Jury Trial Rights Under CERCLA: The Effects of Tull v. United States

Evan Slavitt

Editors' Summary: One of the landmark environmental decisions handed down by the Supreme Court in recent years is Tull v. United States, holding that defendants have a right to a jury trial to determine liability for government-sought civil penalties. The decision is based on the Constitution's Seventh Amendment, and so is probably more permanent than an opinion based on statutory interpretation, which the Environmental Protection Agency could seek statutory amendments to effectively reverse. By and large, the government will have to live with the Tull decision, especially since the Supreme Court was unanimous in its core holding. Consequently, the Tull case has wide-ranging implications for the way the Environmental Protection Agency conducts its civil Penalty enforcement, as analyzed in the August 1987 issue of ELR (17 ELR 10304). It also has implications for EPA's Superfund program, which present fundamentally different legal issues. In this Article, the author explores the effects of Tull on the Superfund program, concluding that though jury trials will not be required in government actions to recover response costs or to obtain injunctive relief, jury trials are constitutionally required in actions to impose civil penalties and, probably, to recover for natural resource damages under Superfund.

Mr. Slavitt practices with the Boston firm of Fine & Ambrogne. Previously, he was an Assistant United States Attorney for the District of Massachusetts, where he participated in United States v. AVX, discussed in this Article. He is a graduate of Yale University and Harvard Law School.

[18 ELR 10127]

When Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹ in 1980, it departed substantially from the typical model of a federal law to control pollution. Unlike its design of the Clean Air Act,² the Resource Conservation and Recovery Act,³ and the Federal Insecticide, Fungicide, and Rodenticide Act,⁴ for example, Congress went beyond a mechanism of permits, orders, and fines. Under CERCLA, not only can federal and state governments impose fines or force responsible parties to clean up their hazardous wastes, governments can respond directly to solve a hazardous waste problem, and wait until after the problem has been solved to bill responsible parties for the costs governments incur for cleanup and for damages to natural resources. It is evident from the nature and intensity of the congressional debates, and the widely divergent preliminary drafts of CERCLA, that Congress intended to create in § 107 an extraordinary mechanism for response to environmental problems.

Last term, the Supreme Court changed the rules of environmental enforcement. In Tull v. United States⁵ the Court held that under the Seventh Amendment defendants are entitled to a jury trial when the government seeks civil penalties under the Federal Water Pollution Control Act⁶ (FWPCA or Clean Water Act). There can be little doubt that Tull reaches enforcementof similar fines in other standard regulatory contexts.⁷ What is not so clear, and what this Article will address, is what effect, if any, Tull will have on CERCLA litigation. The Article first summarizes the structure of CERCLA enforcement, then analyzes the Tull decision. Finally, it reviews the effects Tull has on existing case law relating to rights to a jury under CERCLA.

The Structure of CERCLA

Broadly speaking, CERCLA contains three different and independent enforcement mechanisms: § 106 abatement actions, [18 ELR 10128] § 107 cost recovery actions, and § 109 civil penalties. While § 107 poses the most difficult questions after Tull, that provision is best understood as part of the full range of CERCLA enforcement.

Section 106

When there is "an imminent and substantial endangerment to the public health or welfare or the environment" the Department of Justice may seek injunctive relief to protect the public. Indeed, in certain circumstances, the Environmental Protection Agency (EPA) may simply issue such administrative orders as are necessary to protect public health and the environment.⁸ Under the terms of CERCLA, these administrative orders are not directly challengeable, and failure to comply is subject to a penalty of up to $25,000 a day per violation.

CERCLA does not leave enjoined parties entirely without recourse. Under § 106(b)(2), a party ordered to act can attempt to seek reimbursement from the Hazardous Substance Superfund (the Superfund). As a practical matter, however, this reimbursement may not be easy to get. To be reimbursed, a petitioner has the burden of proving by a preponderance of the evidence that it is not tarred by CERCLA's broad brush of liability. Further, it must show that its costs of compliance were reasonable. Should a petitioner carry that burden, it is entitled to reimbursement (including interest) from the Superfund. If it does not carry that burden, then a petitioner can recover only if it can show that the response action ordered was arbitrary and capricious — a daunting prospect.

To give a concrete example, suppose an underground tank located on one property (Property A) spilled a hazardous substance that spread onto the property of an adjacent owner (Property B). Under § 106, both property owners could be ordered to excavate the contaminated land, dispose of it, and install monitoring wells. The owner of Property B has a situation that is not particularly unreasonable. As a party that bears no responsibility for the spill (an "innocent" landowner), he acts as a government contractor by fiat; he will perform work for the government, but is assured of receiving payment when he submits his bill. The owner of the chemical tank and Property A, however, is in a different situation. Even if he thinks that he could solve the problem much more cheaply and efficiently than the government plan, he must comply. To refuse to comply, regardless of the propriety of the order, would subject him to fines; if he complies, however, he may pay a great deal more to solve the problem than he would have if he were left on his own. At least by its terms, therefore, § 106 is a powerful remedy for the government with few avenues for delay or appeal.⁹

Section 107

The heart of CERCLA is found in § 107.¹⁰ After describing the categories of parties that will be liable under CERCLA, that section sets out the following categories of recovery:

(A) All cost of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;

(B) Any other necessary costs of response incurred by any other person consistent with the national contingency plan;

(C) Damages for injury to, destruction of, or loss of natural resources, including the reasonable cost of assessing such injury, destruction, or loss resulting from such release; and

(D) The cost of any health assessment or health effects study carried out under section 104(i).

While the first two categories are already broad on their face, CERCLA's definition section broadens their reach considerably. Thus, a "removal" action is not limited simply to the cleanup or removal of hazardous substances from the environment; it also includes, for example, the cost of monitoring, assessing, and evaluating the release; the cost of security measures to prevent access to the site; the cost of providing alternate water supplies if necessary; the cost of temporary evacuation; and housing for individuals who may be threatened by the hazardous substances.¹¹ Further, all governmental administrative costs are also included.¹² Since liability under CERCLA is strict and joint and several, an owner of a hazardous waste site could be faced with a situation in which the government comes in, cleans up the site, evacuates his neighbors and resettles them nearby, builds a new water-supply well, and then turns to the owner for payment.

The third category, subsection C, is an entirely different kind of remedy. By its terms, it allows the relevant government unit, either federal or state,¹³ to recover for loss of such natural resources. Those damages, however, do not go into the general treasury fund. Instead, pursuant to § 107(f)(1) they must be held in trust "for use only to restore, replace, or acquire the equivalent of such natural resources." Nonetheless, "the measure of damages in any action … shall not be limited by the sums which can be used to restore or replace such resources."

Section 109

Although CERCLA is primarily a remedial and not a punitive statute, it does have a variety of civil penalties set out in § 109. Any analysis of CERCLA, including this one, has a tendency to slight these penalties because of their straight-forward nature. Nonetheless, § 109 merits brief consideration in this analysis because its penalties can be quite large. [18 ELR 10129] For example, if a company president is called on a Friday afternoon and informed that there had been a minor and controlled spill of a hazardous substance on his company's property, and he then decides not to call EPA until Monday because he wants a chance to talk to his plant engineer to get a full report, under § 109(b) that president could face personal fines of up to $75,000. For a corporate officer who may very well have acted with good intentions, such a fine could be quite an unpleasant surprise, especially if his liability is beyond the scope of his officers and directors liability insurance.

The Tull Decision

The Tull case began as a simple action under the Clean Water Act which prohibits unpermitted filling of wetlands. Mr. Tull, a developer, had spent a significant portion of his professional career filling in wetlands around Virginia. The Army Corps of Engineers became aware of Mr. Tull's activities, and issued an administrative order requiring him to stop. As a practical matter the Corps could do little to force Mr. Tull to undo his activities since, like most developers, Mr. Tull had sold much of the land that he had filled. As a result, the government filed its lawsuit in 1981 seeking not only injunctive relief but substantial civil penalties.

At trial, Mr. Tull raised a variety of defenses requiring resolution of issues of fact. Mr. Tull had asked for and was denied a trial by jury. At the end of the trial the judge made the necessary findings of fact, and imposed civil penalties and ordered injunctive relief.¹⁴ When the Fourth Circuit affirmed the district court's denial of a trial by jury,¹⁵ Mr. Tull sought review in the Supreme Court.

At the outset, the Supreme Court indicated it was applying its traditional Seventh Amendment analysis.¹⁶ That requires that causes of action created by statute be analyzed to determine whether they are more analogous to suits at common law in the eighteenth-century English law courts or to suits tried in that era's courts of equity or admiralty. If the former analogy is stronger, then the Seventh Amendment requires a jury trial; if the latter analogy is a better fit, then no jury trial is required.

In order to set up the analogy, two aspects of the statutory action must be analyzed. First, the court must look to the nature of the action to compare it to the eighteenth-century actions brought in the courts of England. Second, the court must look to the remedy sought to determine whether it is legal or equitable in nature.

Turning to the first aspect of the analysis, the Supreme Court first noted that civil penalties in general were historically viewed as being a type of action in debt. As such, they would require a jury trial. The Court had little difficulty in finding that civil penalties under the Clean Water Act are no different from civil penalties under other statutes. As such, the court held that they are "clearly analogous to the 18th-century action in debt."¹⁷ In reaching its conclusion on this first aspect, the Supreme Court was not troubled by the government's argument that the Clean Water Act's remedies could also be analogized to public nuisance suits, generally tried in courts of equity. The Supreme Court apparently decided that if a new action is analogous to both actions in law and equity, then the remedy will be the dispositive factor.

The Court's analysis of the penalty aspect of the Clean Water Act was similarly succinct. The Court was swayed by the fact that the Clean Water Act does not contain a set of equitable considerations in determining fines, but simply imposes a maximum penalty. It concluded that the punitive nature of the relief was more important than any restitution aspect it might have; i.e., the statutes' "concerns are by no means limited to restoration of the status quo."¹⁸

The Supreme Court's bottom line was simple. Under the civil penalty sections of the Clean Water Act, a defendant is entitled to a jury trial to determine the factual predicate of the fines. If the jury finds that a fine is warranted, then it is up to the court to determine the amount of the fine.¹⁹

The Impact of Tull on CERCLA

The Simple Aspects

Two-thirds of the analysis of Tull's impact on CERCLA is relatively clear. The remedies under § 109 are, without quibble, civil penalties of the same type as found in the Clean Water Act and directly evaluated in Tull. First, they are set up to be judicial enforcement of administratively determined penalties. The penalties are phrased in precisely the manner that Tull found dispositive: all the penalties are designated as being "up to" $25,000 either per day or per violation (or in the case of some second violations up to $75,000 per violation). There is no consideration of equitable matters.

Section 106, on the other hand, is at the other extreme of the spectrum. While § 109 is purely legal, § 106 is purely injunctive. While EPA can require that persons subject to § 106 spend enormous sums of money in compliance with a government plan, § 106 does not provide for direct payments to the government at all. In the Supreme Court's axiom: "it goes without saying that an injunction is an equitable remedy."²⁰ Thus, the § 106 analysis is mercifully short.

The Not-So-Simple Aspects

Section 107, however, poses significant analytical problems. At first glance, of course, one might try easily to distinguish § 107 from § 106 by noting that § 107 permits monetary recovery. This first level of analysis would then conclude that, since monetary recovery is permitted, the relief must be legal in nature.

This analysis, although attractive, is erroneous. While legal relief typically entails money judgments, the payment of money may also be an integral part of equitable relief.²¹ [18 ELR 10130] Restitution and injunctive relief are classic equitable remedies, even though they may require the payment or expenditure of money.²² A court must, therefore, look to the underlying nature of the relief sought, not to the wording or form of the claim, to determine whether it is equitable or legal.²³ Adding difficulty to the matter is the fact that § 107 comprises two kinds of relief: restitution of costs and recovery for damage to natural resources. Each of these must be analyzed separately.

Cost Recovery Claims. Section 107(a)(4)(A) permits recovery of past response costs and a declaration of liability for future costs. The developing federal common law before Tull had been that cost recovery actions are equitable claims for restitution for which no jury is required. As one court characterized it, "[p]laintiffs seek restitution, that is, to restore the status quo by receiving their rightful reimbursement. This restitution remedy is under the jurisdiction of a court of equity, and there is no jury trial right where purely equitable relief is sought…."²⁴ At least until Tull, this conclusion was on its way to general acceptance in the federal courts.²⁵

The alternative view is that jury trials are available because reimbursement for assessment, response, and enforcement costs as recovered under § 107 is in the nature of legislatively established liquidated damages. As one court of appeals stated, "[a]ctions to recover liquidated damages granted by statute whether intended to be penal in nature or merely remedial are recognized as constituting common law actions of debt … as respects right of the jury."²⁶ Critical to this categorization is the total absence of judicial discretion in determining damages. In actions at law, if the requisite facts are found, the calculation of the damage award will be mechanical; in contrast, the heart of actions in equity is the broad discretion given to the judge to act in the name of fairness. This distinction has been dispositive in other contexts. For example, the Supreme Court has noted that "in Title VII cases … the courts have relied on the fact that the decision whether to award back pay is committed to the discretion of the trial judge."²⁷ On the other hand, in discrimination cases "there is no comparable discretion … if a plaintiff proves unlawful discrimination and actual damages, he is entitled to judgment for that amount."²⁸ This distinction has begun to be recognized in environmental law.²⁹

To decide between these competing views,³⁰ the Tull analysis must be used as the touchstone. The first step, drawing an analogy to eighteenth-century forms of actions, is not particularly helpful. Lawyers are trained to draw analogies, and Tull does not give particular guidance as to which analogies are valid and which are illusory. Thus, it is the second aspect of Tull, analysis of the nature of the remedy, which is dispositive.

First, it is a strange sort of liquidated damages indeed that is entirely unknown and unknowable at the time the defendant's conduct ceases. Other federal statutes that are generally conceded to contain liquidated damages clauses, such as the Federal False Claims Act, establish specific fines for the purpose of setting a lower bound on recovery even in those cases in which actual damages cannot be proved. Other actions including liquidated damages, as described above, at least have the amount of damages determined at the time the action crystallizes.³¹ Under § 107, on the other hand, the amount of the recovery is not set until the governmental unit itself decides that it intends to incur no more costs.

Second, the purpose of liquidated damages is to give the injured party something of the benefit of the bargain.³² Under CERCLA, however, the sole purpose of the cost recovery provisions is to put the government back in the situation it was in prior to the incurrence of the costs. Like provisions often found in commercial contracts permitting an injured party to act to minimize damages and to recover its expenses of taking such actions, CERCLA gives the government the right to act and recover its costs in the event that a potentially responsible party fails to do so. In sum, the fact that the government only recovers actual costs, and that such costs were incurred to return society to the situation it was in before the hazardous wastes were released and no more, tips the balance in favor of the developing trend toward analyzing § 107 cost recovery actions as equitable in nature. Even after Tull, therefore, there is no right to a jury trial, and the judge will act as the sole finder of fact.³³

Natural Resources Damages. Section 107(a)(4)(C) permits recovery for "damages for injury to, destruction of, or loss of natural resources …." Damages are statutorily defined in § 101(6) to have the meaning of the term as used in §§ 107(a) and 111(b). Any sums recovered "shall be available for use to restore, rehabilitate, or acquire the equivalent of such natural resources by the appropriate agencies of the Federal Government or the State government, but the measure of such damage shall not be limited [18 ELR 10131] by the sums which can be used to restore or replace such resources."³⁴

Three courts ruled on the right to a jury trial on a government's claim for damages to natural resources under CERCLA. The United States District Court for the Eastern District of Pennsylvania held in United States v. Wade that government claims seeking reimbursement for assessing injury and rehabilitating and restoring injured natural resources, are equitable claims for restitution.³⁵ Thus, they do not give rise to any right to a jury trial. Like restitution of response costs, reimbursement for assessment, rehabilitation, and restoration of natural resources serves to return the plaintiff to the status quo. The Wade court left undecided, however, the question of whether a request for other monetary relief under the natural resource damage clause would require a jury trial. The court relied instead on the plaintiff's representation in that case that it sought only recovery for assessment costs and the costs of rehabilitation and restoration.

In United States v. Allied Chemical Corp.,³⁶ the District Court for the Northern District of California considered whether a United States claim for damages to federally owned real property required a jury trial. The United States in that case sued not only for natural resource damages but also as a landowner seeking damages for nuisance and trespass. The courtimplicitly agreed with the Wade court that if the plaintiff sought only the costs of assessing injury and restoring and rehabilitating natural resources under CERCLA, there would be no right to a jury trial. But the court concluded, based on a reading of the complaint, that the plaintiff also sought legal damages that required a trial by jury.

In the final case, United States v. AVX,³⁷ the United States and the Commonwealth of Massachusetts sought recovery for damages to natural resources in and around New Bedford Harbor as a result of PCB pollution. In a decision without opinion, the District Court for Massachusetts held that the defendants were entitled to have a jury determine natural resource damages.

It is fair to say that these conflicting pre-Tull decisions are far from dispositive. Turning, therefore, to the appropriate analogy to draw, there are two distinct possibilities. One view would argue that polluters have in effect appropriated natural resources for their own use, impairing and destroying their availability for the use and enjoyment of the public. Reimbursement for the equivalent value of the natural resources and for the public's lost use of those resources is an integral part of the equitable remedies that are otherwise afforded under the natural resource damage clause. All such relief for damage to natural resources under the statute would therefore be in the nature of restitution. This view finds support in the Restatement on Restitution: "A person obtains restitution when he is restored to the position he formerly occupied either by the return of something he formerly had or by the receipt of its equivalent in money."³⁸ Restitition under traditional principles may include monetary compensation for the use value of property while plaintiff's use is impaired. The Restatement observes: "[a] person under a duty to another to make restitution of property received by him of its value is under a duty (a) to account for the direct product of the subject matter received while in his possession, and (b) to pay such additional amount as compensation for the use of subject matter as will be just to both parties in view of the fault, if any, of either or both of them."³⁹

According to this view, government's natural resource damages are not compensation like a common law contract or tort action, but rather they vindicate public rights, established by statute, through enforcement of the statutory scheme. The argument draws support from the line of cases addressing payment of back pay as an element of equitable relief under the Fair Labor Standards Act and civil rights statutes. These cases hold that although back pay would normally be viewed as legal relief requiring a trial by jury, it is an integral part of the equitable remedy of reinstatement under those statutes, and does not give rise to any rights to a jury trial.

The countervailing argument requires much less effort. Recovery for loss of natural resources would be analogized to simple actions sounding in tort. The fact that expenses are also recoverable would similarly pose no problem. Expenses incurred by a personal injury plaintiff in seeking medical advice are recoverable in simple tort actions.

Since the first step in Tull is not dispositive, the nature of the damages must be analyzed. What is most notable at this stage of analysis is that damages are not limited to restoration costs. This is a strong indication that pure restitution is not the focus of the statute, thereby falling outside the Tull requirement that equitable actions "are limited to restoration of the status quo."⁴¹

In contrast, some weight must be given to the CERCLA requirement that all sums recovered "shall be available for use to restore, rehabilitate, or acquire the equivalent of such natural resources …."⁴² This limitation is unusual for a purely legal recovery of damages; such recoveries are generally unrestricted. On the other hand, given that governmental units are the only plaintiffs able to recover natural resources damages, this limitation can also be viewed as a congressional attempt to control internal allocations of funds rather than a reflection that the remedy is intended to be equitable in nature.

As might be expected with such a novel form of action, the Tull analysis of the natural resource recovery under CERCLA is not obvious. Nonetheless, on balance, the Tull test favors treating natural resource damage recovery as a legal cause of action, to which jury trial rights attach under the Seventh Amendment. Both at the analogy step and the remedy step, the argument that § 107 (a)(4)(C) sounds in law is marginally stronger.

Conclusion

The Tull decision clarified the analysis required under the Seventh Amendment. As applied to CERCLA, Tull makes it clear that actions under § 106 and cost recovery under § 107 are equitable and juries are not constitutionally available. Civil penalty actions under § 109 and natural resources damage actions are actions that permit a jury trial.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. 43999-44081.

2. 42 U.S.C. §§ 7401-7642, ELR STAT. 42201-42266.

3. 42 U.S.C. §§ 6901-6991, ELR STAT. RCRA 001-046.

4. 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA 001-029.

5. 481 U.S. __, 17 ELR 20667 (1987).

6. 33 U.S.C. § 1251-1376.

7. See Openchowski, Changing the Nature of Federal Enforcement of Environmental Laws, 17 ELR 10304 (1987).

8. CERCLA § 106 provides such authority to the President, who has delegated such authority to EPA in most circumstances, but has delegated authority to the Coast Guard where certain coastal areas are involved. Exec. Order No. 12580, §§ 4(c), (d), 52 Fed. Reg. 2923 (1987), ELR ADMIN. MAT. 45031.

9. At least one commentator has concluded that when read together with CERCLA § 113(h), § 106 now permits unilateral administrative orders for removals but not remedial actions. Light, When EPA Makes a Superfund Mistake: Judicial Review Problems Under SARA, 17 ELR 10148, 10149.

10. 42 U.S.C. § 9607, ELR STAT. 44024.

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

12. CERCLA § 107(A)(4)(A), 42 U.S.C. § 9607(a)(4)(A), ELR STAT. 44024, and CERCLA §§ 101(23)-(25), 42 U.S.C. §§ 9601(23)-(25), ELR STAT. 44007.

13. Local governments may be treated as state governments for purposes of natural resource claims. See Maraziti, Local Governments: Opportunities to Recover for Natural Resources Damages, 17 ELR 10036 (1987).

14. United States v. Tull, 615 F. Supp. 610 (E.D. Va. 1983).

15. United States v. Tull, 769 F.2d 182, 15 ELR 21061 (4th Cir. 1985).

16. 17 ELR at 20669.

17. Id.

18. 17 ELR 20670 n.7.

19. Additional background on the lower court cases leading up to the Supreme Court's Tull decision, and further elaboration of the Supreme Court's decision, is provided in Openchowski, Changing the Nature of Federal Enforcement of Environmental Laws, 17 ELR 10304 (1987).

20. Weinberger v. Romero-Barcelo, 456 U.S. 305, 311, 12 ELR 20538, 20539 (1982).

21. RESTATEMENT OF RESTITUTION § 4 (1937); POMEROY'S EQUITY JURISPRUDENCE § 112 (4th Ed. 1918).

22. 5 MOORE'S FEDERAL PRACTICE PP38.24[1], [2].

23. Kline v. Shell Oil Co., 388 F.2d 659, 664 (8th Cir. 1967).

24. United States v. Mottolo, 605 F. Supp. 898, 913 (D.N.H. 1984), 15 ELR 20444, 20450 (citations omitted).

25. United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985); Missouri v. Independent Petrochemical Corp., No. 83-2670 C (2) (E.D. Mo. Mar. 27, 1985); Wehner v. Syntex Corp., 15 ELR 20210 (E.D. Mo. 1984); United States v. Tyson, No. 84-2663 (E.D. Pa. Nov. 28, 1984); United States v. Allied Chemical Corp., No. C83-5098 SC (N.D. Cal. Sept. 14, 1984); United States v. Union Gas Co., No. 8302456 (E.D. Pa. Aug. 1, 1984); United States v. Georgeoff, No. C83-1656-A (N.D. Ohio Aug. 2, 1984); United States v. Wade, No. 79-1426 (E.D. Pa. Feb. 21, 1984); United States v. Argent Corp., No. 83-523-BB (D.N.M. Dec. 20, 1983); United States v. Northeastern Pharmaceutical and Chemical Co., 13 ELR 20992 (W.D. Mo. 1983); and United States v. Reilly Tar and Chemical Corp., 13 ELR 20897, 20898 (D. Minn. 1983).

26. Leimer v. Woods, 196 F.2d 828, 834 (8th Cir. 1952).

27. Curtis v. Loethor, 415 U.S. 189, 197 (1974).

28. Id.

29. See United States v. Northeastern Pharmaceutical and Chemical Co., No. 80-5066-CV-5 (W.D. Mo. Sept. 30, 1983).

30. A § 107 claim may also be viewed as requiring the restoration of real property, and an analogy could be made to an action for the recovery of specific real property. Such an action generally falls within the range of legal remedies. Whitehead v. Shattuck, 138 U.S. 146, 151 (1891). This argument is also susceptible to the following analysis and does not need to be addressed separately.

31. See, for example, Title VIII of the Civil Rights Act of 1968, considered in Curtis v. Loethor, supra.

32. See, e.g., SECOND RESTATEMENT OF CONTRACTS § 356(1).

33. It is important to understand that in Tull, the action was first analyzed to determine if a right to a jury existed, and was only then further analyzed to see what the jury would consider. Although much of the examination of the nature of § 107 depends on discussion of damages, that discussion still takes place at the first step — to determine if any jury right exists at all. Since, at least in the author's view, it does not, there is no purpose in further determining which issues would go to the jury, and which would remain with the judge.

34. CERCLA § 107(f), 42 U.S.C. § 9607(f).

35. United States v. Wade, No. 79-1426 (E.D. Pa. Feb. 21, 1984).

36. No. C 83-5898 SC (Sept. 14, 1984).

37. Civil Action 83-3882-Y (D. Mass.).

38. RESTATEMENT OF RESTITUTION § 1, comment (1937).

39. Id. at § 157(1).

41. 17 ELR at 20670 (1987).

42. CERCLA § 107(f)(1), 42 U.S.C. § 9607(f)(1), ELR STAT. 44026.