in the Superfund Program, Volume II, "State Procurement Under Superfund Cooperative Agreements" (Mar. 1986).

93. E.g., EPA Memorandum from Vincette L. Goeri to Conny Chandler, "Recovering Indirect Costs Related to Superfund Site Cleanup" (Dec. 12, 1985) (setting forth indirect cost allocation method for government charges to cleanup projects at variance with normal procurement methods used for charges to the government).