Injunctive and Declaratory Relief for States Under CERCLA

Adam Babich and Kent E. Hanson

Editors' Summary: When Congress originally enacted CERCLA in 1980, it gave the state and federal governments a strong arsenal of tools to respond to actual or threatened releases of hazardous substances. CERCLA authorized state and federal governments to recover response costs and natural resource damages from responsible parties. However, CERCLA authorized only the federal government to obtain injunctive relief to compel responsible parties to perform remedial actions. States that were unwilling to spend their own money to clean up sites and later seek recovery from responsible parties were forced to rely on pendent jurisdiction and declaratory judgment actions to obtain prospective relief at CERCLA sites. The author reviews the methods that states pursued prior to SARA to obtain prospective relief. He then outlines how state-prosecuted actions should proceed after SARA, which gave states their own federal cause of action for injunctive relief.

Adam Babich is associated with the Denver, Colorado, law firm of McGuire, Cornwell & Blakey. He is a former Assistant Attorney General for the State of Colorado's CERCLA Litigation Section and a graduate of Yale Law School. Kent E. Hanson is counsel to McGuire, Cornwell & Blakey and the former First Assistant Attorney General of theState of Colorado's CERCLA Litigation Section. Mr. Hanson graduated from the University of Denver School of Law. The authors wish to thank the other members of Colorado Attorney General Duane Woodard's trial team in the 1987 trial in Colorado v. Idarado Mining Co., No. 83-C-2385 (D. Colo.), especially Michael C. Donovan, Carolyn L. Buchholz, and Shawn P. Mulligan.

[18 ELR 10216]

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), adopting an innovative remedial approach to the problem of environmental contamination.¹ The major federal and state environmental statutes enacted prior to 1980 were designed to regulate pollution by limiting releases of contaminants to specific environmental "media," i.e., air, water, or land.² By the end of the decade, however, public health and environmental disasters such as the Love Canal site and kepone contamination of the James River had demonstrated that the regulatory approaches of the past were inadequate to protect the public or the environment from the devastation caused by releases of hazardous substances.³ Congress intended CERCLA to provide for prompt response to actual or threatened releases of hazardous substances at the expense of the parties responsible for such releases.⁴ Accordingly, CERCLA authorizes the federal government and the states to recover the costs of such response, including attorneys fees,⁵ and damages for injuries to natural resources⁶ from responsible parties. As originally enacted in 1980, however, CERCLA authorized injunctive relief only in actions brought by the federal government, leaving a significant gap in the states' enforcement authority.⁷ States that were unwilling either to forego expeditious cleanup or to invest the full cost of cleanup before obtaining a judgment against responsible parties were forced to rely on pendent jurisdiction and claims for declaratory judgment to seek prospective relief at CERCLA sites. In 1986, Congress enacted the Superfund Amendments and Reauthorization Act (SARA),⁸ amending CERCLA and providing states with their own federal cause of action for injunctive relief.⁹ This Article examines means by which states may obtain injunctive and declaratory relief in CERCLA actions.

Liability Under CERCLA

Congress intended CERCLA to shift the societal costs of mismanaged hazardous substances from the taxpaying public to the industries responsible for the handling and [18 ELR 10217] disposal of such substances.¹⁰ Accordingly, liability under CERCLA for response costs, injunctions, and natural resource damages is not fault based.¹¹ CERCLA imposes liability for actual or threatened releases of hazardous substances from a facility on broad categories of responsible parties, including (1) the owner or operator of the facility; (2) the owner or operator at the time hazardous substances were disposed of at the facility; (3) any person who arranged for transport of hazardous substances; and (4) any person who accepts or accepted such substances for transport to the facility.¹² The federal courts have consistently recognized that "[t]he only required nexus between the defendant and the site is that the defendant have dumped his waste there and that the hazardous substances found in the defendant's waste are also found at the site."¹³ Liability under CERCLA is not only strict; it is joint and several. Apportionment of liability is permissible under CERCLA only if the defendant meets its burden of proving that the harm is divisible and that there is a reasonable basis for apportionment of costs and damages.¹⁴ The possible harsh results of strict, joint, and several liability under CERCLA are mitigated by the statute's provision for actions for contribution.¹⁵

In accordance with congressional intent to shift the burden of mismanaged hazardous substances to those who have profited from activities involving such substances, CERCLA dramatically limits the defenses that can be asserted by responsible parties¹⁶ to three affirmative defenses set forth in § 107(b)¹⁷ and various narrow statutory limitations of liability such as those found in § 107(c), (d), (f)(1), (i), and (j).¹⁸ Some courts, however, have adhered less faithfully to the plain language of CERCLA's limitations on affirmative defenses than have others.¹⁹ To ensure that the government has the requisite information to respond promptly to threats to the public and environment, even the narrow defenses and limitations of liability permitted by CERCLA are waived by responsible parties who fail to comply with the notification requirements of CERCLA § 103(c).²⁰

State-Prosecuted CERCLA Litigation Before SARA

Prior to enactment of SARA in 1986, states seeking cleanup of released hazardous substances or abatement of threatened releases had limited, albeit powerful, options for proceeding under CERCLA. The first of these options (all of which are still available) is to attempt to interest the United States Environmental Protection Agency (EPA) in cleaning up the site at issue. Each state can designate one site, and urge EPA to consider other sites, for inclusion on the federal National Priorities List (NPL) — a list of sites to be cleaned up, eventually, by EPA.²¹ The Agency, however, moves remarkably slowly in cleaning up NPL sites.²² Moreover, there is no guarantee that EPA will clean up a site to a state's satisfaction²³ and states are required to fund 10 percent of the cost of federally financed cleanups (50 percent, or more, at state-owned sites).²⁴ Another option is to seek a cooperative agreement with EPA pursuant to § 104(d)(1).²⁵ Under such agreements, states may exercise the federal response authorities of CERCLA § 104²⁶ and obtain funding from EPA's Hazardous Substance Response Trust Fund (Superfund). EPA, however, is slow in processing such agreements and hesitant to approve agreements that provide for state discretion in selecting remedial action. Moreover, the multi-billion dollar Superfund reportedly will be insufficient even to clean up those sites currently listed on the NPL.²⁷ Accordingly, it is a mistake for states seeking expeditious cleanup of released hazardous substances to rely exclusively on action from, or agreements with, the federal bureaucracy.

Prior to SARA's grant of injunctive authority, access to federal district courts for states acting independently of the federal government under CERCLA was provided solely by CERCLA § 107(a).²⁸ On its face, § 107(a) provides only for recovery of response costs already incurred and natural resource damages. Thus, it seemed plausible that states first had to appropriate and spend the millions of dollars potentially required to clean up a CERCLA site and then litigate to recover those monies. CERCLA § 107 provides states with a very advantageous position in such litigation, placing the burden on defendants to prove that costs were incurred in a manner inconsistent with the National [18 ELR 10218] Contingency Plan (NCP).²⁹ Nonetheless, the danger remained that a state could expend millions of dollars to conduct a CERCLA cleanup only to find recovery of its money denied if the cleanup were judicially deemed inconsistent with the NCP. To avoid such a gamble with taxpayers' money and to avoid the short-term strain on state treasuries of fronting money for complete cleanups, alternative means of obtaining CERCLA cleanups had to be devised. The pattern for successful pre-SARA CERCLA litigation is reflected in two seminal federal court opinions: New York v. Shore Realty Corp.,³⁰ upholding an award of injunctive relief pursuant to the doctrine of pendent jurisdiction, and Ohio ex rel. Brown v. Georgeoff,³¹ approving a claim for declaratory relief.

* The Shore Realty Case and the Doctrine of Pendent Jurisdiction. The Second Circuit, in New York v. Shore Realty Corp.,³² clarified the states' authority to pursue actions under CERCLA in several respects. The decision essentially laid to rest contentions that states somehow were precluded from bringing actions to address sites not listed on the NPL, and that states could not proceed with cost recovery actions under CERCLA § 107 without a cooperative agreement or other EPA approval.³³ More importantly for purposes of this Article, Shore Realty provides a model for the use of pendent jurisdiction to achieve injunctive relief at CERCLA sites. The Second Circuit, in Shore Realty, held that CERCLA, as enacted in 1980, contained no authority for states to seek injunctive relief.³⁴ The court went on, however, to approve the district court's issuance of an injunction pursuant to the common law of public nuisance.³⁵ The court's discussion of the common law of public nuisance highlighted the extent to which strict, joint, and several liability under that common law theory is equivalent to CERCLA liability.³⁶ The Shore Realty case demonstrated that by combining common law public nuisance and CERCLA causes of action, states can recover past response costs and obtain prospective injunctions at CERCLA sites. However, the Shore Realty court based its approval of the district court's exercise of pendent jurisdiction in part on the existence of a "colorable" claim under CERCLA for injunctive relief.³⁷ The court reserved judgment as to whether, following its decision that CERCLA does not authorize injunctive relief for states, issuance of an injunction pursuant to pendent common law claims would be appropriate.³⁸ Analysis of the doctrine of pendent jurisdiction, however, establishes that such relief is justified regardless of whether CERCLA provides for injunctive relief for states.

Under Article III, § 2, of the Constitution, Congress may authorize the federal courts to assert federal question jurisdiction in "all cases in law and equity arising under … the laws of the United States…." Since 1824, the Supreme Court has interpreted Article III to authorize Congress to give the federal courts jurisdiction over entire cases where a federal question "forms an ingredient" of the original cause of action, "although other [pendent] questions of fact or of law may be involved."³⁹ In 1966, with United Mine Workers of America v. Gibbs,⁴⁰ the Court established a two-tiered analysis of pendent jurisdiction, the first tier to determine the power of courts to hear pendent claims, and the second to determine the scope of the courts' discretion. Federal courts have power to decide a pendent state claim whenever (1) the federal claim is sufficiently substantial to confer subject matter jurisdiction on the court; (2) the pendent and federal claims "derive from a common nucleus of operative fact"; (3) the plaintiff would "ordinarily be expected to try [the claims] in one judicial proceeding";⁴¹ and (4) Congress has not precluded pendent jurisdiction in its enactment of the statute conferring jurisdiction over the federal claim.⁴² The question of whether a court should exercise its discretion to hear pendent claims is based upon promotion of judicial economy, convenience, and fairness to litigants, taking into account (1) the policy of avoiding needless decisions of state law; (2) whether the state claims will substantially predominate; (3) the extent to which the state claim is tied closely to questions of federal policy; and (4) whether other factors, such as the likelihood of jury confusion, justify separating the state and federal claims for trial.⁴³

Clearly, federal courts have power to hear pendent statutory and common law claims in conjunction with claims under CERCLA. Adequately plead CERCLA claims are sufficiently substantial to confer jurisdiction over cases involving actual or threatened releases of hazardous substances. Claims for response costs and natural resource damages (under CERCLA) and for injunctive relief (under state statutory or common law) derive from the same factual situation (i.e., the contamination at the site at issue) and ordinarily a plaintiff would be expected to try its monetary and injunctive claims in one proceeding. Moreover, there is no limitation associated with Congress' grant of jurisdiction over CERCLA claims that would preclude the exercise of pendent jurisdiction. The issue faced by states seeking to assert pendent jurisdiction under CERCLA is whether the courts should exercise their discretion to hear such claims.

The question of a court's discretion under Gibbs is one of balancing considerations to provide for judicial economy, convenience, and fairness to the litigants.⁴⁴ Because CERCLA and pendent state claims will involve substantially identical facts, considerations of judicial economy will militate strongly in favor of retention of pendent [18 ELR 10219] jurisdiction. As always, surer-footed readings of state law will be available in state courts; however, the experience of federal courts in application of state law due to their diversity jurisdiction,⁴⁵ coupled with modern statutes providing for the certification of questions of law to state courts, greatly reduces the importance of this factor. State claims for injunctive relief at CERCLA sites are inherently and closely tied to questions of federal policy, since the federal NCP creates a blueprint as to how remedies for such sites should be developed and CERCLA and the NCP specify the cleanup standards that must be met.⁴⁶ Additionally, trial of claims under both CERCLA and pendent state law poses little likelihood of jury confusion, since courts have generally refused demands for jury trials under CERCLA⁴⁷ and the issues involved in both types of claim are similar, if not identical.⁴⁸ The most important factor potentially weighing against retention of pendent jurisdiction is whether or not the state statutory or common law claims will predominate over CERCLA claims. Before CERCLA was amended to provide states with a means of obtaining injunctions, it could be argued that state law claims for injunctive relief would predominate over CERCLA claims for monetary relief, especially in terms of the comprehensiveness of the remedy sought.⁴⁹ Such an argument would be difficult, given the Supreme Court's understanding of predominance as "a substantial hegemony of state law claims" or a situation where it appears that "a state claim constitutes the real body of a case, to which the federal claim is only an appendage."⁵⁰ However, even if the issue of predominance were to be conceded, considerations of fairness, including the expense and inconvenience to all parties of litigating in two forums, should require courts to retain pendent jurisdiction in CERCLA cases.

When a plaintiff has chosen to present its federal claims in a federal rather than a state forum, it is difficult for the plaintiff to complain that having to litigate its state claims in a separate forum is unfair or inconvenient.⁵¹ As noted by the Supreme Court, however, "[w]hen the grant of jurisdiction to a federal court is exclusive … the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be joined together."⁵² Since CERCLA provides for exclusive federal jurisdiction,⁵³ a denial of pendent jurisdiction requires plaintiffs either to forego their state law claims, forego their CERCLA claims, or undergo the expense and inconvenience of litigating in both state and federal courts. Such a result would contravene the intent of a Congress that specifically preserved state law claims imposing "additional liability or requirements with respect to the release of hazardous substances…."⁵⁴ Indeed, the NCP encourages states to "use State authorities to compel potentially responsible parties to undertake response actions…."⁵⁵ A judicial holding that states may exercise their state statutory or common law causes of action and their CERCLA claims only through duplicative litigation would chill the exercise of such state and federal rights, contrary to express federal policy.⁵⁶

Considerations of judicial economy, fairness, and federal policy dictate that federal courts retain jurisdiction of pendent state statutory and common law claims in CERCLA actions, regardless of CERCLA's provision for injunctive relief. Now that SARA has amended CERCLA to authorize states to obtain injunctions, the argument that state statutory or common law remedies may predominate is further weakened and the conclusion that pendent jurisdiction should be retained in CERCLA cases is inescapable. Despite SARA's authorization of injunctive relief for states, pendent claims will continue to be useful in addressing releases or damages not covered by CERCLA⁵⁷ and in providing alternative legal grounds to support issuance of an injunction. Thus, Shore Realty continues to provide a model for effective state litigation under CERCLA.

* The Georgeoff Case and Declaratory Relief. The decision in Ohio ex rel. Brown v. Georgeoff,⁵⁸ revealed an effective way for states to obtain prospective relief under CERCLA, regardless of the availability of injunctive relief. In an innovative approach, the plaintiff-state in Georgeoff combined CERCLA with the Declaratory Judgment Act⁵⁹ to provide the court with a mechanism to establish a judicially approved remedial action plan and to declare the defendants liable for the cost of implementing that plan.

Once a plaintiff has incurred some response costs at a CERCLA site (e.g., costs of investigation, monitoring, or evaluation) there is a case of actual controversy within the court's jurisdiction.⁶⁰ Under the Declaratory Judgment Act, courts in all such cases "may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought."⁶¹ Thus, once a plaintiff has incurred the costs of developing a remedial action plan for a site, the plaintiff may obtain a judicial declaration that the plan is "the appropriate extent of remedy" under the NCP,⁶² and that [18 ELR 10220] the defendant will be liable for all future costs that the plaintiff incurs, not inconsistent with the NCP, in implementing the plan or in overseeing or compelling implementation. Through this procedure, states may avoid the gamble of public funds inherent in implementing a remedy before receiving a judicial determination as to its consistency with the NCP.⁶³ Not surprisingly, the declaratory judgment method for obtaining prospective relief under CERCLA was adopted by Congress and written into § 113 of CERCLA, as amended by SARA.⁶⁴

State-Prosecuted CERCLA Litigation After SARA

On its 1986 enactment of SARA, Congress broadened the states' authority under CERCLA. CERCLA § 121(e)(2) now authorizes states to seek injunctive relief.⁶⁵ That section provides:

A State may enforce any Federal or State standard, requirement, criteria, or limitation to which the remedial action is required to conform under this chapter in the United States district court for the district in which the facility is located.

The statute does not specify the relief available to enforce such standards, requirements, criteria, or limitations. However, "[a]bsent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction."⁶⁶ Where the state has met its burden of proving that conditions at the site violate a standard, requirement, criteria, or limitation to which remedial action is required by CERCLA to conform, the only effective means of judicially enforcing such a requirement is for the court to enter injunctive relief compelling responsible parties to implement a remedial action plan. A federal district court denied a motion to dismiss a state's claim for injunctive relief in Colorado v. Idarado Mining Co., upholding the authority of states to seek injunctions under CERCLA § 121(e)(2).⁶⁷ The court further rejected the defendants' motion for interlocutory appeal of that ruling, holding that there were insufficient grounds for difference of opinion as to the effect of § 121(e)(2) to justify piecemeal appeal of the lawsuit.⁶⁸

Following enactment of SARA, a state-prosecuted action to require cleanup under CERCLA can be expected to proceed as follows:⁶⁹

1. The state performs or oversees an investigation to identify the scope of the problems posed by releases or threatened releases of hazardous substances at a site, the parties responsible for such releases or threatened releases, and the need, if any, for immediate removal action to protect the public health, welfare, or the environment.⁷⁰

2. The state performs or oversees a remedial investigation and feasibility study in compliance with §§ 300.71(a) and 300.68(e)-(h) of the NCP to identify the nature and extent of actual and threatened contamination and develop alternatives to assure protection of the public and the environment from such contamination.⁷¹ The state presents the results of the remedial investigation and feasibility study to the public, including responsible parties, for comment.⁷²

3. The state selects a remedial action plan pursuant to NCP §§ 300.68(i) and 300.71(a)(2), (3), and (4), upon consideration of the entire public record developed pursuant to the NCP process, including all public comments. This remedial selection is memorialized in a "Record of Decision," which is released to the public along with responses to public comments. If the selected remedial action plan differs significantly from the alternatives presented in the feasibility study, the state must explain such changes and, if appropriate, provide an additional public comment period.⁷³

4. The state presents its Record of Decision, along with the public record, to the court and, pursuant to CERCLA §§ 107(a) and 113(g)(2), requests the court to award the plaintiff the costs of investigating the site, developing remedial alternatives, selecting the remedial action plan, and litigating the court action. The state further requests the court to declare the plan to be the appropriate extent of remedy for the site, and to declare the defendants liable for the state's future costs of implementing, compelling implementation, or overseeing implementation of such plan.⁷⁴

5. Having established the appropriate extent of remedy for the site (i.e., the standards, requirements, criteria, and limitations to which remedial action must conform under CERCLA) the court enters an injunction pursuant to § 121(e)(2) and applicable pendent authorities requiring the defendants to implement the remedial action plan.⁷⁵

6. The state periodically executes upon the court's declaratory judgment to recover the costs of overseeing or compelling implementation of the remedial action plan.

7. Following judicial determination of the remedial action that will be implemented at the site, the state performs an assessment of residual damages to natural resources, which in addition to past damages (not occurring wholly before 1980) are awarded to the state.⁷⁶

If the state has somehow violated the NCP in its selection of remedial action, the state's investment in the remedial investigation and feasibility study process need [18 ELR 10221] not have been in vain. If the record is sufficient to allow selection of a cost-effective remedy not inconsistent with the NCP, the court may modify the state's selected remedy accordingly, disallowing only such response costs as were incurred in a manner inconsistent with the NCP.⁷⁷ If the record requires supplementation, the court may remand the remedial selection decision to the state with instructions deemed appropriate by the court.⁷⁸ Once an NCP-compliant remedy is developed, the court may enter an appropriate declaratory judgment and injunction. Following entry of such relief, the court should retain jurisdiction over the case to address disputes over implementation as necessary.

The Extent of Cleanup

State-selected remedial actions under CERCLA and the NCP are subject to four basic substantive requirements. Such actions must (1) be cost-effective, (2) attain or surpass all state and federal applicable or relevant and appropriate requirements, (3) minimize risk to the public and the environment, and (4) utilize permanent solutions to the maximum extent practicable. These considerations must guide the states' selection of the appropriate extent of cleanup under NCP §§ 300.68(i) and 300.71(a),⁷⁹ and CERCLA § 121(a), (b), and (d),⁸⁰ and the courts' entry of injunctive relief under CERCLA § 121(e)(2).⁸¹

The requirement that remedial actions be "cost-effective" is imposed by CERCLA § 121(a) and NCP § 300.68(i).⁸² The term "cost-effective" means that first a level of cleanup is selected to assure protection of the public health and welfare and the environment and then the least costly means of reliably achieving that level of protection is selected.⁸³ In evaluating remedial actions, state decision-makers must take into account the total short- and long-term costs involved, including operation and maintenance costs, and the potential for future remedial action costs if the selected remedial action were to fail.⁸⁴ Congress and EPA explicitly rejected the idea of a cost-benefit test for CERCLA cleanups.⁸⁵

CERCLA § 121(d) and NCP § 300.71(a)(4), subject to extremely limited exceptions, mandate that CERCLA cleanups attain or surpass all state and federal "applicable" or "relevant and appropriate" requirements.⁸⁶ "Applicable" requirements are those that would apply legally regardless of the CERCLA action.⁸⁷ "Relevant and appropriate" requirements are those designed to apply to problems sufficiently similar to those encountered at the site at issue that their application is appropriate.⁸⁸ The objectives and requirements of the Solid Waste Disposal Act, however, must be considered in selecting remedial action at all CERCLA sites.⁸⁹ NCP § 300.71(a)(4) (last revised in November 1985) requires that state-selected remedial actions comply with all federal, state, and local requirements, "including permit requirements."⁹⁰ However, CERCLA § 121(e)(1) (enacted in October 1986), provides that, although all state and federal substantive requirements must be met,

[n]o Federal, State, or local permit shall be required for [18 ELR 10222] the portion of any removal or remedial action conducted entirely onsite, where such remedial action is selected and carried out in compliance with [§ 121].⁹¹

The obligation to minimize risks to the public and the environment is imposed by CERCLA § 121(d) and NCP § 300.68(i). Under § 121(d) remedial actions must attain a level of cleanup that "at a minimum … assures protection of human health and the environment."⁹² NCP § 300.68(i) requires selection of a "cost-effective remedial alternative that effectively mitigates and minimizes threats to and provides adequate protection of public health and welfare and the environment."⁹³ Selection of remedial actions must take into account the long-term uncertainties associated with land disposal; the persistence, toxicity, mobility, and propensity to bioaccumulate of hazardous substances; and any short- and long-term potential for adverse health effects.⁹⁴ Such precautionary legislation demands that remedial action "precede, and optimally, prevent" manifestation of risks posed by exposure to hazardous substances.⁹⁵

CERCLA § 121(b) requires that remedial actions utilize "permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable."⁹⁶ Moreover:

Remedial actions in which treatment which permanently and significantly reduces the volume, toxicity or mobility of hazardous substances, pollutants, and contaminants is a principal element, are to be preferred over remedial actions not involving such treatment. The offsite transport of hazardous substances or contaminated materials without such treatment should be the least favored alternative remedial action where practicable treatment technologies are available.⁹⁷

In addition to the basic requirements of cost-effectiveness, attainment of applicable or relevant and appropriate standards, risk minimization, and permanence, CERCLA § 121 and the NCP require that other considerations be addressed carefully by state decisionmakers.⁹⁸ Moreover, regardless of substantive compliance with CERCLA and the NCP, remedial actions must be selected in compliance with applicable procedural requirements, including provisions for public participation, to be not inconsistent with the NCP.⁹⁹ Care taken during the remedial investigation, feasibility study, and remedy selection process, to meet both the substantive and the procedural demands of CERCLA and the NCP, is the single most important component of a successful litigation strategy under CERCLA.

Conclusion

Litigation under CERCLA is complex and can be resource intensive. However, by pursuing well-thought-out strategies, states litigating under CERCLA can obtain prospective declaratory judgments and relief under pendent state statutory or common law claims in addition to reimbursement of response costs and recovery of damages. Moreover, following enactment of SARA, states are authorized to seek injunctive relief in federal district courts. The authority to secure cleanups under CERCLA that meet the stringent substantive and procedural standards of the NCP is a key component of the states' ability to protect the quality of their environmental resources and the health and welfare of their citizens.

1. Pub. L. No. 96-510, 94 Stat. 2767 (Dec. 11, 1980). Unless otherwise specified, "CERCLA" as used in this Article refers to the Comprehensive Environmental Response, Compensation, and Liability Act as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100 Stat. 1613 (Oct. 17, 1986), codified at 42 U.S.C. §§ 9601-9675, ELR STAT. 44401.

2. See, e.g., the Clean Air Act, 42 U.S.C. §§ 7401-7626, ELR STAT. CAA 001; the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 001; and the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6987, ELR STAT. RCRA 001.

3. United States v. Shell Oil Co., 605 F. Supp. 1064, 1071, 15 ELR 20337, 20339 (D. Colo. 1985).

4. See Walls v. Waste Resource Corp., 761 F.2d 311, 318, 16 ELR 20438, 20440 (6th Cir. 1985); United States v. Shell Oil Co., 605 F. Supp. at 1072, 15 ELR at 20340 (D. Colo. 1985); Ohio ex rel. Brown v. Georgeoff, 562 F. Supp. 1300, 1312, 13 ELR 20457, 20464 (N.D. Ohio 1983). See generally Grad, A Legislative History of the Comprehensive Environmental Response, Compensation and Liability Act ("Superfund") of 1980, 8 COLUM. J. ENVTL. L. 1 (1982).

5. Reimbursement to states of "response costs" (i.e., cost of "removal" and "remedial action" including "enforcement activities related thereto") is available under CERCLA § 107(a)(1)-(4)(A), 42 U.S.C. § 9607(a)(1)-(4)(A), ELR STAT. 44024. See CERCLA § 101(23), (24), & (25), 42 U.S.C. § 9601(23), (24), & (25), ELR STAT. 44007.

6. States may recover damages for injuries to natural resources "within the boundary of a State or belonging to, managed by, controlled by, or appertaining to such State…." 40 C.F.R. § 300.73 (emphasis added) (restating the provisions of CERCLA § 107(a)(1)-(4)(C) & 107(f), 42 U.S.C. § 9607(a)(1)-(4)(C) and 9607(f), ELR STAT. 44024, 44026).

7. New York v. Shore Realty Corp., 759 F.2d 1032, 1049-50, 15 ELR 20358, 20366 (2d Cir. 1985). However, injunctive authority regarding situations involving hazardous or solid waste that "may present an imminent and substantial endangerment to health or the environment" is provided by the Solid Waste Disposal Act, as amended by RCRA, RCRA § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B), ELR STAT. RCRA 033. See Vermont v. Staco Inc., 18 ELR 20589 (D. Vt. 1988). See also Babich and Hanson, Opportunities for Environmental Enforcement and Cost Recovery by Local Governments and Citizen Organizations, 18 ELR 10165, 10167 n. 36 (May 1988).

8. Pub. L. No. 99-499, 100 Stat. 1616 (1986). For a detailed analysis of SARA, see Atkeson et al., An Annotated Legislative History of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 16 ELR 10360 (Dec. 1986).

9. CERCLA § 121(e)(2), 42 U.S.C. § 9621(e)(2), ELR STAT. 44056.

10. See supra note 4.

11. United States v. Bliss, 667 F. Supp. 1298, 1304, 18 ELR 20055, 20059 (E.D. Mo. 1987) ("Liability under CERCLA is strict, without regard to the liable party's fault or state of mind.").

12. CERCLA § 107(a)(1)-(4), 42 U.S.C. § 9607(a)(1)-(4), ELR STAT. 44024.

13. E.g., United States v. Wade, 577 F. Supp. 1326, 1333-34, 14 ELR 20096, 20098 (E.D. Pa. 1983).

14. E.g., United States v. Stringfellow, 661 F. Supp. 1053, 1059-60, 17 ELR 21134, 21135 (C.D. Cal. 1987); United States v. Chem-Dyne Corp., 572 F. Supp. 802, 811, 13 ELR 20986, 20989 (S.D. Ohio 1983).

15. See CERCLA § 113(f), 42 U.S.C. § 9613(f), ELR STAT. 44041. See also Colorado v. ASARCO Inc., 608 F. Supp. 1484, 15 ELR 20523 (D. Colo. 1985).

16. CERCLA § 107(a), 42 U.S.C. § 9607(a), ELR STAT. 44024, provides for liability "[n]otwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section [107] …" (emphasis added).

17. 42 U.S.C. § 9607(b), ELR STAT. 44024. Section 107(b) defenses are applicable when the release or threatened release was caused solely by an act of God, war, or an unrelated third party.

18. 42 U.S.C. § 9607(c), (d), (f)(1), (i), & (j), ELR STAT. 44024-27.

19. E.g., compare United States v. Bliss, 667 F. Supp. 1298, 1304, 18 ELR 20055, 20056 (E.D. Mo. 1987) ("CERCLA provides only three defenses to liability"), and United States v. Stringfellow, 661 F. Supp. 1053, 1061-62, 17 ELR 21134, 21136 (C.D. Cal. 1987) ("Congress intended to impose strict liability on defendants subject only to the affirmative defenses listed in section 107(b)") with Violet v. Picillo, 648 F. Supp. 1283, 1294-95, 17 ELR 20629, 20634 (D.R.I. 1986) (Defendants are not barred from asserting equitable defenses under CERCLA).

20. 42 U.S.C. § 9603(c), ELR STAT. 44010.

21. CERCLA § 105(a)(8)(B), 42 U.S.C. § 9605(a)(8)(B), ELR STAT. 44021.

22. See "Toxic Cleanup Plan Moves Slowly Amid Criticism From Two Fronts," N.Y. Times, Jan. 20, 1988, at 20, col. 4. See also Lucero, Son of Superfund: Can the Program Meet Expectations, 5 ENVTL. F. 5, 6 (Mar./Apr. 1988) (EPA will probably have removed only 75 sites from an NPL that will have grown to 1,000 sites by 1991).

23. See CERCLA § 121(f), 42 U.S.C. § 9621(f), ELR STAT. 44056 (providing for state "involvement" in federal selection of remedial action plans).

24. CERCLA § 104(c)(3), 42 U.S.C. § 9604(c)(3), ELR STAT. 44012.

25. 42 U.S.C. § 9604(d)(1), ELR STAT. 44014.

26. 42 U.S.C. § 9604, ELR STAT. 44011.

27. SURVEY AND INVESTIGATION STAFF, A REPORT TO THE COMMITTEE ON APPROPRIATIONS, U.S. HOUSE OF REPRESENTATIVES ON THE STATUS OF THE ENVIRONMENTAL PROTECTION AGENCY'S SUPERFUND PROGRAM 13 (Mar. 1988). See also Lucero, supra note 22, at 6.

28. 42 U.S.C. § 9607(a), ELR STAT. 44024.

29. United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 747-48, 17 ELR 20603, 20613 (8th Cir. 1986), cert. denied, 108 S. Ct. 146 (1987). The NCP is codified at 40 C.F.R. Part 300.

30. 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985).

31. 562 F. Supp. 1300, 13 ELR 20457 (N.D. Ohio 1983).

32. 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985).

33. 759 F.2d at 1045-48, 15 ELR at 20364-65. See also 40 C.F.R. § 300.62(a)(2) (Cooperative agreements are unnecessary for response actions that are not financed by the federal Superfund).

34. 759 F.2d at 1049-50, 15 ELR at 20366.

35. 759 F.2d at 1050-53, 15 ELR at 20366-67.

36. See also Halper, Public Nuisance and Public Plaintiffs: Rediscovering the Common Law (Part I), 16 ELR 10292 (Oct. 1986); Halper, Public Nuisance and Public Plaintiffs: Ownership, Use, and Causation (Part II), 17 ELR 10044 (Feb. 1987).

37. 759 F.2d at 1050, 15 ELR at 20366.

38. 759 F.2d at 1050, n.24, 15 ELR at 20366, n.24.

39. Osborn v. United States, 22 U.S. 738, 823 (1824).

40. 383 U.S. 715 (1966).

41. Id. at 725. See also Carnegie-Mellon University v. Cohill, 108 S. Ct. 614 (1988).

42. Aldinger v. Howard, 427 U.S. 1, 14 (1976).

43. United Mine Workers of America v. Gibbs, 383 U.S. at 726-27.

44. Id. at 726.

45. See 28 U.S.C. § 1332.

46. See CERCLA § 121, 42 U.S.C. § 9621, ELR STAT. 44054; and 40 C.F.R. § 300.71(a)(2), (3), & (4).

47. See, e.g., United States v. Mottolo, 605 F. Supp. 898, 913, 15 ELR 20444, 20450 (D.N.H. 1985). See generally, Slavitt, Jury Trial Rights Under CERCLA: The Effects of Tull v. United States, 18 ELR 10127 (1988).

48. See Harper supra note 36.

49. Cf. Adams v. Republic Steel Corp., 621 F. Supp. 370, 377 (W.D. Tenn. 1985).

50. United Mine Workers v. Gibbs, 383 U.S. at 727.

51. See, e.g., Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 376 (1978).

52. Aldinger v. Howard, 427 U.S. 1, 18 (1976) (emphasis added).

53. CERCLA § 113(b), 42 U.S.C. § 9613(b).

54. CERCLA § 114(a), 42 U.S.C. § 9614(a), ELR STAT. 44043.

55. 40 C.F.R. § 300.24(c).

56. See Note, A Closer Look at Pendent and Ancillary Jurisdiction: Toward a Theory of Incidental Jurisdiction, 95 HARV. L. REV. 1935, 1936 (1982) ("Congress' intent to allow plaintiffs to bring federal claims in federal courts would be frustrated if plaintiffs were forced to split their cases …"); Schenkier, Ensuring Access to Federal Courts: A Revised Rationale for Pendent Jurisdiction, 75 NW. U. L. REV. 245, 303 (1980) ("If Congress has seen fit to extend a federal right to individuals, the federal courts should use pendent jurisdiction where necessary to eliminate any bias against bringing claims concerning that right to federal court.").

57. See Idaho v. Bunker Hill Co., 635 F. Supp. 665, 673, 16 ELR 20879, 20884 (D. Idaho 1986).

58. 562 F. Supp. 1300, 13 ELR 20457 (N.D. Ohio 1983).

59. 28 U.S.C. § 2201.

60. Jones v. Inmont Corp., 584 F. Supp. 1425, 1430, 14 ELR 20485, 20487 (S.D. Ohio 1984).

61. 28 U.S.C. § 2201.

62. 40 C.F.R. § 300.68(i). The court will necessarily rule on the appropriateness of the state's selected remedy in ruling upon recovery of response costs. This is because an argument that the government's response actions were not consistent with the NCP is a challenge to the government's choice of a particular cleanup method. See United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 748, 17 ELR 20603, 20613 (8th Cir. 1986), cert. denied, 108 S. Ct. 146 (1987).

63. Moreover, once the court has determined the removal or remedial action plan to be instituted at a site, implementation of the plan should often be worked out between the parties. This is because private defendants will find it cheaper and more efficient to carry out the remedial action program themselves, under state oversight, than to pay the cost of state implementation.

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

65. 42 U.S.C. § 9621(e)(2), ELR STAT. 44056.

66. Califano v. Yamasaki, 442 U.S. 682, 704 (1979). See also Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946).

67. Colorado v. Idarado Mining Co., No. 83-C-2385, record at 1665-66 (D. Colo. May 19, 1987).

68. Colorado v. Idarado Mining Co., No. 83-C-2385, record at 3097 (D. Colo. June 30, 1987).

69. Investigations required by the NCP may be performed by responsible parties under state oversight. Cf. CERCLA § 104(a)(1), 42 U.S.C. § 9604(a)(1), ELR STAT. 44011.

70. This discussion focuses generally upon obtaining "remedial action," that is, responses to releases that are "consistent with permanent remedy." 40 C.F.R. § 300.68(a). Selection of remedial action requires completion of the remedial investigation and feasibility study process as described in the NCP at 40 C.F.R. § 300.68. In contrast, "removal" actions are generally performed as soon as possible to address immediate threats to the public health or welfare or the environment, and, accordingly, require fewer studies and administrative proceedings. 40 C.F.R. § 300.71(a)(2)(i).

71. 40 C.F.R. § 300.71(a)(2)(ii) (incorporating by reference 40 C.F.R. § 300.68(e)-(i)). EPA has published guidance documents regarding remedial investigations, feasibility studies, and remedial selections under the NCP.

72. 40 C.F.R. § 300.71(a)(2)(ii)(D).

73. CERCLA § 117(a) and (b), 42 U.S.C. § 9617(a) and (b), ELR STAT. 44045.

74. 42 U.S.C. §§ 9607(a) and 9613(g)(2), ELR STAT. 44024, 44042.

75. See 42 U.S.C. § 9621(e)(2), ELR STAT. 44056.

76. See supra note 6.

77. Cf. CERCLA §113(j)(3)(B), 42 U.S.C. § 9613(j)(3)(B), ELR STAT. 44043. Although the language of CERCLA § 113(j) applies specifically to judicial review of federally selected remedial actions, it provides guidance to the legislative intent that should be followed by courts in fashioning federal common law regarding the scope of judicial review of state-selected remedial action under CERCLA §§ 107(a)(1)-(4)(A) and 113(g)(2), 42 U.S.C. §§ 9607(a)(1)-(4)(A) and 9613(g)(2), ELR STAT. 44024, 44042. See United States v. Miami Drum Services, Inc., 17 ELR 20539, 20540 & n.2 (S.D. Fla. 1986). In order to modify a state's remedial action plan, however, there must be sufficient evidence in the record to establish that the court's modification is consistent with CERCLA and the NCP. Otherwise, the remedial action selection decision should be remanded to the state.

78. It would be wholly inconsistent with the NCP to allow the public health, welfare, and the environment to go unprotected due to errors by the state. Moreover, CERCLA and its legislative history establish that successive cost recovery actions are permissible under CERCLA. See, e.g., CERCLA § 113(g)(2), 42 U.S.C. § 9613(g)(2), ELR STAT. 44042; HOUSE CONFERENCE COMM. REP., SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, H.R. Conf. Rep. No. 962, 99th Cong., 2d Sess. 223 (1986) ("[T]he overall structure of CERCLA … contemplates that the President may bring a series of claims for response costs under section 107….").

79. 40 C.F.R. § 300.71(a)(2), (3), & (4). 40 C.F.R. § 300.71(a)(2)(ii)(B) incorporates by reference 40 C.F.R. § 300.68(i).

80. 42 U.S.C. § 9621(a), (b), & (d), ELR STAT. 44054-56. Although CERCLA § 121(a), (b), & (d), on their face, impose requirements only with respect to remedial actions selected pursuant to CERCLA §§ 104 and 106, 42 U.S.C. §§ 9604 and 9606, ELR STAT. 44011, 44023, Congress provided that such standards would be applicable to all state-selected selected remedial actions through CERCLA § 107(a)'s command that such remedial actions be "not inconsistent" with the NCP, 42 U.S.C. § 9607(a), ELR STAT. 44024. Congress added the specific cleanup standards of § 121(a), (b), & (d) to CERCLA in the 1986 amendments to the statute. Section 105(b) of those same amendments, 42 U.S.C. § 9605(b), ELR STAT. 44022, commands that EPA revise the NCP to reflect the requirements added by the 1986 amendments. Thus, in order to be "not inconsistent with" the NCP as Congress intended that standard to be applied, state-selected remedial action must comply with both current NCP requirements and with CERCLA § 121(a), (b), & (d). Moreover, under NCP § 300.71(a)(4), the requirements of § 121(a), (b), & (d) are binding on state-selected remedial action as "relevant and appropriate." 40 C.F.R. § 300.71(a)(4). CERCLA § 121(a), (b), & (d) are relevant and appropriate because they were "designed to apply to problems sufficiently similar to those encountered at CERCLA sites that their application is appropriate" and they "would be applicable but for jurisdictional restrictions associated with the requirement." 40 C.F.R. § 300.6 (quotation marks omitted). Under the NCP, relevant and appropriate requirements must be afforded the same weight and consideration as applicable requirements. 50 Fed. Reg. 47912, 47918-19 (Nov. 20, 1985). Accordingly, § 121(a), (b), & (d) must be given full effect at sites governed by state-selected remedial action plans. This conclusion reflects the fact that it would be senseless to require less stringent cleanup at sites governed by state-selected remedial action plans than at sites governed by federally selected plans.

81. 42 U.S.C. § 9621(e)(2), ELR STAT. 44056.

82. 42 U.S.C. § 9621(a), ELR STAT. 44054 and 40 C.F.R. § 300.68(i).

83. 50 Fed. Reg. at 47921-22; HOUSE CONFERENCE COMM. REP., SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, H.R. Conf. Rep. No. 962, 99th Cong., 2d Sess. 245 (1986).

84. CERCLA § 121(a) and (b)(1)(E), & (F), 42 U.S.C. § 9621(a) and (b)(1)(E), & (F), ELR STAT. 44054.

85. 50 Fed. Reg. at 47921-22, citing 126 CONG. REC. S16427 (1980).

86. 42 U.S.C. § 9621(d)(2), ELR STAT. 44055 and 40 C.F.R. § 300.71(a)(4). EPA has issued a document entitled "Memorandum: Interim Guidance on Compliance with Other Applicable or Relevant and Appropriate Requirements," 52 Fed. Reg. 32496 (Aug. 27, 1987), ELR ADMIN. MAT. 35113. The document is of extremely limited usefulness since, among other problems, it adopts the illegal position that Maximum Contaminant Level Goals are generally not relevant and appropriate criteria, despite manifest congressional intent to the contrary. See CERCLA § 121(d)(2), 42 U.S.C. § 9621(d)(2). Moreover, contrary to CERCLA's requirement that risks to the public and environment be minimized, see infra notes 92 and 93, EPA suggests without any explanation that CERCLA cleanups must conform only to an "acceptable risk range of 10<-4> to 10<-7>." EPA's "Interim Guidance" is not a regulation, does not have the force of law, and accordingly has not been subjected to judicial review.

87. 40 C.F.R. § 300.6.

88. Id.

89. CERCLA § 121(b)(1)(B), 42 U.S.C. § 9621(b)(1)(B), ELR STAT. 44054.

90. 40 C.F.R. § 300.71(a)(4) (emphasis added).

91. 42 U.S.C. § 9621(e)(1), ELR STAT. 44056 (emphasis added).

92. 42 U.S.C. § 9621(d)(1), ELR STAT. 44054 (emphasis added).

93. 40 C.F.R. § 300.68(i) (emphasis added).

94. CERCLA § 121(b)(1)(A), (C), & (D), 42 U.S.C. § 9621(b)(1)(A), (C), & (D), ELR STAT. 44054-55.

95. Cf. Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 13 (D.C. Cir. 1976), 6 ELR 20267, 20273, cert. denied, 426 U.S. 941 (1976).

96. 42 U.S.C. § 9621(b)(1), ELR STAT. 44054 (emphasis added).

97. Id.

98. For example, CERCLA § 121(b) requires consideration of the potential threat to human health and the environment associated with excavation, transportation, redisposal, and containment of hazardous substances. 42 U.S.C. § 9621(b)(1)(G), ELR STAT. 44055. Section 121(d) requires that remedial actions be "relevant and appropriate under the circumstances presented by the release or threatened release." 42 U.S.C. § 9621(d)(1), ELR STAT. 44056. The NCP requires that remedial alternatives that have significant adverse effects and very limited environmental benefits be excluded from further consideration during the initial screening of alternatives. 40 C.F.R. § 300.68(g)(3).

99. 40 C.F.R. § 300.71(a)(2). However, in reviewing alleged procedural errors, courts should disallow response costs only where such errors were "so serious and related to matters of such central relevance to the action that the action would have been significantly changed had such errors not been made." Cf. CERCLA § 113(j)(4), 42 U.S.C. § 9613(j)(4), ELR STAT. 44043. See Note 77, supra.