21 ELR 10367 | Environmental Law Reporter | copyright © 1991 | All rights reserved

A Decade of Superfund Litigation: CERCLA Case Law From 1981-1991

Editors' Summary: Much has happened since the authors published their initial survey of CERCLA case law in the October 1989 issue of ELR. EPA issued substantial revisions to the NCP in March 1990. In November 1990, Congress reauthorized the Superfund for three more years. And, of course, there have been new cases. A glance at the number of cases cited in the footnotes of this Article will give the reader an idea of the volume of CERCLA case law. The authors have bravely confronted the new cases and have produced a summary of the decade of CERCLA case law.

Mr. McSlarrow and Mr. Murdock are attorneys with Hunton & Williams in Washington, D.C., and engage in Superfund litigation and environmentaltransactional practices. Mr. Jones is Assistant to the General Counsel of the Army, and has principal responsibility for the oversight of Army environmental legal policy.

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I. Introduction

1990 was a banner year for the Comprehensive Environmental Response, Cleanup and Liability Act (CERCLA).¹ In March, the Environmental Protection Agency (EPA) published a revised National Contingency Plan (NCP).² In November, Congress unexpectedly reauthorized the Superfund for three more years³ while leaving the statute unchanged. For the first time since the CERCLA program was initiated in the last days of 1980, it appears that the statutory and administrative aspects of CERCLA will be permitted to continue on their present course.⁴ As a result, at least with respect to those aspects of the CERCLA regulatory and liability programs that have begun to become settled in the case law, the next few years may represent a period of relative stability and predictability.

This Article presents a summary of Superfund litigation over the last decade.⁵ Two broad conclusions can be drawn [21 ELR 10368] from a review of the case law. First, the recent decisions have in part begun to fill gaps noted in our last survey.⁶ Second, and perhaps more important, expansion of the scope of liability has continued unabated, and in particular has begun to encompass government activities at all levels. This Article therefore begins, after a brief description of CERCLA, with a look at the liability decisions involving government entities as defendants before turning to a more general review of the case law.

II. How CERCLA Works

In addition to establishing the Superfund to cover the cost of cleaning up sites for which no responsible party can be made to pay, CERCLA creates parallel regulatory and liability regimes. Sections 104 and 106 give the federal government broad powers to clean up sites contaminated by hazardous substances, either by arranging for the cleanup itself or by ordering another person to do so.⁷ Section 107 imposes liability for the costs of such cleanups on a wide range of so-called "potentially responsible parties" or PRPs. These include current and past owners and operators of the site, persons who transported hazardous substances to the site, and persons who arranged to have hazardous substances transported to the site (commonly referred to as "generators"). In general, anyone who incurs cleanup costs, whether the government or a private party, may sue to recover those cost from a PRP under § 107.⁸ A PRP may also be liable under § 107 for damages for injury to or loss of natural resources.⁹

This seemingly simple program for cleaning up environmental contamination has been the subject of considerable litigation, due in large part to the extremely high costs associated with the typical cleanup of a contaminated site. Questions regarding the precise scope of the government's authority and the precise reach of the liability provisions can be enormously important to the parties involved, and they have been vigorously litigated as a result. It is impossible to understand how CERCLA works, therefore, without referring to the extensive judicial interpretation resulting from this litigation. This Article presents a comprehensive review of the case law so as to portray the CERCLA program in its full judicial bloom.

III. No One Is Immune: The Expanding Universe of CERCLA Liability

For several years Superfund case law has focused principally on questions relating to just one issue: who will be liable for the costs of cleanup. Thus, sharp disputes have arisen regarding the potential liability of successor¹⁰ and parent corporations,¹¹ lenders,¹² and corporate officers.¹³ However, possibly the most significant trend in the unabated expansion of liability appears in a less well-known context, that of government liability for actions that arguably fall within governments' police and regulatory powers.

In the imposition of liability, CERCLA shows mercy for no one, not even state, federal, and municipal governments. The application of CERCLA liability to governments is logically inescapable, given the text of the statute and the judicial gloss that increasingly ensnares those with even the most attenuated connection to a contaminated site. Nonetheless, the dearth of liability decisions adverse to government entities had created an illusion of government immunity. In recent years, however, that illusion has been rudely disturbed.

In particular, the federal courts have been increasingly willing to hold the federal government accountable for its actions in the course of cleanup efforts. In United States v. Nicolet, Inc.,¹⁴ for example, the defendant property owner counterclaimed against the United States alleging that EPA's actions in cleaning up the property caused the defendant to incur "unnecessary and wasteful" response costs. The court refused to dismiss the counterclaim, holding that recoupment claims "which arise out of the transaction or occurrence that is the subject matter of the sovereign's suit, and are used to defeat or diminish recovery by the sovereign are not barred by sovereign immunity."¹⁵ The Nicolet court reached this result in part because the private party defendant did not argue that it sought relief beyond defeating the United States' claim. The Nicolet court also concluded, however, that the waiver of sovereign immunity in CERCLA § 107(g) included claims for response costs.¹⁶ Moreover, at least one other court has stated broadly that contribution and indemnity counterclaims are appropriately brought against the United States, without noting any limitation that such claims may no more than offset the government's recovery.¹⁷

In United States v. Ottati & Goss, Inc., the district court effectively imposed liability on the federal government as a consequence of its cleanup activities in two ways.¹⁸ First, the court stated that EPA was jointly and severally liable for the cleanup of one site apparently contaminated by EPA operations at another site.¹⁹ Second, as a sanction for its [21 ELR 10369] behavior during litigation, the district court refused to award the United States its requested indirect costs, effectively shifting those costs to the government.²⁰ On appeal, the First Circuit allowed for the possibility that such a ruling was appropriate in circumstances where the "government itself caused a significant amount of contamination through negligent cleanup efforts…."²¹ The case was remanded to the district court, however, with instructions that it specify its reasons for imposing such sanctions in greater detail.²²

Perhaps the clearest example of the judiciary's willingnessto second guess EPA's expertise is found in United States v. Hardage.²³ The Hardage court, in a § 106 court-ordered remedy action, rejected the remedy selected and proposed by the United States, and instead selected the remedy proposed by certain defendants, as modified by the court.²⁴ In addition, the Hardage court refused to enter a consent decree purporting to contain a partial settlement among the United States, the federal agencies who were generators at the site, and certain other defendants.²⁵ Since the United States had previously stipulated to generator liability, the court went on to hold that certain private party defendants had incurred close to $ 4 million in response costs, of which the United States was liable for just under 10 percent.²⁶

For states, the awful reality of potential CERCLA liability became apparent after the Supreme Court decided that the Eleventh Amendment was no bar to suit.²⁷ CERCLA, itself, already offered scant comfort. Courts seem generally to agree that a state is not subject to CERCLA liability for "regulatory" activities.²⁸ However, the distinction between what is "regulatory" and what is activity from which liability may result is becoming blurred.

CPC International, Inc. v. Aerojet-General Corp.²⁹ is illustrative. In CPC, a state agency agreed with owners of contaminated property to participate in a response action by operating purge wells at the site, but failed to do so.³⁰ The court noted that liability could turn on the degree of control the state exerted at the site, but also noted that"mere regulatory activities will not subject a state agency to liability."³¹ Assuming the facts above to be true, the CPC court concluded that the state, as a legal matter, could be liable as an "operator," because "where a party assumes control of an activity and then fails to perform, that party should bear the responsibility for any pollution which results."³²

The CPC court also found that the state could be liable, in the alternative, as a generator because the agreement to operate the wells provided a"nexus" to the owner and the agreement could be said to "arrange for disposal."³³ The court repeatedly noted that what was involved was more than "mere regulation" on the part of the state, but it is difficult to imagine how else a decision to not follow through on a remedial action previously selected could be characterized, if not as a regulatory action.³⁴ The CPC court seems simply to have concluded that the state's subsequent decision was wrong, which may have been true, but to impose liability on that basis is at odds with the idea that regulatory actions are immune — such immunity is most important precisely when a regulatory decision proves to have been in error.³⁵

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Hassayampa Steering Committee v. Arizona³⁶ provides another example of the difficulty of determining whether a state's activities constitute "mere regulation." In that case, the plaintiffs sought summary judgment that the state of Arizona was liable as an operator of a landfill owned by a county government on the basis of the state's participation in various management activities. Among other activities, the state co-developed the pit design at the landfill, determined the types of wastes to be disposed of in each particular pit, and conducted periodic on-site inspections. Nonetheless, the court refused to hold the state liable as an operator as a matter of law, noting that many of its activities were regulatory in nature and pointing out that the county had complete control over several critical activities at the landfill, such as the day-to-day supervision of the facility, the hiring and managing of employees, and the ultimate closure of the facility.³⁷ Under these circumstances, the court held, the proper characterization of the state's activities required a trial on the merits.³⁸

Municipalities have become the latest victims of the inexorable extension of CERCLA liability to government entities. Three recent decisions addressed municipal liability, and refused to find that Congress had intended to treat local governments any differently from other persons merely because their nexus to a CERCLA cleanup site was through the disposal of municipal solid waste.

The first was Transportation Leasing Co. v. California.³⁹ In Transportation Leasing, municipalities sought a court ruling that "rubbish" was, as a matter of law, not a" hazardous substance" under CERCLA.⁴⁰ The court rejected the argument that the fact that the Resource Conservation and Recovery Act (RCRA) excluded household waste from its regulatory reach meant that CERCLA's liability provisions were similarly limited.⁴¹ The court pointed out that the definition of "hazardous substance" in CERCLA § 101(14) "does not expressly exempt from liability the disposal of household waste," and found no basis for inferring such an exemption.⁴² However, the Transportation Leasing court also ruled that such waste must be proved to contain hazardous substances.⁴³

The second decision was B.F. Goodrich Co. v. Murtha.⁴⁴ In Murtha, the municipalities moved for summary judgment, asserting as a matter of law that the generation and collection of municipal solid waste does not subject them to CERCLA liability.⁴⁵ The municipalities made arguments similar to those offered by the municipalities in Transportation Leasing,⁴⁶ but the Murtha court rejected those arguments as well, stating that "CERCLA's definition of 'hazardous substance' is broad and not determined by or dependent on the source of the waste."⁴⁷ The Murtha court further noted that RCRA's "household waste" exclusion was inapplicable because not all municipal waste was limited to household waste.⁴⁸

The municipalities also pointed to EPA's recently issued policy stating that EPA would not generally sue municipalities as evidence that municipal solid waste was exempt from CERCLA liability.⁴⁹ The Murtha court responded simply by citing the EPA policy's own language disclaiming any such intention to affect liabilities.⁵⁰ The court went on to note that to oppose summary judgment, the plaintiffs need only produce evidence "which raises a question of fact as to whether the [municipal solid waste] contained hazardous substances…."⁵¹ In this case, a sufficient question of fact was raised where evidence showed a connection to the site, and substances found in generic studies to be present at municipal landfills were asserted by affidavit to be present at the site in Murtha.⁵²

The third decision was United States v. Kramer,⁵³ in which the federal government sought recovery of response costs for cleanup of a contaminated landfill. Among several defenses offered by several private party defendants was that the government's policy of refraining from naming municipalities as PRPs constituted a violation of equal protection. In rejecting that argument, on the grounds that the government's enforcement policy was rationally related to the purpose of replenishing the Superfund as efficiently as possible, the court stated that municipalities were not immune from CERCLA liability and therefore could be named in the suit for contribution.⁵⁴

IV. The CERCLA Program

A. Constitutional Challenges

Since 1981, the federal judiciary has generally been CERCLA's best friend. Where constitutional attacks have been [21 ELR 10371] mounted, courts have been nearly unanimous in refusing to find the CERCLA program constitutionally infirm.

In some cases, constitutional claims have simply not been heard. The Third Circuit has taken the position that under some circumstances "due process does not require access to the courts before final administrative action."⁵⁵ That position was ratified by Congress with the subsequent enactment of CERCLA § 113(h) (as part of the Superfund Amendments and Reauthorization Act of 1986 (SARA)),⁵⁶ which generally precludes judicial review of "any challenges to removal or remedial action selected," unless one of five specific exceptions applies.⁵⁷ As a result, constitutional challenges must generally be deferred until the government brings a suit for reimbursement.⁵⁸ Indeed, this has been held to extend to citizen suits brought under § 310,⁵⁹ despite the exception provided in § 113(h)(4) allowing citizen suits "alleging that the removal or remedial action taken … or secured" was in violation of CERCLA.⁶⁰ Most courts, however, have held that § 113(h)(4) provides for judicial review after some discrete portion of the cleanup has been completed.⁶¹

When constitutional claims have been heard, they have been routinely dismissed.⁶² The most frequent constitutional attack comes under the Due Process Clause of the Fifth Amendment and centers on the retroactive application of liability to activities that were lawful prior to 1980.⁶³ Early district court decisions rejected due process and other arguments,⁶⁴ and in 1986 the Eighth Circuit in United States v. Northeastern Pharmaceutical and Chemical Co. (NEPACCO)⁶⁵ held that the retroactive application of CERCLA was a legitimate legislative purpose, achieved in a rational manner; it did not, therefore, violate due process. Courts have consistently adhered to this reading of CERCLA,⁶⁶ though some courts do not consider CERCLA retroactive in a constitutional sense because it is prospective in application.⁶⁷ This same constitutional analysis generally applies in the case of a private party seeking to recover response costs from another private party for pre-CERCLA conduct.⁶⁸

Another aspect of retroactive applicability is the government's ability to recover response costs incurred before the enactment of CERCLA. United States v. Shell Oil,⁶⁹ a seminal 1985 district court decision, upheld this scheme, as did the Eighth Circuit in NEPACCO.⁷⁰ A recent district court decision also extends the reasoning of Shell Oil and NEPACCO to private cost recovery actions.⁷¹

Due process arguments have also appeared in cases that concerned the government's right to seek monetary penalties when faced with noncompliance by private parties. [21 ELR 10372] Private parties that challenged an administrative order issued under § 106 found themselves between the Scylla of penalties for noncompliance and the Charybdis of incurring cleanup costs. But most courts were quick to allow a "good faith" defense, reading it into both § 106(a) on daily fines and § 107(c)(3) on treble damages.⁷² The courts held that good faith challenges to § 106 orders constituted "sufficient cause" under the treble damages provision.⁷³ Prior to SARA, the daily fines provision required only a "willful" violation, but it now also includes the requirement that noncompliance be "without sufficient cause."⁷⁴

The Second Circuit, in a pre-SARA decision, adopted the "good faith" exception for both the daily fines and treble damages provisions.⁷⁵ The Eighth Circuit, in the context of treble damages, has more recently held that if CERCLA or applicable regulations did not provide "meaningful guidance as to the validity or applicability of the EPA order," then EPA must show that the challenging party lacked an "objectively reasonable belief" in the validity of the order; with that reading, CERCLA satisfied due process.⁷⁶

Finally, where the owner of a site was not provided a hearing before the site was included on the National Priorities List (NPL), one court found no violation of due process.⁷⁷ Notice and comment before listing, and review afterward under § 113(a) (review of regulations) or § 107 (government cost recovery action) was enough.⁷⁸

The CERCLA program has been attacked on various other constitutional grounds, also with scant success.⁷⁹ There is little question, for example, that CERCLA is well within the scope of Congress' authority under the Commerce Clause. One court has found that there exists a rational basis to conclude that wholly intrastate disposal affects interstate commerce, and is thus within Congress' power under the Commerce Clause.⁸⁰ Nor did EPA violate the separation of powers doctrine (because it acted without congressional authorization) when it began a remedial investigation/feasibility study (RI/FS) before a site was actually on the NPL.⁸¹ The argument that Superfund-financed remedial actions could only be initiated after listing on the NPL was answered by the court's conclusion that a RI/FS is really a "removal" action with no such limitations.⁸² Arguments that CERCLA, because it imposes strict, joint and several liability, is a bill of attainder⁸³ or amounts to an ex post facto⁸⁴ law have also failed.⁸⁵

Equal protection arguments have generally fared no better. For example, the courts have rejected the argument that a discretionary decision by EPA to seek to impose disproportionate liability on fewer parties than may actually be liable under CERCLA violates the Equal Protection Clause.⁸⁶ In another context, the Seventh Circuit rejected the equal protection argument made by a landfill, whose license was revoked by the state, that relied on the fact that another landfill, with contamination problems, still had a license.⁸⁷

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Where EPA issued an administrative order seeking access to property under §§ 106(a) and 104(a), (b), and (e), the Claims Court held that losing the right to exclude others from private property does not constitute a taking under the Fifth Amendment.⁸⁸ However, a permanent physical presence is a taking.⁸⁹ For temporary physical invasions, the Claims Court would apply a balancing test that would take into account the activity, its duration, the degree of interference with the property, and the economic impact of the physical invasion.⁹⁰

Several of these constitutional themes have been developed recently in the context of CERCLA's settlement provisions. In United States v. Cannons Engineering Corp., the district court faced a constitutional challenge to § 113(f)(2), which provides that those parties who settle with the government are immune from suits for contribution by other PRPs.⁹¹ The nonsettling defendants argued that CERCLA's contribution protection violated the Due Process Clause, because the right to contribution is a property interest, and violated the Equal Protection Clause, because those who settled first would have a better deal.⁹² The Cannons Engineering court rejected the due process argument on the grounds that there is no federal common law right to contribution from a joint tortfeasor.⁹³ In rejecting the equal protection argument, the court applied a "rational basis" test, and concluded that it "was not irrational … to encourage early settlements and limit the use of public funds for site cleanup."⁹⁴

B. State and Federal Interaction

In a number of cases, courts have had to address the extent to which states may either supplement, replace, or implement the CERCLA program. Several cases have addressed whether CERCLA preempts state or local actions under the Supremacy Clause.⁹⁵ Not surprisingly, constitutional arguments offered by the United States in defense of CERCLA have fared considerably better than constitutional attacks on the CERCLA program.

Soon after the passage of CERCLA, the Supreme Court ruled that § 114(c), as originally enacted, preempted the states' ability to raise funds for the same purposes as CERCLA beyond the mandatory state share provided in CERCLA.⁹⁶ SARA, however, deleted § 114(c) in its entirety, apparently with the express purpose of overturning the Supreme Court's decision.⁹⁷ Courts had previously tended to treat § 114(c) as the exception, holding, for example, that the common law of nuisance was not preempted,⁹⁸ looking in part to § 114(a), which states, "[n]othing in this chapter shall be construed as preempting any state from imposing any additional liability…."⁹⁹ Some statements made in this context, however, seem overly broad.¹⁰⁰

Although the case law is not entirely consistent and tends to be somewhat fact-specific, there is a clear trend to protect the federal program from being rendered ineffective by the efforts of states and citizen groups to set their own priorities for CERCLA resources. Thus failure to comply with the procedural requirements of a state claims act did not bar a defendant's claim for contribution.¹⁰¹ Another court has ruled that § 309, added by SARA to address statutes of limitations, preempted a state statute of limitations that barred recovery of property damages caused by hazardous substances.¹⁰² Similarly, the Delaware Tort Claims Act, which extended immunity from suits for cost recovery to the counties of the state, was held preempted, because liability under CERCLA extends to "any person" including a "political subdivision of a State."¹⁰³ In addition, though the contribution protection afforded settling parties under [21 ELR 10374] § 113(f)(2) clearly displaces state claims regarding the "same subject matter" as the settlement with the United States, courts will not necessarily assume that state claims regarding the same site involve the same subject matter.¹⁰⁴

Preemption has also been an issue in the context of EPA's Superfund Innovative Technology Evaluation Determination program. Section 311(b), added by SARA, encourages the development of innovative technologies. Where local permit procedures included conditional use permits, accompanied by completely discretionary review and the ability to deny a permit application on vague health and environmental grounds, one court found a de facto bar that frustrated Congress' intent, and the procedures were, therefore, preempted.¹⁰⁵

It does seem clear that, whatever rights states may have under state statutory or common law, CERCLA does not provide states (or private parties) a cause of action for injunctive relief.¹⁰⁶ The Tenth Circuit, in Colorado v. Idarado Mining Co.,¹⁰⁷ recently addressed this argument in a case where the state attempted to compel the defendant to carry out the state's cleanup plan. The state argued that § 121(e)(2), which allows a state to enforce site cleanup standards, carried with it the right to impose a cleanup plan on the defendant.¹⁰⁸ The court rejected this argument, pointing out that § 121(e)(2) only provides rights to ensure that a consent decree embodying a remedial action selected by the federal government is carried out.¹⁰⁹

The decision in Idarado is consistent with the earlier district court decision in United States v. Akzo Coatings of America, Inc.¹¹⁰ However, the Akzo court went on to state that to the extent state statutory or common law claims purported to provide supplementary, but inconsistent, remedies, they were preempted by CERCLA.¹¹¹ The Akzo court cited the detailed provisions in § 121(f) for state review, and in § 122 for pursuing settlements, as examples of federal law put at risk by inconsistent state obligations.¹¹² To permit state claims would "result in the defendants' inability to comply with both state and federal requirements"; the state claims therefore posed an "actual conflict" with CERCLA, and were preempted.¹¹³

The clash between federal and state interests is clearly reflected in the controversy over states' attempts to ban the import of waste for disposal. The Eleventh Circuit recently considered such efforts in National Solid Wastes Management Association v. Alabama Department of Environmental Management (NSWMA).¹¹⁴ Alabama had passed legislation attempting to restrict the use of in-state disposal facilities for waste generated out of state, in part by banning the import of waste from states that had not complied with CERCLA's capacity assurance provisions.¹¹⁵ Those provisions require that a state assure EPA that it will have adequate capacity to dispose of hazardous waste generated in-state for the next 20 years, or risk receiving no Superfund monies for remedial activities within the state.¹¹⁶ The Eleventh Circuit held that hazardous waste was an object of commerce, whose dangers "did not outweigh its worth in interstate commerce," and that Alabama's import ban discriminated among exporter states, and thus posed a barrier to interstate commerce in violation of the Commerce Clause.¹¹⁷ The NSWMA court then rejected the argument that CERCLA's capacity assurance provisions authorized greater state regulation of interstate hazardous waste commerce, including the ban in question.¹¹⁸

Questions surrounding the Eleventh Amendment have recently become more settled. In the 1989 decision of Pennsylvania v. Union Gas Co.,¹¹⁹ the Supreme Court ruled that CERCLA permitted a private party to sue a state for monetary damages under § 107.¹²⁰ The Court confronted two questions in that case: whether Congress intended to waive Eleventh Amendment immunity, and whether Congress had the authority to do so.¹²¹ As to the first issue, the Court found dispositive the inclusion of "states" in the definition of "persons" found in § 101(21) and in the definition of "owners or operators" added by SARA in § 101(20)(D).¹²² The Court also supported its decision by pointing to the language of the citizen suit provision added by SARA, [21 ELR 10375] stating "[t]he reservation of states' rights under the Eleventh Amendment would be unnecessary if Congress had not elsewhere in the statute overridden the states' immunity from suit."¹²³ As to the second issue, the Court reasoned that Congress' power under the Commerce Clause would be incomplete without the authority to subject states to suits for damages.¹²⁴ CERCLA liability was necessary, in part, because prior statutes such as RCRA "had failed in large part because they focused on preventive measures to the exclusion of remedial ones."¹²⁵

C. Federal Facilities

The detailed provisions on federal facilities that SARA added to CERCLA have begun to generate an increasing number of decisions. It should be noted, however, that the term "federal facility" is used to refer both to a contaminated site owned or operated by the federal government, and to a non federally owned site at which some or all of the hazardous substances may nonetheless have been generated by a federal agency. Section 120 addresses both kinds of federal facilities: it provides a limited waiver of sovereign immunity to liability, and specifies a number of regulatory requirements that seek to ensure the cleanup of federal facilities.¹²⁶

Section 120(a) makes clear that the United States may be liable for § 107 response costs.¹²⁷ The initial question posed in litigation was how, as a practical matter, the United States could be both a plaintiff and a defendant. The practical answer given by the courts is that it depends on who sues first. Thus, in the seminal Shell Oil decision, the court refused to realign the United States as a defendant (because the site was an Army site for which the United States admitted liability), after it brought the suit.¹²⁸ The court stated that the United States could not be both plaintiff and defendant for justiciability reasons, and that the bottom line was that "the court apportions responsibility for the damages."¹²⁹ If the United States brings a CERCLA action in which a federal entity is a PRP, counterclaims for contribution, indemnity, and recoupment against the United States may be allowed.¹³⁰

The early cases involving federal facilities focused on jurisdictional disputes over the entity or entities that should properly control the cleanup program.¹³¹ These types of issues are really concerned with whether CERCLA controls a cleanup to the exclusion of other statutory regulatory regimes and arise most often in state versus federal facility contexts. Where CERCLA clearly controls, this issue generally becomes: to what extent does EPA control federal facility cleanups.

Thus, in United States v. Allied-Signal Corp.,¹³² the Department of the Navy's selection of a remedial action was held to be properly subject to de novo review. The court held that the deferential administrative record review provided by § 113(j) was not applicable because EPA had not "participated in a meaningful way in the formulation of Navy's remedial action plan."¹³³ Because the Navy was an interested party, by virtue of its own liability for cleanup costs, due process demanded that its plan be subjected to greater scrutiny.¹³⁴ Another district court held that EPA violated its nondiscretionary duty to evaluate federal facilities on the Federal Hazardous Waste Compliance Docket for possible inclusion on the NPL by the deadline specified in CERCLA § 120(c).¹³⁵ The court ordered EPA to conduct, within 18 months of its decision, preliminary assessments of each facility listed on the docket when SARA was enacted, and to evaluate those facilities for inclusion on the NPL within 30 months.¹³⁶

The Allied-Signal decision suggests that the cleanup of a federal facility by the agency responsible for that facility is somehow different from the cleanup conducted under CERCLA § 104 by EPA.¹³⁷ A more recent decision, Werlein v. United States, flatly rejects this view and concludes that when a federal agency conducts a cleanup of a federal facility, it does so "under [§ 104], subject to the requirements of [§ 120]."¹³⁸ Thus, unlike Allied-Signal, the court in Werlein concluded that the provisions of § 113, in particular § 113(h), which precludes preenforcement review, apply to all federal remedial plans, whatever their origin.¹³⁹

Liability issues will become increasingly important as the continued expansion of CERCLA liability affects governmental entities. One recent indication of this trend is FMC Corp. v. United States Department of Commerce.¹⁴⁰ In FMC, the court confronted a claim by a current owner of a site against the successor agency to the War Production Board, whose control of rayon production during World War II was so pervasive as to amount, in the view of the plaintiff, to the status of "operator" under CERCLA.¹⁴¹ The FMC court, citing § 120(a)'s waiver of sovereign immunity [21 ELR 10376] for CERCLA liability, concluded that as a matter of law the fact that the agency acted in a regulatory role did not suffice to dispose of the "operator" liability issue on a motion for summary judgment.¹⁴²

D. CERCLA and Other Statutes

Courts have generally interpreted the interaction between CERCLA¹⁴³ and other statutes to allow state and federal governments to proceed with the cleanup of hazardous wastes.¹⁴⁴ For example, § 362 of the Bankruptcy Code¹⁴⁵ provides for a stay of the commencement of all proceedings against a debtor except, inter alia, a proceeding by the government to enforce a "police or regulatory power."¹⁴⁶ One court noted that this clause had been interpreted to apply to proceedings that seek to protect the health and safety of the public, not the government's "pecuniary interest."¹⁴⁷ Nonetheless, the court held that a CERCLA suit to recover response costs, impose fines, and obtain injunctive relief seeks to protect public health and safety, if only by deterring conduct that adversely affects public health and safety.¹⁴⁸ Similarly, in Boarhead Corp. v. Erickson,¹⁴⁹ the Third Circuit found that a colorable claim under the National Historic Preservation Act did not overcome the fact that CERCLA deprived the federal court of jurisdiction to review a claim that EPA's cleanup activities adversely affected a historic site. The court noted that this was the result even assuming that the cleanup activities would cause "irreparable harm" to historic resources.¹⁵⁰

Under the discretionary function exception of the Federal Tort Claims Act (FTCA),¹⁵¹ recovery from the government is barred for even negligent acts: "Where there is room for policy judgment and decision there is discretion."¹⁵² The Third Circuit held on this basis that the government was not liable for injuries that occurred during a removal action at which the on scene coordinator had to make decisions, however imperfectly.¹⁵³ On the other hand, an earlier decision held that the FTCA would not bar a suit that was directed to the government's failure to use reasonable care in the choice of an independent contractor who transported hazardous wastes, if, on that basis, the government would be liable under state law.¹⁵⁴

In many ways, the purposes and provisions of CERCLA and RCRA¹⁵⁵ overlap. Courts have, however, attempted to integrate the two statutes. In a recent district court case,¹⁵⁶ the federal government argued that a CERCLA cleanup directed at an ongoing cleanup of an entire federal facility preempted a state RCRA enforcement action directed toward the only portion of that site not listed on the NPL.¹⁵⁷ Among other arguments, the government pointed to EPA's ultimate control of the cleanup of a federal facility under § 120,¹⁵⁸ and to CERCLA's extensive provisions that address state involvement.¹⁵⁹ The court, however, found § 120(a)(4) dispositive. This section expressly allows state laws concerning removal and remedial action, including enforcement, to apply to federal facilities not listed on the NPL.¹⁶⁰

In the same spirit, another recent decision held that RCRA did not preclude an owner/operator of a RCRA interim status facility from recovering CERCLA response costs.¹⁶¹ The court rejected the argument that RCRA applied to active sites, whereas CERCLA applied only to abandoned sites.¹⁶² The court also pointed to the language of § 107, which states that liability attaches "[n]otwithstanding any other provision or rule of law…."¹⁶³ Thus, where a present owner incurred costs to close a site in compliance with RCRA, those costs were held to be recoverable under CERCLA § 107.¹⁶⁴ The court noted that a disposal facility permitted under RCRA was specifically exempted from the notice, but not the liability provisions of CERCLA.¹⁶⁵

Finally, the relationship between CERCLA and the National Environmental Policy Act was considered in Idaho v. Hanna Mining Co.,¹⁶⁶ where the State of Idaho sued a mining company under CERCLA § 107 for natural resource damages. The company claimed that the damages were both [21 ELR 10377] expected and fully set forth in an environmental impact statement (EIS), and therefore not subject to recovery.¹⁶⁷ Section 107(f) provides an exception to liability where damages are "specifically identified as an irreversible and irretrievable commitment of natural resources" in an EIS.¹⁶⁸ The court held that the terms "irreversible" and "irretrievable" had to appear in connection with each effect of the activity to qualify for the exception.¹⁶⁹ The court also held that damages caused by a "federally permitted release" must be recovered under other state or federal causes of action rather than CERCLA.¹⁷⁰ Claims based on releases pursuant to a National Pollutant Discharge Elimination System (NPDES) permit, for example, must be brought under the Federal Water Pollution Control Act (FWPCA).¹⁷¹

E. The National Contingency Plan

The NCP¹⁷² provides guidance on how to carry out response actions and is the standard against which those actions are measured for consistency.¹⁷³ There has been a great deal of litigation over whether the government and private parties have performed response actions properly. Since the NCP has undergone several major revisions, and of course is more or less continually under review, several courts, including the Ninth Circuit, have confronted the question of which NCP is controlling. They have concluded that "consistency" with the NCP should be determined by the NCP in effect when response costs are incurred, not when the response action commences, nor when the claims are evaluated.¹⁷⁴

When the government seeks recovery of its costs, the burden is on the other party to show that the governments' costs were inconsistent with the NCP.¹⁷⁵ To establish that a government expense fails to satisfy the NCP's cost effectiveness requirement, a party must show that the expense was "arbitrary or capricious."¹⁷⁶ Response costs attributable to sole-source contracts, and overhead costs not entirely attributable to a response action, have been held to pass this standard.¹⁷⁷

The NCP establishes a Hazardous Ranking System (HRS) to assist in determining which sites are to be placed on the NPL. The NCP, HRS, and the NPL are each considered to be a federal regulation,¹⁷⁸ and therefore subject to the rules regarding the timing of, and the appropriate standards for, judicial review of CERCLA regulations. The courts, reflecting not a little impatience with EPA in its promulgation of CERCLA's regulatory structure, have been inclined to accept arguments to permit at least some actual participation by the public in the comment process. Thus, the D.C. Circuit allowed review of the pre-authorization requirement in the 1985 NCP even though the same requirement existed in the prior version of the NCP.¹⁷⁹ The requirement under § 113(a) that review must be had within 90 days of the promulgation of a regulation was satsified by being brought within that time after promulgation of the 1985 NCP.¹⁸⁰ On the other hand, the D.C. Circuit rejected an assertion by the owners of a site listed on the NPL that their claim for review of the HRS became "ripe" only when their site was listed; under § 113(a), review was available only within 90 days after the HRS was first promulgated.¹⁸¹

The HRS has been extended a measure of solicitude by the courts, particularly the D.C. Circuit. In 1985, the D.C. Circuit held, in Eagle-Picher Industries v. U.S. Environmental Protection Agency,¹⁸² that the application of different threshold criteria for determining response actions and for listing on the NPL was a "reasonable interpretation" of CERCLA. The Eagle-Picher court applied an "arbitrary and capricious" standard, and upheld the HRS because it reflected only a "preliminary decision" that determined which sites were worthy of further study, rather than which sites warranted response action.¹⁸³ The D.C. Circuit has repeatedly given EPA leeway in applying the HRS,¹⁸⁴ noting in a recent case EPA's need to reconcile speed with an admittedly imperfect methodology.¹⁸⁵

Listing on the NPL has been granted similar deference.¹⁸⁶ One court has described listing as an informal rulemaking subject to an "arbitrary and capricious" standard under the Administrative Procedure Act.¹⁸⁷ A party that comments on rulemaking such as the NPL must clearly and specifically state "why and how" submitted documentation is relevant to the scoring of a site; failure to do so during rulemaking precludes later review on that issue.¹⁸⁸ The D.C. Circuit's characterization of listing — that it is merely the first step in determining [21 ELR 10378] those sites that merit closer scrutiny — carries with it the implication that EPA may determine subsequently whether an "imminent and substantial endangerment" exists. Although EPA's response authority for "pollutants or contaminants" under § 104(1)(B) exists only where there is an "imminent and substantial endangerment," the D.C. Circuit upheld the listing of a site where only "pollutants or contaminants" were presently identified, supporting its decision by this characterization of the NPL's purpose.¹⁸⁹

F. Citizen Suits

Reported CERCLA decisions increasingly focus on the citizen suits provision that SARA added to CERCLA. Section 310 authorizes "any person" to seek enforcement of any requirement imposed pursuant to CERCLA, or to compel Executive Branch officials to perform a nondiscretionary duty under CERCLA.¹⁹⁰ Most of the decisions to date have been concerned with various jurisdictional issues.¹⁹¹

Under § 113(h), a citizen suit may only challenge a response action that has been "taken or secured."¹⁹² Courts have consistently read that requirement to preclude review until after some distinct phase of the cleanup has been completed.¹⁹³ Schalk v. Reilly is illustrative.¹⁹⁴ In Schalk, citizens challenged a consent decree entered into between PRPs and the government, in part because an EIS had not been prepared on the remedial plan.¹⁹⁵ The Seventh Circuit held that review was barred by "CERCLA's plain language." It also rejected the argument that the plaintiffs simply sought to ensure that procedural requirements were met; in other words, that the suit did not "challenge" the remedial action.¹⁹⁶ The Schalk court responded: "challenges to the procedure employed in selecting a remedy nevertheless impact the implementation of the remedy and result in the same delays Congress sought to avoid…. The judicial review itself slows the process down."¹⁹⁷

The standing requirements for citizen suits are not terribly stringent. A mere allegation that the Administrator of EPA has not performed a non-discretionary duty will not suffice to confer standing, however, without a showing of injury-in-fact.¹⁹⁸ On the other hand, affidavits alleging that plaintiffs live near a facility not listed by EPA (and thus not yet subject to remedial action) have been held to create a genuine issue for trial as to injury-in-fact.¹⁹⁹ Having met this requirement, plaintiffs may then "pursue the legal rights of the general public and request a remedy for all of the national sites…."²⁰⁰

A citizen suit may be brought against any person "alleged to be in violation" of a CERCLA requirement.²⁰¹ At least one court has held that this phase should be interpreted to mean other than "wholly past violations," following the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,²⁰² which addressed similar language in the FWPCA.²⁰³ As a result, the court held that allegations that a company failed to report a release as required by CERCLA § 103 were insufficient without also alleging a violation that survived to the filing of the complaint.²⁰⁴

G. Cleanup Standards and Section 121

One of SARA's most important additions to CERCLA was § 121, which purported to resolve the issue of "how clean is clean?"²⁰⁵ Section 121 addresses the difficult substantive issues regarding the selection of the standards to which a cleanup must conform. It does so not by substituting a new layer of cleanup standards on those that exist in other state and federal environmental statutes but by designating those existing standards as the universe from which those deemed "applicable or relevant and appropriate" (referred to as ARARs) are selected.²⁰⁶ CERCLA, in a sense, "borrows" standards [21 ELR 10379] that it deems "applicable" or "relevant and appropriate" — characteristics that are not always self-evident of a chosen standard.²⁰⁷ The detailed procedures for carrying out this and other statutory mandates, such as cost-effectiveness, are found in the NCP — the most recent revision of which incorporated wholesale changes in how cleanup standards will be meshed with the selection of response actions.²⁰⁸

The selection of cleanup standards has become another battleground in the struggle between the states and EPA over control of the scope of cleanup. United States v. Akzo Coatings of America, Inc.²⁰⁹ is illustrative. In Akzo, EPA amended a prior remedial decision by filing a settlement consent decree incorporating a different remedy strategy.²¹⁰ The state moved to intervene to challenge the application of the new remedy.²¹¹ As the Akzo court notes, § 121(f) does permit limited state review of the selection of cleanup standards; however, the state here argued that § 121(e)(2), which provides that states may enforce the ARARs in consent decrees, also provided authority for states to question such consent decrees in the first instance.²¹² The Akzo court rejected the state's argument, stating that § 121(f) was the exclusive mechanism for review.²¹³ The court went on to note that, despite its finding that the state requirement at issue was in fact an ARAR, the consent decree did not violate § 121 "at this time," because compliance with ARARs was to be measured at the completion of the remedy.²¹⁴

V. Section 104 — Response Actions

A. Authority to Respond

Section 104 grants the federal government broad authority to carry out response actions. It may respond either (1) when there is a release, or substantial threat of a release, of a hazardous substance into the environment, or (2) when there is a release, or substantial threat of a release, of a pollutant or contaminant that may present an imminent and substantial danger to the public health or welfare.²¹⁵ Under subsection (c)(2), the federal government is required to consult with any "affected state" before selecting a remedial action,²¹⁶ but is not obligated to solicit or permit the participation of PRPs other than under the general notice and comment provisions of § 117.²¹⁷

Under subsection (a)(3), the government's authority to respond does not extend to releases (i) of naturally occurring substances in unaltered form, (ii) from materials that are part of a structure and that result in exposure within buildings, or (iii) into drinking water supplies as the result of deterioration of the water supply system through ordinary use. Most courts have held that private parties are subject to these same limitations, and therefore cannot recover costs for response actions for releases of these types.²¹⁸

Because it may be exercised only where there also exists an "imminent and substantial danger," the government's authority to respond to releases of pollutants or contaminants has been relied upon relatively infrequently. In contrast, the government need only have a "reasonable basis" for believing that a release or threatened release of hazardous substances exists.²¹⁹ As a result, the scope of the term "hazardous substance" has been the subject of more frequent litigation than "pollutant and contaminants."²²⁰ "Hazardous substances" are defined in several ways in § 101(14), and courts have consistently given that section the broadest possible reading. The term includes hazardous wastes regulated under RCRA,²²¹ as well as asbestos.²²² Substances listed under FWPCA § 307²²³ are included even when they may not be present in quantities sufficient to trigger the reporting requirements of that statute.²²⁴

[21 ELR 10380]

In general, there is no minimum quantity or concentration of hazardous substance required to invoke CERCLA authorities or liabilities.²²⁵ Moreover, although the petroleum exclusions found in both §§ 101(14) and 104(a)(2) apply to all petroleum product constituents, even additives such as lead that in isolation would be hazardous substances,²²⁶ they do not apply to substances that are found in excess of the amounts that normally result from the refining process.²²⁷

One frequently litigated issue over the scope of "hazardous substances" concerns the meaning of § 101(14)(c). That section exempts substances the regulation of which has been suspended by Congress. Asbestos mine and mill wastes qualify for the exclusion under § 101(14)(c), but have been held to be included under § 101(14)(D) and (E) since they are listed under other environmental statutes.²²⁸ Similarly, the D.C. Circuit, despite an exemption under § 101(14)(c), and despite legislative history that pointed toward a total exemption from the scope of § 101(14), held that mining wastes and fly ash could be "hazardous substances" if they otherwise qualified under any of the criteria in that section.²²⁹

B. Entry and Access Issues

The government's rights to obtain access to privately owned property and to information under § 104 are often the first, and frequently the most sensitive, issues that courts must confront. Failure to comply strictly with a request for information risks the imposition of civil penalties.²³⁰ For example, telephone responses have been held to be insufficient to comply with information requests that required written responses.²³¹ Moreover, liability for noncompliance is strict.²³² A pre-SARA decision that held that EPA's authority to seek information under § 104(e)(1) did not extend to information gathered for a future cost recovery action²³³ was overruled legislatively by SARA. CERCLA now specifically authorizes access to information "relating to the ability of a person to pay for or to perform a cleanup."²³⁴

The enactment of SARA has also widened the government's authority to enter property for purposes of performing response actions. Prior to SARA's enactment, the Seventh Circuit had held that § 104, unlike § 106, did not provide EPA with a right to enter property and commence response actions, as opposed to merely gathering information.²³⁵ SARA, however, added § 104(e)(3)(D), which explicitly allowed entry for such purposes,²³⁶ and EPA's ability to enter and commence response actions has been more recently upheld in the courts.²³⁷ Under the standard set forth in § 104(e)(3)(D), the government need not show "irreparable harm" to obtain an order for access.²³⁸ Moreover, the government's right of entry extends to property adjacent to a contaminated site if necessary to the performance of the response action.²³⁹

When the government requests and is denied entry under § 104(e)(3), it may either obtain an administrative order that is then enforceable in court, or proceed directly to court to obtain an injunction against interference.²⁴⁰ To procure access under § 104(e), EPA must show only that it has a "reasonable basis" for believing that a release or threatened release of hazardous substances exists,²⁴¹ whereas an "imminent and substantial danger" to the public health or welfare must exist when responding to releases of "pollutants [21 ELR 10381] or contaminants."²⁴² To obtain an injunction to compel compliance with an entry request, the government must show some interference with the entry request, and the request itself must pass the arbitrary or capricious standard.²⁴³ One court declined to find interference where a private party allowed EPA access to its property but refused to cease all landfilling operations.²⁴⁴

Where EPA obtains entry to conduct a response action, it may supplement its authority by requiring access to be given to third parties with whom it has signed a consent decree, under CERCLA § 106(a), which allows the President to secure such relief as may be necessary "to abate" the threat of a release.²⁴⁵ Arguments that access will operate to exclude the owner from the property, and thus constitute a "taking," are properly brought under the Tucker Act²⁴⁶ in a suit for compensation. Section 104(j), addressing the government's acquisition of property, expressly precludes a cause of action to compel the government to acquire property, and a taking under that section can only be determined by EPA.²⁴⁷ The Seventh Circuit recognized the vast scope of EPA's access authorities, and declared that EPA may seek access in violation of a consent decree signed four years before SARA in order to obey the direction of Congress under § 104.²⁴⁸

C. Judicial Review

CERCLA affords the government a great deal of discretion in determining how best to conduct a cleanup. Courts have consistently rejected arguments that EPA must give PRPs the opportunity to clean up a site at their own expense before EPA undertakes a response action.²⁴⁹ In United States v. Vineland Chemical Co., the court held that EPA may also revoke its prior agreement under § 122 (which addresses settlements) to allow a PRP to perform an RI/FS at its site.²⁵⁰ Perhaps the best measure of EPA's discretion to conduct response actions is reflected in those provisions that preclude judicial review of its activities until EPA initiates court action. For example, the Vineland Chemical court supported its decision by citing § 122(a), which states that a decision "to use or not to use the procedures" in that section is not subject to judicial review.²⁵¹

With the enactment of SARA, the rule on judicial review of § 104 response actions is clear: review is precluded by § 113(h) until the government institutes a cost recovery action or pursuant to a citizens suit.²⁵² The fact that a claim asserts a violation of constitutional rights is not alone sufficient to avoid the preclusion established by § 113(h).²⁵³

Courts reached the same result before SARA, though often by different routes. Because CERCLA, prior to SARA, did not explicitly address judicial review in the context of § 104, some courts ruled that response actions were not "final agency action" reviewable under the Administrative Procedures Act (APA);²⁵⁴ the government had yet to institute a cost recovery action.²⁵⁵ Others concluded that CERCLA itself precluded review;²⁵⁶ thus the APA was not available because a statutory preclusion existed.²⁵⁷ Since § 113(h) now explicitly precludes review, courts that have faced the question have also rejected alternative review under the APA on the grounds that a statutory preclusion existed.²⁵⁸

Questions over what constitutes a "cost recovery action" have arisen as PRPs have struggled to obtain judicial review [21 ELR 10382] of agency actions. Thus, where EPA combined a § 107 claim with a § 104(e) access claim, one court held that the two claims were independent and should therefore be addressed separately.²⁵⁹ The exception in § 113(h) for review of § 107 actions, the court concluded, did not overcome the preclusion of review of § 104 response actions.²⁶⁰ However, one court held that § 113(h) cannot bar a request to join EPA in a review of the progress of a consent decree signed in 1982, because that section was intended to prevent delays in cleanup and EPA's arguments of exclusive jurisdiction to initiate review would achieve quite the opposite result.²⁶¹

The recent First Circuit decision in Reardon v. United States²⁶² provides some further clarification as to what constitutes a "cost recovery" action. In Reardon, the plaintiffs sought to challenge a CERCLA lien by characterizing it as part of the cost recovery process.²⁶³ The court agreed that § 113(h) barred "all pre-enforcement judicial review…. "²⁶⁴ It also agreed that a lien was not an "action" to recover costs, so that § 113(h)(1) did provide an exception to the overall bar of § 113.²⁶⁵ The court held, however, that § 113 was not applicable because it bars review only of challenges to "removal or remedial actions."²⁶⁶ Because it found that a lien could not be characterized as either a removal or remedial action, the court concluded that the lower court had jurisdiction to review the challenge.

SARA's addition of the citizen suit provision²⁶⁷ does not permit a PRP to execute an end run around the limitations on judicial review. Under § 113(h), a remedial plan cannot be challenged, even in a citizen suit, prior to the beginning of any cleanup action.²⁶⁸ Section 113(h)(4) allows a citizen suit to be brought only once a removal or remedial action, or a discrete stage of such action, has been completed.²⁶⁹

One court has concluded, however, that even where ripe for review under CERCLA § 113(h)(4), a suit may be entertained only if it is not also deferred under §§ 113(h)(1), (2), (3) or (5).²⁷⁰ The scope of this bar to citizen suits is extremely broad. For example, the court in Werlein v. United States noted that § 113(h)(4) precludes review under any "statutory or common law," and ruled that the citizen suit provision does not confer jurisdiction on courts to review the obligations required by the National Environmental Policy Act.²⁷¹ Similarly, in cases where plaintiffs sought review of EPA's alleged failure to prepare an EIS on a cleanup, the courts have dismissed for lack of jurisdiction.²⁷² A recent attempt to invoke jurisdiction under the National Historic Preservation Act in order to review EPA's cleanup activities for their effect on a historic site also failed.²⁷³

VI. Section 106 — Abatement Actions

A. Section 106 Authorities

The authorities found in § 104 are supplemented by those in § 106. Where an "imminent and substantial endangerment to the public health or welfare or the environment" exists, the government may "secure such relief as may be necessary to abate such danger or threat."²⁷⁴ There is a strong tincture of equity present in most decisions that address § 106, in part because of the wording of that section,²⁷⁵ andin part because injunctive relief is the government's usual and practical recourse of the government when seeking relief under this section.

Meeting the threshold requirement of an "imminent and substantial endangerment" poses little difficulty for the government. It is not limited to emergency situations. One decision equated "endangerment" with "potential harm"; though the risk must be "imminent," the harm need not be realized for years.²⁷⁶ An earlier decision held that the threshold showing was met where there "may be risk of harm," and that, whatever "substantial" might mean in other contexts, the risk need not be quantified.²⁷⁷ The standard for injunctive relief is thus a showing of imminent and substantial endangerment in addition to most traditional requirements; however, a showing of irreparable harm is not required.²⁷⁸ Endangerment to either the public health or welfare will suffice.²⁷⁹ Moreover, "public welfare" has been given expansive scope, defined by one court as including [21 ELR 10383] "health and safety, recreational, aesthetic, environmental and economic interests."²⁸⁰

As with § 104, the scope of the government's authority under § 106 has been interpreted broadly by the courts.²⁸¹ Not only does it authorize entry by EPA, it does so for other parties to a consent decree: "EPA is authorized to remedy the situation. Nothing in [CERCLA] restricts EPA's choice of parties by which to do so."²⁸² Nonetheless, courts have refused to read into § 106 an implied cause of action for private parties,²⁸³ pointing out that by the terms of that provision only the Attorney General may bring such an action.²⁸⁴ The majority of courts have held that § 106 applies to inactive, as well as active, sites.²⁸⁵ An administrative hearing is not required before EPA issues an administrative order under § 106(a).²⁸⁶ Nor are the procedures required by either § 104 or § 112(a) applicable to abatement actions under § 106.²⁸⁷ However, under § 106(b)(2), added by SARA, a party who has complied with a cleanup order, and who is not liable for the costs under § 107, may petition for reimbursement from the Superfund.²⁸⁸

Despite one court's conclusion that § 106 does not provide the government an alternative means of reimbursement,²⁸⁹ the vast majority of decisions have made an explicit connection between § 106 and the liability provisions contained in § 107. Most courts, therefore, have concluded that orders under § 106 may be directed to any parties who are liable under § 107.²⁹⁰ Thus, § 106 authorities encompass, for example, past generators.²⁹¹ Moreover, liability for a remedy selected pursuant to a § 106 action is strict and joint and several,²⁹² though equitable principles will affect the apportionment of damages.²⁹³ Section 106 does not, however, create a right of contribution or indemnity.²⁹⁴

B. Judicial Review

Prior to the enactment of SARA, courts had repeatedly refused preenforcement review of an administrative order.²⁹⁵ However, one decision qualified this rule slightly, holding out the possibility of review where allegations were made that EPA "had absolutely no rational basis for undertaking a response action and that no preliminary assessment had been made."²⁹⁶ And, in one case, a challenge to a § 106 order that compelled action at one site but not at another was characterized as not challenging the scope of the order, because, if successful, the result would only be to add to the order.²⁹⁷ The addition of § 113(h) to CERCLA has, as with § 104, codified the rule against preenforcement [21 ELR 10384] review,²⁹⁸ withdrawing jurisdiction for review until the government seeks to enforce an order or to recover a penalty,²⁹⁹ seeks reimbursement,³⁰⁰ seeks to compel a remedial action,³⁰¹ or when a citizen suit is brought.³⁰²

Although § 113(h) precludes judicial review of a remedial action administratively ordered by the government under § 106, it does not prevent a court from engaging in such a review in the context of a suit by the government to compel the implementation of a particular remedy.³⁰³ In a recent First Circuit decision, United States v. Ottati & Goss, Inc.,³⁰⁴ the court rejected the government's contention that a court is bound to order the exact remedy set forth in the government's Record of Decision as long as that decision satisfies a minimal "arbitrary and capricious" standard. Rather, following the language of § 106(a), the court held that it was free to order whatever relief "the public interest and the equities of the case may require."³⁰⁵

VII. Procedure and Section 113

A. Subject Matter Jurisdiction

Section 113(a) provides that review "of any regulation" promulgated under CERCLA may be obtained only in the Court of Appeals for the District of Columbia Circuit.³⁰⁶ For example, because the NPL is a regulation,³⁰⁷ site listing is reviewed in the D.C. Circuit.³⁰⁸ Despite the D.C. Circuit's exclusive right to review regulations, however, one court has concluded that district courts have jurisdiction to consider the constitutionality of regulations, because that review pertains to the constitutionality of the process of promulgation rather than the merits of that process.³⁰⁹ For all other controversies arising under CERCLA, federal district courts have exclusive original jurisdiction.³¹⁰

B. Personal Jurisdiction

Personal jurisdiction under CERCLA is potentially as straightforward as subject matter jurisdiction. SARA added § 113(e) which provides for nationwide service of process, and very few cases now confront this aspect of personal jurisdiction.³¹¹ In a few cases filed shortly before the enactment of SARA, however, the courts refused to give § 113(e) retroactive effect.³¹² In addition, § 113(e) has been held not to authorize service of process in foreign countries.³¹³

As a general matter, personal jurisdiction is determined according to the law of the state in which the court sits.³¹⁴ State long-arm statutes must, however, satisfy the due process guarantees of the Fourteenth Amendment.³¹⁵ One court has held that "continuous and systematic general business contacts" with the forum state must be shown.³¹⁶ This is, in practice, a more difficult question when the exercise of jurisdiction is general — that is, when the contacts with the forum state are unrelated to the cause of action.³¹⁷ Because CERCLA is a strict liability statute, however, a generator need not actually pick the hazardous waste site; the generator can thus "reasonably anticipate" being sued in any state where the hazardous substances are formed.³¹⁸

[21 ELR 10385]

Under Rule 17(b) of the Federal Rules of Civil Procedure, the law of the state in which a corporation is organized determines whether a corporation has capacity to sue or be sued. The NEPACCO court followed this direction and analyzed Delaware law in finding a corporation that had not voluntarily dissolved, but merely entered a "state of coma" through forfeiture of its charter, could be revived and found to have capacity to be sued.³¹⁹ In apparent accord with NEPACCO, the Ninth Circuit construed California law under Rule 17(b) as preventing a plaintiff from bringing an action that arose three years after a potentially responsible corporation had dissolved.³²⁰ The Ninth Circuit pointedly rejected the plaintiff's argument that CERCLA should preempt state laws that defeat the broad remedial purposes of the statute, recalling that NEPACCO had applied state law in deciding a similar capacity-to-be-sued question. Moreover, the Ninth Circuit distinguished between state laws that limit liability, which CERCLA may well preempt, and state laws that simply address capacity to be sued.

This refusal to preempt state corporation law was criticized in United States v. Sharon Steel Corp.,³²¹ in which the court held that when "the effect of a state capacity statute is to limit the liability of a party Congress meant to hold liable for cleanup costs, Congress intended CERCLA to preempt it."³²² Calling the Ninth Circuit's distinction between laws that limit liability and laws that limit capacity one without a difference, the Sharon Steel court concluded that a state capacity to sue law will affect liability, since the surest way of limiting liability is to become immune to judicial process. The Sharon Steel court also pointed out that NEPACCO is dubious support for limiting liability based on a state corporation law, since NEPACCO concluded that Delaware law recognized the corporation's capacity to be sued.

C. Statutes of Limitations

SARA also added statutes of limitation to CERCLA § 113(g).³²³ One court has since held that the time limitations in § 113(g) do not apply retroactively to actions involving the recovery of response costs under § 107 incurred prior to SARA's enactment, reasoning that this would subvert Congress' intent to hold responsible parties liable.³²⁴ Another court held, in the context of a private cost recovery suit for a removal action, that the time limits in § 113(g)(2)(A), according to which an action of this type must be brought within three years "after completion of the removal action,"³²⁵ could not begin to run before the date of SARA's enactment.³²⁶

For continuing contamination, the statutes of limitation may not be terribly significant. One district court has held that the statutes of limitation found in § 113(g) are "triggered anew by each release" into the environment.³²⁷ Finally, § 113(g) is the exclusive provision for limitations on civil actions for damages or reimbursement. As a result, the 60-day notice requirement in § 112 has consistently been held to apply only to claims for reimbursement from the Superfund, not to actions for recovery of response costs³²⁸ or natural resource damages.³²⁹

D. The Administrative Record

The last major procedural additions provided by SARA are §§ 113(j) and (k). Section 113(j) limits judicial review "of any issues concerning the adequacy of any response action taken or ordered by the President" to review of "the administrative record."³³⁰ To challenge such action successfully, it must be shown on the basis of the administrative record that the decision was "arbitrary and capricious or otherwise not in accordance with the law."³³¹

Because of the rather long gestation period for SARA, the government prepared an administrative record in a number of instances in anticipation of its enactment. These pre-SARA administrative records have encountered differing [21 ELR 10386] responses by the courts. One of the first of these decisions, United States v. Hardage,³³² addressed a § 106 action to compel defendants to implement the government's remedy. The court ruled that since SARA was enacted after the complaint was filed, § 113(j) should not be applied.³³³ Later decisions, however, have consistently applied § 113(j) retroactively as the law "in effect at the time of decision."³³⁴ One court found support for this position in § 113(k)(2)(c),³³⁵ which by its terms contemplates the existence of administrative records before regulations guiding the process and compilation of such records are promulgated.³³⁶ Nonetheless, the other procedural rules established in § 113(k) haveoperated to dilute the effect of a decision to apply § 113(j) retroactively. Although there need not be an "adjudicatory hearing,"³³⁷ where other procedures were not followed and the defendants allowed only five days to submit comments on the proposed remedy,³³⁸ one court remanded for further development of the record.³³⁹

There is an important distinction between review of a remedy selected by the government under § 104 and one selected by a court under § 106. The Hardage court, in addition to its retroactivity ruling discussed above, ruled that a remedy produced by the § 106 judicial process, as the government sought, was not an "action taken or ordered bythe President" as contemplated by § 113(j).³⁴⁰ The court concluded, therefore, that review should not be on the administrative record, but rather de novo.³⁴¹ A later ruling in the same case, but by a newly assigned judge, reaffirms that conclusion.³⁴² Hardage made an important distinction between cases where EPA itself implements a remedy under § 104 and then seeks cost recovery, and those where EPA seeks to compel others to implement the remedy it selected by invoking the equitable powers of the federal judiciary.

Although several other courts have not followed Hardage,³⁴³ the First Circuit recently recognized the distinction in United States v. Ottati & Goss, Inc.³⁴⁴ The Ottati court differentiated between § 106(a)'s first sentence (where EPA asks the court to order a remedy) and its second sentence (where EPA issues the order itself and, if necessary, seeks to enforce it in court).³⁴⁵ It further distinguished between a court-ordered § 106 remedy (the focus of the § 106 suit) and a cost-recovery action under § 107 (where the focus is only indirectly on the underlying remedy for which costs are sought).³⁴⁶ Thus, review of EPA's selected remedy was not to be confined to the administrative record, nor based on the arbitrary and capricious standard. After Ottati, one would expect that EPA will rely on court-ordered remedies much less frequently.

Another distinction regarding the scrutiny on review appears in United States v. Allied-Signal Corp.,³⁴⁷ in which the court essentially ruled that when the government was itself a PRP, de novo review of the government's proposed remedy was warranted. However, the facts may limit the significance of this holding. The site in question was itself a federal facility, and the court noted that EPA involvement in the development of the remedy was, "at best, pro forma."³⁴⁸

When review is properly limited to the administrative record, the practical consequence, of course, is that the record defines what issues and facts may even be considered by the court. It is therefore an enormously important weapon in the government's CERCLA arsenal. The record may be supplemented, however, when it fails to disclose the factors considered or the agency's construction of the evidence;³⁴⁹ when the agency's asserted reasons are inadequate;³⁵⁰ or [21 ELR 10387] when the record is incomplete or there is a strong showing of agency bad faith.³⁵¹ It is the up to the court, not the parties, to obtain supplementary information, and thus depositions by a party are inappropriate.³⁵²

PRPs can find themselves without effective recourse if the administrative record is inadequate to support the selection of a response action. At least two courts have concluded that, where the record is sufficiently inadequate, remand to EPA is required.³⁵³ However, in both of those cases, the remedy had already been implemented. The practical effect was that even if the PRPs showed that the selection process went awry, the court would still be faced with costs that would have to be paid by either the United States or PRPs. If, however, a PRP attempts to convince a court to review what it alleges to be "procedural" flaws, it is likely that such a review will be refused until after the remedy is "implemented," in accordance with the prohibition of preenforcement review in § 113(h).³⁵⁴

E. Joinder, Counterclaims, Intervention, and Discovery

The courts have not looked favorably on involuntary joinder of government parties under Rule 19 of the Federal Rules of Civil Procedure. EPA has usually been able to avoid involuntary joinder by asserting that it was not a party necessary for just adjudication and that its sovereign immunity prevented involuntary joinder.³⁵⁵ Similarly, the State of Missouri has avoided involuntary joinder by asserting that it was not an indispensable party.³⁵⁶

In a departure from this line of cases, a district court allowed the joinder of EPA in O'Leary v. Moyer's Landfill, Inc.³⁵⁷ The O'Leary court, without citing the courts that had concluded otherwise, held that the United States waived its sovereign immunity from equitable suits in APA § 702 and was a necessary party to relieve the litigants from the risk of inconsistent obligations. The action arose when EPA tried to assert its CERCLA authority over the cleanup of a landfill that was being remediated pursuant to a consent decree. The court joined EPA to the action to ensure that financial obligations that were to be paid under the consent decree would be carried out without disruption.³⁵⁸

Counterclaims against the United States for recoupment provide another issue involving waiver of federal or state sovereign immunity. The courts have held that when the government institutes a cost recovery action, it thereby waives sovereign immunity as to compulsory counterclaims seeking to diminish or defeat the government's recovery that arise out of the same transaction or occurrence underlying the government's action.³⁵⁹ For example, the court in United States v. Moore³⁶⁰ allowed a defendant to counterclaim against the United States asserting that the United States effected an uncompensated taking of property at the time of the cleanup and that it contributed to the contamination problem.

A private party was permitted to intervene under Rule 24(b) of the Federal Rules of Civil Procedure in a proceeding that had been initiated over three years earlier in In re Acushnet River and New Bedford Harbor: Proceedings re Alleged PCB Pollution.³⁶¹ The court approved the permissive intervention of the National Wildlife Federation (NWF) to contest a proposed consent decree, finding that intervention was timely because the NWF had only recently become aware that its interests were not being represented by the state and federal governments.³⁶²

[21 ELR 10388]

Granting access rights similar to those enjoyed by the government, one court has held that Rule 34 of the Federal Rules of Civil Procedure entitles a plaintiff to enter the property of the defendant to take soil samples as part of its discovery proceedings.³⁶³ The court also interpreted Rule 34 as restricting a defendant's ability to impose conditions on the plaintiff's entry.

F.Jury Trial

The courts have uniformly held that a jury trial is not available in a cost recovery action. Citing the Supreme Court's decision in Tull v. United States,³⁶⁴ the lower courts have construed the Seventh Amendment to the United States Constitution as mandating jury trials only in actions that are analogous to suits at common law. As observed in Tull, the Seventh Amendment does not require jury trials for suits that sound in equity. Since CERCLA suits seek the equitable remedy of restitution in the form of response costs, CERCLA actions are not analogous to common law suits; hence, no right to jury trial attaches.³⁶⁵ However, one court has held that parties in natural resource damage actions under CERCLA § 107(a)(4)(C) may have a Seventh Amendment guarantee to a jury trial depending on the type of damages being sought.³⁶⁶

G.Use of Special Masters

The Sixth and Eighth Circuits disagree regarding a district court's appropriate use of special masters under Rule 53(b) of the Federal Rules of Civil Procedure. In In re Armco,³⁶⁷ the Eighth Circuit denied a special master the authority to preside at trial and rule on the merits. However, the Eighth Circuit did allow the special master to hear and make recommendations on summary judgment motions and evidentiary matters, reasoning that these were pretrial matters appropriate for a special master. The Sixth Circuit disagreed. Relying on guidance provided by the Supreme Court in La Buy v. Howes Leather Co.,³⁶⁸ the Sixth Circuit held, in In re United States,³⁶⁹ that the district court had failed to articulate exceptional conditions warranting reference to the special master.³⁷⁰ The Sixth Circuit explicitly disagreed with the In re Armco holding, finding that the Eighth Circuit had improperly classified summary judgment motions as nondispositive in nature; to the Sixth Circuit, summary judgment motions were dispositive and should not be referred. The Sixth Circuit concluded by positing that in nonjury trials, such as CERCLA cost recovery actions, district courts should refer only nondispositive discovery matters to a special master.³⁷¹

VIII. Section 107 — Liability

Section 107 was intended to make those responsible for creating contamination problems bear the costs of cleaning them up.³⁷² To that end, it enables both the government and private parties to recover response costs from a broad class of "covered persons"³⁷³ who are subject to strict and joint and several liability.³⁷⁴ From the beginning, courts have breathed fiery life into the liability and cost recovery provisions of § 107 by giving them a "broad and liberal construction."³⁷⁵

A.The Elements of Liability

The courts generally regard the following elements as necessary to establish a prima facie case for recovery of response costs under § 107: (1) the subject site is a "facility"; (2) a "release or threatened release"³⁷⁶ of a "hazardous [21 ELR 10389] substance" occurred at the facility; (3) the defendant fits into one of the four categories of "covered persons"; (4) the plaintiff incurred costs in responding to the release; and (5) the costs are consistent with the NCP. Both government and private plaintiffs have the burden of proving by a preponderance of the evidence that the first four elements of liability are satisfied.³⁷⁷ However, the burden of proof is different for the fifth element — consistency with the NCP — depending on whether the plaintiff is the government or a private party. Based on the wording of § 107, federal, state, and perhaps municipal government plaintiffs enjoy a rebuttable presumption that the costs they incur are "not inconsistent" with the NCP; private plaintiffs must demonstrate affirmatively that their response costs are necessary and consistent with the NCP.³⁷⁸

B. "Facility' and "Release or Threatened Release"

The first two elements of liability have not proved a difficult obstacle for plaintiffs, with courts defining broadly the terms "facility," "release or threatened release," and "hazardous substance."³⁷⁹ For example, the court in United States v. Conservation Chemical Co. determined that a "facility" includes "every place where hazardous substances come to be located."³⁸⁰ Another court rejected an argument that contaminated soils and contaminated groundwater constituted two distinct facilities, finding instead that they were the indivisible elements of the same property.³⁸¹ Some of the more interesting "facilities" include a residential subdivision, horse stables, spray trucks, a dragstrip, and a trailer park.³⁸²

Courts have found a "release" when hazardous substances are found in soil and groundwater samples,³⁸³ blown about by the wind,³⁸⁴ sprayed as a dust suppressant,³⁸⁵ emitted into the air,³⁸⁶ spread due to the failure to operate cleanup wells,³⁸⁷ or carried out of a manufacturing plant by a product or on the [21 ELR 10390] clothes and bodies of workers.³⁸⁸ A release may also be found when a person abandons intact capacitors containing PCBs, with a second release occurring when the PCBs leak as the capacitors deteriorate.³⁸⁹ "Threatened releases" will be found when hazardous substances are stored in deteriorating and corroding drums and tanks,³⁹⁰ have leached into concrete flooring,³⁹¹ are stored without proper supervision,³⁹² or in an unsafe manner,³⁹³ or when a regulating agency has a "reasonable belief" that a release may occur in the future.³⁹⁴ Moreover, according to the Fifth Circuit, liability may result if "any release violates, or any threatened release is likely to violate, any applicable state or federal standard, including the most stringent."³⁹⁵ In addition, as discussed above, liability under § 107 may result from a release that occurred before CERCLA was enacted.³⁹⁶

C.Section 107(a) and "Covered Persons"

1. Owner and Operator Liability. Section 107 imposes liability on four categories of "covered persons." The first category of liable parties, established by § 107(a)(1), is composed of current³⁹⁷ owners and operators of a facility,³⁹⁸ and may include bankruptcy estates,³⁹⁹ absent landowners/lessors,⁴⁰⁰ lessees,⁴⁰¹ foreclosing banks,⁴⁰² corporate officers,⁴⁰³ parents,⁴⁰⁴ and successors.⁴⁰⁵ Although written in the conjunctive, courts have held that liability will [21 ELR 10391] extend to a person who either currently owns or operates a facility.⁴⁰⁶ A critical element of § 107(a)(1) is that it imposes liability regardless of whether the disposal of hazardous substances occurred during the current ownership or operation period. That is, current owners and operators will be held liable even though they were not owners or operators at the time hazardous substances were disposed of or released at the facility.⁴⁰⁷

By contrast, the second category, established by § 107(a)(2), consists of persons who owned or operated a facility "at the time of disposal" of hazardous substances.⁴⁰⁸ One court has interpreted the term "at the time of disposal" as excluding from liability those past owners who may have owned a facility after wastes were disposed on it, did not know of the disposal, did not themselves engage in disposal activity, and innocently sold the property.⁴⁰⁹ Another court has taken this limitation farther by refusing to hold a past owner liable for the cleanup of wastes that he knew had been disposed of on the facility by the prior owner.⁴¹⁰

Most of the litigation over the first two liability categories has centered on the question of whether a person, including a corporate shareholder or parent, exercised sufficient control over a facility to be considered an owner or operator.⁴¹¹ In a decision with potentially profound consequences for government contractors, one court held the federal government potentially liable as an operator because of its pervasive control over the production activities, market opportunities, and profits of a private contractor.⁴¹² Other courts have found that corporate shareholders or officers who exercise control over waste disposal or chemical handling operations may be individually liable as owners or operators notwithstanding the corporate entity.⁴¹³

[21 ELR 10392]

A similar focus on control has led courts to hold corporate parents liable for the activities of their subsidiaries. For example, in United States v. Kayser-Roth Corp.,⁴¹⁴ the court held that a parent company was an operator of its subsidiary's facility because the parent exercised pervasive control of the subsidiary. This finding was based on the fact that the parent had exercised the requisite control, because the parent had exerted complete control over the subsidiary's financial activities, had retained approval authority for all capital expenditures over $ 5000, had placed its employees in many of the subsidiary's officer and director positions, and, in particular, had approved the installation of the cleaning system that used the hazardous substances that had been released.⁴¹⁵

The element of control also plays a critical role in determining whether a governmental entity has become an "operator" as a result of its regulatory activities related to a contaminated site. The Fourth Circuit has taken the position that a state's regulatory activities do not amount to the kind of "hands-on control" over a facility necessary to incur operator liability.⁴¹⁶ As noted above, however, the distinction between regulatory and enterprise activities is becoming blurred.⁴¹⁷

Courts have also held successor corporations responsible for the owner or operator liability of a corporate predecessor. In Anspec Co. v. Johnson Controls, the Sixth Circuit held that Congress intended to include successor corporations within the scope of potentially responsible corporate entities under § 107.⁴¹⁸ A successor will be deemed to have assumed its predecessor's CERCLA liability if its activities constitute a substantial continuation of the predecessor's activities, whether as the result of a formal or merely de facto merger.⁴¹⁹ One court has described this test as considering "whether the successor: (1) retains the same employees; (2) retains the same supervisory personnel; (3) retains the same production facilities in the same location; (4) continues producing the same products; (5) retains the same name; (6) maintains continuity of assets and general business operations; and (7) … holds itself out as the continuation of the previous corporation."⁴²⁰

There are some limits to the scope of owner/operator liability, however. In Edwards Hines Lumber Co. v. Vulcan Materials Co.,⁴²¹ the Seventh Circuit held that a person who designed a manufacturing facility and trained the facility's workers did not exercise control over the facility's operations and therefore was not an "operator" under CERCLA. The court analyzed the relationship between the facility [21 ELR 10393] owner and the defendant in terms of independent contractor and joint venturer. As to the former, the court found that the defendant was an independent construction contractor who built a turnkey facility for the facility owner to operate. As an independent contractor engaged in a nonhazardous construction activity, the defendant was not liable for the torts (that is, releases) of the facility owner/employer. Moreover, the court rejected any claim that the two parties were joint venturers, finding that the defendant did not express a willingness to enter into a joint venture, did not participate in operational control of the facility, and did not share in profits or contribute to losses. Lacking these elements, the defendant's contractual right to inspect the facility was not enough to transform the relationship into a joint venture; thus, the defendant was not liable as an operator.⁴²²

Also limiting the scope of the owner/operator category is § 101(20)(A), which exempts from liability a person "who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect his security interest."⁴²³ This provision has generally been construed as shielding lenders from liability that might otherwise result merely from holding a security interest in contaminated property, provided they have not participated in the management of the facility's day-to-day activities.⁴²⁴

This so-called "security interest exemption" was recently the subject of a highly controversial interpretation by the Eleventh Circuit in United States v. Fleet Factors Corp.⁴²⁵ The district court had ruled that § 101(20)(A) permitted the holder of an unforeclosed security interest "to provide financial assistance and general, even isolated instances of specific, management advice to its debtors without risking CERCLA liability, if the secured creditor does not participate in the day-to-day management of the business."⁴²⁶ The Eleventh Circuit found the lower court's "construction of the statutory exemption too permissive towards secured creditors who are involved with toxic waste facilities," stating in dicta that "a secured creditor will be liable if its involvement with the management of the facility is sufficiently broad to support the inference that it could affect hazardous waste disposal decisions if it so chose."⁴²⁷

In a subsequent case, the Ninth Circuit declined to extend the concept of "participation in management activities" as far as had the Eleventh Circuit. In In re Bergsoe Metal Corp., the court held that a municipality that held a secured interest in a lead recycling plant was entitled to the protection of § 101(20)(A) because it had not engaged in any management activities, noting that "whatever the precise parameters of 'participation,' there must be some actual management."⁴²⁸ Nonetheless, concerns about the extension of lender liability under CERCLA as a result of the Fleet Factors case has prompted several legislative proposals as well as an effort by EPA to issue an interpretative rule that would more or less reestablish the status quo ante.

2. Generator Liability. The third category of liable parties, established by § 107(a)(3), consists of persons, usually generators of hazardous wastes, who "arranged for" the treatment or disposal of hazardous substances at a facility from which there is a release of a hazardous substance.⁴²⁹ The Fourth Circuit, in United States v. Monsanto Co.,⁴³⁰ explained that plaintiffs must show that a defendant shipped its wastes "to a site and that hazardous substances similar to those contained in the defendant's waste remained present at the time of release."⁴³¹ Rejecting a "proof of ownership" defense, the Monsanto court held that plaintiffs do not need to demonstrate that the defendants owned the specific wastes at the facility; rather, plaintiffs must show simply that wastes that have been released are chemically similar to the defendant's wastes.⁴³²

Courts have generally held that § 107(a)(3) does not impose liability on persons who sold hazardous substances as [21 ELR 10394] a raw material or finished product for use by another party and were not motivated in part by a desire to dispose of hazardous substances. In Edward Hines Lumber Co. v. Vulcan Materials Co.,⁴³³ the defendant was a chemical manufacturer who sold hazardous substances as raw material for use in lumber processing by the plaintiff. Some of those substances became hazardous wastes as a result of the processing. The plaintiffs urged the court to construe § 107(a)(3) liability as extending "to any transaction in a hazardous substance that later contaminates a facility." The court refused to accept this construction, holding that § 107(a)(3) liability was limited to transactions for the disposal or treatment of hazardous substances.

Other courts have echoed this interpretation, and have thereby declined to hold liable parties who have sold such things as building materials containing asbestos, raw process materials containing hazardous substances, and electrical equipment containing PCBs.⁴³⁴ However, the courts have been wary about granting this exception, looking at the intent of the transaction to determine whether the arrangement was motivated, at least in part, by a desire to treat or dispose of hazardous substances.⁴³⁵ For example, in United States v. A & F Materials Co.,⁴³⁶ the defendants produced a hazardous waste that had commercial value. The plaintiffs bought the wastes for use in their manufacturing process. In ruling on the defendants' liability, the court did not heed their argument that they had simply sold plaintiffs a process material, holding that the defendants were motivated to enter the transaction by a desire to dispose of their wastes.⁴³⁷

Section 107(a)(3) generally does not impose liability on a party who did not "own or possess" (that is, have authority to control) the hazardous substances in question⁴³⁸ or whose wastes cannot be shown to have actually been shipped to the facility in question.⁴³⁹ However, defendants cannot avoid liability by asserting that they did not choose the ultimate disposal site, or even by showing that they had taken reasonable steps to ensure [21 ELR 10395] safe disposal practices.⁴⁴⁰ In O'Neil v. Picillo,⁴⁴¹ for example, the defendants had arranged for a contractor to place their hazardous wastes in licensed Pennsylvania and New Jersey facilities. Without informing the defendants, the contractor instead took some of the wastes to a Rhode Island facility from which releases occurred. Notwithstanding the evident care they had taken to dispose of their wastes safely, the court held the defendants liable under § 107(a)(3).⁴⁴² Finally, as in owner/operator cases, the courts have been willing to extend liability to individual corporate officers and corporate parents and successors of "generators," but increasingly they are requiring actual exercise of control rather than the mere capacity to control before imposing liability.⁴⁴³

3. Transporter Liability. The fourth category of liable parties, established by § 107(a)(4), consists of persons who transport hazardous substances to treatment or disposal facilities. The courts have interpreted the language of § 107(a)(4) as requiring plaintiffs to demonstrate that the transporter actually chose the treatment or disposal facility.⁴⁴⁴

D. Incurred Costs of Response

Private parties must demonstrate that they have incurred "necessary costs of response" to satisfy the fourth part of the prima facie case for recovery of response costs.⁴⁴⁵ CERCLA does not define response costs, but it does define response actions as "removal or remedial actions." Removal actions are short-term measures necessary to monitor, assess, and abate the immediate effects of a contamination problem.⁴⁴⁶ Remedial actions are the long-term cleanup [21 ELR 10396] solutions that are decided upon after a detailed administrative process.⁴⁴⁷ Accordingly, and with a nimbleness well-developed from the resolution of innumerable CERCLA mysteries,⁴⁴⁸ courts have simply resorted to these terms that CERCLA does define to identify "response costs" as those incurred in performing a specified removal or remedial action.⁴⁴⁹

As construed by the courts, allowable costs of response may include monitoring and investigation costs,⁴⁵⁰ prejudgment interest,⁴⁵¹ time spent by corporate officials involved in the cleanup,⁴⁵² security and fencing costs,⁴⁵³ RCRA closure costs,⁴⁵⁴ the costs of providing an alternate water supply,⁴⁵⁵ and temporary relocation costs.⁴⁵⁶ A suit to recover [21 ELR 10397] such costs may be brought as soon as preliminary removal costs have been incurred.⁴⁵⁷

The federal government has enjoyed the right to recoup its attorneys' fees and indirect costs, such as the overhead associated with federal work conducted under the Superfund program, ever since the NEPACCO decision in 1986.⁴⁵⁸ Despite earlier judicial disapproval,⁴⁵⁹ several courts have now held that private parties may recover litigation costs from other PRPs,⁴⁶⁰ including the Eighth Circuit in General Electric Co. v. Litton Industrial Automation Systems, Inc.⁴⁶¹ In General Electric, a private party sought $ 419,000 in attorney fees and expenses in addition to just under $ 1 million in removal costs.⁴⁶² Conceding that the American Rule does not permit an award of such costs in the absence of statutory authorization, the General Electric court decided that the definition of "response" in § 101(25), which includes "enforcement activities," covers private party cost-recovery actions.⁴⁶³

As noted by the Supreme Court in Exxon Corp. v. Hunt,⁴⁶⁴ CERCLA does not provide relief for "economic harms that result from discharge of hazardous substances."⁴⁶⁵ Accordingly, the courts have not allowed plaintiffs to recover for diminution in value of property, economic loss, and medical or personal injury expenses.⁴⁶⁶ Until recently, courts had evenly divided over whether the cost of medical monitoring was recoverable under CERCLA, under the theory that such costs are closer to allowable investigatory/monitoring costs [21 ELR 10398] than to unallowable medical/personal injury expenses.⁴⁶⁷ However, the recent trend is to disallow recovery of such costs. In Werlein v. United States,⁴⁶⁸ the district court, after a lengthy analysis, concluded that medical monitoring costs were not recoverable under CERLA, though they may be under traditional tort theories. A more recent magistrate's decision adopted the reasoning of Werlein.⁴⁶⁹

E. Consistency With the NCP

The courts have disagreed somewhat as to the significance of the requirement that costs must be "consistent with the NCP" before they may be recovered under § 107. The principal question has been whether "consistency" is simply one factor in the determination of which costs may in fact be awarded, or whether it is an element of liability, in which case a determination of inconsistency might well defeat recovery of any costs.

It is possible to view the courts' varying approaches to this issue as flowing from the procedural posture of the cases — that is, whether plaintiffs are seeking simply a determination of liability or an award of response costs — rather than from any real dispute over the elements of the prima facie case.⁴⁷⁰ In Artesian Water Co. v. New Castle County,⁴⁷¹ for example, the court ruled that in a summary judgment motion for award of specific response costs, private plaintiffs must demonstrate consistency with the NCP as part of their prima facie case. The court distinguished cases purportedly stating otherwise by noting that these cases stood only for the proposition that consistency is a fact question that cannot be resolved in a motion to dismiss on the pleadings. When a sufficient factual record has been developed, the question of consistency becomes both ripe for decision and necessary before a court can award response costs.⁴⁷²

When confronted only with the threshold question of liability, however, courts have determined that they can reach a decision without requiring the plaintiffs to make a showing of consistency with the NCP.⁴⁷³ Hence, one court has suggested that plaintiffs may find it advantageous to seek a declaratory judgment on liability alone, since such a determination may be obtained at an earlier stage of the process and could provide a powerful inducement for the litigants to reach a settlement on response costs.⁴⁷⁴

The courts have uniformly held that consistency with the NCP does not require private parties to comply with other [21 ELR 10399] provisions of CERCLA unrelated to § 107 actions, such as inclusion of the site on the National Priorities List, the 60-day notice required by § 112(a) for actions seeking reimbursement from the Superfund, or prior government approval of response costs.⁴⁷⁵ Moreover, courts have not required strict compliance with NCP provisions that are unrelated to removal or remedial actions.⁴⁷⁶ Instead, courts have examined the factual record and the NCP in effect when the plaintiff incurred response costs to determine whether the response action resulted in costs that are consistent with the NCP.⁴⁷⁷ However, as a consequence of § 122(e)(6), added by SARA, one court has ruled that PRPs must obtain prior approval of remedial actions initiated after SARA when either the government, or a PRP subject to an administrative order or consent decree, has initiated an RI/FS under the government's § 104 authority.⁴⁷⁸

In Versatile Metals, Inc. v. Union Corp.,⁴⁷⁹ the court provided a thorough discussion of what constitutes consistency with the NCP.⁴⁸⁰ The court indicated that plaintiffs will find it easier to prove the consistency of short-term removal actions than long-term remedial actions, particularly in view of the procedural hurdles one must clear before implementing a remedial action.⁴⁸¹ Because the consequences of not proving consistency with the NCP are so disastrous, some commentators have suggested that private [21 ELR 10400] parties should simply mirror the cleanup procedures employed by EPA.⁴⁸² As one would expect under CERCLA, the costs of meeting these procedural hurdles may be passed along as response costs.⁴⁸³

In any event, private parties will, in all likelihood, have an easier time establishing "consistency" in the future. The recently revised 1990 version of the NCP made quite clear that EPA does not interpret CERCLA as requiring strict compliance with the NCP.⁴⁸⁴ Now, a private party response action will be considered "consistent" if the action, "when evaluated as a whole, is in substantial compliance with [certain listed NCP provisions], and results in a CERCLA-quality cleanup."⁴⁸⁵

F. Causation and Joint and Several Liability

Once a plaintiff establishes its prima facie case, the courts have held unanimously that, aside from a few limited affirmative defenses,⁴⁸⁶ § 107 liability is independent of traditional common law notions of causation.⁴⁸⁷ Although plaintiffs do not have to prove that a defendant caused the release, there must be a causal connection between the release or threatened release and the response costs incurred.⁴⁸⁸ Yet, as the First Circuit observed in Dedham Water Co. v. Cumberland Farms Dairy, Inc., courts need not require proof that the defendant's hazardous substances actually contaminated the plaintiff's property.⁴⁸⁹ Applying an "objective standard," the Dedham court explained that when a defendant's release of hazardous substances does not cause harm to the plaintiff's property, § 107(a) permits recovery if the plaintiff can show that his response costs were "necessary" and "consistent with the NCP."⁴⁹⁰ An interesting variation to the causation rule occurs when two or more pollution sources contribute to contamination at one site; in those instances, one court has held that a defendant can escape liability if he can prove that his hazardous substances were not a "substantial factor" in causing the plaintiff to incur response costs.⁴⁹¹

[21 ELR 10401]

Joint and several liability for indivisible harm has been a judicially created component of CERCLA since the 1983 case of United States v. Chem-Dyne Corp.⁴⁹² SARA's legislative history indicates that Congress approved of the Chem-Dyne court's imposition of joint and several liability,⁴⁹³ and subsequent courts have expressed little hesitation in implementing the doctrine.⁴⁹⁴ To invoke joint and several liability, the plaintiff need only establish indivisibility of harm without regard to the relative fault of any of the defendants. As a result, even de minimis contributors to a site may be held liable for the entire cost of cleanup and will bear the burden of proving that the harm is divisible.⁴⁹⁵ Although the harm, and therefore the liability, may be indivisible, courts have held that parties may apportion response costs among other responsible parties based on equitable principles through contribution actions.⁴⁹⁶

G. Contribution and Private Party Response Costs

Though courts often confuse the two, contribution claims are not necessarily identical to response cost claims by private parties under § 107(a)(4)(B).⁴⁹⁷ Contribution claims presuppose an initial assessment of liability for a third party's response costs, whereas response costs may be sought by one PRP from another PRP without constituting a suit for contribution, if they were incurred independently by that PRP.⁴⁹⁸ One practical aspect of the distinction between the two is that liability for response costs under § 107 [21 ELR 10402] is usually joint and several,⁴⁹⁹ while liability for a contribution claim may be several only.⁵⁰⁰

Section 113(f), added by SARA, specifically authorizes liable parties that are not intentional tortfeasors⁵⁰¹ to seek contribution from other PRPs.⁵⁰² Commonly, defendants in cost recovery actions first exercise their contribution right to obtain a declaratory judgment on the liability of other parties.⁵⁰³ For § 113 contribution actions, the liability question is resolved based on the elements of § 107(a).⁵⁰⁴ Contribution may also be sought under state law against parties who are not liable under CERCLA.⁵⁰⁵ After liability is established, and often in a separate proceeding, the courts will then apportion response costs among the responsible parties using equitable factors such as comparative fault and the increase in value of the property after cleanup, thereby alleviating somewhat the potential harshness of joint liability under CERCLA.⁵⁰⁶

[21 ELR 10403]

Liability may also be apportioned through administrative or judicially approved settlement agreements. Under § 113(f)(2),⁵⁰⁷ parties settling their liability for response costs or natural resource damages with the United States or a state are shielded from contribution actions brought by nonsettling parties "regarding matters addressed in the settlement."⁵⁰⁸ However, parties that settle federal claims under CERCLA with the United States may find that a court will construe state claims as constituting matters not addressed in the settlement.⁵⁰⁹ This highlights the importance of determining whether a private party suit is a § 107 action for response costs or a suit for contribution under § 113(f). If a court finds that the costs for which recovery is sought are costs incurred by the private party PRP, the bar provided in § 113(f)(2) may be of no avail.⁵¹⁰

Section 113(f)(2) affects nonsettling parties by reducing their potential liability "by the amount of the settlement."⁵¹¹ This provision has been interpreted by the First Circuit in United States v. Cannons Engineering Corp.⁵¹² to mean that a settlement with the government will result in a "dollar-for-dollar reduction of the aggregate liability" which then must be fully apportioned among the nonsettling parties.⁵¹³ Since § 113(f)(2) by its terms applies only to agreements with the government, however, courts have tended to favor equitable apportionment when determining the effects of private-party settlements on nonsettling parties.⁵¹⁴ [21 ELR 10404] As a result, allocation of response costs in a § 107 action may differ greatly from the allocation resulting from a contribution claim under § 113(f).

As one would expect, the safeguards provided to settlors by § 113(f)(2) have spurred a number of challenges to proposed consent decrees by nonsettlors. Indeed, one court has held that nonsettlors may intervene as a matter of right to challenge the entry of a proposed consent decree offered by the United States, because if entered by the court, the decree would extinguish the nonsettlors' statutory right to contribution.⁵¹⁵ On the other hand, in reviewing consent decrees, courts have not been inclined to second-guess or myopically scrutinize the government's allocation of liability among settlors, nor the government's choice of with whom to settle,⁵¹⁶ and they have not been especially sympathetic to the effects of the settlement on nonsettling parties.⁵¹⁷ As one judge aridly noted when rejecting a nonsettlor's argument that a proposed consent decree was unfair: "Unfortunately for [the nonsettlor], CERCLA, as we read it, is not a legislative scheme which places a high priority on fairness to generators of hazardous wastes."⁵¹⁸ Nevertheless, courts will not simply rubber stamp anything put before them,⁵¹⁹ and have carefully examined proposed consent decrees to determine whether they are in the public interest.⁵²⁰ As suggested by one court, settlements involving long-term response plans may be distinguished from those simply apportioning monetary liability.⁵²¹ In the latter situation, the court found support in § 122 for holding that monetary settlements do not require the same degree of scrutiny, such as public notice and review, that response plan settlements require.⁵²²

Finally, responsible parties may apportion liability among themselves through indemnification, subrogation, or hold harmless agreements. In Versatile Metals, Inc. v. Union Corp.,⁵²³ the court recognized that under § 107(e), a "person that is liable under the terms of the Act may by agreement be held harmless or indemnified by another party."⁵²⁴ The [21 ELR 10405] majority rule seems to be that PRPs will be jointly and severally liable to the government, but that they may still contractually allocate that burden among themselves; such a contract, however, will not affect the underlying liability.⁵²⁵ The courts have determined the effectiveness of these agreements by looking to state law, as opposed to fashioning a uniform rule of federal common law.⁵²⁶

H. Other Remedies: Declaratory Judgment, Injunctive Relief, and Natural Resource Damages

In addition to recovery of incurred costs, a plaintiff may also be entitled to a declaratory judgment for future response costs.⁵²⁷ When filing an action at the removal action stage in the cleanup process, plaintiffs will often couple their cost recovery claims with a request for declaratory judgment as to future removal and remedial costs.⁵²⁸ Courts will find that an action is ripe for declaratory judgment when the plaintiff has incurred at least some costs of response.⁵²⁹ Of course, defendants may still contest whether the costs of response are consistent with the NCP when the plaintiff seeks to enforce a declaratory judgment.⁵³⁰

[21 ELR 10406]

As noted earlier in this article, injunctive relief appears to be unavailable to private parties.⁵³¹ However, some courts have reasoned that since CERCLA does not expressly abrogate their equitable authority, it follows that the federal judiciary retains its traditional power to grant injunctive relief.⁵³² These courts have reserved determining the scope of their equitable powers, however, until faced with an actual case in which the remedy at law has proved inadequate.⁵³³ To date, no such case requiring the use of equitable powers has arisen.

A special remedy available only to government parties is the recovery of natural resource damages (NRDs).⁵³⁴ The government may bring an action for NRDs before expending any money to respond to the damage,⁵³⁵ and generally may establish liability by demonstrating the same elements as in a response cost recovery action.⁵³⁶

The issue of how to value damages to natural resources has been fiercely contested. As required by CERCLA, the Interior Department promulgated regulations in an attempt to identify the best procedures for assessing NRDs.⁵³⁷ Among other things, the regulations dictated that NRDs would be assessed as the "lesser of" restoration value or use value.⁵³⁸ Needless to say, the regulations were immediately challenged by state officials and environmental and industry groups in Ohio v. United States Department of Interior.⁵³⁹ Although the regulations were attacked on 11 different grounds, the principal issue was whether Congress, through CERCLA, expressed a preference for assessing NRDs based on their restoration value rather than their use value. In a painstaking examination of CERCLA and its legislative history, the D.C. Circuit held that Congress favored strongly the restoration value for NRDs and thus rejected Interior's "lesser of" rule. The court therefore ordered Interior to fashion regulations that reflect Congress' [21 ELR 10407] clear preference for restoration value and limit implementation of use value to circumstances in which restoration was infeasible or grossly more expensive.⁵⁴⁰

The courts have recognized that CERCLA places three significant limitations on recovery of NRDs. First, § 107(f) precludes the recovery of NRDs if the release and resulting damage occurred before CERCLA was enacted.⁵⁴¹ One court has required defendants seeking to assert this time bar to prove that damages are divisible and demonstrate which of those damages occurred prior to the cutoff date.⁵⁴² Second, just as with response cost recovery actions, plaintiffs may not bring a CERCLA action for NRDs when the release that caused the damage was permitted under other federal statutes.⁵⁴³ Finally, § 107(f) exempts from recovery damages to natural resources that have occurred after having been identified as irreversible and irretrievable in an environmental impact statement or equivalent document.⁵⁴⁴

I. The Comprehensive General Liability Insurance Cases

One special aspect of liability, and one of the more difficult issues to face the courts, is whether standard Comprehensive General Liability (CGL) insurance policies obligate an insurer to defend and indemnify an insured who is potentially responsible for CERCLA response costs.⁵⁴⁵ Typically the insurer's duty to defend under the policy is triggered by a "suit" or "lawsuit," but those terms have been held to include EPA administrative letters merely alleging liability.⁵⁴⁶ An insurer may have to defend any claim that could possibly fall within the scope of the policy coverage.⁵⁴⁷ The scope of that coverage has been the source of much litigation.

The underlying issue in the battles between insurers and their insureds is that, in other contexts, recovery of cleanup costs is regarded as an equitable rather than a legal remedy.⁵⁴⁸ CGL policies generally require insurers to "pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of … property damage."⁵⁴⁹ The courts, particularly federal courts, have split over the meaning to be given the term "as damages." Some courts have found that "as damages" is an unambiguous term of art in the insurance context that obligates insurers to pay only legal damages, thereby precluding payment of CERCLA response costs, which are equitable.⁵⁵⁰

[21 ELR 10408]

However, a greater number of (particularly state) courts have held that the term is open to interpretation, and when the law of the applicable state mandates a general, layperson's reading, courts have allowed recovery of response costs.⁵⁵¹ In a potentially important decision, for example, the California Supreme Court decided unanimously that CGL policies "cover the costs of reimbursing government agencies and complying with injunctions ordering cleanup under CERCLA."⁵⁵² This decision is important, in part, because the California Supreme Court expressly conceded that concepts valid as a matter of federal law — in this case, CERCLA — were not binding on interpretation of state insurance law.⁵⁵³ Thus, while conceding that the phrase "legally obligated" created a distinction between law and equity under federal law, the court stated that the distinction was no longer valid under California law.⁵⁵⁴

In resolving the question, courts have claimed to base their decisions on applicable state law; yet, courts have reached different results interpreting the same state's law.⁵⁵⁵ Indeed, the court in Jones Truck Lines v. Transport Insurance Co.,⁵⁵⁶ found that the Eighth Circuit had "clearly misread state law" in deciding Continental Insurance Cos. v. Northeastern Pharmaceutical & Chemical Co.,⁵⁵⁷ and refused to be bound by that court's interpretation of Missouri law.⁵⁵⁸ The Jones court, agreeing with the dissent in Continental, held that under Missouri's rule of giving insurance terms a layperson's understanding, "damages" should not be interpreted as excluding the costs of equitable relief.⁵⁵⁹

J. Bankruptcy Cases

There is an obvious, and inherent, tension between CERCLA, which seeks to impose liability, and the bankruptcy statutes, which seek to limit liability. The bankruptcy arena is one of the few where CERCLA's application has more frequently given way to pragmatic considerations.⁵⁶⁰

One of the principal wrinkles in bankruptcy cases is that it is often possible that more than one court is faced with the same issues. An example is City of New York v. Exxon Corp.,⁵⁶¹ in which an entity that had previously filed a Chapter 11 petition in another court had a CERCLA suit referred to a bankruptcy court. The court in which the CERCLA claims were initially brought was asked to withdraw the case from the bankruptcy court, but denied the motion on the grounds that only the district court in which the bankruptcy court sat could do so.⁵⁶² The underlying issue in City of New York was whether the CERCLA claims were automatically stayed by the Chapter 11 filing.⁵⁶³ However, unlike enforcement of money judgments or injunctive relief, establishing or "fixing" the amount of damages by the City's suit was not stayed by the Bankruptcy Code — in part, because the City was a governmental unit.⁵⁶⁴ The tradeoff is, in short, to allow the "fixing" of liability, but to stay the enforcement of the money judgment.⁵⁶⁵

Other issues in bankruptcy cases have been whether the contaminated property can be abandoned, whether response costs are administrative expenses of the estate, and whether an estate is a "covered person." All three of these issues were addressed in In re Peerless Plating Co.⁵⁶⁶ The Peerless court began by finding that the estate's potential CERCLA liability was a core issue that the bankruptcy court was empowered to decide.⁵⁶⁷ Applying the standard established in the Supreme Court's decision in Midlantic National Bank v. New Jersey Department of Environmental Protection,⁵⁶⁸ [21 ELR 10409] the court denied the bankruptcy trustee's motion to abandon the contaminated property as burdensome to the estate.⁵⁶⁹ Since the property could not be abandoned, cleanup became a necessary cost of preserving the estate and was therefore recoverable as an administrative expense.⁵⁷⁰ Finally, the court held that the estate was the current owner of the property and therefore strictly liable for paying the cleanup costs.⁵⁷¹

For those courts that read Midlantic narrowly,⁵⁷² compliance with environmental laws does not automatically trump bankruptcy determinations. Thus, in In re FCX, Inc., the court stated that "[f]ull compliance with all environmental laws is not required prior to abandonment, but abandonment is not authorized when there is an immediate threat to the public health and safety and an imminent danger of death or illness."⁵⁷³

IX. Defenses

A. Statutory Defenses

Section 107(b) of CERCLA⁵⁷⁴ sets forth three affirmative defenses available to persons who are otherwise liable for response costs under § 107(a). Because CERCLA imposes strict liability, however, defenses based on an absence of negligence or on the use of due care are unavailing,⁵⁷⁵ although these considerations may be relevant to the apportionment of liability.⁵⁷⁶

The most frequently litigated of these statutory defenses is the "third-party" defense found in § 107(b)(3).⁵⁷⁷ Under this defense, a defendant carries the burden of demonstrating that a "totally unrelated third party is the sole cause of the release."⁵⁷⁸ This burden is heavy indeed. As the Fourth Circuit stated in United States v. Monsanto, to establish the third party defense, the defendant must show "a complete absence of causation."⁵⁷⁹

A third party must be "other than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant."⁵⁸⁰ A lease is such a "contractual relationship," so that landlords and tenants cannot claim third party defenses with regard to each other's actions.⁵⁸¹ Similarly, the existence of its business relationship with a waste transporter has been held to prevent a generator from asserting the third party defense where it was unaware of the location to which the transporter was taking its wastes,⁵⁸² and where it arranged to have the wastes disposed at one site and the transporter diverted the wastes to another site without authorization.⁵⁸³ Moreover, if a defendant's waste is found at a site, it will be entitled to the third party defense only if it can prove that no person with whom it might have had a "contractual relationship" was responsible for disposing of the waste at the site.⁵⁸⁴

[21 ELR 10410]

Although the judicial interpretations requiring that the third party be "totally unrelated" suggest that any contractual relationship between the two parties is enough to defeat the defense, some courts are beginning to find that the "contractual relationship" must be related to the disposal activity. Thus, in Shapiro v. Alexanderson,⁵⁸⁵ the court addressed whether a previous contract between a county, as operator, and the owner of a landfill would automatically defeat a § 107(b)(3) defense. The Shapiro court noted the "in connection with" language of the defense, and held that if the acts or omissions occurred after the contract had dissolved, there was no contractual relationship in the sense intended by § 107(b)(3).⁵⁸⁶

Section 107(b)(3) also requires the defendant to show by a preponderance of the evidence that he exercised "due care with respect to the hazardous substance concerned," and that he "took precautions against foreseeable acts or omissions" of any such third party.⁵⁸⁷ An owner who knew that the fill he was selling contained hazardous substances, which had been present when the owner bought the fill, but who did not warn the subsequent purchaser, failed to meet the requirement of "due care."⁵⁸⁸ Where a purchaser was aware of the tenants' dumping activities before closing on the sale of the property, it was "foreseeable" that those activities would continue until the tenants were evicted.⁵⁸⁹ Section 107(b)(3) also states that "an employee or agent of the defendant" is not a third party for the purposes of the defense.⁵⁹⁰ Nonetheless, in one case, the City of Philadelphia argued that because its employees accepted bribes for illegal disposal, they acted beyond the scope of their employment, and thus the City could not be held liable.⁵⁹¹ The court rejected this application of the common law, stating it was inconsistent with the legislative history which indicated that there must be "no connection" between defendant and the third party.⁵⁹²

SARA added language to § 101(35) of CERCLA that further defined the term "contractual relationship," and gave statutory recognition to the so-called "innocent purchaser" defense as one type of third party defense.⁵⁹³ Prior to SARA's enactment, at least one court had implied that a § 107(b)(3) defense was available to a purchaser of land on which hazardous substances had been placed without his knowledge or fault, who did not add to them, and who exercised due care with respect to them once discovered.⁵⁹⁴ CERCLA now requires that the purchaser, to qualify for the defense, show that he "did not know and had no reason to know that any hazardous substance … was disposed of on, in, or at the facility" at the time he acquired the property.⁵⁹⁵ Courts have been generally reluctant to find that a PRP qualifies for the innocent purchaser defense.⁵⁹⁶ A recent decision, for example, concludes that where a purchaser assumed the seller's obligations under a consent decree to abate air and water pollution, these facts may imply that the purchaser "had reason to know" that hazardous substances were also disposed of at that site.⁵⁹⁷ On the other hand, the innocent purchaser defense has been held to be available in some cases even to persons who have failed to inspect the property prior to its acquisition.⁵⁹⁸

In addition to CERCLA's general defenses to liability, several courts have considered the existence of an indemnification agreement to be a defense against a cost recovery action brought by the indemnifying party. The Ninth Circuit, in Mardan Corp. v. C.G.C. Music, Ltd.,⁵⁹⁹ stated that § 107(e)(1) "expressly preserves agreements to insure, to hold harmless, or to indemnify a party held liable under section 107(a)," and held that the purchaser of a contaminated site was barred from seeking recovery from the seller on the basis of a general release executed by the purchaser in connection with the sale. Severaldistrict courts have given similar effect to indemnification agreements.⁶⁰⁰ However, [21 ELR 10411] an agreement merely that the property is sold "as is" is not sufficient to establish an indemnification against CERCLA liability in favor of the seller. The courts have uniformly held that the "as is" language is simply a bar to a claim of breach of warranty; it is not a waiver of any rights the purchaser may have under CERCLA to contribution or cost recovery.⁶⁰¹

One district court recently declined to follow this general interpretive trend, however. In AM International v. International Forging Equipment,⁶⁰² the court held that interpreting § 107(e)(1) to permit allotment of CERCLA liability by contract would "undercut the primary policy of encouraging cleanup initiative." Rather, the court interpreted that provision as permitting only those agreements by which a liable party contracts for indemnification with a party not otherwise liable under CERCLA, such as an insurance company.⁶⁰³ This decision is a clear departure from the rest of the case law on this issue. Although the court in AM International began its analysis by asserting that "[c]ourts are divided on the effect of releases under section 107(e)(1),"⁶⁰⁴ in fact the cases it cites uniformly support a less restrictive interpretation than the one the court adopted.

B. Equitable Defenses

Equitable defenses may also be available under CERCLA in certain circumstances, especially where § 106 is concerned. United States v. Conservation Chemical⁶⁰⁵ is illustrative. The Conservation Chemical court held that § 106(a) incorporates traditional equitable defenses, which are proper in determining liability, the nature of the remedy, and the amount of damages.⁶⁰⁶ The Conservation Chemical court concluded that equitable defenses were also available in § 107 actions, characterizing cost recovery actions as, in essence, suits for equitable restitution.⁶⁰⁷ More recent decisions, however, reject equitable defenses for § 107 as being precluded by the exclusive affirmative defenses set forth in § 107(b), at least where liability is concerned.⁶⁰⁸ In any event, it is clear that there is no de minimis defense to liability under CERCLA.⁶⁰⁹

Prior to SARA, laches was held in a few instances to be applicable to § 107 cost recovery actions.⁶¹⁰ In two recent cases in which the courts had previously declined to apply the statutes of limitations added by § 113(g) retroactively, the application of laches was determined by whether the parties were public or private. Thus, one decision held that while laches was theoretically available, it was not a bar where the United States brought suit in its sovereign capacity.⁶¹¹ In the other decision, the court would apply laches to a suit between private parties, but concluded that a "worst-case" of three years before filing suit was not barred by laches.⁶¹²

There is substantial disagreement regarding the availability of the equitable doctrines of waiver, unclean hands, and estoppel against the government. Some courts have indicated a willingness to recognize such defenses in appropriate circumstances,⁶¹³ while others have held that they are never [21 ELR 10412] available against the government acting in its sovereign capacity to assert public rights.⁶¹⁴ One recent decision held that mere negligence on the part of a state is not enough to bar recovery under the doctrine of unclean hands.⁶¹⁵ There is also disagreement regarding the availability of these equitable defenses in suits between private parties. The Third Circuit, for example, has expressed the opinion that the doctrine of unclean hands does not comport with CERCLA's purposes.⁶¹⁶ Other courts have been willing to entertain these defenses in private suits.⁶¹⁷

Even where they are available, equitable defenses have proved difficult to establish. For example, in United States v. Mottolo,⁶¹⁸ the government was found not to be equitably estopped from pursuing a cost recovery action even though it had allegedly obtained the defendant's consent to enter the cleanup site by representing that it would not seek to recover its response costs. The court held that because the defendant could not otherwise have prevented the government's entry, it could not have relied on the government's representation to its detriment.⁶¹⁹ In another case, involving private parties, the fact that the plaintiff had subsequently sold the contaminated property without disclosing its condition did not bar a cost recovery suit against the prior owner, whose actions had caused the release, under the doctrine of unclean hands because the plaintiff's misconduct did not relate to the right it was seeking to assert against the prior owner.⁶²⁰

X. The Next Decade

The second decade of Superfund is likely to see the same prodigious level of litigation as the first. A great many sites remain to be cleaned up, and there is no reason to expect that the struggles to impose and apportion liability for the associated costs will be any less hard fought. Indeed, the stakes may only get higher as cleanup standards become more strict. In addition, even as some issues begin to become reasonably well settled in the case law, others seem continually to arise to take their place in front of the courts. Many provisions of the recently revised NCP have yet to be interpreted, for example. There also remains substantial question regarding the recoverability of long-term medical monitoring costs and, for private parties, attorneys fees and other costs of litigation. In addition, the courts are likely to see further efforts to expand the universe of potentially liable parties and narrow the scope of the statutory exclusions and exemptions in the continuing search for resources to fund cleanup activities. Finally, the most explosive growth in CERCLA litigation may be in an area that has thus far received relatively little attention by the courts, recovery for damages to natural resources. This is clearly no time to cancel your subscription.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 001-075. CERCLA is also commonly known as "the Superfund Law" or simply "Superfund."

2. 55 Fed. Reg. 8813 (Mar. 8, 1990). See Starfield, The 1990 National Contingency Plan — More Detail and More Structure, But Still a Balancing Act, 20 ELR 10222 (June 1990).

3. Pub. L. No. 101-507, 104 Stat. 1372-73 (Nov. 5, 1990).

4. Permitted by Congress, that is; litigation over the new NCP has already begun. See, e.g., Ohio v. United States Environmental Protection Agency, Nos. 86-1096 et al. (D.C. Cir.) (challenge to new NCP consolidated in June 1990 with pending challenges to the prior NCP).

5. This Article covers reported decisions through March 1991.

6. See Jones and McSlarrow, … But Were Afraid to Ask: Superfund Case Law, 1981-1989, 19 ELR 10430 (Oct. 1989).

7. See infra Sections V and VI.

8. See infra Section VIII.

9. See infra notes 534-544 and accompanying text.

10. See infra notes 418-420 and accompanying text.

11. See infra notes 414-415.

12. See infra notes 425-427 and accompanying text.

13. See infra note 413 and accompanying text.

14. 17 ELR 21085 (E.D. Pa. Dec. 31, 1986).

15. Id. (quoting 3 Moore's Federal Practice ¶13.28). See also United States v. Moore, 703 F. Supp. 455, 18 ELR 21274 (E.D. Va. May 27, 1988). The recoupment doctrine has been held to apply to states as well. See United States v. Mottolo, 605 F. Supp. 898, 15 ELR 20444 (D.N.H. 1985).

In United States v. Hardage, the court refused to dismiss a recoupment counterclaim against the United States, but later found that defendants had failed to "show a nexus between the relief sought by the United States and the transaction or occurrences the [defendant's] recoupment counterclaim asserts." 750 F. Supp. 1460, 21 ELR 20721 (W.D. Okla. 1990).

16. 17 ELR at 21085. On reconsideration, the Nicolet court affirmed its earlier ruling on the recoupment counterclaim, but dismissed the remaining counterclaims for damages for constitutional violations, trespass, and negligence because they were tort claims that were barred by the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674. 17 ELR at 21088 (E.D. Pa. Mar. 19, 1987).

17. United States v. Moore, 703 F. Supp. 455, 18 ELR 21274 (E.D. Va. 1988).

18. 694 F. Supp. 977, 18 ELR 20773 (D.N.H. 1988), aff'd in part, vacated in part, 900 F.2d 429, 20 ELR 20856 (1st Cir. 1990).

19. Id. On appeal, however, the First Circuit refused to rule on this aspect of the district court's opinion, because it saw no prejudice, though it did rule explicitly that it would not collaterally estop EPA from contesting liability in any subsequent contribution suit. United States v. Ottati & Goss, Inc., 900 F.2d 429, 20 ELR 20856 (1st Cir. 1990).

20. Ottati, 694 F. Supp. at 977, 18 ELR at 20773.

21. Ottati, 900 F.2d at 429, 20 ELR at 20856.

22. Id.

23. 750 F. Supp. 1460, 21 ELR 20721 (W.D. Okla. 1990).

24. Id.

25. Id. Implicit in the Hardage court's opinion is the view that an agreement among federal agencies was subject to greater scrutiny (to the extent that the defendants need to demonstrate that entry of the consent decree would be "improper," they have met their burden). Cf. United States v. Moore, 703 F. Supp. 455, 18 ELR 21274 (E.D. Va. 1988) (refusing to find that an administrative settlement between EPA and the Department of Defense cut off private party rights to seek contribution).

26. 750 F. Supp. at 1460, 21 ELR at 20721. The United States was held liable for all future response costs incurred by the defendants that were approved by the court, and held liable for 8.36 percent of all of EPA's response costs. Id.

27. See infra notes 119-125 and accompanying text.

28. See, e.g., United States v. New Castle County, 727 F. Supp. 854, 20 ELR 20499 (D. Del. 1989). However, at least one court has suggested that even this qualification on liability is unwarranted under CERCLA. See United States v. Stringfellow, 20 ELR 20656 (C.D. Cal. Jan. 9, 1990) (affirming Special Master verdict) ("The Supreme court has held … that the State is liable just like everyone else. Furthermore, the defenses listed in the statute do not include [the 'mere regulator' theory]").

29. 731 F. Supp. 783, 20 ELR 20712 (W.D. Mich. 1989).

30. Id.

31. Id. (citing United States v. Dart Industries, Inc., 847 F.2d 144, 18 ELR 21084 (4th Cir. 1988).

32. Id. Liability would be imposed on the state under CERCLA § 107(a)(2), 42 U.S.C. § 9607(a)(2), ELR STAT. CERCLA 024, as a past operator, assuming the other requirements for liability were satisfied. See infra notes 408-410 and accompanying text. But see United States v. New Castle County, 727 F. Supp. 854, 20 ELR 20499 (D. Del. 1989). In New Castle, the court found that the state's activities did not exceed "mere regulation nor do they constitute 'active, voluntary, hands on participation in the day-to-day management and operations' of the site." Id. Although the court found that the state was involved with selecting the landfill site, and its design and planning, it found that other factors that would support liability, such as control of the finances of the facility and the receipt of a financial benefit from its operation, were absent. Id. The New Castle court went on to state in dicta that "if a state owned or operated a facility … the mere fact that it was also operating in a regulatory capacity would not necessarily mean that it would escape liability under CERCLA." Id. The most that can be said of the ruling here, then, is that it is fact-dependent.

33. Id. The alternative ground of liability was based on CERCLA § 107(a)(3), 42 U.S.C. § 9607(a)(3), ELR STAT. CERCLA 024, which establishes liability for generators of hazardous substances, including those who "arranged for disposal." The New Castle court stated that "some nexus or relationship must be shown between the person alleged to be an arranger (here, the State) and the owner of the hazardous substance." 727 F. Supp. at 854, 20 ELR at 20499. However, though it did not dispute the regulatory relationship between the site and the state, the New Castle court refused to find § 107(a)(3) liability. Id. See also New York v. City of Johnstown, 701 F. Supp. 33, 19 ELR 20578 (N.D.N.Y. 1988) (state not liable under § 107(a)(3) because it "was attempting to remediate the hazardous waste problems at both sites and cannot be considered in the class of liable parties").

34. Of course, there are easier cases. See Stringfellow, 20 ELR at 20656 (affirming Special Master's findings that the state negligently selected the landfill site, negligently designed the landfill, negligently remedied the contamination, and supervised dumping after the site owner left the scene). In such circumstances, the state was liable as an "operator," "generator," and "owner." See CERCLA § 107(a), 42 U.S.C. § 9607(a), ELR STAT. CERCLA 024.

35. The Fourth Circuit decided a very similar case differently in United States v. Dart Industries, 847 F.2d 144, 18 ELR 21084 (4th Cir. 1988). In Dart Industries, the state had previously agreed to install monitoring wells for a cleanup effort, but failed to do so. Id. The Fourth Circuit concluded that it "does not dispute that [the state environmental agency] may have inadequately enforced the state environmental regulations. However, such unfortunate deficiencies do not constitute ownership or control … and [the state agency] is not liable as an owner or operator under § 9607." Id.

36. 21 ELR 20549 (D. Ariz. Oct. 30, 1990).

37. Id.

38. Id.

39. 21 ELR 20826 (C.D. Cal. Dec. 5, 1990).

40. Id. Finding that factual questions remained, the court refused to rule on three issues: whether the issuance of licenses by a municipality to waste haulers constituted an "arrangement" for disposal under § 107(a)(3); whether rubbish so collected was "owned or possessed" by the municipality; and whether an "arrangement" could exist where a municipality exercised its police powers to license haulers of rubbish. Id.

41. Id.

42. Id.

43. Id.

44. 754 F. Supp. 960, 21 ELR 20777 (D. Conn. 1991).

45. Id.

46. Id.

47. Id.

48. Id. Municipal waste often includes waste from industrial or commercial entities that are small quantity generators of hazardous waste. Id. at n.11.

49. Id. (citing Interim Municipal Settlement Policy, 54 Fed. Reg. 51071 (Dec. 12, 1989), ELR ADMIN. MATERIALS 35225).

50. Id.

51. Id.

52. Id. Interestingly, the municipalities also asserted that the state was liable for its regulation of hazardous waste, an argument the court rejected. Id. at n.17.

The municipalities made two other related arguments that were rejected by the Murtha court. They asserted first that the exemption for common carriers applied to municipalities who merely transported the waste to a landfill, and second, making explicit the assumption underlying the first argument, that households, not municipalities, "generated" the waste. As the Murtha court noted, however, "generator" liability is really a shorthand for "arrangement" liability under § 107(a)(3). Id.

53. 757 F. Supp. 397, 21 ELR 20879 (D.N.J. 1991).

54. Id.

55. Lone Pine Steering Committee v. United States Environmental Protection Agency, 777 F.2d 882, 16 ELR 20009 (3d Cir. 1985), cert. denied, 476 U.S. 1115 (1986). See also Barmet Aluminum Corp. v. Thomas, 730 F. Supp. 771, 20 ELR 20753 (W.D. Ky. 1990) ("a constitutional challenge does not merit a special exclusion from the [§ 113(h) bar]"), aff'd 927 F.2d 289, 21 ELR 20850 (6th Cir. 1991).

56. Pub. L. No. 99-499, 100 Stat. 1613 (1986).

57. 42 U.S.C. § 9613(h), ELR STAT. CERCLA 040.

58. South Macomb Disposal Authority v. United States Environmental Protection Agency, 681 F. Supp. 1244, 18 ELR 20841 (E.D. Mich. 1988). The South Macomb court concluded that the enactment of § 113(h) was intended to codify the Lone Pine decision.

59. 42 U.S.C. § 9659, ELR STAT. CERCLA 067.

60. 42 U.S.C. § 9613(h)(4), ELR STAT. CERCLA 040. See Neighborhood Toxic Cleanup Emergency v. Reilly, 716 F. Supp. 828, 19 ELR 21165 (D.N.J. 1989). The court held that this interpretation did not violate due process because a remedial action plan, as to plaintiffs, was more like a rulemaking, and therefore the administrative notice and comment period provided sufficient due process.

61. See infra notes 252-269 and accompanying text.

62. Missouri v. Independent Petrochemical Corp., 17 ELR 20958 (E.D. Mo. Dec. 15, 1986). The Supreme Court also characterizes CERCLA as founded upon Congress' Commerce Power. Pennsylvania v. Union Gas Co., 491 U.S. 1, 19 ELR 20974 (1989).

63. U.S. Const. amend. V. Early decisions that found CERCLA liability retroactive include Jones v. Inmont Corp., 584 F. Supp. 1425, 14 ELR 20485 (S.D. Ohio 1984) and State ex rel. Brown v. Georgeoff, 562 F. Supp. 1300, 13 ELR 20457 (N.D. Ohio 1983).

64. See United States v. Bliss, 108 F.R.D. 127, 16 ELR 20368 (E.D. Mo. Nov. 1, 1985); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (rejecting "facial" attack on CERCLA, and finding "rational purposes" that do not violate due process); Ottati, 630 F. Supp. at 1361, 16 ELR at 20763; United States v. Stringfellow, 14 ELR 20381 (C.D. Cal. Apr. 9, 1984).

The Stringfellow court stated that a legitimate question existed as to whether retroactive application violated the Contracts Clause, U.S. Const. art. I, § 10, noting that the Ninth Circuit has interpreted the Fifth Amendment to include elements of the Contracts Clause in its application to federal legislation. The Conservation Chemical court summarily rejected the relevance of the Contracts Clause (it applies only to the states), the Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3, (it applies only to criminal punishment), and the Equal Protection Clause, U.S. Const. amend. XIV. In United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984, 14 ELR 20272 (D.S.C. Feb. 23, 1984), the court rejected a Contracts Clause argument, both because it applied only to states, and because there could be no impairment of contract where a party had the right to seek indemnification from the other party to the contract. United States v. Dickerson, 640 F. Supp 448, 16 ELR 20970 (D. Md. 1986) also upheld retroactive application against both due process and "right to contract" claims (though it is not clear whether a "right to contract" is intended to suggest the Contracts Clause or an extension of the Due Process Clause).

65. 810 F.2d. 726, 17 ELR 20603 (8th Cir. 1986), cert. denied 484 U.S. 848 (1987) (hereinafter cited as NEPACCO). The NEPACCO court also rejected an argument that retroactive liability violated the Takings Clause of the Fifth Amendment, refusing to find the property owner deprived of any property interest.

66. See United States v. Monsanto Co., 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied 490 U.S. 1106 (1989); United States v. Hooker Chemicals & Plastics Corp. 680 F. Supp. 546, 18 ELR 20580 (W.D.N.Y. 1988); O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988), aff'd 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989), cert. denied sub nom. American Cyanamid Co. v. O'Neil, 110 S. Ct. 1115 (1990); United States v. Tyson, 17 ELR 20527 (E.D. Pa. Aug. 21, 1986); Missouri v. Syntex (U.S.A.), Inc., 17 ELR 21013 (E.D. Mo. Mar. 20, 1987)(citing NEPACCO); United States v. Bliss, 17 ELR 21217 (E.D. Mo. June 15, 1987)(citing NEPACCO); Wehner v. Syntex Corp., No. 83-642 C(2) (E.D. Mo. Apr. 13, 1988).

67. United States v. Miami Drum Services, Inc., 17 ELR 20539 (S.D. Fla. Dec. 12, 1986). See also United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984, 14 ELR 20272 (D.S.C. 1984), aff'd on other grounds sub. nom. United States v. Monsanto Co., 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988) (CERCLA not retroactive in the "constitutional sense"), cert. denied, 490 U.S. 1106 (1989).

68. Amland Properties Corp. v. Aluminum Co. of America, 711 F. Supp. 784, 19 ELR 21180 (D.N.J. 1989).

69. 605 F. Supp. 1064, 15 ELR 20337 (D. Colo. 1985). See also United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985) (citing Shell Oil). But see United States v. Wade, 14 ELR 20437 (E.D. Pa. Mar. 23, 1984)(finding liability for preenactment activity but not for preenactment response costs).

70. NEPACCO, 810 F.2d at 726, 17 ELR at 20603. See also United States v. Hooker Chemicals Plastics Corp., 680 F. Supp. 546, 18 ELR 20580 (W.D. N.Y. 1988); United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988).

71. City of Philadelphia v. Stepan Chemical Co., 748 F. Supp. 283, 21 ELR 20760 (E.D. Pa. 1990).

72. See Aminoil, Inc. v. United States Environmental Protection Agency, 646 F. Supp. 294, 17 ELR 20377 (C.D. Cal. 1986); Wagner Seed Co. v. Daggett, 800 F.2d 310, 16 ELR 21001 (2d Cir. 1986); Wagner Electric Corp. v. Thomas, 612 F. Supp. 736, 15 ELR 20977 (D. Kan. 1985); United States v. Reilly Tar & Chemical Corp., 606 F. Supp. 412, 15 ELR 20348 (D. Minn. 1985). But see Aminoil, Inc. v. United States Environmental Protection Agency, 599 F. Supp. 69, 14 ELR 20801 (C.D. Cal. 1984) (earlier Aminoil ruling issued a preliminary injunction against imposing fines and penalties).

The subsequent Aminoil decision, 646 F. Supp. 294, 17 ELR 20377 (C.D. Cal. 1986) also rejected a claim that the threatened imposition of § 107(c)(3) treble damages violated plaintiff's First Amendment right to 7834E.029 petition. The court noted that those rights were exercised by challenging the issues in court. Id.

73. CERCLA § 107(c)(3), 42 U.S.C. § 9607(c)(3), ELR STAT. CERCLA 025. The punitive damages provision has been held by one court to replace, not supplement, any claims for cost recovery by the United States. United States v. Parsons, 738 F. Supp. 1436, 20 ELR 21173 (N.D. Ga. 1990).

74. CERCLA § 106(b)(1), 42 U.S.C. § 9606(b)(1), ELR STAT. CERCLA 024. Under § 106(b)(2), added by SARA, a defendant may now comply with an administrative order and then seek reimbursement later from the Superfund. See Wagner Seed Co. v. Bush, 709 F. Supp. 249, 19 ELR 20950 (D.D.C. 1989) (holding that § 106(b)(2) does not apply if cleanup was already underway when SARA was enacted).

75. Wagner Seed Co. v. Daggett, 800 F.2d 310, 16 ELR 21001 (2d Cir. 1986).

76. Solid State Circuits, Inc. v. United States Environmental Protection Agency, 812 F.2d 383, 17 ELR 20453 (8th Cir. 1987). See also Comment, Preenforcement Review Under CERCLA: Potentially Responsible Parties Seek An Early Day in Court, 16 ELR 10093 (Apr. 1986).

77. SCA Services of Indiana, Inc. v. Thomas, 634 F. Supp. 1355, 17 ELR 20129 (N.D. Ind. 1986); cf. Barmet, 730 F. Supp. at 771, 20 ELR at 20753. The constitutional attack in SCA Services was both facial and as applied. The court explicitly refused to rule on the context of a removal action, though presumably they would be more easily defended as emergency situations.

In related litigation, the Seventh Circuit rejected the equal protection argument made by a landfill, whose license was revoked by the state, that relied on the fact that another landfill, with contamination problems, still had a license. See__ F.2d 521, 20 ELR 20883 (7th Cir. 1990).

78. Id. Due process is also satisfied by a limited agency hearing prior to the assessment of cost against a PRP. Lone Pine Steering, 777 F.2 882, 16 ELR 20009. See also United States v. Rohm and Haas Co., 669 F. Supp. 672, 18 ELR 20221 (D.N.J. 1987). In Rohm and Haas, the court first held that the standard of review was the "arbitrary and capricious" standard mandated by SARA. But, since the administrative procedures present at the time the response action was developed fell short of the new requirements of SARA, defendants argued that due process at least demanded a de novo review. The court disagreed, stating that defendants were not "constitutionally entitled to the full, trial-type hearing" they sought.

79. In Chemical Waste Management, Inc. v. United States Environmental Protection Agency, 673 F. Supp. 1043, 18 ELR 20307 (D. Kan. 1987), the court concluded that the off-site policy in CERCLA § 121(d)(3) and EPA guidance documents was so confusing as to likely be unconstitutionally vague and ambiguous in violation of the Due Process Clause. The court declined, however, to issue an injunction, urging instead that EPA and the corporation resolve the issues.

80. Missouri v. Independent Petrochemical Corp., 17 ELR 20958 (E.D. Mo. Dec. 15, 1986); U.S. Const. art. I. The Supreme Court also characterizes CERCLA as founded upon Congress' Commerce Power. Pennsylvania v. Union Gas Co., 491 U.S. 1, 19 ELR 20974 (1989).

81. SCA Services, 634 F. Supp. 1355, 17 ELR 20129. The NCP restricts remedial actions that are to be fund-financed to sites listed on the NPL. 40 C.F.R. § 300.425(b)(1) (1990).

82. Id.

83. U.S. Const. art. I, § 9, cl. 3.

84. Id.

85. United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); United States v. Tyson, 17 ELR 20527 (E.D. Pa. Aug. 21, 1986).

86. See United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985); United States v. Shaner, No. 85-1372, 20 Haz. Waste Lit. Rep. 1130 (E.D. Pa. June 25, 1990).

87. Northside Sanitary Landfill, Inc. v. City of Indianapolis, 902 F.2d 521, 20 ELR 20883 (7th Cir. 1990).

88. Hendler v. United States, 11 Cl. Ct. 9, 17 ELR 20678 (Cl. Ct. 1986).

89. Id.

90. Id. Hendler was decided within days of the enactment of SARA, which amended CERCLA to add § 104(j). That section precludes suits that would compel the government to acquire an interest in land.

91. 720 F. Supp. 1027, 20 ELR 20159 (D. Mass. 1989), aff'd, 899 F.2d 79, 20 ELR 20845 (1st Cir. 1990). See CERCLA § 113(f)(2), 42 U.S.C. § 9613(f)(2), ELR STAT. CERCLA 039.

92. Id.

93. Id. (citing Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 638 (1981)). In dicta, the Cannons Engineering court also noted that even if there were a pre-existing right to contribution, CERCLA did not violate due process or work an unconstitutional taking. Id.

94. Id. The First Circuit affirmed the district court's decisions, though stating only that the contribution provisions were "Constitutional," and repeating that there was no federal common law right to contribution. United States v. Cannons Engineering Corp., 899 F.2d 79, 20 ELR 20845 (1st Cir. 1990).

95. U.S. Const. art. VI.

96. Exxon Corp. v. Hunt, 475 U.S. 355, 16 ELR 20396 (1986). Those purposes included remedial costs for sites on the NPL, or for removal costs for sites that are eligible under the NCP for compensation from the Superfund. See Comment, CERCLA Reauthorization: The Wise Demise of Section 114(c) and Exxon v. Hunt, 16 ELR 10286 (Oct. 1986).

97. See 135 CONG. REC. S14912 (daily ed. Oct. 3, 1986) (statement of Sen. Lautenburg). The New Jersey Supreme Court on remand held that preemption ended Oct. 27, 1986, the date of SARA's enactment. Exxon Corp. v. Hunt, 534 A.2d. 1, 18 ELR 20412 (N.J. 1987).

98. Missouri v. Independent Petrochemical Corp., 17 ELR 20958 (E.D. Mo. Dec. 15, 1986).

99. CERCLA § 114(a), 42 U.S.C. § 9614(a), ELR STAT. CERCLA 041. Moreover, § 114(b) provides that parties may not receive compensation twice "for the same removal costs," by using state and federal law. 42 U.S.C. § 9614(b), ELR STAT. CERCLA 041. The phrase, "same removal costs," has been held not to preempt recovery for removal costs for subsurface removal under state law, where the party previously recovered under CERCLA for surface removal. See Allied Corp. v. Frola, 730 F. Supp. 626, 20 ELR 21193 (D.N.J. 1990).

100. See e.g., New York v. United States, 620 F. Supp. 374, 16 ELR 20142 (E.D.N.Y. 1985) ("CERCLA does not preempt state laws."). But see United States v. Seymour Recycling Corp., 686 F. Supp. 696, 19 ELR 20523 (S.D. Ind. 1988) ("CERCLA preempts state tort claims statutes").

101. United States v. Seymour Recycling Corp., 686 F. Supp. 696, 19 ELR 20523 (S.D. Ind. 1988).

102. Electric Power Board of Chattanooga v. Monsanto Co., 17 ELR 20526 (E.D. Tenn. Dec. 5, 1986). This decision was later affirmed, the Sixth Circuit concluding that CERCLA and state law would both bar the claim. Electric Power Board of Chattanooga v. Monsanto Co., 879 F.2d 1368, 19 ELR 21458 (6th Cir. 1989), cert. denied, 110 S. Ct. 724 (1990).

In First United Methodist Church of Hyattsville v. United States Gypsum Co., 882 F.2d 862, 19 ELR 21451 (4th Cir. 1989), cert. denied, 110 S. Ct. 1113 (1990), the court distinguished statutes of limitation from statutes of repose, stating in dicta that CERCLA did not preempt the latter when they were concerned with asbestos liability. However, since the court also concluded that asbestos removal was not even within the scope of CERCLA, that dicta is probably of little significance.

103. Artesian Water Co. v. Government of New Castle County, 605 F. Supp. 1348, 15 ELR 20577 (D. Del. 1985). See CERCLA §§ 101(21), 107; 42 U.S.C. §§ 9601(21), 9607; ELR STAT. CERCLA 008, 024.

104. See United States v. Union Gas Co., 743 F. Supp. 1144, 21 ELR 20337 (E.D. Pa. 1990).

105. Ogden Environmental Services, Inc. v. City of San Diego, 692 F. Supp. 1222, 19 ELR 20012 (S.D. Cal. 1988). The court also held that injunctive relief against the implementation of the conditional-use ordinance was appropriate.

106. See Cadillac Fairview/California, Inc. v. Dow Chemical Co., 14 ELR 20376 (C.D. Cal. Mar. 5, 1984), aff'd 840 F.2d 691, 18 ELR 20470 (9th Cir. 1988).

107. 916 F.2d 1486, 21 ELR 20270 (10th Cir. 1990).

108. Id.

109. Id.

110. 719 F. Supp. 571, 20 ELR 20144 (E.D. Mich. 1989) (holding that § 121(e)(2) provides authority only to enforce applicable or relevant and appropriate requirements in existing consent decree, and that § 121(f) provides the exclusive mechanism for state review).

111. Id.

112. Id.

113. Id.

114. 910 F.2d 713, 20 ELR 21316 (11th Cir. 1990) (hereinafter NSWMA). A related case is Alabama v. United States Environmental Protection Agency, 871 F.2d 1548, 19 ELR 20956 (11th Cir.), cert. denied, 110 S. Ct. 538 (1989). In Alabama, the state sought to enjoin the shipment of hazardous waste from a CERCLA site in Texas to an Alabama facility. The state argued, among other things, that the Due Process Clause required that Alabama be given notice and an opportunity to comment. However, the constitutional claims were dismissed because the plaintiffs lacked standing.

115. Id. See § 104(c)(9), 42 U.S.C. § 9604(c)(9), ELR STAT. CERCLA 013.

116. Id.

117. NSWMA, 910 F.2d at 713, 20 ELR at 21316.

118. Id.

119. 491 U.S. 1, 19 ELR 20974 (1989). The somewhat convoluted history of the case is as follows: United States v. Union Gas Co., 575 F. Supp. 949, 14 ELR 20246 (E.D. Pa. 1983), aff'd 792 F.2d 372, 16 ELR 20818 (3d Cir. 1986) vacated and remanded sub. nom. Union Gas Co. v. Pennsylvania, 479 U.S. 1025 (1987), rev'd 832 F.2d 1343, 18 ELR 20046 (3d Cir. 1987) aff'd 491 U.S. 1, 19 ELR 20974 (1989). See also Wickland Oil Terminals v. Asarco, Inc., 654 F. Supp. 955, 17 ELR 20688 (N.D. Cal. 1987).

120. The Third Circuit decision reviewed by the Supreme Court also concluded that, whatever the case may be with § 107 liability, the citizens suit provision added by SARA does not abrogate states' Eleventh Amendment immunity. United States v. Union Gas Co., 832 F.2d 1343, 18 ELR 20046 (3d Cir. 1987). This aspect of the Third Circuit's opinion was not the subject of the Supreme Court's recent decision. See CERCLA § 310(a)(1), 42 U.S.C. § 9659(a)(1), ELR STAT. CERCLA 067 (providing for suits "to the extent permitted by the Eleventh Amendment to the Constitution").

121. 491 U.S. 1, 19 ELR 20974 (1989). An earlier district court decision, conceding that Congress intended to waive Eleventh Amendment immunity to § 107 liability, had questioned Congress' authority to do so under the Commerce Clause. United States v. Freeman, 680 F. Supp. 73, 18 ELR 20832 (W.D.N.Y. 1988).

122. 491 U.S. 1, 19 ELR 20974.

123. Id.

124. Id.

125. Id.

126. See particularly § 120(a), (e), 42 U.S.C. § 9620(a), (e), ELR STAT. CERCLA 048.

127. 42 U.S.C. § 9620(a), ELR STAT. CERCLA 048. See, e.g. United States v. Moore, 703 F. Supp. 455, 18 ELR 21274 (E.D. Va. 1988) (§ 120(a) allows contribution and indemnity claims to brought against the United States).

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

129. Id. See also United States v. Moore, 698 F. Supp. 622, 18 ELR 21272 (E.D. Va. 1988).

130. See Moore, 698 F. Supp. at 622, 18 ELR at 21272 (E.D. Va. 1988).

131. See, e.g., Colorado v. United States Department of the Army, 707 F. Supp. 1562, 19 ELR 20815 (D. Colo. 1989).

132. 736 F. Supp. 1553, 20 ELR 20663 (N.D. Cal. 1990).

133. Id.; see also 42 U.S.C. § 9613(j) (which provides that review "of issues concerning the adequacy of any response action taken or ordered by the President" shall be limited to the administrative record, and upheld unless demonstrated to be arbitrary and capricious).

134. Id.

135. Conservation Law Foundation of New England, Inc. v. Reilly, 743 F. Supp. 933, 20 ELR 21394 (D. Mass. 1990).

136. 755 F. Supp. 475, 21 ELR 20797 (D. Mass. 1991).

137. Allied-Signal, 736 F. Supp. at 1553, 20 ELR at 20663. An indication of the mistrust of polluters as regulators is reflected in United States v. Moore, 703 F. Supp. 455, 18 ELR 21274 (E.D. Va. 1988), where the court rejected an argument that an EPA-DOD administrative settlement did not prevent a subsequent contribution action. In part, this was because there had been no "impartial arbiter" to determine whether such a settlement was fair. Id.

138. Werlein v. United States, 746 F. Supp. 887, 21 ELR 20277 (D. Minn. 1990).

139. Id.

140. 20 ELR 21403 (E.D. Pa. July 18, 1990).

141. Id.

142. Id.

143. The Emergency Planning and Community Right-to-Know Act of 1986, though passed as Title III of SARA, is an entirely independent statute. A. L. Laboratories, Inc. v. Environmental Protection Agency, 826 F.2d 1123, 17 ELR 21093 (D.C. Cir. 1987).

144. See, e.g., Boarhead Corp. v. Erickson, 726 F. Supp. 607, 20 ELR 20546 (E.D. Pa. 1989), aff'd 923 F.2d 1011, 21 ELR 20517 (3d Cir. 1991). In Boarhead, the PRP attempted to inject the procedures in the National Historic Preservation Act (NHPA) into the CERCLA process, arguing that EPA could not list the site on the NPL and begin the cleanup process without complying with the NHPA. Id. The court held that § 113(h) precluded judicial review of the plaintiff's claim. Id.

145. 11 U.S.C. § 326(a)(1), (b)(4).

146. Id.

147. United States v. Mattiace Industries, Inc., 73 Bankr. 816, 17 ELR 21004 (E.D.N.Y. 1987).

148. Id. See also United States v. Nicolet, Inc., 857 F.2d 202, 18 ELR 21411 (3d Cir. 1988).

149. 923 F.2d 1011, 21 ELR 20517 (3d Cir. 1991).

150. Id.

151. 28 U.S.C. § 2680(a).

152. United States Fidelity & Guaranty Co. v. United States, 837 F.2d 116, 18 ELR 20612 (3d Cir.), cert. denied, 487 U.S. 1235 (1988) (quoting Dalehite v. United States, 346 U.S. 15 (1953)).

153. Id.

154. New York v. Shore Realty Corp., 648 F. Supp. 255, 17 ELR 20588 (E.D.N.Y. 1986).

155. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-050.

156. Colorado v. United States Department of the Army, 707 F. Supp. 1562, 19 ELR 20815 (D. Colo. 1989).

157. Id. The site at the time was proposed for listing on the NPL. Id. It has subsequently been added to the NPL, and is presently the subject of consideration by the court after hearing reargument on the issues.

158. See CERCLA § 120(e), 42 U.S.C. § 9620(e), ELR STAT. CERCLA 049.

159. See CERCLA §§ 120(f) and 121(f), 42 U.S.C. §§ 9620(f) and 9621(f), ELR STAT. CERCLA 050 and 053.

160. CERCLA § 120(a)(4), 42 U.S.C. § 9620(a)(4), ELR STAT. CERCLA 048. For another view of the interaction between RCRA and CERCLA §§ 120 and 121, see McSlarrow, The Department of Defense Environmental Cleanup Program: Application of State Standards to Federal Facilities After SARA, 17 ELR 10120 (Apr. 1987).

161. Chemical Waste Management, Inc. v. Armstrong World Industries, 669 F. Supp. 1285, 18 ELR 20191 (E.D. Pa. 1987).

162. Id.

163. Id., (quoting CERCLA § 107(a)).

164. Mardan Corp. v. C.G.C. Music, Ltd., 600 F. Supp. 1049, 15 ELR 20370 (D. Ariz. 1984), aff'd 804 F.2d 1454, 17 ELR 20209 (9th Cir. 1986). See CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B), ELR STAT. CERCLA 024.

165. Id.

166. 699 F. Supp. 827, 18 ELR 20360 (D. Idaho 1987) aff'd 882 F.2d 392, 19 ELR 21358 (9th Cir. 1989).

167. Id.

168. 42 U.S.C. § 9607(f)(1), ELR STAT. CERCLA 026.

169. Hanna Mining Co., 699 F. Supp. at 827, 18 ELR at 20360.

170. Id. See CERCLA § 107(j), 42 U.S.C. § 9607(j), ELR STAT. CERCLA 027.

171. See FWPCA § 402, 33 U.S.C. § 1342, ELR STAT. FWPCA 051.

172. The current version was promulgated on March 8, 1990. See 40 C.F.R. § 300 (1990). The revised NCP is analyzed in Freedman, Proposed Amendments to The National Contingency Plan: Explanation and Analysis, 19 ELR 10103 (Mar. 1988) and Starfield, supra note 3.

173. See infra Section VIII. E.

174. See N. L. Industries, Inc. v. Kaplan, 792 F.2d 896, 16 ELR 20749 (9th Cir. 1986); Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 16 ELR 20754 (9th Cir. 1986); Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 19 ELR 20472 (E.D. Pa. 1988); Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987), aff'd on other grounds 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988).

175. NEPACCO, 810 F.2d at 726, 17 ELR at 20603 (interpreting the "not inconsistent with the NCP" language of § 107(a)(4)(A)).

176. United States v. Northernaire Plating Co., 685 F. Supp. 1410, 18 ELR 21338 (W.D. Mich. 1988) aff'd sub. nom. United States v. R.W. Meyer, Inc, 889 F.2d 1497, 20 ELR 20319 (6th Cir. 1989), cert. denied, 110 S. Ct. 1527 (1990).

177. Id.

178. See, e.g., SCA Services of Indiana, Inc. v. Thomas, 634 F. Supp. 1355, 17 ELR 20129 (N.D. Ind. 1986).

179. Ohio v. United States Environmental Protection Agency, 838 F.2d 1325, 18 ELR 20479 (D.C. Cir. 1988).

180. Id.

181. Eagle-Picher Industries v. United States Environmental Protection Agency, 759 F.2d 922, 15 ELR 20460 (D.C. Cir. 1985).

182. Id.

183. Id.

184. Eagle-Picher Industries v. U.S. Environmental Protection Agency, 822 F.2d 132, 17 ELR 21108 (D.C. Cir. 1987).

185. City of Stoughton v. United States Environmental Protection Agency, 858 F.2d 747, 19 ELR 20054 (D.C. Cir. 1988).

186. One district court, for example, found listing by the name of one set of owners not to be "arbitrary or capricious." D'Imperio v. United States, 575 F. Supp. 248, 14 ELR 20248 (D.N.J. 1983).

187. Eagle-Picher, 822 F.2d 132, 17 ELR 21108 (D.C. Cir. 1987) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971)). See 5 U.S.C. § 706(2)(A), ELR STAT. APA 007.

188. See United States v. M. Genzale Plating, Inc., 723 F. Supp. 877, 20 ELR 20529 (E.D.N.Y. 1989); Northside Sanitary Landfill, Inc. v. Thomas, 849 F.2d 1516, 18 ELR 21032 (D.C. Cir. 1988); cert. denied, 489 U.S. 1078 (1989).

189. Eagle-Picher, 759 F.2d 905, 15 ELR 20467 (D.C. Cir. 1985). The Eagle-Picher court also held that EPA has the authority to list inactive uranium sites that are licensed by the states, though not by the Nuclear Regulatory Commission.

190. CERCLA § 310(a)(1),(2), 42 U.S.C. § 9659(a)(1),(2), ELR STAT. CERCLA 067. The court in Conservation Law Foundation of New England, Inc. v. Reilly, 743 F. Supp. 933, 20 ELR 21394 (D. Mass. 1990), addressed the meaning of "nondiscretionary." The Administrator argued that since the manner in which his duties would be carried out was discretionary, the duty was discretionary. The Conservation Law court, however, joined other courts in holding that a statutory deadline is nondiscretionary. Id. In McCormick v. Anshutz Mining Corp., the court held that plaintiffs must allege specific statutory violations. 19 ELR 20902 (E.D. Mo. Jan. 30, 1989).

191. Sections 310(d) and (e) require 60 days notice before a citizens suit may be commenced. 42 U.S.C. § 9659(d),(e),ELR STAT. CERCLA 069. This appears to be jurisdictional. See Pollution Control Industries of America, Inc. v. Reilly, 715 F. Supp. 219, 19 ELR 21344 (N.D. Ill. June 26, 1989) (dismissing suit for lack of subject matter jurisdiction); But cf. Lutz v. Chromatex, 718 F. Supp. 413, 19 ELR 21368 (M.D. Pa. 1989) (60-day requirement met where there existed "actual notice," the court not discussing the apparent absence of notice to governments).

192. See CERCLA §§ 113(h)(4), 310(a), 42 U.S.C. §§ 9613(h)(4), 9659(a), ELR STAT. CERCLA 040, 069.

193. See Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 20 ELR 20267 (5th Cir. 1989); Alabama v. United States Environmental Protection Agency, 871 F.2d 1548, 19 ELR 20956 (11th Cir.), cert. denied, 110 S. Ct. 538 (1989); Schalk v. Reilly, 900 F.2d 1091, 20 ELR 20669 (7th Cir. 1990), cert. denied sub nom. Frey v. Reilly, 111 S. Ct. 509 (1990); Neighborhood Toxic Cleanup Emergency v. Reilly, 716 F. Supp. 828, 19 ELR 21165 (D.N.J. 1989).

The court in Cabot Corp. v. United States Environmental Protection Agency, viewed the limitation in § 113(h)(4) as permitting review by citizens earlier than after a distinct stage of the cleanup — perhaps as early as the remedial plan was announced — but the court went on to hold that PRPs could not avail themselves of the citizens suit provision when their claim was in essence "monetary." 677 F. Supp. 823, 18 ELR 20835 (E.D. Pa. 1988). Thus, the Cabot court's discussion of citizens suits appears to be dicta, although it cites support in the legislative history of SARA.

See also infra notes 252-269 and accompanying text.

194. 900 F.2d 1091, 20 ELR 20669 (7th Cir. 1990), cert. denied sub nom. Frey v. Reilly, 111 S. Ct. 509 (1990).

195. Id.

196. Id.

197. Id.

198. Conservation Law Foundation of New England, Inc. v. Reilly, 743 F. Supp. 933, 20 ELR 21394 (D.Mass. 1990).

199. Id.

200. Id.

201. CERCLA § 310(a), 42 U.S.C. § 9659(a).

202. 484 U.S. 49, 18 ELR 20142 (1987).

203. Lutz v. Chromatex, 718 F. Supp. 413, 19 ELR 21368 (M.D. Pa. 1989).

204. Id. It is not entirely clear, however, why the court did not consider the failure to report to be a continuing violation.

205. CERCLA § 121, 42 U.S.C. § 9621., ELR STAT. CERCLA 051.

206. CERCLA § 121(d)(2), 42 U.S.C. § 9621(d)(2), ELR STAT. CERCLA 052.

207. For an example of the extremely detailed inquiries required when establishing cleanup standards, see United States v. Ottati & Goss, Inc., 900 F.2d 429, 20 ELR 20856 (1st Cir. 1990) (reviewing district court's application, under § 106, of various cleanup standards.)

That the actual policies framed by EPA are often hopelessly complex is shown by the fate of the "off-site" policy, which was found to be unconstitutionally vague. See Chemical Waste Management, Inc. v. United States Environmental Protection Agency, 673 F. Supp. 1043, 18 ELR 20307 (D. Kan. 1987).

208. See National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. § 300.430(e), (f).

209. 719 F. Supp. 571, 20 ELR 20144 (E.D. Mich. 1989).

210. Id.

211. Id.

212. Id.

213. Id.; see also Colorado v. Idarado Mining Co., 916 F.2d 1486, 21 ELR 20270 (10th Cir. 1990). The Akzo court noted the review of EPA's selected remedy was on the administrative record, but also stated that "if the state can establish that the EPA's fact finding procedures were inadequate, de novo review would be proper." Akzo, 719 F. Supp. at 571, 20 ELR at 20144.

Having established the proper mechanism for review, the Akzo court reviewed the state's claim that certain state requirements were not used, as they should have been. It noted that in order to constitute an ARAR, the state requirement must be "(1) properly promulgated, (2) timely identified, (3) more stringent than federal standards, and (4) legally applicable or relevant and appropriate." Id. (citing CERCLA § 121(d)). "Properly promulgated" need not always require numerical standards to be legally enforceable. Id.

214. Id.

215. CERCLA § 104, 42 U.S.C. § 9604, ELR STAT. CERCLA 012. These are alternative authorities. See United States v. Hardage, 13 ELR 20188 (W.D. Okla. Sept. 29, 1982).

216. "Affected states" are only those identifiable as of the date the government issues its Record of Decision. Alabama v. U.S. Environmental Protection Agency, 871 F.2d 1548, 19 ELR 20956 (11th Cir.) cert. denied, 119 S. Ct. 538 (1989).

217. 42 U.S.C. § 9617, ELR STAT. CERCLA 042. Nor is the failure to consult PRPs or to permit PRPs to participate a defense in an action to recover response costs. See United States v. Hardage, 733 F. Supp. 1424, 20 ELR 21307 (W.D. Okla. 1989); United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988).

218. See Dayton Independent School District v. U.S. Mineral Products Co., 906 F.2d 1059, 20 ELR 21464 (5th Cir. 1990) (asbestos removal cost recovery not allowed); First United Methodist Church of Hyattsville v. United States Gypsum Co., 882 F.2d862, 19 ELR 21451 (4th Cir. 1989), cert. denied, 110 S. Ct. 1113 (1990); Retirement Community Developers, Inc. v. Merine, 713 F. Supp. 153, 19 ELR 21336 (D. Md. May 17, 1989).

219. Dickerson v. Administrator, 834 F.2d 974, 18 ELR 20305 (11th Cir. 1987).

220. In addition, "hazardous substances," unlike "pollutants and contaminants," are the focus of the liability provisions of § 107. See infra Section VIII. A.

221. See United States v. A & F Materials, Inc., 582 F. Supp. 842, 14 ELR 20432 (S.D. Ill. 1984).

222. United States v. Nicolet, Inc., 712 F. Supp. 1205, 20 ELR 20864 (E.D. Pa. 1989). However, the existence of asbestos in building materials may not give rise to liability. See infra note 435 and accompanying text.

223. 33 U.S.C. § 1317(a), 33 U.S.C. § 1317(a), ELR STAT. FWPCA 034.

224. United States v. Wade, 577 F. Supp. 1326, 14 ELR 20096 (E.D. Pa. 1983). See also United States v. Carolawn Co., 14 ELR 20696 (D.S.C. June 15, 1984).

225. See City of New York v. Exxon Corp., 744 F. Supp. 474, 21 ELR 20248 (S.D.N.Y. 1990); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 20 ELR 20281 (5th Cir. 1989); Louisiana-Pacific Corp. v. ASARCO, Inc., 735 F. Supp. 358, 20 ELR 21452 (W.D. Wash. 1990); United States v. Carolawn Co., 14 ELR 20696 (D.S.C. June 15, 1984).

226. Leaded gasoline is included within the petroleum exclusion. Wilshire Westwood Associates v. Atlantic Richfield Corp., 881 F.2d 801, 19 ELR 21313 (9th Cir. 1989).

227. Washington v. Time Oil Co., 687 F. Supp. 529, 18 ELR 21376 (W.D. Wash. 1988). The petroleum exclusion has also been held inapplicable to sludge removed from the bottom of petroleum storage tanks where such sludge consisted not solely of petroleum residue but also contained rust and other metals that had flaked from the tank walls. United States v. Western Processing Company, Inc., 761 F. Supp. 713 (W.D. Wash. 1991).

228. United States v. Metate Asbestos Corp., 584 F. Supp. 1143, 14 ELR 20433 (D. Ariz. 1984). The court cited the general exclusion provided to petroleum products under § 101(14) as evidence that Congress intended only a specific exclusion in § 101(14)(c) that did not preclude coverage under other criteria. See also United States v. Union Gas Co., 586 F. Supp. 1522, 14 ELR 20491 (E.D. Pa. 1984).

229. Eagle-Picher Industries v. United States Environmental Protection Agency, 759 F.2d 922, 15 ELR 20460 (D.C. Cir. 1985). Accord United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985); Idaho v. Bunker Hill Co., 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986); Idaho v. Hanna Mining Co., 699 F. Supp. 827, 18 ELR 20360 (1987), aff'd 882 F.2d 392, 19 ELR 21358 (9th Cir. 1989); Atlantic States Legal Foundation, Inc. v. Tyson Foods, Inc., 682 F. Supp, 1186, 18 ELR 20924 (N.D. Ala. 1988).

230. Penalties are provided in § 104(e)(5) 42 U.S.C. § 9604(e)(5), ELR STAT. CERCLA 015.

231. United States v. Crown Roll Leaf, Inc., 19 ELR 20262 (D.N.J. Oct. 20, 1988) (liability imposed); United States v. Crown Roll Leaf, Inc, 20 ELR 20297 (D.N.J. Apr. 28, 1989) (penalties imposed). Where information requests are authorized by both CERCLA and RCRA, failure to respond can subject a defendant to RCRA's civil penalties. See United States v. Charles George Trucking Co., 642 F. Supp. 329, 17 ELR 20085 (D. Mass. 1986).

232. Id.

233. United States v. Charles George Trucking Co., 624 F. Supp. 1185, 16 ELR 20495 (D. Mass. 1986), aff'd 823 F.2d 685, 17 ELR 21152 (1st Cir. 1987).

234. CERCLA § 104(e)(2)(c), 42 U.S.C. § 9604(e)(2)(c), ELR STAT. CERCLA 015.

235. Outboard Marine Corp. v. Thomas, 773 F.2d 883, 15 ELR 21094 (7th Cir. 1985) vacated 479 U.S. 1002 (1986) (vacated in light of the enactment of SARA).

236. 42 U.S.C § 9604(e)(3)(D), ELR STAT. CERCLA 015.

237. United States v. M. Genzale Plating, Inc., 723 F. Supp. 877, 20 ELR 20529 (E.D.N.Y. Oct. 13, 1989); B. F. Goodrich v. Murtha, 697 F. Supp. 89, 19 ELR 20357 (D. Conn. 1988); United States v. Charles George Trucking Co., 682 F. Supp. 1260, 18 ELR 20886 (D. Mass. 1988).

238. New Jersey Department of Environmental Protection v. Briar Lake Development Corp., 736 F. Supp. 62, 20 ELR 21296 (D.N.J. 1990).

239. Id. See also United States v. Charles George Trucking Co., 682 F. Supp. 1260, 18 ELR 20886 (D. Mass. 1988).

240. United States v. Charles George Trucking Co., 682 F. Supp. 1260, 18 ELR 20886 (D. Mass. 1988); see CERCLA § 104(e)(5)(B), 42 U.S.C. § 9604(e)(5)(B), ELR STAT. CERCLA 015. The court in Charles George Trucking noted that Dickerson v. Administrator, 834 F.2d 974, 18 ELR 20305 (11th Cir. 1987) apparently assumed jurisdiction to issue an original court order without expressly addressing the question.

241. United States v. Charles George Trucking Co., 682 F. Supp. 1260, 18 ELR 20886 (D. Mass. 1988). The standard is the same for source and adjacent property. Id.

242. Dickerson v. Administrator, 834 F.2d 974, 18 ELR 20305 (11th Cir. 1987).

243. United States v. Northside Sanitary Landfill, Inc., 18 ELR 20850 (S.D. Ind. Apr. 12, 1988). The court held that its jurisdiction to compel compliance with an entry request did not run afoul of § 113(h), which precludes early review of the technical merits of a response decision.

244. Id. The court focused on whether continued operation of the landfill would delay the cleanup, and concluded that it would not.

245. B. F. Goodrich Co. v. Murtha, 697 F. Supp. 89, 19 ELR 20357 (D. Conn. 1988). The court rejected arguments that only § 104(e) authorizes access, which would limit access to government representatives, interpreting § 106(a) broadly also to authorize access by private parties.

246. 28 U.S.C. § 1491.

247. United States v. Charles George Trucking Co., 682 F. Supp. 1260, 18 ELR 20886 (D. Mass. 1988).

248. United States v. Fisher, 864 F.2d 434, 19 ELR 20233 (7th Cir. 1988).

249. See United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988); United States v. Miami Drum Services, Inc., 17 ELR 20539 (S.D. Fla. Dec. 12, 1986); United States v. Medley, 17 ELR 20299 (D.S.C. July 1, 1986); United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985).

250. United States v. Vineland Chemical Co., 692 F. Supp. 415, 19 ELR 20160 (D.N.J. 1988).

251. Id. However, the context of the judicial review provision suggests that it was intended to address only the initial decision to enter into a settlement under § 122. Section 122(c)(1), for example, contemplates judicial review on covenants not to sue in consent decrees entered into under § 122.

252. 42 U.S.C. § 9613(h), ELR STAT. CERCLA 040. In Thompson v. Thomas, 680 F. Supp. 1, 18 ELR 20802 (D.D.C. 1987), the court dismissed a citizen suit, noting that § 310(e) requires 60 days notice before commencement of the action, and that under § 310(a)(2) the suit can only apply to mandatory duties imposed by CERCLA on the EPA Administrator or any other officer of the United States government.

253. Barmet Aluminum Corp. v. Thomas, 730 F. Supp. 771, 20 ELR 20753 (W.D. Ky. 1990), aff'd 927 F.2d 289, 21 ELR 20850 (6th Cir. 1991).

254. 5 U.S.C. § 704, ELR STAT. APA 007.

255. J. V. Peters & Co. v. Administrator, 767 F.2d 263, 15 ELR 20646 (6th Cir. 1985) (citing Lone Pine Steering Committee v. Environmental Protection Agency, 600 F. Supp. 1487, 15 ELR 20109 (D.N.J. 1985) and Aminoil, Inc. v. Environmental Protection Agency, 599 F. Supp. 69, 14 ELR 20801 (C.D. Cal. 1984)). See also Wheaton Industries v. United States Environmental Protection Agency, 781 F.2d 354, 16 ELR 20260 (3d Cir. 1986) (EPA's refusal to allow PRP to perform and control the RI/FS not subject to review); and United States v. United Nuclear Corp., 610 F. Supp. 527, 15 ELR 20442 (D.N.M. 1985) (response actions prior to a ROD not final agency action, and thus not reviewable).

256. Lone Pine Steering Committee v. United States Environmental Protection Agency, 777 F.2d 882, 16 ELR 20009 (3d Cir. 1985) (where EPA rejects PRP's work plans and substitutes its own, that decision not reviewable until § 107 action), cert. denied 476 U.S. 1115 (1986).

257. B. R. MacKay & Sons, Inc. v. United States, 633 F. Supp. 1290, 16 ELR 20842 (D. Utah 1986); APA § 701(a)(2), ELR STAT. APA 007. The MacKay court rejected judicial review where a party sought a declaratory judgment on liability after the government had completed cleanup but had not yet instituted a cost recovery action. See also Jefferson County, Missouri v. United States, 644 F. Supp. 178, 17 ELR 20122 (E.D. Mo. 1986) (holding that the court did not have subject matter jurisdiction to review an on-site removal action).

258. Dickerson v. Administrator, 834 F.2d 974, 18 ELR 20305 (11th Cir. 1987); Schalk v. Thomas, 19 ELR 20381 (S.D. Ind. 1988), consolidated with Frey v. Thomas and aff'd sub nom. Schalk v. Reilly, 900 F.2d 1091, 20 ELR 20669 (7th Cir. 1990); Frey v. Thomas, 19 ELR 20383 (S.D. Ind. Dec. 6, 1988), consolidated with Schalk v. Thomas and aff'd sub nom. Schalk v. Reilly, 900 F.2d 1091, 20 ELR 20669 (7th Cir. 1990).

259. United States v. Charles George Trucking Co., 682 F. Supp. 1260, 18 ELR 20886 (D. Mass. 1988).

260. Id.

261. O'Leary v. Moyer's Landfill, Inc., 677 F. Supp. 807, 18 ELR 21257 (E.D. Pa. 1988).

262. 922 F.2d 28, 21 ELR 20639 (1st Cir. 1990).

263. Id.

264. Id.

265. Id.

266. Id.

267. CERCLA § 310, 42 U.S.C. § 9659, ELR STAT. CERCLA 067.

268. Neighborhood Toxic Cleanup Emergency v. Reilly, 716 F. Supp. 828, 19 ELR 21165 (D.N.J. 1989) (rejecting suit alleging that planned cleanup would be unsafe to public health); Mraz v. Occupants of Providence Site, 20 ELR 20659 (D. Md. Jan. 3, 1990) (rejecting suit to compel EPA to use competitive bidding for selection of removal contractor).

269. Schalk v. Thomas, 19 ELR 20381 (S.D. nd. Dec. 6, 1988), consolidated with Frey v. Thomas and aff'd sub nom. Schalk v. Reilly, 900 F.2d 1091, 20 ELR 20669 (7th Cir. 1990). See also Alabama v. United States Environmental Protection Agency, 871 F.2d 1548, 19 ELR 20956 (11th Cir. 1989), cert. denied 110 S. Ct. 538 (1989); Frey v. Thomas, 19 ELR 20383 (S.D. Ind. Dec. 6, 1988), consolidated with Schalk v. Thomas and aff'd sub nom. Schalk v. Reilly, 900 F.2d 1091, 20 ELR 20669 (7th Cir. 1990).

270. Cabot Corp. v. United States Environmental Protection Agency, 677 F. Supp. 823, 18 ELR 20835 (E.D. Pa. 1988). For example, according to the Cabot court, a citizens suit cannot challenge the cost effectiveness of the government's remedial action even if it satisfies the timing requirements of § 113(h)(4). The effect of § 113(h)(1) is to permit such claims only after the government has initiated a cost recovery action under § 107. Accord Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 20 ELR 20267 (5th Cir. 1989); United States v. M. Genzale Plating, Inc., 723 F. Supp. 877, 20 ELR 20529 (E.D.N.Y. 1989).

271. 746 F. Supp. 887, 21 ELR 20277 (D. Minn. 1990). See also NEPA § 102(c), 42 U.S.C. § 4332(c), ELR STAT. NEPA 003.

272. Schalk v. Reilly, 900 F.2d 1091, 20 ELR 20669 (7th Cir. 1990).

273. Boarhead Corp. v. Erickson, 923 F.2d 1011, 21 ELR 20517 (3d Cir. 1991); 16 U.S.C. §§ 470-470w-6.

274. CERCLA § 106(a), 42 U.S.C § 9606(a), ELR STAT. CERCLA 024.

275. See id., which grants district courts jurisdiction "to grant such relief as the public interest and the equities of the case may require."

276. B. F. Goodrich v. Murtha, 697 F. Supp. 89, 19 ELR 20357 (D. Conn. 1988).

277. United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. 1985) (emphasis in original).

278. B. F. Goodrich v. Murtha, 697 F. Supp. 89, 19 ELR 20357 (D. Conn. 1988).

279. United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985); see CERCLA § 106(a), 42 U.S.C. § 9606(a), ELR STAT. CERCLA 024.

280. Id. (quoting City of El Paso v. Reynolds, 597 F. Supp. 694 (D.N.M. 1984), aff'd in part 887 F.2d 1103 (D.C. Cir. 1989)).

281. For example, it has been held that EPA has the authority under § 106 to order that groundwater monitoring wells required as part of a prior RCRA consent agreement be constructed of stainless steel rather than polyvinyl chloride. Browning-Ferris Industries of South Jersey, Inc. v. Muszynski, 899 F.2d 151, 20 ELR 20587 (2d Cir. 1990).

282. Id.; see also Pollution Control Industries of America, Inc. v. Reilly, 715 F. Supp. 219, 19 ELR 21344 (N.D. Ill. 1989) (§ 106 is broad enough to authorize EPA to issue an order disapproving a contractor for removal activities).

283. See T&E Industries v. Safety Light Corp. 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988); Cadillac Fairview/California, Inc. v. Dow Chemical Co., 14 ELR 20376 (C.D. Cal. Mar. 5, 1984), aff'd 840 F.2d 691, 18 ELR 20470 (9th Cir. 1988); Velsicol Chemical Corp. v. Reilly Tar & Chemical Corp., 15 ELR 20103 (E.D. Tenn. Aug. 16, 1984); United States v. Westinghouse Electric Corp., 14 ELR 20483 (S.D. Ind. June 29, 1983).

284. CERCLA § 106, 42 U.S.C. § 9606, ELR STAT. CERCLA 024.

285. NEPACCO, 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984) aff'd on other grounds 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986) cert. denied 484 U.S. 848 (1987); United States v. A&F Materials Co., 582 F. Supp. 842, 14 ELR 20432 (S.D. Ill. 1984); but see United States v. Wade, 546 F. Supp. 785, 12 ELR 21051 (E.D. Pa. 1982) (finding that § 106(a) does not apply to inactive sites).

286. Wagner Electric Corp. v. Thomas, 612 F. Supp. 736, 15 ELR 20977 (D. Kan. 1985).

287. United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

288. 42 U.S.C. § 9606(b)(2), ELR STAT. CERCLA 024. This right is not available, however, to a party whose cleanup effort was already underway when SARA was enacted. See Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 21 ELR 20503 (7th Cir. 1990); Wagner Seed Co. v. Bush, 709 F. Supp. 249, 19 ELR 20950 (D.D.C. 1989).

289. United States v. Stringfellow, 14 ELR 20385 (C.D. Cal. Apr. 5, 1984).

290. United States v. Hardage, 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987); United States v. Conservation Chemical Co., 619 F. Supp 162, 16 ELR 20193 (W.D.Mo. 1985); NEPACCO, 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984), aff'd on other grounds 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied 484 U.S. 848 (1987); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985); Cadillac Fairview/California, Inc. v. Dow Chemical Co., 14 ELR 20376 (C.D. Cal. Mar. 5, 1984); United States v. A&F Materials Co., 582 F. Supp. 842, 14 ELR 20432 (S.D. Ill. 1984); United States v. Price, 577 F. Supp. 1103, 13 ELR 20843 (D.N.J. 1983); United States v. Outboard Marine Corp., 556 F. Supp. 54, 12 ELR 21153 (N.D. Ill. 1982); United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 12 ELR 20954 (D. Minn. 1982).

291. See United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mos. 1985); NEPACCO, 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984) aff'd on other grounds 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied 484 U.S. 848 (1987); United States v. Price, 577 F. Supp. 1103, 13 ELR 20843 (D.N.J. 1983); United States v. Outboard Marine Corp., 556 F. Supp. 54, 12 ELR 21153 (N.D. Ill. 1982); United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 12 ELR 20954 (D. Minn. 1982). But see United States v. Wade, 546 F. Supp. 785, 12 ELR 21051 (E.D. Pa. 1982) (concluding that § 106 focuses on current situations, and thus does not confer liability on past generators).

292. See United States v. Hardage, 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985); NEPACCO, 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984), aff'd on other grounds, 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert denied 484 U.S. 848 (1987); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985). But see United States v. Stringfellow, 14 ELR 20385 (C.D. Cal. Apr. 5, 1984).

293. See United States v. Hardage, 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987); United States v. Conservation Chemical Co., 619 F. Supp 162, 16 ELR 20193 (W.D. Mo. 1985).

294. United States v. Westinghouse Electric Corp., 14 ELR 20483 (S.D. Ind. June 29, 1983).

295. See Wagner Seed Co. v. Daggett, 800 F.2d 310, 16 ELR 21001 (2d Cir. 1986); Barnes v. United States District Court for the Western District of Washington, 800 F.2d 822, 16 ELR 21004 (9th Cir. 1986); Wagner Electric Corp. v. Thomas, 612 F. Supp. 736, 15 ELR 20977 (D. Kan. 1985); Earthline Co. v. Kin-Buc, Inc., 15 ELR 20315 (D.N.J. Apr. 13, 1984); Aminoil, Inc. v. United States Environmental Protection Agency, 599 F. Supp. 69, 14 ELR 20801 (C.D. Cal. 1984). In Wagner Seed, the court refused jurisdiction, despite plaintiff's claim that the release was caused by a lightning bolt, and that it thus had an absolute defense to liability under § 107(b)(1). See Comment, supra note 72.

296. Lone Pine Steering Committee v. United States Environmental Protection Agency, 600 F. Supp. 1487, 15 ELR 20109 (D.N.J. 1985), aff'd 777 F.2d 882, 16 ELR 20009 (3d Cir. 1985), cert. denied 476 U.S. 1115 (1986).

297. Fishel v. Westinghouse Electric Corp., 617 F. Supp. 1531, 16 ELR 20001 (M.D. Pa. 1985).

298. See Solid State Circuits, Inc. v. United States Environmental Protection Agency, 812 F.2d 383, 17 ELR 20453 (8th Cir. 1987). See also Pollution Control Industries of America v. Reilly, 715 F. Supp. 219, 19 ELR 21344 (N.D. Ill. 1989) (§ 113(h) precludes review of EPA decision to disqualify particular abatement contractor); United States v. Hardage, 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987) (rejecting review under the APA).

299. 42 U.S.C. § 113(h)(2), ELR STAT. CERCLA 040.

300. 42 U.S.C. § 113(h)(3), ELR STAT. CERCLA 040.

301. 42 U.S.C. § 113(h)(5), ELR STAT. CERCLA 040.

302. 42 U.S.C. § 113(h)(4), ELR STAT. CERCLA 040.

303. For a discussion of the scope, as opposed to the timing, of review, see infra Section VII. D.

304. 900 F.2d 429, 20 ELR 20856 (1st Cir. 1990).

305. Id. In so holding, the Ottati court explicitly followed the lead of two earlier district court cases: United States v. Hardage, 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987) and United States v. Conservation Chemical Co., 661 F. Supp. 1416, (W.D. Mo. 1987).

306. 42 U.S.C. § 113(a), ELR STAT. CERCLA 038. Thus, in United States v. Ottati & Goss, Inc., 18 ELR 20773 (D.N.H. 1988), aff'd on other grounds 900 F.2d 429, 20 ELR 20856 (1st Cir. 1990), the court refused, based on § 113(a), to review an EPA decision to list two sites as a single NPL listing. The court's decision may also have been based on the fact that review was not sought within 90 days of the promulgation of the regulation in question, another requirement of § 113(a).

307. See Boarhead Corp. v. Erickson, 726 F. Supp. 607, 20 ELR 20546 (E.D. Pa. 1989), aff'd 923 F.2d 1011, 21 ELR 20517; SCA Services of Indiana, Inc. v. Thomas, 634 F. Supp. 1355, 17 ELR 20129 (N.D. Ind. 1986); D'Imperio v. United States, 575 F. Supp. 248, 14 ELR 20248 (D.N.J. 1983); Tinkham v. Reagan, 13 ELR 20553 (D.N.H. Apr. 14, 1983).

308. See United States v. M. Genzale Plating, Inc., 723 F. Supp. 877, 20 ELR 20529 (E.D.N.Y. 1989); SCA Services of Indiana, Inc. v. Thomas, 634 F. Supp. 1355, 17 ELR 20129 (N.D. Ind. 1986).

309. SCA Services, 634 F. Supp. at 1355, 17 ELR at 20129.

310. CERCLA § 113(b), 42 U.S.C. § 9613(b), ELR STAT. CERCLA 038. See T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988).

311. The exercise of personal jurisdiction before SARA was far from uniform. Courts had generally concluded that § 107 did not explicitly provide for service of process on a nationwide basis. See United States v. Consolidated Rail Corp., 674 F. Supp. 138, 18 ELR 20405 (D. Del. 1987) (citing Violet v. Picillo, 613 F. Supp. 1563, 16 ELR 20331 (D.R.I. 1985) and Wehner v. Syntex Agribusiness, 616 F. Supp. 27, 15 ELR 20346 (E.D. Mo. 1985)); Missouri v. Bliss, 16 ELR 20361 (E.D. Mo. 1985). The cases were split, however, over whether § 106 impliedly did so. Compare In Re Acushnet River, 675 F. Supp. 22, 18 ELR 20543 (§ 106 does not impliedly authorize nationwide service of process) with United States v. Bliss, 108 F.R.D. 127, 16 ELR 20368 (E.D. Mo. 1985).

In the absence of nationwide service of process, courts looked to the jurisdictional statute in the state in which they sat, see United States v. Conrail., 674 F. Supp. 138, 18 ELR 20405 (D. Del. 1987); Missouri v. Bliss, 16 ELR 20361 (E.D. Mo. 1985), though one decision held the determination was a matter of federal common law. In Re Acushnet River, 675 F. Supp. 22, 18 ELR 20543 (listing seven factors to be considered as federal common law).

312. See, e.g. United States v. Consolidated Rail Corp., 674 F. Supp. 138, 18 ELR 20405 (D. Del. 1987); In Re Acushnet River and New Bedford Harbor: Proceedings re Alleged PCB Pollution, 675 F. Supp. 22, 18 ELR 20543 (D. Mass. 1987).

313. See United States v. Ivey, 747 F. Supp. 1235, 20 ELR 20918 (E.D. Mich. 1990).

314. See, e.g., id.

315. U.S. Const. amend. XIV.

316. United States v. Consolidated Rail Corp., 674 F. Supp. 138, 18 ELR 20405 (D. Del. 1987) (citing Helicopters Nacionales de Columbia v. Hall, 466 U.S. 408 (1984)).

317. See United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985), which attaches jurisdictional "significance" to the exercise of general jurisdiction. For an example of an exercise of specific jurisdiction, see Violet v. Picillo, 613 F. Supp. 1563, 16 ELR 20331 (D.R.I. 1985).

318. Id. Accord O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988), aff'd 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989), cert. denied 110 S. Ct. 1115 (1990). These cases follow the "foreseeability" requirement of World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980).

319. NEPACCO, 810 F.2d at 726, 17 ELR at 20603.

320. Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448, 17 ELR 20737 (9th Cir. 1987) (citing NEPACCO as supporting the use of Fed. R. Civ. P. 17(b) and state law to determine a corporation's capacity to be sued in a CERCLA action).

321. 681 F. Supp. 1492, 18 ELR 20242 (D. Utah 1987).

322. Id. See also U-Haul Co. of Inland Northwest v. Yakima Rex Spray Co., No. 90-2-00155-4, 20 Chem. Waste Lit. Rep. 1113 (Sup. Ct. Wash. Aug. 24, 1990). The Sharon Steel court began its analysis by observing that Congress has "plenary power to supersede any of the Federal Rules of Civil Procedure by statute," citing United States v. Gustin-Bacon Div., Certain-Teed Prods. Corp., 426 F.2d 539 (10th Cir.), cert. denied 400 U.S. 832 (1970). The court then found that CERCLA liability will attach notwithstanding any other provision of law, and joined the courts that have given CERCLA the broadest reach to effect the goals of the Congress. The court therefore held that a state law that limits CERCLA liability will be preempted.

323. 42 U.S.C. § 9613(g), ELR STAT. CERCLA 039. Prior to SARA, there was no statute of limitations with regard to § 107 cost recovery actions. See, e.g., United States v. Mottolo, 605 F. Supp. 898, 15 ELR 20444 (D.N.H. 1985).

324. United States v. Moore, 698 F. Supp. 622, 18 ELR 21272 (E.D. Va. 1988). See also Merry v. Westinghouse Electronic Corp., 684 F. Supp. 852, 18 ELR 21220 (M.D. Pa. 1988).

325. 42 U.S.C. § 9613(g)(2)(A), ELR STAT. CERCLA 039.

326. T&E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988).

327. Missouri v. Syntex (U.S.A.), Inc., 17 ELR 21013 (E.D. Mo. Mar. 20, 1987).

328. United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (citing New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984)). Accord In Re Acushnet River and New Bedford Harbor: Proceedings re Alleged PCB Pollution, 675 F. Supp. 22, 18 ELR 20543; United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986); Idaho v. Bunker Hill Co., 634 F. Supp. 800, 16 ELR 20715 (D. Idaho 1986).

329. Idaho v. Howmet Turbine Component Co., 814 F.2d 1376, 17 ELR 20659 (9th Cir. 1987); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074 (1st Cir. 1986).

330. 42 U.S.C. § 9613(j)(1), ELR STAT. CERCLA 040.

331. 42 U.S.C. § 9613(j)(2), ELR STAT. CERCLA 040. Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 19 ELR 21254 (N.D. Ill. 1988), presents an interesting twist to these issues. In Allied, a private party response action, the plaintiffs had ignored the remedy selected by EPA and implemented their own — though with subsequent EPA approval in the form of a consent decree. Id. Defendants argued that the burden was on the plaintiffs to prove first that their independent remedy was justified because the EPA remedy was "arbitrary and capricious." Id. The court ruled that the plaintiff's cost recovery action could in no way be termed a challenge to EPA's selection of its remedy, and therefore § 113(j) did not apply. Id.

332. 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987). This ruling denied a motion to reconsider an earlier ruling that held that "claims for injunctive relief pursuant to § 106 are not based on the administrative record," and therefore a de novo review of the remedy decision was appropriate. United States v. Hardage, 17 ELR 20242 (W.D. Okla. Dec. 11, 1986). The earlier ruling also found the APA inapplicable because the court found the administrative process to be "informal adjudication." Id. The second ruling was reaffirmed at 19 ELR 20254 (W.D. Okla. 1988).

333. United States v. Hardage, 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987).

334. See United States v. Allied-Signal Corp., 736 F. Supp. 1553, 20 ELR 20663 (N.D. Cal. 1990); United States v. Wastecontrol of Florida, Inc., 730 F. Supp. 401, 20 ELR 20743 (M.D. Fla. 1989); In re Acushnet River & New Bedford Harbor, 722 F. Supp. 888, 20 ELR 20202 (D. Mass. 1989); United States v. Nicolet, Inc., 17 ELR 21091 (E.D. Pa. May 12, 1987) (citing Bradley v. Richmond School Board, 416 U.S. 696 (1974)); United States v. Rohm and Haas Co., 669 F. Supp. 672, 18 ELR 20221 (D.N.J. 1987) (specifically rejecting the reasoning of United States v. Hardage, 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987)); United States v. Seymour Recycling Corp., 679 F. Supp. 859, 18 ELR 20245 (S.D. Ind. 1987). In Seymour, the remedy decision was made after SARA's enactment. But see United States v. Ottati & Goss, Inc., 694 F. Supp. 977, 18 ELR 20773 (D.N.H. 1988), which, though in general agreement with the decisions above, decided to apply the same standard of review it had applied in the liability phase of the trial before SARA to the remaining damages phase. It therefore did not limit its findings to the administrative record. Id.

335. 42 U.S.C. § 9613(k)(2)(c), ELR STAT. CERCLA 040.

336. United States v. Rohm and Haas Co., 669 F. Supp. 672, 18 ELR 20221 (D.N.J. 1987).

337. Id. See CERCLA § 113(k)(2)(c), 42 U.S.C. § 9613(k)(2)(c), ELR STAT. CERCLA 040.

338. See, e.g. CERCLA § 113(k)(2)(B)(i), 42 U.S.C. § 9613(k)(2)(B)(i), ELR STAT. CERCLA 040 (requiring a proposed remedy to be accompanied by a "brief analysis of the plan") and CERCLA §§ 117(a)(2) and 113(k)(2)(B)(ii), 42 U.S.C. §§ 9617(a)(2) and 9613(k)(2)(B)(ii), ELR STAT. CERCLA 042 and 040 (providing for on a "reasonable opportunity to comment").

339. United States v. Rohm and Haas Co., 669 F. Supp. 672, 18 ELR 20221 (D.N.J. 1987).

340. Hardage, 663 F. Supp. 1280, 17 ELR 20741 (W.D. Okla. 1987). See also United States v. Conservation Chemical Co., 661 F. Supp. 1416 (W.D. Mo. 1987).

341. Id. The court stated that pre-SARA case law established that § 106 claims should be resolved after full discovery and trial on the remedy issue. But, in this case, the court noted, EPA had not yet certified the administrative record to the court. Id.

342. See United States v. Hardage, 19 ELR 20254 (W.D. Okla. Sept. 9, 1988) ("This court finds as a matter of law that § 106 claims must be resolved in traditional trials by federal district courts after full discovery, and that retroactive application of § 113(j) of SARA is improper.") (emphasis added).

343. See, e.g., In re Acushnet River and New Bedford Harbor: Proceeding re Alleged PCB Pollution, 722 F. Supp. 888, 20 ELR 20202 (D. Mass. 1989); United States v. Bell Petroleum Services, Inc., 718 F. Supp. 588, 20 ELR 20533 (W.D. Tex. 1989); United States v. Seymour Recycling Corp., 679 F. Supp. 859, 18 ELR 20245 (S.D. Ind. 1987). The Seymour court distinguished Hardage, stating that in Hardage the defendants were not given an opportunity to comment on the government's RI/FS data.

344. 900 F.2d 429, 20 ELR 20856 (1st Cir. 1990).

345. Id.

346. Id.

347. 736 F. Supp. 1553, 20 ELR 20663 (N.D. Cal. 1990).

348. Id.

349. United States v. Nicolet, Inc., 17 ELR 21091 (E.D. Pa. May 12, 1987) (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971)).

350. Id. (citing Camp v. Pitts, 411 U.S. 138 (1973)). Accord United States v. Seymour Recycling Corp., 679 F. Supp. 859, 18 ELR 20245 (S.D. Ind. 1987).

351. United States v. Seymour Recycling Corp., 679 F. Supp. 859, 18 ELR 20245 (S.D. Ind. 1987). See also United States v. Bell Petroleum Services, Inc., 718 F. Supp. 588, 20 ELR 20533 (W.D. Tex. 1989) ("In order for the Defendants to determine whether the administrative record is complete, some evidence as to the documents, etc. considered by the EPA is relevant"); United States v. Wastecontrol of Florida, Inc., 730 F. Supp. 401, 20 ELR 20743 (M.D. Fla. 1989).

352. United States v. Nicolet, Inc., 17 ELR 21091 (E.D. Pa. May 12, 1987).

353. See United States v. Charles George Trucking Co., Inc., 1990 U.S. Dist. LEXIS 10627 (D. Mass. 1990); United States v. Rohm & Haas Co., Inc., 669 F. Supp. 672, 18 ELR 20221 (D.N.J. 1987).

354. See United States v. Cordova Chemical Co. of Michigan, 750 F. Supp. 832, 21 ELR 20802 (W.D. Mich. 1990) (rejecting argument that remand was proper because it was merely a "procedural" compliance measure, not a "substantive challenge" to the remedy as proscribed by § 113(h)(4)).

355. See Missouri v. Independent Petrochemical Corp., 17 ELR 20241 (E.D. Mo. Oct. 16, 1986) ("[T]he forced joinder of the United States to litigate issues arising from its actions under CERCLA is in essence a preenforcement review of agency action precluded by CERCLA and therefore not within the Administrative Procedure Act's waiver of sovereign immunity. Since no waiver exists, the Court is without jurisdiction to force the joinder of the United States.") cited with approval in New Jersey Department of Environmental Protection v. Gloucester Environmental Management Services, Inc., 668 F. Supp. 404, 18 ELR 20112 (D.N.J. 1987). The Gloucester court found no distinction between the involuntary joinder of EPA as a plaintiff as opposed to a defendant, and held that sovereign immunity prevented the joinder of EPA to this action. See also In re Hemingway Transport, Inc., 70 Bankr. 549, 17 ELR 20709 (Bankr. D. Mass. 1987) (holding that sovereign immunity prevented the involuntary joinder of EPA).

356. United States v. Bliss, 17 ELR 21217 (E.D. Mo. June 15, 1987). The Bliss court found that the standard established under FED. R. CIV. P. 19(a)(2)(ii) for determining whether a party was indispensable required the court to decide if failure to join the state would subject the defendant to "a substantial risk of incurring double, multiple, or otherwise inconsistent obligations." Id. (quoting Fed. R. Civ. P. 19(a)(2)(ii)). The Bliss court determined that the United States had not attempted to recover response costs that had been incurred by the state and therefore held that the trial could proceed without the state since the defendant did not face a risk of incurring multiple obligations.

357. 677 F. Supp. 807, 18 ELR 21257 (E.D. Pa. 1988).

358. Id.

359. See New York v. Johnstown, 701 F. Supp. 33, 19 ELR 20578 (N.D.N.Y. 1988) (allowing a defensive compulsory counterclaim under Fed. R. Civ. P. 13(a) against a state arising from the same transaction as the state's suit); United States v. Moore, 703 F. Supp. 455, 18 ELR 21274 (E.D. Va. 1988) (allowing counterclaims for recoupment and denying counterclaims for tortious injury); United States v. Nicolet, Inc., 17 ELR 21088 (E.D. Pa. Mar. 19, 1987) (allowing counterclaims for recoupment and denying counterclaims for tortious injury as barred by the discretionary function exception to the Federal Tort Claims Act); United States v. Mottolo, 605 F. Supp. 898, 15 ELR 20444 (D.N.H. 1985) (allowing a defensive counterclaim against a state to offset extra costs incurred because of the state's inadequate supervision of cleanup operations).

360. 703 F. Supp. 445, 18 ELR 21274 (E.D. Va. 1988).

361. 712 F. Supp. 1019, 19 ELR 21210 (E. Mass. 1989).

362. Id. The court also found that intervention would promote a just and equitable adjudication by providing an important perspective to the proceedings and that, in a complex case that had dragged on for years, intervention constituted insufficient risk to the other parties of "undue" delay. See also United States v. Akzo Coatings of America, Inc., 719 F. Supp. 571, 20 ELR 20144 (E.D. Mich. 1989) (allowing permissive intervention of a state to contest a remedial action plan embodied in a consent decree because the plan allegedly did not attain applicable or relevant and appropriate state cleanup requirements).

363. Missouri v. Independent Petrochemical Corp., 610 F. Supp. 4, 16 ELR 20161 (E.D. Mo. 1985).

364. 481 U.S. 412, 17 ELR 20667 (1987). See also Slavitt, Jury Trial Rights Under CERCLA: The Effects of Tull v. United States, 18 ELR 10127 (Apr. 1988).

365. NEPACCO, 810 F.2d at 726, 17 ELR at 20603, cited with approval in United States v. Mexico Feed and Seed Co., 729 F. Supp. 1250, 20 ELR 20775 (E.D. Mo. 1990); United States v. Northernaire Plating Co., 685 F. Supp. 1410, 18 ELR 21338 (W.D. Mich. 1988); Wehner v. Syntex Corp., 682 F. Supp. 39, 17 ELR 21218 (N.D. Cal. 1987). Even before the Supreme Court's Tull decision, courts had held that jury trials were not required by the Seventh Amendment in response cost recovery actions because they were equitable in nature. United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986).

366. See In re Acushnet River & New Bedford Harbor, 712 F. Supp. 994, 19 ELR 21198 (D. Mass. 1989), in which the court held that some measures of natural resource damages "are precisely the type a common law court could award." Id. The court specified that "claims for the value of the natural resources that are forever lost, the value of the lost use of such resources over time, and the costs of assessing how much is lost forever or how much lost use there has been over time ('natural resource damages') present legal issues that must be tried to jury." Id. Accordingly, the court ordered a trial before an advisory jury.

Natural resource damages may also be measured in terms of restoration costs. See infra notes 524-534 and accompanying text. One may expect that courts will find restoration costs closer to response costs and therefore restitutional, resulting in no Seventh Amendment guarantee to a jury trial.

367. 770 F.2d 103, 15 ELR 20774 (8th Cir. 1985) (per curiam).

368. 352 U.S. 249 (1957).

369. 816 F.2d 1083, 17 ELR 20663 (6th Cir. 1987).

370. Id. The district court had cited five exceptional conditions that, in combination, warranted reference to the special master: (1) calendar congestion; (2) complexity of the issues; (3) likelihood of a lengthy trial; (4) difficulty in managing a case with 250 parties; and (5) public interest in reaching a speedy resolution of CERCLA cases. The Sixth Circuit found that the first three conditions had been rejected by the Supreme Court in La Buy, the last condition was a restatement of calendar congestion, and the number of parties alone would not justify a reference.

371. Id. (citing 9 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2605 (1971) (observing that the "use of a special master to supervise discovery may still be appropriate and useful in unusual cases."). But see United States v. J. B. Stringfellow, No. 83-2501 JMI (C. D. Cal. Oct. 6, 1989), in which a special master, with the consent of the parties, heard evidence and made findings on the parties' liability. The special master's report was later adopted by the federal district court in United States v. Stringfellow, 20 ELR 20656 (C.D. Cal. Jan. 9, 1990)

372. See, e.g., Chemical Waste Management, Inc. v. Armstrong World Industries, Inc., 669 F. Supp. 1285, 18 ELR 20191 (E.D. Pa. 1987) (divining goals of CERCLA by reviewing the statute and legislative history).

373. See infra Section VIII.C.

374. See infra notes 492-496 and accompanying text.

375. See, e.g., United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 12 ELR 20954 (D. Minn. 1982) (reasoning that CERCLA should not be read in a manner that frustrates the recovery of cleanup costs), cited in Pinole Point Properties v. Bethlehem Steel Corp., 596 F. Supp. 283, 15 ELR 20173 (N.D. Cal. 1984).

376. If the "release or threatened release" has the sanction of a federal permit, such as a National Pollution Discharge Elimination System point source permit under the FWPCA, then CERCLA § 107(j) bars the use of CERCLA to seek recovery for costs or damages. However, plaintiffs may seek recovery for their response costs or damages under any other applicable federal or state law. 42 U.S.C. § 9607(j), ELR STAT. CERCLA 027 ("Recovery by any person (including the United States or any State or Indian tribe) for response costs or damages resulting from a federally permitted release shall be pursuant to existing law in lieu of [yCERCLA § 107]."), construed in Idaho v. Hanna Mining Co., 699 F. Supp. 827, 18 ELR 20360 (D. Idaho 1987), aff'd 882 F.2d 392 (9th Cir. 1989).

377. See generally United States v. Moore, 703 F. Supp. 455, 18 ELR 21274 (E.D. Va. 1988) (federal cost recovery action); United States v. Serafini, 706 F. Supp. 346, 19 ELR 20828 (M.D. Pa. 1988) (federal cost recovery action); New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20714 (N.D.N.Y. 1984) (state cost recovery action); T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988) (private cost recovery action); and Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987) (private cost recovery action), aff'd and remanded 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988).

378. Compare CERCLA § 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A), ELR STAT. CERCLA 024, which states that liable defendants must pay "all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the [NCP]" (emphasis added), with CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B), ELR STAT. CERCLA 024, which states that liable defendants must pay "any other necessary costs of response incurred by any other person consistent with the [NCP]" (emphasis added). The Eighth Circuit in NEPACCO found that, based on this distinction, the government was entitled to a presumption that its costs were consistent with the NCP, while private plaintiffs had the burden of demonstrating consistency with the NCP. 810 F.2d at 726, 17 ELR at 20603. See also Williams v. Allied Automotive, 704 F. Supp. 782, 19 ELR 20689 (N.D. Ohio 1988) (suggesting that plaintiffs whose wells have not been contaminated may bring a cost recovery action, but will have to prove that incurred necessary costs of response consistent with the NCP); Artesian Water Co. v.New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987) (holding that a private party has the burden of showing that its costs were consistent with the NCP), aff'd and remanded 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988).

Two courts have found that municipalities are "states" for purposes of § 107(a)(4)(A). City of New York v. Exxon Corp., 697 F. Supp. 677, 19 ELR 20332 (S.D.N.Y. 1988); Mayor of Boonton v. Drew Chemical Corp., 621 F. Supp. 663, 16 ELR 20328 (D.N.J. 1985). A contrary conclusion was reached in City of Philadelphia v. Stepan Chemical Co., 713 F. Supp. 1484, 19 ELR 21319 (E.D. Pa. 1989), in which the court discussed and rejected the reasoning employed by Exxon and Drew Chemical. Both the Exxon and Stepan Chemical decisions are painstaking attempts to determine whether the CERCLA definition of "state" includes political subdivisions and municipalities. Additional litigation on this question is inevitable.

379. For a discussion of what constitutes a "hazardous substance," see supra notes 220-230 and accompanying text.

380. 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

381. United States v. Bell Petroleum Services, Inc., 20 ELR 21117 (W.D. Tex. Sept. 20, 1989) (citing Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 18 ELR 21348 (5th Cir. 1988)).

382. See Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 18 ELR 21348 (5th Cir. 1988) (finding that a residential subdivision that contained hazardous substances in the soils constituted a "facility"); United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (finding that stables and roads where hazardous substances were sprayed to suppress dust constituted a "facility"; also finding that a defendant's spray trucks were "facilities under the broad definition of that term"); United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985) (finding that roadbeds sprayed with hazardous substances constituted a facility); New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984) (finding a dragstrip where hazardous substances were released a "facility"); United States v. Metate Asbestos Corp., 584 F. Supp. 1143, 14 ELR 20433 (D. Ariz. 1984) (finding a trailer park where hazardous substances came to be placed a "facility"). Interestingly, the court in Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987), aff'd and remanded 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988), found that under the definition of "facility" found in CERCLA § 101(9)(A), a landfill was a "'facility' regardless of whether hazardous substances were disposed of there."

383. New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (finding that leaking storage tanks and pipelines, leaching from past spills and leaking storage drums constitute a release); Washington v. Time Oil Co., 687 F. Supp. 529, 18 ELR 21376 (W.D. Wash. 1988) (finding that the "release" element of the prima facie case is satisfied when hazardous substances are found in soil and groundwater samples at a facility); United States v. Northernaire Plating Co., 670 F. Supp. 742, 18 ELR 20712 (W.D. Mich. 1987) (finding a "release" when hazardous substances are found in soils); United States v. Tyson, 17 ELR 20527 (E.D. Pa. Aug. 21, 1986) (dumping of hazardous substances into an unlined lagoon that leached into soils and groundwater a release); Colorado v. Asarco, Inc., 616 F. Supp. 822, 16 ELR 20046 (D. Colo. 1985) (finding a "release" when hazardous substances leached from a lagoon into groundwater and surface water runoff swept hazardous substances out of the lagoon).

384. United States v. Metate Asbestos Corp., 584 F Supp. 1143, 14 ELR 20433 (D. Ariz. 1984) (asbestos tailings in a waste pile seen blowing around by a light wind).

385. United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (finding a "release" when wastes containing hazardous substances sprayed in stables and along a road to suppress dust); United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985) (finding a release when wastes containing hazardous substances sprayed along road beds to suppress dust); New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984) (spraying of oil contaminated with PCBs, a hazardous substance, to suppress dust at a dragstrip constituted a "release").

386. United States v. Medley, 17 ELR 20297 (D.S.C. Nov. 4, 1986) (finding that emission from storage drums of volatile organics into the ambient air constituted a "release").

387. CPC International, Inc. v. Aerojet-General Corp., 731 F. Supp. 783, 20 ELR 20712 (W.D. Mich. 1989) (finding a state environmental agency liable forfailure to operate purge wells, which constituted a release since it "'caused or contributed to the spread or migration of hazardous substances'").

388. BCW Associates, Ltd. v. Occidental Chemical Corp., Civ. No. 86-5947 (E.D. Pa. Sept 30, 1988); Vermont v. Staco, Inc., 684 F. Supp. 822, 18 ELR 20589 (D. Vt. 1988) (finding that a hazardous substance, mercury, was carried out of a manufacturing plant on the clothes and bodies of workers and was then released into plumbing and sewer systems).

389. In re Acushnet River & New Bedford Harbor: Proceedings re Alleged PCB Pollution, 722 F. Supp. 893, 20 ELR 20204 (D. Mass. 1989) (finding that Congress intended to create an expansive scope of liability, covering both those who abandon containers, regardless of their condition, and those who own or operate the facility when hazardous substances leak out of the abandoned containers).

390. New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (finding a "threatened release" when hazardous substances were stored in corroding drums and tanks); O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988) (construing "threatened release" as including storage drums with minute, pinprick leaks that have not yet, but in the near future could, result in a release), aff'd 883 F.2d 176, 20 ELR 20115 (1st Cir. 1889), cert. denied 110 S. Ct. 115 (1990).

391. Amland Properties Corp. v. Aluminum Co. of America, 711 F. Supp. 784, 19 ELR 21180 (D.N.J. 1989) (finding that PCBs that had migrated into the concrete flooring of a facility "threatened" to leach into the ground).

392. New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (finding a "threatened release" when defendant lacked training and expertise in storing hazardous substances and did not have a license to operate a hazardous waste disposal facility); United States v. Northernaire Plating Co., 670 F. Supp. 742, 18 ELR 20712 (W.D. Mich. 1987) (finding a "threatened release" when hazardous wastes were found at a facility and no one would assume responsibility for properly storing and safeguarding the wastes).

393. Velsicol Chemical Corp. v. Reilly Tar & Chemical Corp., 15 ELR 20103 (E.D. Tenn. Aug. 16, 1984) (finding a "threatened release" when defendant stored hazardous substances in a manner that "may reasonably be anticipated to pose a threat to the environment"). See also United States v. Metate Asbestos Corp., 584 F. Supp. 1143, 14 ELR 20433 (D. Ariz. 1984) (observing that the possibility of asbestos tailings being blown about by the wind constituted a "threatened release").

394. United States v. Northside Sanitary Landfill, Inc., 18 ELR 20850 (S.D. Ind. Apr. 12, 1988) (finding that the standard is "not whether there will be environmental harm, but is whether there may be a threat of harm from the release." (emphasis in original)).

395. Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 20 ELR 20281 (5th Cir. 1989) (emphasis in original), reh'g denied 20 ELR 20526 (5th Cir. Jan. 25, 1990). Two courts have gone farther, suggesting that there is no quantitative threshold for finding a release of hazardous substances. Louisiana-Pacific Corp. v. ASARCO, Inc., 735 F. Supp. 358, 20 ELR 21452 (W.D. Wash. 1990); and United States v. Western Processing Co., 734 F. Supp. 930, 20 ELR 20990 (W.D. Wash. 1990).

396. See supra notes 69-71 and accompanying text. As some courts have noted, liability for pre-CERCLA conduct is often based on the assumption of current or continuing releases. See O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988) (interpreting the same cases as the NEPACCO court and concluding that CERCLA imposes liability for preenactment "releases"), aff'd 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989), cert. denied 110 S. Ct. 1115 (1990); United States v. South Carolina Recycling & Disposal, Inc., 653 F. Supp. 984, 14 ELR 20272 (D.S.C. 1984) (finding that CERCLA does not need to impose liability on past conduct because it imposes liability for present or future releases that are the result of the past conduct), aff'd sub nom. United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied 490 U.S. 1106 (1989).

397. "Current" has been defined as ownership or operation at the time a cost recovery action is filed. United States v. Fleet Factors Corp., 901 F.2d 1150, 20 ELR 20832 (11th Cir.), reh'g denied en banc 911 F.2d 742 (11th Cir. 1990), cert. denied 111 S. Ct. 752 (1991). In Fleet Factors, title to the facility had passed from a bankrupt owner to a bankruptcy trustee, who then conveyed the facility to the county government for tax delinquencies. The county owned the property when the cost recovery action was filed. However, since the county acquired the facility to satisfy a tax delinquency, § 101(20)(A)(iii) placed current owner status on the party who owned the facility "immediately beforehand." The Eleventh Circuit interpreted "immediately beforehand" to mean "without intervening ownership, operation, and control." Therefore, the bankruptcy trustee had current owner/operator status.

398. For general discussions of owner/operator liability, see NEPACCO, 810 F.2d at 726, 17 ELR at 20603; New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (containing an often-cited discussion of owner/operator liability theory); and City of Philadelphia v. Stepan Chemical Co., 18 ELR 20133 (E.D. Pa. 1987).

399. In re T.P. Long Chemical Inc., 45 Bankr. 278, 15 ELR 20635 (Bankr. N.D. Ohio 1985) (holding that a bankruptcy estate may become an owner of a facility).

400. United States v. Argent, 14 ELR 20616 (D.N.M. 1984) (holding an absent owner who leased the facility to another party liable as an owner/operator). Cf. International Clinical Laboratories, Inc. v. Stevens, 20 ELR 20560 (E.D.N.Y. Jan. 11, 1990) (in a case involving past owners and operators under § 107(a)(2), the court held a landowner/lessor liable for activities of lessee, even though lessor had no knowledge of lessee's generation and discharge of hazardous substances).

401. International Clinical laboratories, Inc. v. Stevens, 20 ELR 20560 (E.D.N.Y. Jan. 11, 1990) (holding a corporate tenant and the corporate tenant's president liable as operators of the facility); United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984, 14 ELR 20895 (D.S.C. 1984) (holding that a lessee of a facility may be an owner/operator, particularly when lessee had authority to sublet).

402. The two leading cases are United States v. Maryland Bank & Trust Co., 632 F. Supp. 573, 16 ELR 20557 (D. Md. 1986) (holding that a bank that foreclosed on a facility, purchased it at the foreclosure sale, and owned the facility for four years was liable as a current owner) and United States v. Mirabile, 15 ELR 20994 (E.D. Pa. 1985) (holding that a bank that foreclosed on a facility but assigned its right to purchase to another party was not liable as an owner). For analysis of these cases, see Burcat, Foreclosure and United States v. Maryland Bank & Trust: Paying the Piper or Learning How to Dance to a New Tune?, 17 ELR 10098 (Apr. 1987); Reed, Fear of Foreclosure: United States v. Maryland Bank & Trust Co., 16 ELR 10165 (July 1986).

See also Polger v. Republic National Bank, 709 F. Supp. 204, 19 ELR 20938 (D. Colo. 1989) (permitting a landowner/lessor to seek contribution from a bank that had foreclosed on and exercised control over the lessee's equipment).

403. See infra note 413 and accompanying text.

404. See infra notes 414-415 and accompanying text.

405. See infra notes 418-420.

406. In United States v. Moore, 703 F. Supp. 455, 18 ELR 21272 (E.D. Va. 1988), the court noted: "Interestingly, it has been held that current ownership, without more, is sufficient to create liability under section [107(a)(1)], notwithstanding the 'and'" (citing United States v. Maryland Bank & Trust Co., 632 F. Supp. 573, 16 ELR 20557 (D. Md. 1986)). See also United States v. Fleet Factors Corp., 901 F.2d 1150, 20 ELR 20832 (11th Cir.), reh'g denied en banc, 911 F.2d 742 (11th Cir. 1990), cert. denied 111 S. Ct. 752 (1991); United States v. Tyson, 17 ELR 20527 (E.D. Pa. Aug. 21, 1986) (holding current owner/operators liable even though they never operated the facility as a waste dump or disposed of wastes at the facility) (citing New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985)). Cf. Tangelwood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 18 ELR 21348 (5th Cir. 1988) (citing Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987) (rejecting argument that liability may be imposed only on those who both own and operate a facility) aff'd 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988)).

407. New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (holding that § 107(a)(1) liability included current owners or operators by interpreting definition of the terms in CERCLA § 101(20)). See also Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 18 ELR 21348 (5th Cir. 1988).

408. Smith Land & Improvement Corp v. Celotex Corp., 851 F.2d 86, 18 ELR 21026 (3d Cir. 1988), cert. denied 488 U.S. 1029 (1989) (holding liable the current owner as well as the past owner at time of disposal); United States v. Carolina Transformer Co., 739 F. Supp. 1030, 20 ELR 20935 (E.D.N.C. 1989) (holding past owners and operators at the time of disposal liable); United States v. Hooker Chemicals & Plastics Corp., 680 F. Supp. 546, 18 ELR 20580 (W.D.N.Y. 1988) (holding past owner at time of disposal liable); Versatile Metals, Inc. v. The Union Corp., 693 F. Supp. 1563, 19 ELR 20472 (E.D. Pa. 1988) (same); United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988) (same); United States v. Bliss, 20 ELR 20879 (E.D. Mo. Sept. 27, 1988) (holding liable the statutory trustees who took control of a defunct company during the time hazardous wastes were disposed); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985); and Velsicol Chemical Corp. v. Reilly Tar & Chemical Corp., 15 ELR 20103 (E.D. Tenn. Aug. 16, 1984).

409. Cadillac Fairview/California, Inc., v. Dow Chemical Co., 14 ELR 20376 (C.D. Cal. Mar. 5, 1984) rev'd on other grounds 840 F.2d 691 (9th Cir. 1988).

410. In Ecodyne Corp. v. Shah, 718 F. Supp. 1454, 20 ELR 20172 (N.D. Cal. 1989), the court addressed a situation in which Ecodyne contaminated the facility and sold it to Shah after apprising him of the contamination. Shah then sold it to a third party after providing notice of the facility's condition. Citing Cadillac Fairview/California, 14 ELR 20376 (C.D. Cal. Mar. 5, 1984) rev'd on other grounds 840 F.2d 691 (9th Cir. 1988), the Ecodyne court found that the term "at the time of disposal" limited the scope of liability under § 107(a)(2) to those who own or operate property at the time hazardous substances are introduced into the environment.

411. One court identified 11 relevant factors to weigh when considering whether a person exercised the requisite control to attach liability:

expertise and knowledge of dangers of hazardous waste, conception of idea of the site, design of the site, supervision, inspection, receipt of reports of the site, hiring or approving hiring of employees, determining operational responsibilities, control of disposal, ability to discover and abate harm, public declarations of responsibility, participation in opening and closing of site, and benefitting from existence of the site.

United States v. Stringfellow, 20 ELR 20656 (C.D. Cal. Jan. 9, 1990) (citing Rockwell International Corp. v. UI International Corp., 702 F. Supp. 1384, 19 ELR 20908 (N.D. Ill. 1988)).

412. FMC Corp. v. United States Department of Commerce, 20 ELR 21403 (E.D. Pa July 18, 1990). The FMC court addressed whether the federal government so dominated a production market and "the production choices available to FMC that the government exercised the type of control usually associated with daily micro-management decisions," thereby making the government an owner/operator. Id. FMC asserted that the U.S. restricted the market for FMC's products, made decisions about plant size and ordered capital improvements using federal funds, established FMC's profit margin, set the specifications for FMC's product (high tension rayon), and should have known about the hazardous wastes generated by the production process. Based on these factors, the court concluded that FMC had shown enough evidence of government control to defeat a motion for summary judgment.

413. In United States v. Carolawn Co., 14 ELR 20699 (D.S.C. June 15, 1984), the court held corporate officers who exercised control or authority over the activities of a facility personally liable as operators. The court found that it could hold the corporate officers personally liable without piercing the corporate veil in light of CERCLA's definition of "owner or operator" as construed in NEPACCO, 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984) (adopting the definition of "person in charge" as used in the Federal Water Pollution Control Act and finding an analogy with the tort doctrine of holding individual corporate officers liable for their negligent conduct) and United States v. Wade, 577 F. Supp. 1326, 14 ELR 20096 (E.D. Pa. 1983). See also New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (holding individually liable a corporate officer who participated in operations); Quadion Corp. v. Mache, 738 F. Supp. 270, 20 ELR 21333 (N.D. Ill. 1990) (holding that shareholders in a closely held corporation may be liable "even in the absence of facts which would warrant piercing the corporate veil) (citing Kelley v. Thomas Solvent Co., 727 F. Supp. 1532, 20 ELR 20684 (W.D. Mich. 1989) (providing a thorough analysis of cases on this subject)); Kelley v. ARCO Industries Corp., 721 F. Supp. 873, 20 ELR 20179 (W.D. Mich. 1989) (following NEPACCO and Shore Realty guidance in finding liable a corporate officer involved in management activities); Kelley v. Thomas Solvent Co., 727 F. Supp. 1554, 20 ELR 20694 (W.D. Mich. 1989) (holding liable a corporate officer by displacing the traditional "piercing the veil" test with a standard that examines whether "the corporate individual could have prevented the hazardous waste discharge at issue."); Kelley v. ARCO Industries Corp., 723 F. Supp. 1214, 20 ELR 20264 (W.D. Mich. 1989) (same); United States v. Carolina Transformer Co., 739 F. Supp. 1030, 20 ELR 20935 (E.D.N.C. 1989) (suggesting that the dominant consideration in holding corporate officers liable is whether they participated significantly "in the running of the company, especially as it relates to waste disposal"); United States v. Multi-Chem, Inc., 20 ELR 20553 (W.D. Ky. Aug. 1, 1989) (managing shareholder who inspected facility daily, instructed employees on proper chemical handling practices, and retained authority to fire employees found liable as an "owner and operator"); Vermont v. Staco, Inc., 684 F. Supp. 822, 18 ELR 20589 (D. Vt. 1988) (holding owning and managing stockholders personally liable as operators without piercing corporate veil); United States v. Northernaire Plating Co., 670 F. Supp. 742, 18 ELR 20712 (W.D. Mich. 1987) (holding personally liable a corporate officer who was in control of disposal operations); United States v. Medley, 17 ELR 20297 (D.S.C. Nov. 4, 1986) (holding liable a corporate officer who participated in operations of a farm facility that received hazardous substances). But see Joslyn Corp. v. T.L. James & Co. 696 F. Supp. 222, 19 ELR 20518 (W.D. La. 1988) (rejecting NEPACCO, holding that CERCLA has not destroyed the corporate veil, and using veil to shield from liability a corporate officer who did not participate in day-to-day operations of a facility), aff'd 893 F.2d 80, 20 ELR 20382 (5th Cir. 1990).

414. 910 F.2d 24, 20 ELR 21462 (1st Cir. 1990), cert. denied 59 U.S.L.W. 3562 (1991).

415. Id. Though there are disagreements among the courts over whether parents may be held liable as "owners," there is little disagreement that actions that add up to a finding of "operator" status will be sufficient to find liability. The district court in Kayser-Roth advocated the adoption of a uniform federal common law that would disregard the corporate entity in the interest of public convenience, fairness, and equity and focus on degree of control exercised by corporate parents. United States v. Kayser-Roth Corp., 724 F. Supp. 15, 20 ELR 20349 (D.R.I. 1989). Similarly, the court in United States v. Nicolet, Inc., 712 F. Supp. 1193, 19 ELR 21192 (E.D. Pa. 1989), determined that a federal common law rule of decision should be used when attaching CERCLA liability to corporate parents:

Where a subsidiary is or was at the relevant time a member of one of the classes of persons potentially liable under CERCLA; and the parent had a substantial financial or ownership interest in the subsidiary; and the parent corporation controls or at the relevant time controlled the management and operations of the subsidiary, the parent's separate corporate existence may be disregarded.

Id. See also Mobay v. Allied-Signal, Inc., 753 F. Supp. 1248, 21 ELR 20791 (D.N.J. 1991) (applying federal common law and concluding that a parent may be liable as an "operator"); Rockwell International Corp. v. IU International Corp., 702 F. Supp. 1384, 19 ELR 20908 (N.D. Ill. 1988) (listing factors similar to those in Nicolet as being relevant to question of parent's control, and thus liability, over its subsidiary); Idaho v. Bunker Hill Co., 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986) (holding a parent liable as an operator of its subsidiary's facility because the parent had the authority to control the subsidiary's hazardous waste disposal practices, controlled all capital expenditures for pollution control over $ 500, and controlled a majority of the subsidiary's board). But see Joslyn Corp. v. T.L. James & Co., 696 F. Supp. 222, 19 ELR 20518 (W.D. La. 1988) (holding that liability could not be imposed on a parent without piercing the corporate veil and finding that since the parent did not exercise complete control over its subsidiary, the corporate veil shielded the parent from liability), aff'd 893 F.2d 80, 20 ELR 20382 (5th Cir. 1990) (determining that CERCLA does not include corporate parents within categories of liable parties and declining to follow courts that have held parent corporations liable without piercing the corporate veil).

416. United States v. Dart Industries, 847 F.2d 144, 18 ELR 21084 (4th Cir. 1988). See also United States v. New Castle County, 727 F. Supp. 854, 20 ELR 20499 (D. Del. 1989) (citing Dart Industries with approval); New York v. City of Johnstown, 701 F. Supp. 33, 19 ELR 20578 (N.D.N.Y. 1988) (holding that a state's purely regulatory activities at a contaminated site did not constitute arranging for the disposal of the hazardous substances).

417. See supra notes 29-35 and accompanying text.

418. 922 F.2d 1240, 21 ELR 20497 (6th Cir. 1991). See also Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 18 ELR 21026 (3d Cir. 1988) ("Congress intended to impose successor liability on corporations which either have merged with or have consolidated with a corporation that is a responsible party as defined in [CERCLA]"), cert. denied 488 U.S. 1029 (1989); Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260, 20 ELR 21079 (9th Cir. 1990) (following Smith Land).

419. See United States v. Distler, 741 F. Supp. 637, 20 ELR 20942 (W.D. Ky. 1990) (following federal common law and applying the "substantial continuity" test to hold a corporate successor liable); United States v. Carolina Transformer Co., 739 F. Supp. 1030, 20 ELR 20935 (E.D.N.C. Nov. 17, 1989) (calling for a uniform federal test for determining successor liability and employing the "substantial continuity" test to hold a successor liable); In re Acushnet River and New Bedford Harbor: Proceedings re Alleged PCB Pollution, 712 F. Supp. 1010, 19 ELR 21206 (applying a "uniform federal rule" and finding a corporate successor liable for predecessor's past operations since successor resulted from a de facto merger) (citing with approval SHAKESPEARE, ROMEO AND JULIET, Act II., Sc. 2, Lines 42-43 (postulating: "What's in a name? That which we call a Rose/By any other name would smell as sweet.")).

420. Distler, 741 F. Supp. 637, 20 ELR at 20944.

421. 861 F.2d 155, 19 ELR 20187 (7th Cir. 1988), aff'g 685 F. Supp. 651, 18 ELR 21223 (N.D. Ill. 1988) (citing United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) and New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985)).

422. Id.

423. 42 U.S.C. § 9601(20(A), ELR STAT. CERCLA 008.

424. See Guidice v. BFG Electroplating and Manufacturing Co., 732 F. Supp. 556, 20 ELR 20439 (W.D. Pa. 1989) (citing United States v. Mirabile, 15 ELR 20992 (E.D. Pa. Sept. 4, 1985)); United States v. Nicolet, Inc., 712 F. Supp. 1193, 19 ELR 21192 (E.D. Pa. 1989).

425. 901 F.2d 1550, 20 ELR 20832 (11th Cir. 1990), reh'g denied en banc, 911 F.2d 742 (11th Cir. 1990), cert denied 111 S. Ct. 752 (1991).

426. United States v. Fleet Factors Corp., 724 F. Supp. 955, 19 ELR 20529 (S.D. Ga. 1988) (citing United States v. Mirabile, 15 ELR 20994 (E.D. Pa. Sept. 4, 1985) (holding that the secured creditor shield would apply absent day-to-day operational control)). The court nonetheless decided that there was a question of fact as to whether the secured party had exercised control over the facility when he foreclosed on his interest in the debtor's inventory, and therefore denied the secured party's motion for summary judgment. Id.

427. Fleet Factors, 901 F.2d at 1550, 20 ELR at 20832. Significantly, the Eleventh Circuit observed that liability could attach when secured creditors had the discretion to affect hazardous waste decisions, regardless of whether the discretion was exercised affirmatively.

428. 910 F.2d 668, 20 ELR 21229 (9th Cir. 1990).

429. See United States v. Monsanto Co., 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied 490 U.S. 1106 (1989). See also Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 18 ELR 21348 (5th Cir. 1988) (holding that construction and grading crews who redispose of or treat hazardous wastes by making the wastes nonhazardous may have § 107(a)(3) liability); United States v. Aceto Agricultural Chemicals Corp., 699 F. Supp. 1384, 18 ELR 21008 (S.D. Iowa 1988), aff'd 872 F.2d 1373, 19 ELR 21038 (8th Cir. 1989) (denying summary judgment motion since chemical supplier/manufacturer defendant may be liable under § 107(a)(3) as the employer of an independent contractor engaged in an ultrahazardous activity); United States v. Parsons, 723 F. Supp. 757, 19 ELR 21420 (N.D. Ga. 1989) (holding liable a party who did not own, but possessed, drums containing hazardous waste and arranged for their disposal, even though party did not select dumping site); United States v. Bliss, 20 ELR 20879 (E.D. Mo. Sept. 27, 1988) (holding that party need not be the generator of the waste, but simply responsible for arranging the disposal of hazardous substances); United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (holding that control, not ownership, of the hazardous substances is sufficient, court finds liable a person who acted as a broker for the owner of the hazardous substances and the ultimate transporter/disposer); United States v. South Carolina Recycling and Disposal, Inc., 14 ELR 20895 (D.S.C. 1984) (holding defendant liable for moving wastes from one facility to another). See also Comment, "Arranging for Disposal" Under CERCLA: When is a Generator Liable?, 15 ELR 10160 (June 1985).

430. 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied 490 U.S. 1106 (1989).

431. Id.

432. Id. (citing United States v. Wade, 577 F. Supp. 1326, 14 ELR 20096 (E.D. Pa. 1983) (stating that to "require a plaintiff under CERCLA to 'fingerprint' wastes is to eviscerate the statute.")). See also United States v. Parsons, 723 F. Supp. 757, 19 ELR 21420 (N.D. Ga. 1989) (holding liable a party who did not own, but possessed, drums containing hazardous waste and arranged for their disposal, even though party did not select dumping site); United States v. Bliss, 20 ELR 20879 (E.D. Mo. Sept. 27, 1988) (holding that liability will attach regardless of whether party knew where waste was to be disposed).

433. 685 F. Supp. 651, 18 ELR 21223 (N.D. Ill.), aff'd on other grounds 861 F.2d 155, 19 ELR 20187 (7th Cir. 1988).

434. See, e.g., Dayton Independent School District v. U.S. Mineral Products Co., 906 F.2d 1059, 20 ELR 21464 (5th Cir. 1990) (holding that sale of building materials containing asbestos was a transaction in a useful consumer product and not an arrangement for the disposal of a hazardous substance); Kelly v. ARCO Industries Corp., 739 F. Supp. 354, 20 ELR 21425 (W.D. Mich. 1990) (holding that liability will not attach to the seller of raw materials containing hazardous substances that the buyer removed from the materials before processing because there was no indication that seller tried to "dump" hazardous substances); United States v. Consolidated Rail Corp., 729F. Supp. 1461, 20 ELR 20737 (D. Del. 1990) (holding that a corporation that approved shipment of raw materials to a site, purchased most of the site's output, and assisted the site in obtaining raw materials did not engage in an arrangement for disposal); Prudential Insurance Co. v. United States Gypsum Co., 711 F. Supp. 1244, 19 ELR 21220 (D.N.J. 1989) (holding that the sale of "useful, albeit dangerous" asbestos-containing products did not constitute "an affirmative act to dispose of a hazardous substance"); C. Greene Equipment Corp. v. Electron Corp., 697 F. Supp. 983, 19 ELR 20502 (N.D. Ill. 1988) (holding that liability will not arise based solely on a sale of usable, nonleaking transformers containing hazardous substances since the sale was not motivated in part by a desire to dispose of the hazardous substances); Florida Power & Light v. Allis-Chalmers Corp., 18 ELR 20998 (S.D. Fla. Mar. 22, 1988) (holding that sale of a useful product (transformers) containing hazardous substances to buyer who used product in ordinary course of business was not an arrangement for disposal), aff'd 893 F.2d 1313, 20 ELR 20523 (11th Cir. 1990) (while declining to establish a per se rule on § 107(a)(3) liability, court holds that plaintiffs did not establish facts to support that seller engaged in an arrangement for disposal); Jersey City Redevelopment Authority v. PPG Indus., 655 F. Supp. 1257, 17 ELR 20763 (D.N.J. 1987) (holding that sale of land that contained mud contaminated with hazardous substances was not an arrangement for treatment or disposal); United States v. Westinghouse Electric Corp., 14 ELR 20483 (S.D. Ind. June 29, 1983) (holding that selling of hazardous substances for use in manufacturing will not give rise to CERCLA liability).

435. At least one case could be read as rejecting an inquiry into the "primary nature of the transaction from the defendant's viewpoint to determine whether the defendant was acting with the intent to dispose." United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985). The court in Hines Lumber, however, flatly disagreed with the holding in Conservation Chemical to the extent that it did not support an inquiry into the motivations behind a transaction in hazardous substances. 685 F. Supp. at 651, 18 ELR at 21223.

436. 582 F. Supp. 842, 14 ELR 20432 (S.D. Ill. 1984).

437. Id. See also United States v. Farber, 18 ELR 20854 (D.N.J. Mar. 16, 1988) (denying a summary judgment motion because of a factual dispute regarding whether defendant engaged in a "mere sale" of hazardous substances or a disposal arrangement); United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985) (holding that defendant cannot avoid liability by characterizing the transaction as a sale; court finds that motivation behind the sale was disposal of hazardous substances); and New York v. General Electric Co. 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984) (holding that defendants cannot escape liability by disingenuously labeling an arrangement for disposal a "sale").

438. United States v. Consolidated Rail Corp., 729 F. Supp. 1461, 20 ELR 20737 (D. Del. 1990). The Conrail court declined extending generator liability to a person who had helped an operator obtain raw materials and then purchased the operator's product at below-market rates. The court pointed out that, unlike the defendant in United States v. Aceto Agricultural Chemicals Corp., 699 F. Supp. 1384, 18 ELR 21008 (S.D. Iowa 1988), aff'd in part, rev'd in part 872 F.2d 1373, 19 ELR 21038 (8th Cir. 1989), who owned the raw materials, the Conrail defendant did not have "the authority to control the hazardous substances disposed or treated" by the operator.

See also New York v. Johnstown, 701 F. Supp. 33, 19 ELR 20578 (N.D.N.Y. 1988), in which the court held that § 107(a)(3) liability will not attach to a state, acting in its regulatory capacity, when it permits or directs the disposal of wastes in a landfill to remediate a contamination problem. Finding that the state never owned or possessed the hazardous substances, as required by § 107(a)(3), the court held that the state "cannot be considered in the class of liable parties." Id. This reasoning was adopted to shield a state from § 107(a)(3) liability in United States v. New Castle County, 727 F. Supp. 854, 20 ELR 20499 (D. Del. 1989) (suggesting that regulators who act without a commercial relationship to disposal activities may not be liable under § 107(a)). But see United States v. Stringfellow, 20 ELR 20656 (C.D. Cal. Jan. 9, 1990) (holding a state that went "beyond mere regulation" of a site and could therefore be held liable for arranging for the disposal of hazardous wastes); and CPC International, Inc v. Aerojet-General Corp., 731 F. Supp. 783, 20 ELR 20712 (W.D. Mich. 1989) (distinguishing Johnstown by finding that a state regulatory agency had exercised sufficient control and possession over hazardous substances at a facility to be held liable under § 107(a)(3)).

439. In United States v. Wade, 14 ELR 20436 (E.D. Pa. Mar. 8, 1984), the court refused to grant a motion for summary judgment when the plaintiff had not demonstrated that the defendants' wastes were delivered to a facility at which a release of hazardous substances occurred. The plaintiffs had proved only that the defendants contracted with a disposal company that occasionally disposed of contract wastes at the subject facility. The defendants had countered with evidence that the disposal company had placed their wastes at another site. The court reserved the issue for factual development at trial. See also United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (citing Wade as establishing a limit to liability, but holding that the defendants had failed to prove that their hazardous wastes were not in a tank from which releases had occurred).

440. United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (holding that liability will attach regardless of whether the defendants knew where their hazardous substances would be disposed); United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985) (holding that liability does not hinge on whether the defendant selected the disposal site); Missouri v. Independent Petrochemical Corp., 610 F. Supp. 4, 15 ELR 20161 (E.D. Mo. 1985) (holding that redisposal of defendant's hazardous wastes to a second site unknown by defendant did not preclude liability).

441. 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988), aff'd 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989), cert. denied 110 S. Ct. 1115 (1990).

442. Id.

443. As to corporate officers, see NEPACCO, 810 F.2d at 726, 17 ELR at 20603 (8th Cir. 1986) (holding that since legal title to waste was unnecessary to impose liability, individual corporate officers were liable when responsibilities included arranging for disposal of hazardous substances), cert. denied 484 U.S. 848 (1987); United States v. Bliss, 20 ELR 20879 (E.D. Mo. Sept. 27, 1988) (corporate officer who personally participated in creation of hazardous waste is personally liable as an operator, making it unnecessary to pierce the corporate veil to impose liability); United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988) (holding corporate officers personally liable and stating that "CERCLA places no importance on the corporate form."); United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985) (holding individual corporate officers liable who exercised authority over the company's operations and participated in arranging for disposal of hazardous substances).

As to corporate parents and successors, see Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 18 ELR 21026 (3d Cir. 1988), cert. denied 488 U.S. 1029 (1989) (in a commonly cited case, applying traditional law of successor liability, and holding successors who formed by merger or consolidation responsible for previous corporation's CERCLA liability) (citing Barnard, EPA's Policy of Corporate Successor Liability Under CERCLA, 6 STAN. ENVTL. L.J. 78 (1986-87) and Note, Successor Corporate Liability for Improper Disposal of Hazardous Waste, 7 W. NEW ENG. L. REV. 909 (1985)); City of New York v. Exxon Corp., 112 Bankr. Rep. 540, 20 ELR 21321 (S.D.N.Y. Mar. 30, 1990) (although holding a parent liable for activities of subsidiary, the court analyzed a number of cases and concluded that liability should not attach upon a showing of capacity or authority to control, but only upon evidence that parent actually exercised that authority (citing United States v. Consolidated Rail Corp., 729 F. Supp. 1461, 20 ELR 20737 (D. Del. 1989)); United States v. Distler, 741 F. Supp. 637, 20 ELR 20942 (W.D. Ky. 1990) (providing a thoughtful discussion of successor liability and holding a successor liable under the "substantial continuation" exception to limited liability); City of Philadelphia v. Stepan Chemical Co., 713 F. Supp. 1491, 19 ELR 21322 (E.D. Pa. 1989) (holding that trustees of a trust that contained assets of a dissolved corporation are not successors-in-interest and are therefore not subject to any liability that may exist against the dissolved corporation); United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (holding that, under either Missouri law or CERCLA federal common law, when circumstances indicate that a purchasing company is a continuance of the previous company, then the successor company is responsible for the previous company's liabilities).

444. Jersey City Redevelopment Authority v. PPG Industries, 18 ELR 20364 (D.N.J. Sept. 3, 1987) (holding that a defendant was not liable as a transporter because he did not choose the site) (citing United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985); NEPACCO, 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984); and STEVER, LAW OF CHEMICAL REGULATION & HAZARDOUS WASTE, § 607, at 6-89 (1987)). See also United States v. Parsons, 723 F. Supp. 757, 19 ELR 21420 (N.D. Ga. 1989) (holding liable parties who accepted hazardous wastes for transport and selected the disposal site); United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (holding liable a defendant who accepted hazardous wastes for transportation and disposal at sites chosen by defendant); Eddy & Riendl, Transporter Liability Under CERCLA, 16 ELR 10244 (Sept. 1986).

445. The court in McGregor v. Industrial Excess Landfill, Inc., 856 F.2d 39, 19 ELR 20189 (6th Cir. 1988), held that a plaintiff must allege an approximation of costs incurred or, at a minimum, the actions that the plaintiff took in response to the release. The Sixth Circuit emphasized the requirement that the plaintiff must allege costs that it incurred; that is, private plaintiffs may not simply articulate the government's costs of response without any allegations about the plaintiff's costs and hope to survive a motion attacking the sufficiency of the pleadings. Also discussing pleadings, the Ninth Circuit held that a plaintiff's complaint does not have to contain "a specific allegation of either the manner in which a release occurred or the type of response cost incurred." Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 19 ELR 20374 (9th Cir. 1989) (distinguishing McGregor on the grounds that in Ascon, the plaintiffs did allege response costs that they had incurred in a manner sufficient to satisfy notice requirements).

Additionally, private parties must include in their pleadings an allegation that their costs of response were "necessary." Compare CERCLA § 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A), ELR STAT. CERCLA 024 (stating that government plaintiffs may recover "all costs of removal or remedial action") with CERCLA § 107(a)(1)-(4)(B), 42 U.S.C. § 9607(a)(1)-(4)(B), ELR STAT. CERCLA 024 (stating that all other parties may recover "necessary costs of response"). The term "necessary" has not received much judicial attention, with courts concentrating instead on whether the costs were incurred as part of an allowable removal or remedial action. However, one court has suggested that necessary means "logically unavoidable but at the same time uncompelled by the USEPA." Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 19 ELR 21254 (N.D. Ill. 1988). Another court found that costs were "necessary" because state and local authorities ordered the particular action. NL Industries v. Kaplan, 792 F.2d 896, 16 ELR 20749 (9th Cir. 1986). An example of the limitation implied by the term "necessary" was suggested in Pennsylvania Urban Development Corp. v. Golen, 708 F. Supp. 669, 19 ELR 21066 (E.D. Pa. 1989) (disallowing a claim for investigation costs that were incurred a year before the plaintiff purchased the property). Cf. Williams v. Allied Automotive, 704 F. Supp. 782, 19 ELR 20689 (N.D. Ohio 1988) (finding that plaintiffs whose wells have not been contaminated may bring a cost recovery action, but will have to prove that they incurred necessary costs of response consistent with the National Contingency Plan).

446. See CERCLA § 101(23), 42 U.S.C. § 9601(23), ELR STAT. CERCLA 008 (defining removal actions as, among other things, "such actions as may be necessary to monitor, assess, and evaluate [releases]," actions necessary to "prevent, minimize, or mitigate damage to the public health or welfare or to the environment," erecting "security fencing or other measures to limit access, provision of alternative water supplies, temporary evacuation and housing of threatened individuals," and "actions taken under section 104(b)" of CERCLA).

447. See CERCLA § 101(24), 42 U.S.C. § 9601(24), ELR STAT. CERCLA 009 (defining remedial actions as, among other things, "those actions consistent with permanent remedy taken instead of or in addition to removal action.").

448. See Brewer v. Ravan, 680 F. Supp. 1176, 18 ELR 20799 (M.D. Tenn. 1988) (stating that "[b]ecause CERCLA does not define the term 'necessary costs of response,' … courts have had considerable difficulty in applying section 9607(a)." Id.) (citing Jones v. Inmont Corp., 584 F. Supp. 1425, 14 ELR 20485 (S.D. Ohio 1984) (finding that one must reach a definition of "response costs" through a circuitous, fog-enshrouded route)).

449. See, e.g., T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988) (accommodating the omission of a definition for response costs by reciting the definitions of removal and remedial actions and allowing the costs incurred for those actions).

450. See, e.g., Rockwell International Corp. v. IU International Corp., 702 F. Supp. 1384, 19 ELR 20908 (N.D. Ill. 1988) (finding ample support for allowing plaintiffs to claim monitoring and assessment costs); Brewer v. Ravan, 680 F. Supp. 1176, 18 ELR 20799 (M.D. Tenn. 1988) (stating that "most courts agree that on-site testing and investigative costs are recoverable" under CERCLA) (citing Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 16 ELR 20754 (9th Cir. 1986)); City of New York v. Exxon Corp., 633 F. Supp. 609, 16 ELR 20850 (S.D.N.Y. 1986) (allowing groundwater sampling and migration studies); and Velsicol Chemical Corp. v. Reilly Tar & Chemical Corp., 15 ELR 20103 (E.D. Tenn. 1984)).

In Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 18 ELR 21348 (5th Cir. 1988) the court explained that investigations, soil and groundwater samplings, and evaluations are removal actions, since that term includes actions to "monitor, assess, and evaluate" a release. Accord Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987), aff'd 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988). See generally Cadillac Fairview/California v. Dow Chemical Co., 840 F.2d 691, 18 ELR 20470 (9th Cir. 1988) (allowing monitoring costs); United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988) (allowing investigatory costs); Vermont v. Staco, Inc., 684 F. Supp. 822, 18 ELR 20589 (D. Vt. 1988) (allowing assessment and monitoring costs).

451. Before SARA, two courts had split on the award of prejudgment interest. In NEPACCO, 579 F. Supp. 823, 14 ELR 20212, aff'd in part and rev'd in part on other grounds, 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986) cert. denied 484 U.S. 848 (1987), the court had held that prejudgment interest was compensatory and necessary to fulfill the restitutional purposes of CERCLA cost recovery actions. On the other hand, the court in United States v. South Carolina Recycling and Disposal, Inc., (SCRDI) 17 ELR 20843 (D.S.C. 1985), refused to award prejudgment interest because the defendants had been cooperative and reasonable at trial.

While the parties were appealing SCRDI, SARA amended § 107 by making clear that prejudgment interest was conpensatory and necessary to fulfill the restitutional purposes of CERCLA cost recovery actions. On the other hand, the court in United States v. South Carolina Recycling and Disposal, Inc., (SCRDI), 17 ELR 20843 (D.S.C. 1985), refused to award prejudgment interest because the defendants had been cooperative and reasonable at trial.

While the parties were appealing SCRDI, SARA amended § 107 by making clear that prejudgment interest should be awarded in cost recovery actions. The Fourth Circuit Court of Appeals therefore remanded SCRDI and directed the district court to award prejudgment interest "absent a convincing argument to the contrary." United States v. Monsanto Co., 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989). See also United States v. R. W. Meyer, Inc., 889 F.2d 1497, 20 ELR 20319 (6th Cir. Nov. 20, 1989) (finding no constitutional bar to the retroactive application of the SARA provision allowing prejudgment interest), cert. denied, 110 S. Ct. 1527 (1990); Colorado v. Idarado Mining Co., 735 F. Supp. 368, 20 ELR 21330 (D. Colo. 1990) (same); United States v. Bell Petroleum Services, Inc., 734 F. Supp. 771, 20 ELR 21120 (W.D. Tex. 1990) (awarding prejudgment interest as of the date that response costs were accrued); General Electric Co. v. Litton Business Systems, Inc., 20 ELR 20921 (W.D. Mo. 1989) (awarding prejudgment interest for pre-filing costs from the date of filing and for post-filing costs from the date they were incurred); United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988) (applying the SARA amendment to § 107 and awarding prejudgment interest at the rate applied to assets in the Superfund); United States v. Northernaire Plating Co., 685 F. Supp. 1410, 18 ELR 21338 (W.D. Mich. 1988) (finding that the SARA amendment to § 107 mandates award of prejudgment interest). But see United States v. Ottati & Goss, Inc., 900 F.2d 429, 20 ELR 20856 (1st Cir. 1990) (agreeing with a lower court that indirect costs and prejudgment interest may be withheld as a sanction for inappropriate government behavior, but remanding case to allow the district court to specify the factual and legal bases for imposing and quantifying sanctions), aff'd in part, vacating in part, and remanding United States v. Ottati & Goss, Inc., 694 F. Supp. 977, 18 ELR 20773 (D.N.H. 1988) (without remarking on the SARA amendment to § 107, reducing award of prejudgment interest to the United States because of uncooperative behavior of Justice Department and EPA attorneys).

452. T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988) (finding that time spent by a company's president in monitoring, assessing, and evaluating a cleanup action may be recoverable).

453. See, e.g., Cadillac Fairview/California v. Dow Chemical Co., 840 F.2d 691, 18 ELR 20470 (9th Cir. 1988) (finding that since "remedial actions" include security measures, plaintiff could recover for security expenses); United States v. Ottati & Goss, Inc., 694 F. Supp. 977, 18 ELR 20773 (D.N.H. 1988) (awarding, without comment, costs incurred in fencing a hazardous waste site).

454. See Chemical Waste Management, Inc. v. Armstrong World Industries, 669 F. Supp. 1285, 18 ELR 20191 (E.D. Pa. 1987) (holding that certain costs that are required under RCRA, such as inspection, monitoring, and closure costs, may be recoverable as response costs under CERCLA if they are ultimately adjudged consistent with the NCP); Mardan Corp. v. C.G.C. Music, Ltd., 600 F. Supp. 1049, 15 ELR 20370 (D. Ariz. 1984) (holding that RCRA closure costs may be recoverable), aff'd on other grounds 804 F.2d 1454, 17 ELR 20209 (9th Cir. 1986).

455. United States v. Bell Petroleum Services, Inc., 734 F. Supp. 771, 20 ELR 21120 (W.D. Tex. 1990) (allowing government to recover costs of an alternate water supply system even though defendants claimed that no one used the contaminated groundwater for drinking); and Lutz v. Chromatex, 718 F. Supp. 413, 19 ELR 21368 (M.D. Pa. June 9, 1989) (holding that costs of alternate water supplies are recoverable, but reserving for further factual development question of whether on-going costs of municipal water system are recoverable).

456. In Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 18 ELR 21348 (5th Cir. 1988), the court held that since the § 101(24) definition of remedial action specifically mentions relocations, relocation costs are recoverable. However, the Tanglewood court did not discuss the § 101(24) requirement that only the President may authorize permanent relocations of businesses and residences; moreover, the President must conclude that a relocation is cost-effective or necessary to protect the public health or welfare. 42 U.S.C. § 9601(24), ELR STAT. CERCLA 009 construed in T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988) (rejecting a claim for recovery of relocation costs because plaintiff did not have a presidential authorization and a determination of cost-effectiveness).

Using a different approach, one court characterized a relocation as a § 101(23) removal action necessary to "prevent, minimize or mitigate" danger to the plaintiffs. Lykins v. Westinghouse Electric Corp., 18 ELR 21498 (E.D. Ky. Feb. 29, 1988). In this way, the plaintiffs were able to avoid the § 101(24) requirement that the President authorize permanent relocations and justify them with a cost effectiveness analysis or a finding that permanent relocation is necessary to protect public health or welfare.

It is unclear from the Lykins decision whether the plaintiffs sought recovery for permanent or temporary relocation costs. As held in Lutz v. Chromatex, 718 F. Supp. 413, 19 ELR 21368 (M.D. Pa. June 9, 1989), § 101(23) specifically authorizes "temporary evacuation and housing of threatened individuals." If the plaintiffs had indeed incurred only costs for temporary relocation, then one may wonder why the Lykins court hung its ruling on the amorphous "prevent, minimize or mitigate" peg of § 101(23) rather than the direct "temporary evacuation" provision.

457. In Southland Corp. v. Ashland Oil, Inc. 696 F. Supp. 994, 19 ELR 20733 (D.N.J. 1988), the court expressly rejected a defendant's argument that actual cleanup, or remedial costs had to be incurred before a cost recovery action could be brought. The Southland court held that costs of investigation, a removal action, "were sufficient, without more, for recovery under CERCLA." Id. (citing Artesian Water Co. v. New Castle County, 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988) (holding that a summary judgment motion was ripe for adjudication because the plaintiff had incurred costs in performing investigation of the site)).

One court did hold that a private plaintiff must incur remedial costs before bringing an action under § 107. Standard Equipment, Inc. v. Boeing Co., 16 ELR 20246 (W.D. Wash. 1985). However, later courts have followed Southland and have refused to erect such a barrier to cost recovery actions, thereby ignoring the Standard Equipment decision. See also Lykins v. Westinghouse Electric Corp., 18 ELR 21498 (E.D. Ky. 1988) (holding that plaintiffs do not have to delay their cost recovery actions until a remedial action is underway, but can sue when they incur any response costs); Brewer v. Ravan, 680 F. Supp. 1176, 18 ELR 20799 (M.D. Tenn. 1988) (stating that a "private citizen seeking to recover expenses or obtain declaratory relief under section 9607(a) 'must affirmatively demonstrate that it has incurred' at least some necessary response costs consistent with the national contingency plan." Id.)(quoting Chaplin v. Exxon Corp., 25 Envt. Rep. Cas. (BNA) 2009, 2013 (S.D. Tex. 1986)).

458. NEPACCO, 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984), aff'd in part and rev'd in part on other grounds, 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied 484 U.S. 848 (1987). The NEPACCO court was one of the first to conclude that the United States could recover attorneys fees under CERCLA. The court explained that the definition of removal actions included action taken under CERCLA § 104(b). Section 104(b) authorizes the United States to "undertake such planning, legal, fiscal, economic, engineering, architectural, and other studies or investigations." 42 U.S.C. § 9604(b), ELR STAT. CERCLA 013. Thus, legal activities were removal actions and therefore eligible for cost recovery.

See also United States v. R. W. Meyer, Inc., 889 F.2d 1497, 20 ELR 20319 (6th Cir. 1989) (citing NEPACCO with approval and awarding the government attorneys fees and indirect costs associated with the site); United States v. Bell Petroleum Services, Inc., 734 F. Supp. 771, 20 ELR 21120 (W.D. Tex. 1990) (allowing federal government to recover attorneys fees and indirect costs, defined as "those costs generally necessary to support the work performed by the EPA and the DOJ on Superfund sites, but which are not directly allocated to specific cases"); United States v. Hardage, 733 F. Supp. 1424, 20 ELR 21307 (W.D. Okla. 1989) (citing Meyer as support for granting Department of Justice and EPA indirect costs associated with the site); United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988) (citing NEPACCO to award attorneys fees and administrative expenses to federal government, but reasoning in a way that could be construed to allow recovery of private party attorneys fees); United States v. Northernaire Plating Co., 685 F. Supp. 1410, 18 ELR 21338 (W.D. Mich. 1988) (holding that the United States may recover its indirect costs, administrative expenses and attorneys fees); and United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984 at 1006, 17 ELR 20843 (D.S.C. 1985) (holding that the definition of removal actions incorporates the actions of the United States under § 104(b) and therefore awarding attorneys fees to the United States), rev'd in part and remanded on other grounds sub nom. United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied 490 U.S. 1106 (1989).

But see United States v. Ottati & Goss, Inc., 694 F. Supp. 977, 18 ELR 20773 (D.N.H. 1988) (recognizing NEPACCO holding that United States may recover attorneys fees, but awarding only half of fees requested because of uncooperative behavior of government attorneys), aff'd in part, vacated in part, and remanded 900 F.2d 429, 20 ELR 20856 (1st Cir. 1990) (agreeing with the district court that attorneys fees and indirect costs may be withheld as a sanction for inappropriate government behavior, but remanding case to allow the district court to specify the factual and legal bases for imposing and quantifying sanctions).

459. The court in T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988), for example, held that § 104 refers only to the legal fees of the United States and found no parallel provision in CERCLA authorizing private attorneys fees. Applying the American rule, the court refused to award attorneys fees to private parties in CERCLA actions (citing Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240 (1975) (holding that a party cannot receive attorneys fees unless provided for in a statute or a contract)).

460. See Pease & Curren Refining, Inc. v. Spectrolab, Inc., No. CV 89-4468 DT(BX), 20 Chem. Waste Lit. Rep. 1080 (C.D. Cal. Aug. 31, 1990); Shapiro v. Alexanderson, 741 F. Supp. 472 (S.D.N.Y. 1990); BCW Associate, Ltd. v. Occidental Chemical Corp., 1988 Westlaw 102641 (E.D. Pa. Sept. 29, 1988); Lykins v. Westinghouse Electric Corp., 18 ELR 21498 (E.D. Ky. Feb. 29, 1988); Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F. Supp. 1437, 15 ELR 20151 (S.D. Fla. 1984).

461. 920 F.2d 1415, 21 ELR 20453 (8th Cir. 1990). But see New York v. SCA Services, Inc., No. 83 Civ. 6402 (RPP), Haz. Waste Lit. Rep. 20547 (S.D.N.Y. Jan. 9, 1991) (rejecting General Electric and striking claims for attorneys fees from CERCLA claims in pleadings). See also Atlas, From T&E Industries to General Electric v. Litton: Private Party Recovery of Attorneys fees Under CERCLA, 21 ELR 10206 (Apr. 1991).

462. Id. The General Electric court affirmed an award of fees and costs in these amounts. Id.

463. Id.

464. 475 U.S. 355, 16 ELR 20396 (1986).

465. Id. In fact, Sen. Randolph made clear that Congress had "deleted the federal cause of action for medical expenses or property or income loss." 126 CONG. REC. S14964 (daily ed. Nov. 24, 1980). See also Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987) (stating that "Congress in enacting CERCLA clearly manifested an intent not to provide compensation for economic losses or for personal injury resulting from the release of hazardous substances."), aff'd 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988).

466. Artesian Water Co. v. New Castle County, 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988) (holding that inability to pump water at full capacity was an unrecoverable economic loss); Piccolini v. Simon's Wrecking, 686 F. Supp. 1063, 18 ELR 21326 (M.D. Pa. 1988) (holding that CERCLA's broad definition of response costs refers to costs of cleanup and does not include diminution in property value or lost income); Wehner v. Syntex Corp., 681 F. Supp. 651, 18 ELR 20469 (N.D. Cal. 1987) (holding that plaintiffs cannot seek recovery under CERCLA for costs of medical exams, diminished value of property, and loss of home caused by release of hazardous substances).

467. Until recently, three courts had found that plaintiffs may recover medical monitoring costs: Williams v. Allied Automotive, 704 F. Supp. 782, 19 ELR 20689 (N.D. Ohio 1988) (holding that "costs of future medical monitoring are not categorically unrecoverable as response costs … [if] such costs are necessary and consistent with the NCP." Id.); Lykins v. Westinghouse Electric Corp., 18 ELR 21498 (E.D. Ky. Feb. 29, 1988); and Brewer v. Ravan, 680 F. Supp. 1176, 18 ELR 20799 (M.D. Tenn. 1988). Of the three, Brewer provides the most cogent rational for its holding. The Brewer court acknowledged that CERCLA did not create a right to recover "medical expenses incurred in the treatment of personal injuries or disease." Id. (emphasis in original). However, the court held that plaintiffs could recover "the cost of medical testing and screening conducted to assess the effect of the release or discharge on public health or to identify potential public health problems." Id. (emphasis in original). The court predicated its decision on the assertion that "[p]ublic health related medical tests and screening clearly are necessary to 'monitor, assess, [or] evaluate a release' and, therefore, constitute 'removal' under section 9601(23)." Id. (citing 42 U.S.C. § 9601(23), ELR STAT. CERCLA 008).

By contrast, three courts have held that medical monitoring costs cannot be recovered under CERCLA: Lutz v. Chromatex, 718 F. Supp. 413, 19 ELR 21368 (M.D. Pa. June 9, 1989) (expressly adopting reasoning of Coburn); Coburn v. Sun Chemical Corp., 19 ELR 20256 (E.D. Pa. Nov. 9, 1988); and Wehner v. Syntex Corp., 681 F. Supp. 651, 18 ELR 20469 (N.D. Cal. 1987). The Wehner court found persuasive Congress' refusal to include a proposed medical monitoring provision in CERCLA as ultimately enacted. See S. REP. NO. 848, 96th Cong., 2d Sess. 54, reprinted in 1 LEGIS. HIST. 308, 360-61, S. 1480. Likewise, the Coburn court was impressed by Congress' intent that CERCLA "'only provides for the cleanup of toxic substances from the environment.'" Coburn, 19 ELR at 20258 (quoting Wehner, 681 F. Supp. at 653, 18 ELR at 20470). Finding that the Brewer holding "contravenes the plain meaning" of removal action, the Coburn court concluded by finding it "difficult to understand how future medical testing and monitoring of persons who were exposed to contaminated well water … will do anything to 'monitor, assess, [or] evaluate a release' of contamination from the site." Id.

468. 746 F. Supp. 887, 21 ELR 20277 (D. Minn. 1990).

469. See Keister v. Vertac Chemical Corp., 21 ELR 20677 (E.D. Ark. Nov. 14, 1990) (U.S. Magistrate's decision).

470. See generally Steinway, Private Cost Recovery Actions Under CERCLA: The Impact of the Consistency Requirements, Toxics L. Rep. (BNA) 1364 (May 2, 1990). See also Carlyle Piermont Corp. v. Fedder Trading Co., Inc., 89 CIV 6302(MEL), 20 Chem. Waste Lit. Rep. 855 (S.D.N.Y. July 11, 1990) (describing the difference among cases as in part dependent on whether discovery had been completed).

471. 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987).

472. Id. (citing Mola Development Corp. v. United States, 15 ELR 21029 (C.D. Cal. July 30, 1985)). Accord Amland Properties Corp. v. Aluminum Co. of America, 711 F. Supp. 784, 19 ELR 21180 (D.N.J. 1989) (noting the distinction between parties seeking a declaration of liability and parties seeking the award of response costs); Williams v. Allied Automotive, 704 F. Supp. 782, 19 ELR 20689 (N.D. Ohio 1988) (holding that in a summary judgment motion to recover response costs, plaintiffs must show consistency with the NCP as part of their prima facie case).

473. See United States v. Medley, 17 ELR 20297 (D.S.C. Nov. 4, 1986), in which the court held that "consistency or inconsistency with the NCP is not a necessary element of the [plaintiff's] motion for partial summary judgment on liability under Section 107(a) of CERCLA and relates only to the recoverability of various cost items which will be addressed in later proceedings." Id. (citing United States v. Wade, 577 F. Supp. 1326, 14 ELR 20096 (E.D. Pa. 1983); and New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984)).

Similarly, the court in United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985), granted the plaintiff United States' motion for summary judgment as to liability, but reserved for trial the question of whether the response costs were consistent with the NCP and therefore allowable. See also United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988) (finding that "summary judgment may be rendered as to liability even if there is a genuine issue as to appropriate damages (citing FED. R. CIV. P. 56(c)); T&E Industries, Inc. v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988) (same); Williams v. Allied Automotive, 704 F. Supp. 782, 19 ELR 20689 (N.D. Ohio 1988) (holding that liability for future costs and declaratory relief can be granted without a showing of consistency with the NCP); United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (holding that the prima facie case for liability does not require a demonstration of consistency with the NCP). The ruling in Artesian does not contradict these holdings; in fact, the Artesian court implicitly found the defendant liable, but limited that liability to costs that were consistent with the NCP.

474. Fishel v. Westinghouse Electric Co., 640 F. Supp. 442, 16 ELR 20634 (M.D. Pa. 1986) (postulating that an early determination of liability will encourage the litigants to settle, thereby mooting the necessity of a trial on the issue of allowable response costs).

475. Richland-Lexington Airport District v. Atlas Properties, Inc., 901 F.2d 1206, 20 ELR 21059 (4th Cir. 1990) (following Wickland Oil Terminals v. ASARCO, Inc., 792 F.2d 883, 16 ELR 20754 (9th Cir. 1986), and holding that governmental approval is not a prerequisite to private recovery for response costs); Walls v. Waste Resource Corp., 823 F.2d 977, 17 ELR 20954 (6th Cir. 1987) (holding that § 112(a) 60-day notice provision is inapplicable in § 107 cost recovery actions); Idaho v. Howmet Turbine Component Co., 814 F.2d 1376, 17 ELR 20659 (9th Cir. 1987) (holding that § 112(a) 60-day notice provision does not apply to natural resource damage claims and § 107 response cost recovery actions); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 17 ELR 20223 (1st Cir. 1986) (holding that § 112(a) 60-day notice provision applied to Superfund recoveries, not to § 107 cost recovery actions); New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (holding that inclusion of a site on the NPL is not a requirement of the NCP and therefore not a requirement in a § 107 cost recovery action); International Clinical Laboratories, Inc. v. Stevens, 710 F. Supp. 466, 19 ELR 21084 (E.D.N.Y. 1989) (private parties may recover for response actions that were not ordered or approved by the government); Rockwell International Corp. v. IU International Corp., 702 F. Supp. 1384, 19 ELR 20908 (N.D. Ill. 1988) (holding there is no requirement to obtain government approval of cleanup plan before recovering monitoring costs); Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 19 ELR 21254 (N.D. Ill. 1988) (holding that prior to the addition of § 122(e)(6), there was no requirement for prior government approval; however, § 122(e)(6) now places affirmative obligations on private parties to obtain pre-remedial action approval if the parties fit within the provision); Lykins v. Westinghouse Electric Corp., 18 ELR 21498 (E.D. Ky. Feb. 29, 1988) (holding that plaintiffs may bring a cost recovery action without first obtaining government approval of their response costs); Interchange Office Park, Ltd. v. Standard Industries, 654 F. Supp. 166, 17 ELR 20840 (W.D. Tex. 1987) (holding that inclusion of a site on the NPL is not a requirement of the NCP); United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986) (holding that the § 112(a) 60-day notice provision and § 112(d) statute of limitations do not apply to § 107 cost recovery actions); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (holding that inclusion of a site on the NPL and the § 112(a) 60-day notice provision pertain only to actions seeking recovery from the Superfund, not to § 107 cost recovery actions) (citing New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984) (holding that § 107 liability attaches "notwithstanding any other provision," including provisions of CERCLA not expressly applicable)); Pinole Point Properties v. Bethlehem Steel Corp., 596 F. Supp. 283, 15 ELR 20173 (N.D. Cal. 1984) (holding that prima facie case does not require government approval of response costs or listing of site on the NPL).

476. See, e.g., NL Industries v. Kaplan, 792 F.2d 896, 16 ELR 20749 (9th Cir. 1986), in which the court held that a private plaintiff can satisfy the consistency element of the prima facie case without proving strict compliance with the NCP. The Ninth Circuit found that the plaintiffs' failure to notify EPA about a release, as required by the NCP, did not result in the plaintiffs' incurring higher, inconsistent costs and would not bar them from recovering their response costs.

477. Channel Master Satellite Systems, Inc., v. JFD Electronics Corp., 748 F. Supp. 373, 21 ELR 20297 (E.D.N.C. 1990); Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 19 ELR 20473 (E.D. Pa. 1988) ("Consistency with the NCP should be determined in light of the NCP in effect at the time the response costs were incurred, not when the response actions were initiated or when the claims for cost recovery are evaluated.") (citing Wickland Oil Terminals v. Asarco, Inc. 792 F.2d 887, 16 ELR 20754 (9th Cir. 1986) and NL Industries v. Kaplan, 792 F.2d 896, 16 ELR 20749 (9th Cir. 1986)). See Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987) (holding that consistency with the NCP is determined after developing a sufficient factual record and using the NCP in effect when the costs are incurred), aff'd on other grounds 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988). In reaching its decision, the Artesian court cited with approval New York v. Shore Realty Corp., 648 F. Supp. 255, 17 ELR 20588 (E.D.N.Y. 1986); Pinole Point Properties v. Bethlehem Steel Corp., 596 F. Supp. 283, 15 ELR 20173 (N.D. Cal. 1984); and City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 12 ELR 20915 (E.D. Pa. 1982). See also Walls v. Waste Resources Corp., 16 ELR 20797 (E.D. Tenn. Oct. 11, 1985) (holding that consistency with the NCP is a factual question that requires development of a sufficient record) (citing Jones v. Inmont Corp., 584 F. Supp. 1425, 14 ELR 20485 (C.D. Ohio 1984)).

478. See 42 U.S.C. § 9622(e)(6), ELR STAT. CERCLA 057, construed in Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 19 ELR 21254 (N.D. Ill. 1988). The Allied court painstakingly reviewed the applicability of § 122(e)(6) and found that any costs a PRP incurred in performing remedial actions that had notbeen approved by EPA were per se inconsistent with the NCP. Moreover, the court determined that "passive acquiescence" would not constitute approval; instead, the court would look for formal approval by EPA, such as a consent order to perform certain remedial work. Finally, the Allied court held that § 122(e)(6) did not apply retroactively to invalidate pre-SARA remedial costs, but became effective on the date of SARA's enactment. It is, however, an open question whether § 122(e)(6) can logically apply to a court-ordered remedy under § 106 since it would appear to conflict with a court's equitable powers under that provision.

479. 693 F. Supp. 1563, 19 ELR 20473 (E.D. Pa 1988).

480. In discussing removal actions, the court found that they "are not subject to the lengthy procedural requirements of the NCP since they are taken in response to an immediate threat." Accordingly, the court indicated that approval of removal costs will turn in large part on the immediacy and seriousness of the threat that the plaintiffs faced.

Conversely, the court stressed the procedural hurdles in the NCP that plaintiffs must overcome to prove that their remedial costs were consistent with the NCP. The court found that a plaintiff's remedial action will be consistent with the NCP if the plaintiff:

(A) Provides for appropriate site investigation and analysis of remedial alternatives;

(B) Complies with the [NCP format for Remedial Investigations];

(C) Selects a cost-effective response; and

(D) Provides an opportunity for appropriate public comment concerning the selection of a remedial action.

Id. (citations omitted).

481. Id. The Versatile Metals court warned that the "distinction between remedial and removal actions is crucial in certain cases where the failure to fulfill the more detailed procedural and substantive provisions of the NCP with regard to 'remedial' actions becomes a barrier to recovery of response costs." Id. See Amland Properties Corp. v. Aluminum Co. of America, 711 F. Supp. 784, 19 ELR 21180 (D.N.J. 1989), in which the court awarded removal costs, but did not allow recovery of remedial costs because the plaintiffs did not comply with applicable requirements of the NCP. Specifically, the court found that the parties were required, but failed, to prepare an adequate remedial investigation/feasibility study, failed to evaluate alternatives under NCP criteria, did not document why certain alternatives were not chosen, and failed to provide an opportunity for public comment. Absent a showing that these requirements were not applicable, the court denied the plaintiff's request for remedial costs. See also County Line Investment Co. v. Tinney, 19 ELR 21312 (N.D. Okla. June 15, 1989) (for reasons similar to those in Amland, refusing to award response costs since plaintiff failed to comply with NCP); Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987) (finding a report that did not evaluate reasonable remedial alternatives was inconsistent with the NCP; therefore, plaintiffs could not prove that their remedial action was consistent with the NCP).

482. Martin, Lucy & Green, Private Cost-Recovery Actions under CERCLA Section 107, 1 ENVTL. CLAIMS J. 377 (1989). The authors, after discussing the requirements of the 1985 NCP and the proposed NCP, suggested that private parties may wish to "wait for an EPA administrative consent order under CERCLA § 106(a) or a consent decree pursuant to CERCLA § 122 before beginning a cleanup." The authors point out that under the proposed revision to the NCP, cleanups that are consistent with consent orders and decrees are deemed to be consistent with the NCP. This provision was retained in the final revision to the NCP. 55 Fed. Reg. 8666, 8858 (Mar. 8, 1990) (codified at 40 C.F.R. § 300.700(c)(30(ii)).

483. Colorado v. Idarado Mining Co., 735 F. Supp. 368, 20 ELR 21330 (D. Colo. 1990) (allowing a state to recover the costs of preparing remedial plans that were ultimately not implemented).

484. 40 C.F.R. § 300.700.

485. 40 C.F.R. § 300.700(c)(3)(i) (emphasis added).

486. See infra notes 575-599 and accompanying text.

487. In United States v. Miami Drum Services, Inc., 17 ELR 20539 (S.D. Fla. Dec. 12, 1986), the court stated: "Every court to consider this issue has concluded that, unless one of the defenses under § 107(b) of CERCLA applies, a party identified as responsible under § 107(a) is strictly liable, regardless of fault, for response costs…." Id. (citing New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985) (finding that a causation requirement would make the § 107(b) defenses "surplusage"); United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985)).

The court explained the basis for strict liability in United States v. Medley, 17 ELR 20297 (D.S.C. Nov. 4, 1986). The Medley court pointed out that the definition of "liability" in § 101(32) incorporated the strict standard of liability set forth in FWPCA § 311, 33 U.S.C. § 1321, 457 ELR STAT. FWPCA 039. Accord United States v. Northeastern Pharmaceutical and Chemical Co., 579 F. Supp. 845. 14 ELR 20212 (W.D. Mo. 1984) (discussing application of FWPCA strict liability standard to § 107(a) actions). See generally United States v. Stringfellow, 661 F. Supp. 1053, 17 ELR 21134 (C.D. Cal. 1987) (holding that court's inquiry into causation is restricted to determining whether the defendant fits into one of the four categories of covered person); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985) (rejecting a requirement that plaintiffs show that the defendant's wastes caused the environmental harm).

488. E.g., Idaho v. Bunker Hill Co., 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986) (stating that "the damage for which recovery is sought must still be causally linked to the act of the defendant); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985) (holding that plaintiffs must demonstrate that the release for which defendant is responsible caused response costs to be incurred). See also United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988) (finding that § 107(b) defenses are causation oriented, placing burden on defendant to show that the harm suffered by plaintiff was caused by acts of war, God, or third parties with whom defendant does not have a contractual relationship), cert. denied 490 U.S. 1106 (1989); United States v. Bliss, 667 F. Supp. 1298, 18 ELR 20055 (E.D. Mo. 1987) (holding that proximate cause test does not apply, but that defendant may attempt to prove that the harm was caused by a third party under § 107(b)).

489. 889 F.2d 1146, 20 ELR 20334 (1st Cir.), vacating and remanding 689 F. Supp. 1223, 19 ELR 20487 (D. Mass. 1988), reh'g denied 889 F.2d 1157, 20 ELR 20340 (1st Cir. 1989). In the lower court action, a plaintiff asserted that releases from the defendant's facility caused the plaintiff to incur response costs. The defendant demonstrated, however, that hazardous substances found at the plaintiff's site did not match hazardous substances released by the defendant, nor would the defendant's contamination have had time to migrate to the plaintiff's site. Moreover, the defendant had a groundwater collection system that would have prevented hazardous substances from migrating to the plaintiff's site and there was strong evidence that a separate plume caused the plaintiff to incur response costs. Finally, a layer of peat below the surface of defendant's facility made it unlikely that any hazardous substances would have leached into the groundwater. The lower court therefore found that the plaintiff "failed to show by a preponderance of the evidence that [the defendant] was responsible" for any contamination on the plaintiff's property. In vacating this finding, the First Circuit held that the relevant question was whether the defendant's release of hazardous substances caused the plaintiff to incur response costs, not whether the defendant's hazardous substances actually contaminated the plaintiff's property. Cf. United States v. Bell Petroleum Services, Inc., 20 ELR 21117 (W.D. Tex. Sept. 20, 1989) (holding that CERCLA does not require plaintiffs to prove that hazardous substances leached from soils into contaminated groundwater; instead "the placing of a hazardous substance on the soil which may enter the air or ground water constitutes a disposal or release." Id. (emphasis in original)).

490. Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1157, 20 ELR 20340 (1st Cir. 1989) (citing § 107(a)(1)-(4)(B)).

491. Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 18 ELR 20785 (D. Del. 1987). The Artesian court held that when two sources of contamination contribute to the harm at one site, the defendant's release must be a substantial factor in causing the plaintiff to incur response costs. While this holding does not require a plaintiff to "fingerprint" hazardous substances, the court did demand that a plaintiff show that it incurred costs in responding to releases occurring at the defendant's facility. The defendant then has the burden of proving that its hazardous substances were not the cause-in-fact or a substantial factor of the harm at the plaintiff's site.

492. 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1983). The Chem-Dyne court used the Restatement (Second) of Torts § 433B as its guide in establishing a presumption of joint and several liability in CERCLA cases. The court found that a defendant has the burden of proving that the harm is capable of apportionment, at least as to that defendant.

493. Rep. Eckart, one of SARA's key sponsors, stated that nothing in the reauthorization bill was "intended to change the application of the Federal rule of joint and several liability enunciated by the Chem-Dyne court." 131 CONG. REC. H11073 (daily ed. Dec. 5, 1985). The House report stated that Congress "fully subscribes to the reasoning of the court in the seminal case of United States v. Chem-Dyne Corporation, which establishes a uniform federal rule allowing for joint and several liability in appropriate CERCLA cases." H.R. REP. NO. 253(I), 99th Cong., 2d Sess., reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 2835, 2856 (citations omitted).

494. See NEPACCO, 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984) (holding held that, while CERCLA itself does not establish expressly joint and several liability, Congress intended the courts to determine the scope of liability using common law principles and previous statutory law). The NEPACCO court then held that joint and several liability was mandated by the traditional rule that joint and several liability should attach when the acts of two or more parties combine to create an indivisible harm as well as by the standard of liability in the FWPCA. In a post-SARA case, the Fourth Circuit specifically adopted the Chem-Dyne court's analysis in United States v. Monsanto, 858 F.2d 160, 19 ELR 200085 (4th Cir. 1988) (noting that the Chem-Dyne approach was "confirmed as correct in [ Congress'] consideration of SARA's contribution provisions," and holding that under the standard in Restatement (Second) of Torts § 433B, defendants have the burden of proving divisibility of harm). See also O'Neil v. Picillo, 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989) (adopting Chem-Dyne rule), aff'g 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988); United States v. R. W. Meyer, Inc., 889 F.2d 1497, 20 ELR 20319 (6th Cir. 1989); Kelley v. Thomas Solvent Co., 727 F. Supp. 1532, 20 ELR 20684 (W.D. Mich. 1989) (defining indivisible harm as when "multiple defendants contribute to a single harm to the environment, and it is impossible to determine defendants' relative contribution to the harm in a meaningful way"); United States v. Western Processing Co., 734 F. Supp. 930, 20 ELR 20990 (W.D. Wash. 1990) (holding that equitable factors play a role in apportioning costs in contribution actions, not in determining whether the environmental harm is indivisible); United States v. Bliss, 20 ELR 20879 (E.D. Mo. Sept. 27, 1988); and United States v. Miami Drum Services, Inc., 17 ELR 20539 (S.D. Fla. Dec. 12, 1986) (citing numerous courts that have incorporated the Chem-Dyne standard).

In contrast, the court in Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 19 ELR 21254 (N.D. Ill. 1988), advocated employing a "moderate approach" to joint and several liability. Citing United States v. A & F Materials Co., Inc., 578 F. Supp. 1249, 14 ELR 20105 (S.D. Ill. 1984), the Allied court indicated that a court may "reject joint and several liability, regardless of the indivisibility of the harm, where the peculiar facts of the case point to a more fair apportionment of liability." In essence, the Allied court appeared unwilling to impose liability without considering equitable factors. The courts adopting joint and several liability have suggested that equitable factors are relevant in apportioning costs, but have applied joint and several liability upon a showing of indivisible harm. For example, in O'Neil v. Picillo, 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989), the First Circuit noted that courts may use equitable factors to apportion costs among liable parties in contribution actions.

As to the divisibility of harm, in United States v. South Carolina Recycling and Disposal, 653 F. Supp. 984, 14 ELR 20272 (D.S.C. 1984), the court observed that "the volume of waste of a particular generator is not an accurate predictor of the risk associated with the waste because the toxicity or migratory potential of a particular hazardous substance generally varies independently of the volume. Such arbitrary or theoretical means of cost apportionment do not diminish the indivisibility of the underlying harm." Accord United States v. Stringfellow, 661 F. Supp. 1053, 17 ELR 21134 (C.D. Cal. 1987).

495. In United States v. Contribution Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985), the court rejected the defendants' argument that, under the doctrine of de minimis non curat lex, they should not be held liable for response costs. The court found that Congress intended CERCLA to impose liability on covered persons regardless of their volumetric contributions to a site; moreover, the court reminded the parties that it took only a small amount of a hazardous substance to create a serious threat to human health and the environment. The First Circuit thoughtfully considered the potentially draconian consequences of joint and several liability, and noted that although Congress had not seen fit to change the practice, SARA did codify contribution actions in § 113(f) and directed EPA to offer early settlements to de minimis contributors in § 122(g). Accordingly, the court refused to require proof that parties substantially contributed to the harm, as suggested by Restatement (Second) of Torts § 433B, holding that the government must simply show some contribution. O'Neil v. Picillo, 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989), aff'g 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988) (holding defendants strictly liable for cleanup costs and reserving for a later apportionment action their de minimis arguments). The First Circuit's approach was followed in In re Acushnet River & New Bedford Harbor: Proceedings re alleged PCB Pollution, 722 F. Supp. 893, 20 ELR 20204 (D. Mass. 1989).

496. O'Neil v. Picillo, 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989), aff'g 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988) (holding defendants strictly liable for cleanup costs and reserving for a later apportionment action their de minimis arguments).

497. See Burlington Northern Railroad Co. v. Time Oil Co., 738 F. Supp. 282 (W.D. Wash. 1990) (denying private party defendant's motion for summary judgment to dismiss response cost claim because not barred by CERCLA § 113(f)(2) on contribution); United States v. Hardage, No. CIV-86-1401-P, 19 Chem. Waste Lit. Rep. 132 (W.D. Okla. Sept. 22, 1989) (Reporter's Transcript of Hearing on Motion for Entry of Consent Decree); Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 19 ELR 21254 (N.D. Ill. 1988) ("claims between PRPs are not always, and should not always be, in the nature of contribution"); Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994 (D.N.J. 1988) (distinguishing § 107(a)(4)(B) from § 113(f)); but see PVO Int'l, Inc. v. Drew Chemical Corp., No. 87-3921, 16 Chem. Waste Lit. Rep. 669 (D.N.J. June 27, 1988)("section 107(a) should be read in conjunction with the contribution provision in section 113(f)(1)").

498. See United States v. Hardage, No. CIV-86-1401-P, 19 Chem. Waste Lit. Rep. at 139.

499. See Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 19 ELR 21254 (N.D. Ill. 1988); but cf. Amoco Oil Co. v. Borden, Inc., No. 88-2860, 889 F.2d 664, 20 ELR 20281 (5th Cir. 1989) (stating that a § 107(a)(4)(B) cost recovery claim would be allocated by applying the contribution "equitable factors" standard under § 113(f)).

500. See id.; United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

501. In United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985), the court found that § 886A(3) of the Restatement (Second) of Torts did not approve of contribution by intentional tortfeasors. Accordingly, the court held that a person convicted of illegal dumping was estopped from contesting his status as an intentional tortfeasor and could not, therefore, seek contribution from other PRPs.

However, the equitable doctrines of unclean hands and caveat emptor will not prevent a liable party from seeking contribution. See Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 18 ELR 21026 (3d Cir. 1988), cert. denied, 488 U.S. 1029 (1989) (refusing to bar a contribution action based on the doctrine of caveat emptor, but suggesting that it may be an equitable factor in apportioning liability); Chemical Waste Management v. Armstrong World Indus., 669 F. Supp. 1285, 18 ELR 20191 (E.D. Pa. 1987) (admonishing that "the 'unclean hands' doctrine … has no place in CERCLA actions.").

502. United States v. R. W. Meyer, Inc., 889 F.2d 1497, 20 ELR 20319 (6th Cir. 1989) (acknowledging that "CERCLA permits actions for contribution among parties found jointly and severally liable for environmental harm"), cert. denied 110 S. Ct. 1527 (1990); Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 19 ELR 20733 (D.N.J. 1988) (finding that § 113(f) "provides an express right to seek contribution from 'any other person who is liable or potentially liable under section 107(a).'" Id. (quoting 42 U.S.C. § 9613(f), ELR STAT. CERCLA 039); PVO International, Inc. v. Drew Chemical Corp., 19 ELR 20077 (D.N.J. June 27, 1988) (finding that § 113(f) provides for a right of contribution among liable parties). Cf. Polger v. Republic National Bank, 709 F. Supp. 204, 19 ELR 20938 (D. Colo. 1989) (finding that a landowner need not demonstrate his own innocence of liability before bringing a contribution action against other potentially responsible parties); Rockwell International Corp. v. IU International Corp., 702 F. Supp. 1384, 19 ELR 20908 (N.D. Ill. 1988) (finding that parties who are jointly and severally liable may seek a declaratory judgment as to future contribution for response costs); New York v. City of Johnstown, 701 F. Supp. 33, 19 ELR 20578 (N.D.N.Y. 1988) (holding that a contribution action may be brought only by joint tortfeasors responsible for the same general harm; denying a contribution action brought against a nonliable party).

Even before SARA, though, courts had recognized the right of liable parties to seek contribution from other PRPs. See United States v. New Castle County, 642 F. Supp. 1258, 16 ELR 21007 (D. Del. 1986) (finding a right to contribution from an examination of CERCLA's structure, congressional intent, and federal interests), cited with approval in Sand Springs Home v. Interplastic Corp., 670 F. Supp. 913, 17 ELR 20775 (N.D. Okla. 1987) (finding that § 113(f) unequivocally provides for a right of contribution and holding that the Restatement (Second) of Torts § 886A provides the standard for adjudicating contribution).

503. See infra notes 528-529 and accompanying text. In Rockwell International Corp. V. IU International Corp., 702 F. Supp. 1384, 19 ELR 20908 (N.D. Ill. 1988), the court allowed Rockwell to obtain a declaratory judgment under § 113(f) on the liability of IU even though no action had yet been brought against Rockwell. The court determined that Rockwell could obtain a declaratory judgment as to liability prior to being subjected to an action under §§ 106 or 107(a), but could not obtain a monetary award on the judgment until Rockwell was itself found liable in a subsequent action. See Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 19 ELR 20472 (E.D. Pa. 1988) (stating that a party "may sue for contribution … even though the federal or state governments have not yet chosen to commence an action against the liable parties.").

In a curious decision, the court in United States v. Seymour Recycling Corp., 686 F. Supp. 696, 19 ELR 20523 (S.D. Ind. 1988), held that § 113(f)(3)(B) does not allow a party to seek contribution until they have settled their liability with the government. The Rockwell court found this reading of § 113(f)(3)(B) untenable, and refused to accept the holding as persuasive precedent.

504. See CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1), ELR STAT. CERCLA 039 ("Any person may seek contribution from any other person who is liable or potentially liable under § 9607(a).") (emphasis added).

505. In United States v. Hooker Chemicals & Plastics Corp., 739 F. Supp. 125, 20 ELR 21346 (W.D.N.Y. 1990), the court allowed a state-law contribution action for response costs against a defendant that could not be found liable under § 107(a). Since the defendant in the case was not liable under § 107(a), the plaintiff could not bring a § 113 action for contribution. However, the court held that §§ 107(e)(2) and 302(d) preserved a liable party's right to seek contribution under state law. Id. (citing Edward Hines Lumber Co. v. Vulcan Materials Co., 685 F. Supp. 651, 18 ELR 21223 (N.D. Ill.), aff'd 861 F.2d 155 (7th Cir. 1988) (stating that CERCLA does not preempt "any state law remedies to recover the costs of site cleanup from parties who are not liable under CERCLA but are potentially liable under state law."))

506. See CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1), ELR STAT. CERCLA 039 ("In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.") In United States v. Northernaire Plating Co., 20 ELR 20200 (W.D. Mich. Sept. 18, 1989), the court held an apportionment proceeding after finding the parties liable under § 107(a) in an earlier action. In the apportionment proceeding, the court found useful six equitable factors that Senator Gore developed during the debates on SARA, to wit:

(1) the ability of the parties to demonstrate that their contribution to a discharge, release, or disposal of a hazardous waste can be distinguished;

(2) the amount of hazardous waste involved;

(3) the degree of toxicity of the hazardous waste involved;

(4) the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste;

(5) the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and

(6) the degree of cooperation by the parties with Federal, State, or local officials to prevent any harm to the public health or the environment.

H.R. REP. NO. 253, 99th Cong., 1st Sess. 19 (1985), reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 2835, 3024. Employing these factors, the Northernaire court apportioned one third of the response costs to the owner, who knew of the electroplating activities conducted at the site, did not properly maintain sewer lines, and failed to cooperate with regulatory authorities; and two thirds of the costs to the tenant/operator, who abandoned hazardous substances at the facility and failed to cooperate with regulators.

See also Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 18 ELR 21026 (3d Cir. 1988), cert. denied 488 U.S. 1029 (1989) (holding that costs should be apportioned among parties according to relative culpability and other equitable factors that a district court may find relevant); United States v. Monsanto Co., 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988) (observing that § 113(f) "reveals Congress' concern that the relative culpability of each responsible party be considered in determining the proportionate share of costs each must bear."), cert. denied 490 U.S. 1106 (1989); International Clinical Laboratories, Inc. v. Stevens, 20 ELR 20560 (E.D.N.Y. Jan. 11, 1990) (apportioning all response costs to past owners and operators and no costs to the current owner because he did not dispose of hazardous substances at the site and he did not know, and had no reason to know, of any environmental problems when he purchased site); Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 19 ELR 21254 (N.D. Ill. 1988) (adopting the Gore factors, citing United States v. A & F Materials Co., 578 F. Supp. 1249, 14 ELR 20105 (S.D. Ill. 1984)); PVO International, Inc. v. Drew Chemical Corp., 19 ELR 20077 (D.N.J. June 27, 1988) (holding that since the buyer may have paid a discounted price for property because of its contaminated condition, one of the equitable factors the court will consider is the "increase in the value of the property which will result if it is rid of hazardous wastes"); Jersey City Redevelopment Authority v. PPG Industries, 18 ELR 20364 (D.N.J. Sept. 3, 1987) (finding that "the general trend in the common law is toward a comparative fault approach to allocation of damages") (citing Note, Developments in the Law — Toxic Waste Litigation, 99 Harv. L. Rev. 1458, 1538 (1986) and Restatement (Second) of Torts § 886A comment h).

A district court judge retains discretion over the timing of a contribution action. In Monsanto, 858 F.2d 160, 19 ELR 20085, the Fourth Circuit upheld, but did not necessarily agree with, a district court decision to finish the instant action involving the parties' liability to the United States before proceeding in a subsequent case to decide the contribution issues raised by the liable parties.

For an insightful discussion of CERCLA contribution, see Garber, Federal Common Law of Contribution Under the 1986 CERCLA Amendments, 14 ECOLOGY L.Q. 365 (1987).

507. 42 U.S.C. § 9613(f)(2), ELR STAT. CERCLA 039. Settlement agreements with the United States are governed by procedures established in CERCLA § 122. 42 U.S.C. § 9622, ELR STAT. CERCLA 054. Although the language of § 113(f) refers only to settlements with "the United States Government or a State," two courts have interpreted the definition of "State" to include settlements with municipalities. City of New York v. Exxon Corp., 697 F. Supp. 677, 19 ELR 20332 (S.D.N.Y. 1988); and Mayor of Boonton v. Drew Chemical Corp., 621 F. Supp. 663, 16 ELR 20328 (D.N.J. 1985). But cf. City of Philadelphia v. Stepan Chemical Co., 713 F. Supp. 1484, 19 ELR 21319 (E.D. Pa. 1989) (rejecting interpretation reached in Exxon and Drew Chemical and holding that municipalities were not "states" for purposes of obtaining the presumption in favor of consistency with the NCP under § 107(a)(4)(A)).

Of course, a settlement agreement may also address liability to a federal or state trustee for natural resource damages. See In re Acushnet River & New Bedford Harbor, 712 F. Supp. 1019, 19 ELR 21210 (D. Mass. 1989).

508. See § 113(f)(2), 42 U.S.C. § 9613(f)(2), ELR STAT. CERCLA 039 ("A person who has resolved his 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.") A similar protection is afforded de minimis settlors by § 122(g)(5).

Section 113(f)(2) has been analyzed in United States v. Cannons Engineering Corp., 899 F.2d 79, 20 ELR 20845 (1st Cir. 1990) (holding that "Congress plainly intended nonsettlors to have no contribution rights against settlors regarding matters addressed in settlement"), aff'g 720 F. Supp. 1027, 20 ELR 20159 (D. Mass. 1989); United States v. Acton Corp., 131 F.R.D. 431, 20 ELR 21188 (D.N.J. 1990) (same); Allied Corp. v. Frola, 730 F. Supp. 626, 20 ELR 21193 (D.N.J. 1990) (while acknowledging that nonsettlors may have contribution rights for liability outside the scope of a consent order, barring contribution actions regarding matters covered by the consent order); City of New York v. Exxon Corp., 697 F. Supp. 677, 19 ELR 20332 (S.D.N.Y. 1988) (recognizing the § 113(f)(2) shield from nonsettlors' contribution actions); United States v. Seymour Recycling Corp., 686 F. Supp. 696, 19 ELR 20523 (S.D. Ind. 1988) (holding that parties who entered a consent decree with the government that did not resolve certain aspects of the parties' liability to the government would not receive protection under § 113(f)(2) from contribution actions brought by nonsettlers).

509. See United States v. Union Gas Co., 743 F. Supp. 1144, 21 ELR 20337 (E.D. Pa. 1990).

510. See Burlington Northern Railroad Co. v. Time Oil Co., 738 F. Supp. 1339 (W.D. Wash. 1990).

511. 42 U.S.C. § 9613(f)(2), ELR STAT. CERCLA 039 ("Such settlement does not discharge any of the [nonsettling] parties unless its terms so provide, but it reduces the potential liability of the [nonsettling parties] by the amount of the settlement.").

512. 899 F.2d 79, 20 ELR 20845 (1st Cir. 1990), aff'g 720 F. Supp. 1027, 20 ELR 20159 (D. Mass. 1989)

513. Id. See also United States v. Rohm & Haas Co., 721 F. Supp. 666, 20 ELR 20127 (D.N.J. 1989), in which the court considered the two uniform acts that parties have advanced as guides in determining the effect of settlements on nonsettling parties. The first, the Uniform Comparative Fault Act (UCFA), 12 U.L.A. 39 (Supp. 1989), imposes on each defendant its equitable share of total liability, without regard to settlements. In effect, the UCFA requires liability to be apportioned based on each party's comparative fault, expressed as a percentage of the total damages. The second, the Uniform Contribution Among Tortfeasors Act (UCATA), 12 U.L.A. 63 (1975), does not attempt to engage in equitable apportionment, but simply reduces the nonsettlors' liability by the amount in the settlement. Understandably, nonsettlors prefer the UCFA approach because it protects them from paying an equitably disproportionate amount of response costs, and settlors prefer the UCATA because it allows them to settle the amount of their liability with the certainty that it will not increase. The Rohm & Haas court declined to weigh the relative merits of these approaches, though, because in its view Congress definitively and unambiguously settled the question by enacting § 113(f)(2), which appears to be modeled on the UCATA. Accord United States v. Cannons Engineering Corp., 720 F. Supp. 1027, 20 ELR 20159 (D. Mass. 1989) (providing similar, instructive analysis), aff'd 899 F.2d 79, 20 ELR 20845 (1st Cir. 1990); Allied Corp. v. Frola, 730 F. Supp. 626, 20 ELR 21193 (D.N.J. 1990) (citing with approval the decision in Rohm & Haas); and O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988), aff'd 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989), cert. denied 110 S. Ct. 1115 (1990).

514. See United States v. Western Processing Co., 20 ELR 20986 (W.D. Wash. Jan. 16, 1990). Presented with a private-party settlement agreement, the Western Processing court engaged in a refreshingly concise analysis and chose the Uniform Comparative Fault Act, 12 U.L.A. 39 (Supp. 1989), as a better guide than the Uniform Contribution Among Tortfeasors Act, 12 U.L.A. 63 (1975), in determining the right of nonsettlors to contribution. The Rohm & Haas and Cannons Engineering courts conceded that in private party settlement cases, courts have uniformly preferred the UCFA. See, e.g., City of New York v. Exxon Corp., 697 F. Supp. 677, 19 ELR 20332 (S.D.N.Y. 1988) (adopting UCFA for purposes of determining effect of a settlement on nonsettling parties); Lyncott Corp. v ChemicalWaste Management, Inc., 690 F. Supp. 1409 (E.D. Pa. 1988) (private party case adopting UCFA); Edward Hines Lumber Co. v. Vulcan Materials Co., 685 F. Supp. 651, 18 ELR 21223 (N.D. Ill. 1988) (private party case adopting UCFA); and United States v. Conservation Chemical Co., 628 F. Supp. 391, 17 ELR 20158 (W.D. Mo. 1985) (rendered before SARA added § 113(f)(2), and applying UCFA).

515. United States v. Acton Corp., 131 F.R.D. 431, 20 ELR 21188 (D.N.J. 1990) (granting intervention under § 113(i) and FED. R. CIV. P. 24(a)(2)). The state of Michigan also sought and was allowed to intervene as a nonsettlor to challenge a proposed consent decree in United States v. Akzo Coatings of America, Inc., 719 F. Supp. 571, 20 ELR 20144 (E.D. Mich. 1989) (allowing state intervention to contest a remedial action plan embodied in a consent decree because the plan allegedly did not attain applicable or relevant and appropriate state cleanup requirements).

516. United States v. Rohm & Haas Co., 721 F. Supp. 666, 20 ELR 20127 (D.N.J. 1989) (refusing to compel the government to provide a PRP with a de minimis settlement under § 122(g)).

517. See United States v. Cannons Engineering Corp., 899 F.2d 79, 20 ELR 20845 (1st Cir. 1990), in which the court stated that "Congress intended, first, that the judiciary take a broad view of proposed settlements, leaving highly technical issues and relatively petty inequities to the discourse between parties; and second, that the district court treat each case on its own merits, recognizing the wide range of potential problems and possible solutions." The First Circuit went on to state that "we are confident that Congress intended EPA to have considerable flexibility in negotiating and structuring settlements." Id.

518. United States v. Rohm & Haas Co., 721 F. Supp.666, 20 ELR 20127 (D.N.J. 1989).

519. See United States v. Hardage, 750 F. Supp. 1460, 21 ELR 20721 (W.D. Okla. 1990) (rejecting United States proposed partial settlement with some of the defendants as not in the "public interest").

520. See United States v. Cannons Engineering Corp., 720 F. Supp. 1027, 20 ELR 20159 (D. Mass. 1989), aff'd 899 F.2d 79, 20 ELR 20845 (1st Cir. 1990). After recognizing that Congress intended to encourage settlements in CERCLA, the Cannons Engineering court approved a de minimis agreement under § 122(g) and a so-called Major PRPs agreement, applying the factors of fairness (that is, arms-length negotiating and a supportable rationale for apportioning costs), reasonableness, and consistency with the Constitution and the purposes of CERCLA. Id. (citing City of New York v. Exxon Corp., 697 F. Supp. 677, 19 ELR 20332 (S.D.N.Y. 1988); United States v. Conservation Chemical Co., 628 F. Supp. 391, 17 ELR 20158 (W.D. Mo. 1985); and United States v. Seymour Recycling Corp., 554 F. Supp. 1334, 13 ELR 20192 (S.D. Ind. 1982)). Ultimately, the Cannons Engineering court found that "[p]rotection of the public interest is the key consideration in assessing these factors." Id. (citing Seymour Recycling and In re Acushnet River & New Bedford Harbor, 712 F. Supp. 1019, 19 ELR 21210 (D. Mass. 1989), in which the court applied the factors above, and held that the public interest demands that settlement agreements include a "reopener" provision that would override a covenant not to sue and allow the government to sue the settling parties for future costs arising rom presently unknown conditions). Section 122(f)(6) requires the government to include a reopener in its covenants-not-to-sue for latent site conditions.

Other decisions using a similar analysis are: United States v. Acton Corp., 733 F. Supp. 869, 20 ELR 21191 (D.N.J. 1990) (using the standard of review established by the Rohm & Haas court to approve a settlement); United States v. Rohm & Haas Co., 721 F. Supp. 666, 20 ELR 20127 (D.N.J. 1989) (thorough consideration and approval of a § 122(g) de minimis settlement, and counseling that courts need to consider six factors when evaluating a settlement: (1) the relative costs of litigating the case; (2) the probability of establishing the settlors' liability at trial; (3) the good faith efforts and adversarial relationship of the settlement's negotiators; (4) the reasonableness of the settlement in relation to the settlors' volumetric contributions; (5) the ability of the settlors to pay more than the settlement figure; and (6) the effect of the settlement on the public interest); United States v. Nicolet, Inc., 20 ELR 20866 (E.D. Pa. Aug. 15, 1989) (rejecting arguments that the government settled "too cheaply" and approving a government consent decree with a bankrupt party); United States v. Akzo Coatings of America, Inc., 719 F. Supp. 571, 20 ELR 20144 (E.D. Mich. 1989) (approving a remedial action plan and consent decree despite a state challenge that the plan would not attain an applicable or relevant and appropriate state requirement (ARAR); finding that the plan would attain the ARAR); United States v. McGraw-Edison Co., 718 F. Supp. 154, 20 ELR 20119 (W.D.N.Y. 1989) (approving a partial consent decree that recouped 83 percent of the government's response costs at a site); Kelley v. Thomas Solvent Co., 717 F. Supp. 507, 20 ELR 20109 (W.D. Mich. 1989) (providing a good overview of the nature of consent decrees and a court's role in reviewing them; also discussing the use of nonbinding preliminary allocations of responsibility under § 122(e)). Courts commonly cite the following congressional guidance: "[a court should] satisfy itself that the settlement is reasonable, fair, and consistent with the purposes that CERCLA is intended to serve." H.R. REP. NO. 253(III), 99th Cong., 2d Sess., reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 2835.

521. City of New York v. Exxon Corp., 697 F. Supp. 677, 19 ELR 20332 (S.D.N.Y. 1988).

522. Id. The Exxon court found that settlements that include remedial action plans must meet the procedural requirements that remedial action plans in general must meet, such as development of an administrative record and extensive public review and comment opportunities, in addition to independent judicial review. Contrarily, § 122 allows the Administrator of EPA to accept a monetary settlement without judicial review and limited public comment. Since the Exxon court believed that it had a sufficient factual record to review the monetary settlement at bar in light of the factors discussed above, the court found no need to engage in a separate evidentiary hearing.

523. 693 F. Supp. 1563, 19 ELR 20472 (E.D. Pa. 1988) (finding that the buyer violated a condition of the subject indemnity clause and thereby nullified its effectiveness).

524. Id. (citing FMC Corp. v. Northern Pump Co., 668 F. Supp. 1285, 18 ELR 20293 (D. Minn. 1987) (holding that a lease provision that absolved the lessor of liabilities caused by lessee's activities barred lessee from bringing a contribution claim); and Chemical Waste Management, Inc. v. Armstrong World Industries, 669 F. Supp. 1285, 18 ELR 20191 (E.D. Pa. 1987) (holding that warranty and indemnity provisions must be express and unequivocal before they will bar CERCLA liability; court will not imply these provisions)).

525. See Jones-Hamilton Co. v. Kop-Coat, Inc., 750 F. Supp. 1022, 21 ELR 20475 (N.D. Cal. 1990); see also Allied Corp. v. Frola, 730 F. Supp. 626, 20 ELR 21193 (D.N.J. 1990) (while recognizing that "CERCLA does not restrict the right to [state] common law indemnification," using New Jersey law to hold that parties had failed to show a contractual provision or "special" relationship to support indemnification claim); Ecodyne Corp. v. Shah, 718 F. Supp. 1454, 20 ELR 20172 (N.D. Cal. 1989) (holding that a party who has entered a contract addressing its liability for cleanup costs may not derogate that contract by bringing a contribution action under § 113(f) against other parties to the contract who may have § 107(a) liability).

Other courts that have construed § 107(e) include: Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 17 ELR 20209 (9th Cir. 1986) (affirming lower court holding that had barred a contribution action based on the release provisions of a purchase contract); International Clinical Laboratories, Inc. v. Stevens, 710 F. Supp. 466, 19 ELR 21084 (E.D.N.Y. 1989) (holding that under New York law, an "as is" clause bars actions based on breach of warranty, not claims based on CERCLA); Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 19 ELR 20733 (D.N.J. 1988) (holding that under New Jersey law, an "as is" clause only precludes claims based on breach of warranty and is not sufficient to transfer liability from the seller to the buyer); and United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984 at 1010, 17 ELR 20845 (D.S.C. 1985) (after finding that seller did not misrepresent condition of property, court held that buyer assumed CERCLA liabilities of seller in sales contract).

526. In Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 17 ELR 20209 (9th Cir. 1986), the Ninth Circuit counseled that it was undesirable to have uniform federal rules, like those governing CERCLA liability, in the commercial context of indemnity clauses. Instead, the Ninth Circuit incorporated the law of the appropriate state to interpret the clause, finding this consistent with traditional federal court practice and with the effective implementation of CERCLA. See also International Clinical Laboratories, Inc. v. Stevens, 710 F. Supp. 466, 19 ELR 21084 (E.D.N.Y. 1989) (using state law to determine the effect of an "as is" clause); Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 19 ELR 20472 (E.D. Pa. 1988) (using state law to interpret a warranty provision); Channel Master Satellite Systems, Inc. v. JFD Electronics Corp., 702 F. Supp. 1229, 19 ELR 20839 (E.D.N.C. 1988) (without seeking guidance from state contract law, holding that an "as is" and an indemnity clause did not prevent a buyer from seeking response costs from a seller); Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 19 ELR 20733 (D.N.J. 1988) (while recognizing that indemnity agreements may be effective in apportioning response costs, using state law to hold that an "as is" clause and an indemnity provision did not address CERCLA liability).

527. CERCLA § 113(g)(2), 42 U.S.C. § 9613(g)(2), ELR STAT. CERCLA 039 ("the court shall enter a declaratory judgment on liability for response costs or damages that will be binding on any subsequent action or actions to recover further response costs or damages").

528. See, e.g., United States v. Hardage, 733 F. Supp. 1424, 20 ELR 21307 (W.D. Okla. 1989) (granting a motion for declaratory judgment as to the liability of responsible parties for future response costs); Williams v. Allied Automotive, 704 F. Supp. 782, 19 ELR 20689 (N.D. Ohio 1988) (holding that once liability for some costs is established, then a party may obtain declaratory judgment for future costs consistent with the NCP); Lykins v. Westinghouse Electric Corp., 18 ELR 21498 (E.D. Ky. Feb. 29, 1988) (holding that once a plaintiff has incurred some response costs, "the controversy is sufficiently real to allow the Court to determine defendants' liability for future costs as well.") (citing Jones v. Inmont Corp., 584 F. Supp. 1425, 14 ELR 20485 (S.D. Ohio 1984)); T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988) (holding defendants liable for past and future response costs based on a finding that plaintiff has incurred some removal costs); O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988) (finding that "declaratory judgments as to future removal costs are consistent with CERCLA's purpose of encouraging prompt, remedial action) (citing NEPACCO, 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984); and State ex rel. Brown v. Georgeoff, 562 F. Supp. 1300, 13 ELR 20457 (N.D. Ohio 1983)), aff'd 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989), cert. denied 110 S. Ct. 1115 (1990); Sunnen Products Co. v. Chemtech Industries, 658 F. Supp. 276, 17 ELR 20884 (E.D. Mo. 1987) (holding that a buyer of contaminated property could receive a declaratory judgment on the liability of the seller for past and future response costs); and United States v. Conservation Chemical Co., 628 F. Supp. 391, 17 ELR 20158 (W.D. Mo. 1985) (holding that settling parties are entitled to a declaratory judgment on the liability of nonsettling parties for future response costs).

529. See Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 18 ELR 20470 (9th Cir. 1988) (holding that "the essential fact establishing a CERCLA plaintiff's right to declaratory relief is the alleged disposal of hazardous substances at the site in question." Id.) (citing Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 16 ELR 20754 (9th Cir. 1986)); Rockwell International Corp. v. IU International Corp., 702 F. Supp. 1384 (N.D. Ill. 1988) (holding that a sufficient controversy exists for a party to bring a declaratory judgment action once any response costs are incurred; also, observing that no court has followed Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F. Supp. 1437, 15 ELR 20151 (S.D. Fla. 1984) (holding that plaintiffs may not ask for declaratory judgment until they have incurred remedial costs)); Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 19 ELR 20733 (D.N.J. 1988) (same holding as Rockwell) (distinguishing United States v. Price, 577 F. Supp. 1103, 14 ELR 20501 (D.N.J. 1983) (finding declaratory judgment not ripe because no specific allegation of response costs); and D'Imperio v. United States, 575 F. Supp. 248, 14 ELR 20248 (D.N.J. 1983) (finding declaratory judgment not ripe because party faced no immediate threat of liability and thus no controversy)); Brewer v. Ravan, 680 F. Supp. 1176, 18 ELR 20799 (M.D. Tenn. 1988) (finding that a declaratory judgment action is appropriate when the plaintiff has incurred "at least some necessary costs of response.").

Alternatively, courts will allow defendants to seek declaratory judgment on liability when their "fears [are] sufficiently real and immediate" based on actions taken by potential plaintiffs. Levin Metals Corp. v. Parr-Richmond Terminal Co., 799 F.2d 1312, 16 ELR 20954 (9th Cir. 1986) (finding a declaratory judgment action ripe when defendant received notice from plaintiffs of their pending claim for response costs; defendant did not have to wait until plaintiffs actually filed suit) (citing D'Imperio v. United States, 575 F. Supp. 248, 14 ELR 20248 (D.N.J. 1983)), cited with approval in Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 16 ELR 20754 (9th Cir. 1986). But see In re Combustion Equipment Associates, Inc., 838 F.2d 35, 18 ELR 20494 (2d Cir. 1988) (holding that a party's motion for declaratory relief does not ripen with the receipt of a PRP letter from EPA because EPA could decide not to pursue a cost recovery action against the party).

530. In T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988), the court assured the defendants that a declaratory judgment for future costs was not "tantamount to writing a 'blank check,'" since plaintiffs would eventually have to show that the costs were consistent with the NCP. See also Sunnen Products Co. v. Chemtech Industries, 658 F. Supp. 276, 17 ELR 20884 (E.D. Mo. 1987) (holding that a defendant liable for future response costs will be able to contest consistency with the NCP when the plaintiff incurs the costs); United States v. Conservation Chemical Co., 628 F. Supp. 391, 17 ELR 20158 (W.D. Mo. 1985) (holding that any future costs must be consistent with the NCP). Cf. United States v. Wade, 14 ELR 20437 (E.D. Pa. 1984) (holding that response costs incurred before promulgation of the NCP may be recoverable if they are eventually determined to be consistent with the NCP). See also Babich & Hanson, Injunctive and Declaratory Relief for States Under CERCLA, 18 ELR 10216 (June 1988).

531. See supra notes 283-284 and accompanying text.

532. T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988) (holding that CERCLA has not affected the equitable powers of the federal courts); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (holding that CERCLA enhances a federal district court's inherent equitable authority and finding that the existence of an available remedy at law does not, without more, preclude the exercise of equitable jurisdiction).

533. In T & E Industries v. Safety Light Corp., 680 F. Supp. 696, 18 ELR 20926 (D.N.J. 1988), the court determined: "Other forms of injunctive relief could be granted to compel defendants to 'comply with their obligations,' which may be limited to simply reimbursing plaintiff for 'necessary costs.' Thus, plaintiff's claim for injunctive relief will not be dismissed at this time." d. See also United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (waiting for a factual record to develop before deciding whether an equitable remedy is appropriate and necessary).

534. United States v. Southeastern Pennsylvania Transportation Authority, 17 ELR 20001 (E.D. Pa. 1986) (holding that §§ 107(a)(4)(c) and 107(f) clearly allow only federal and state governments to recover NRDs; private cause of action for NRDs does not exist).

Two earlier decisions held that in addition to federal and state governments, municipalities may also recover damages to natural resources over which they exercise management or control. City of New York v. Exxon Corp., 633 F. Supp. 609, 16 ELR 20850 (S.D.N.Y. 1986) (holding that purposes of CERCLA furthered by broad definition of "state"); Mayor of Boonton v. Drew Chemical Co., 621 F. Supp. 663, 16 ELR 20328 (D.N.J. 1985) (same); see Maraziti, Local Government: Opportunities to Recover for Natural Resource Damages, 17 ELR 10036 (Feb. 1987).

However, more recent decisions have rejected both the reasoning and holdings of these decisions, and have ruled that municipalities may not recover for natural resources damages. See Werlein v. United States, 746 F. Supp. 887, 21 ELR 20277 (D. Minn. 1990); Town of Bedford v. Raytheon Co., 755 F. Supp. 469, 21 ELR 20910 (D. Mass. 1991).

The seminal article on NRDs is Breen, CERCLA's Natural Resource Damage Provisions: What Do We Know So Far?, 14 ELR 10304 (Aug. 1984). Other solid treatments include Anderson, Natural Resource Damages, Superfund, and the Courts, 16 B.C. ENVTL. AFF. L. REV. 405 (1989); Carlson, Making CERCLA Natural Resource Damage Regulations Work: The Use of the Public Trust Doctrine and Other State Remedies, 18 ELR 10299 (Aug. 1988); Cross, Natural Resource Damage Valuation, 42 VAND. L. REV. 269 (1989); and Johnson, Natural Resource Damage Assessments Under CERCLA: Flawed Regulations May Limit Recovery, 12 Chem. Waste Lit. Rep. 47 (1987).

535. New York v. General Electric Co., 592 F. Supp. 291, 14 ELR 20719 (N.D.N.Y. 1984) (holding that claims for NRDs may be prospective because § 107(f) does not require a plaintiff to expend money before bringing a recovery action).

536. Colorado v. Asarco, Inc., 16 ELR 20561 (D. Colo. Nov. 27, 1985). In what some may consider a deviation from the causation requirement in response action cases, courts have held that plaintiffs must show a connection between the defendant's release of hazardous substances and the actual damages for injury to natural resources. In re Acushnet River & New Bedford Harbor: Proceedings re Alleged PCB Pollution, 722 F. Supp. 893, 20 ELR 20204 (D. Mass. 1989) (holding that when there are several sources of a release, plaintiffs must prove "by a fair preponderance of the evidence that the releases from a particular facility while owned by a particular defendant were a contributing factor to the natural resource injury for which recovery is sought"); Idaho v. Bunker Hill Co., 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986) (construing CERCLA § 107(a)(4)(C)). Another deviation from response action cases is one court's determination that NRDs, unlike government response costs, may not include attorneys fees. Idaho v. Hanna Mining Co., 882 F.2d 392, 19 ELR 21358 (9th Cir. 1989).

537. CERCLA § 301(c), 42 U.S.C. § 9651(c), ELR STAT. CERCLA 062. The Interior Department actually promulgated two sets of regulations. The first set, called "Type A" regulations, were supposed to be "standard procedures for simplified assessments requiring minimal field observation"; the second set, called "Type B" regulations, were supposed to be "alternative protocols for conducting assessments in individual cases to determine the extent of short- and long-term injury." 43 C.F.R. §§ 11.10-11.93. Both sets of regulations were challenged, with the primary focus on the Type B regulations. See Ohio v. U.S. Department of Interior, 880 F.2d 432, 19 ELR 21099 (D.C. Cir. 1989) (discussed infra). In the companion case concerning the Type A regulations, the D.C. Circuit upheld Interior's decision to limit the scope of Type A regulations to the assessment of damages to coastal and marine environments caused by point sources, but remanded the regulations with directions that Interior must make the Type A regulations consistent with the court's ruling in Ohio v. Interior. Colorado v. U.S. Department of the Interior, 880 F.2d 481, 19 ELR 21127 (D.C. Cir. 1989).

538. 43 C.F.R. § 11.83. Restoration value is the cost of restoring, replacing, or acquiring the equivalent of a damaged natural resource. Use value is calculated by determining the market value of a natural resource. For example, if a hazardous substance spill destroyed seals and a seal habitat, restoration value would be the cost of repopulating the habitat and making it flourish again or of acquiring an equivalent habitat. Use value would be the market value of the lost seals (based on the price of seal pelts) plus the market value of comparable habitat. See generally, Ohio v. Interior, 880 F.2d at 432, 19 ELR at 21099.

539. 880 F.2d at 432, 19 ELR at 21099.

540. In a decision that predated Interior's regulations, a district court adopted the "lesser of" rule as a part of CERCLA federal common law. Idaho v. Bunker Hill Co., 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986). The Bunker Hill court bemoaned the lack of clear guidelines in CERCLA for assessing the dollar value of NRDs. Turning to legislative history, the court found persuasive the view of Senator Simpson that NRDs should be measured using traditional tort rules for calculating damages, which awarded the lesser of diminution in value or, where possible, restoration costs. Id. (citing 126 CONG. REC. S1500 (daily ed. Nov. 24, 1980) (statement of Sen. Simpson)). While failing to mention Bunker Hill, the D.C. Circuit did discuss Sen. Simpson's remarks, dismissing them as the grumblings of a vocal opponent of CERCLA who apparently did not share the Congress' dissatisfaction with common law remedies.

541. 42 U.S.C. § 9607(f), ELR STAT. CERCLA 026 (stating that CERCLA does not authorize the recovery of natural resource damages "where such damages and the release of a hazardous substance from which such damages resulted have occurred wholly before December 11, 1980."). In construing this provision, the court in In re Acushnet River and New Bedford Harbor, 716 F. Supp. 676, 19 ELR 21471 (D. Mass. 1989), felt it unimportant to determine whether damages were incurred by post- or preenactment release. Instead, the court focused principally on the terms "damages" and "occurred," finding that the former meant the monetary quantification of an injury and the latter meant the point in time when a person incurs expenses due to the injury. From this, the Acushnet River court reasoned that § 107(f) establishes December 11, 1980, as a bright line date, barring claims for damages (monetary expenses) if they occurred (were incurred) prior to the bright line, without regard to when the releases occurred. In reaching its interpretation, the Acushnet River court discussed at length the decision in Idaho v. Bunker Hill Co., 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986) (finding that if the release occurred before enactment but the damage occurred after enactment, then § 107(f) would not bar recovery), but expressed dissatisfaction with Bunker Hill's imprecise use of "damages" and "occurred."

See also Aetna Casualty & Surety Co. v. Gulf Resources & Chemical Co., 709 F. Supp. 958, 19 ELR 21063 (D. Idaho 1989) (citing Bunker Hill for the proposition that no recovery can be had for damages occurring before December 11, 1980, in an insurance case) and United States v. Wade, 14 ELR 20435 (E.D. Pa. 1984) (construing § 107(f) and finding that its preenactment bar was not triggered simply because a defendant stopped dumping hazardous substances before December 11, 1980). The Wade court reasoned that releases such as leaching may occur long after a hazardous substance has been dumped.

542. In re Acushnet River and New Bedford Harbor, 716 F. Supp. 676, 19 ELR 21471 (D. Mass. 1989).

543. See supra notes 163-164 and accompanying text. See also In re Acushnet River & New Bedford Harbor: Proceedings re Alleged PCB Pollution, 722 F. Supp. 893, 20 ELR 20204 (D. Mass. 1989) (holding that defendants have the burden of proving by a preponderance of the evidence "which releases were federally permitted and, if possible, what portion of the natural resource damages are allocable to federally permitted releases").

544. Idaho v. Hanna Mining Co., 699 F. Supp. 827, 18 ELR 20360 (D. Idaho 1987), aff'd on other grounds 882 F.2d 392, 19 ELR 21358 (9th Cir. 1989). The Ninth Circuit held that an EIS does not need to use the specific terms "irreversible" and "irretrievable," but it must be clear and unambiguous as to the expected damage caused by an activity. Additionally, the Ninth Circuit held that this liability shield covered only "irreversible and irretrievable" uses of resources that occur after their identification in an EIS. That is, when an activity has been occurring and creating environmental injury prior to its evaluation in an EIS, then a trustee may recover NRDs for the injuries that occurred before publication of the EIS. See supra notes 159-162 and accompanying text.

545. There are a number of recurring issues, such as whether there were "occurrences" that were "sudden or accidental," that are so fact specific that they will not be discussed here. For discussion of these and other issues, see Hoskins, Striking a Balance: The Pollution Clause in Comprehensive General Liability Policies, 19 ELR 10351 (Aug. 1989); and Cheek, Graham & Wardzinski, Insurance Coverage for Superfund Liability Defense and Cleanup Cost, 19 ELR 10203 (May 1989).

546. See, e.g., Hazen Paper Co. v. United States Fidelity & Guaranty Co., 555 N.E.2d 576, 20 ELR 21457 (Mass. 1990) (holding that an EPA notice letter to a CERCLA PRP constitutes a "suit" under the policies, but that a letter from a Massachusetts agency is not a suit); but see Aetna Casualty & Surety Co. v. Gulf Resources & Chemical Corp., 709 F. Supp. 958, 19 ELR 21063 (D. Idaho 1989) (applying Idaho law).

547. See, e.g., Verlan, Ltd. v. John L. Armitage & Co., 695 F. Supp. 955, 19 ELR 20330 (N.D. Ill. 1988).

548. See supra at notes 366-367 and accompanying text.

549. CGL policies contain standard clauses and disclaimers. See Continental Insurance Cos. v. Northeastern Pharmaceutical and Chemical Co., 842 F.2d 977, 18 ELR 20819 (8th Cir.) (noting that CGL policies contain standard-form language), cert. denied 488 U.S. 821 (1988).

Perhaps a more fundamental issue relates to whether the cleanup costs could be said to be "damages" paid for "property damages," and therefore within the coverage limits of the typical CGL policy. See Aetna Casualty & Surety Co. v. Gulf Resources & Chemical Corp., 709 F. Supp. 958, 19 ELR 21063 (D. Idaho 1989) (finding that response costs are not recoverable because there is no underlying "property damage," as opposed to natural resource damages, which presuppose such property damage); but see National Indemnity Co. v. United States Pollution Control, Inc., 717 F. Supp. 765, 19 ELR 21449 (W.D. Okla. 1989) (environmental contamination is "property damage"); Intel Corp. v. Hartford Accident and Indemnity Co., 692 F. Supp. 1171, 19 ELR 20459 (N.D. Cal. 1988) (same).

550. See, e.g., Continental Insurance Cos. v. Northeastern Pharmaceutical and Chemical Co., 842 F.2d 977, 18 ELR 20819 (8th Cir. 1988) (holding that under "Black letter insurance law," the term "pay as damages" limits the obligation of the insurer to reimburse the insured only for legal damages, not equitable response costs), cert. denied 488 U.S. 821 (1988); Maryland Casualty Co. v. Armco, Inc., 822 F.2d 1348, 17 ELR 21277 (4th Cir. 1987) (applying Maryland law, and limiting recovery in CGL policies to legal damages and relieving insured from the obligation of paying equitable response costs), cert. denied 484 U.S. 1008 (1988). See also Cincinnati Insurance Co. v. Milliken and Co., 857 F.2d 979, 19 ELR 20118 (4th Cir. 1988) (applying South Carolina law, and citing Continental and Armco in reaching the same conclusion); Parker Solvents Co. v. Royal Insurance Companies of America, No. 89-2293, 20 Chem. Waste Lit. Rep. 636 (W.D. Ark. July 3, 1990); Verlan, Ltd. v. John L. Armitage & Co., 695 F. Supp. 955, 19 ELR 20330 (N.D. Ill. 1988) (applying Illinois law).

551. See Boeing v. Aetna Casualty and Surety Co., 784 P.2d 507, 20 ELR 20362 (Wash. 1990) (responding to certification from federal district court as to Washington law); Intel Corp. v. Hartford Accident and Indemnity Co., 692 F. Supp. 1171, 19 ELR 20459 (N.D. Cal. 1988) (applying California law); National Indemnity Co. v. United States Pollution Control, Inc., 717 F. Supp. 765, 19 ELR 21449 (W.D. Okla. 1989) (applying Oklahoma law); New Castle County v. Hartford Accident & Indemnity Co., 673 F. Supp. 1359 (D. Del. 1987) (interpreting Delaware law as requiring courts to give insurance contract provisions a "plain meaning" and finding that a layperson would include both equitable and legal relief in a definition of damages); Jones Truck Lines v. Transport Insurance Co., 19 ELR 21169 (E.D. Pa. May 9, 1989) (same, interpreting Missouri law); Hazen Paper Co. v. United States Fidelity and Guaranty Co., 19 ELR 20364 (Mass. Super. Ct. Jan. 10, 1989), vacated and remanded 555 N.E.2d 576, 20 ELR 21457 (Mass. 1990).

552. AIU Insurance Co. v. Superior Court of Santa Clara County, 799 F.2d 1253, 21 ELR 20315 (Cal. 1990).

553. Id.

554. Id.

555. For the discussion of the inconsistency between rhetoric and practice, see Intel Corp. v. Hartford Accident and Indemnity Co., 692 F. Supp. 1171, 19 ELR 20459 (N.D. Cal. 1988).

556. 19 ELR 21169 (E.D. Pa. May 9, 1989).

557. 842 F.2d 977, 18 ELR 20819 (8th Cir.), cert. denied 488 U.S. 821 (1988).

558. The Continental court had acknowledged that Missouri followed the layperson's reading rule, but then adopted the technical meaning of "damages" as it is used in the insurance context. The Fourth Circuit made the same leap in interpreting the law in Maryland and South Carolina, recognizing in each case that state law required terms in insurance contracts to be given a popular, normal meaning but nevertheless adopting the technical meaning of the term "damages" in finding that the CGL policy did not cover response costs. Armco, 822 F.2d at 1348, 17 ELR at 21277 (applying Maryland law); Milliken, 857 F.2d at 979, 19 ELR at 20118 (applying South Carolina law).

559. The Jones court, citing Robin v. Blue Cross Hospital Service, Inc., 637 S.W.2d 695 (Mo. 1982) (en banc), determined that under Missouri law "the rules of construction applicable to insurance contracts require that the language used be given its plain meaning."

560. See, e.g., United States v. Nicolet, Inc., 20 ELR 20866 (E.D. Pa. 1989) (arguments that bankrupt's settlement with government unfairly limited contribution claims of other parties unavailing).

561. 112 Bankr. Rep. 540, 20 ELR 21321 (S.D.N.Y. Mar. 30, 1990).

562. Id.

563. Id. See 11 U.S.C. § 362(a).

564. Id. (citing 11 U.S.C. § 362(b)(4) and (5)).

565. See id.; United States v. Nicolet, Inc., 857 F.2d 202, 18 ELR 21411 (3d Cir. 1988); In re Advance Coatings Co., 19 ELR 21420 (Bankr. D. Mass. July 12, 1989); United States v. Mattiace Industries,Inc., 73 Bankr. 816, 17 ELR 21004 (E.D.N.Y. May 15, 1987).

566. 70 Bankr. 943, 17 ELR 20826 (Bankr. W.D. Mich. 1987).

567. Id. (applying 11 U.S.C. § 157) (citing In re Franklin Signal Corp., 65 Bankr. 268, 17 ELR 20369 (Bankr. D. Minn. 1986)).

568. 474 U.S. 494, 16 ELR 20278 (1986) (court "does not have the power to authorize an abandonment without formulating conditions that will adequately protect the public's health and safety"). See Morris, State Enforcement of Environmental Laws Against Bankrupt Entities, 16 ELR 10143 (June 1986).

569. The Peerless court found that under Midlantic, the Bankruptcy Code would allow a trustee to abandon contaminated property if: (1) the environmental law preventing abandonment was so onerous as to interfere with the bankruptcy or adjudication itself; (2) the environmental law preventing abandonment was not reasonably designed to protect public health and safety from imminent or identified environmental hazards; or (3) the violation caused by abandonment would only be speculative.

Applying these factors, the Peerless court held that CERCLA would not interfere with depletion of the estate, that CERCLA was designed to protect public health, and that abandonment would result in an immediate violation of CERCLA. Thus, the trustee could not abandon the property.

The Peerless court noted that it disagreed with a prior ruling that had allowed the abandonment of contaminated property subject to certain conditions, In re Franklin Signal Corp., 65 Bankr. 268, 17 ELR 20369 (Bankr. D. Minn. 1986). The Franklin court decided that it had satisfied the Midlantic factors by determining that abandoning the contaminated property would not violate the Wisconsin Hazardous Waste Management Act. As long as the trustee investigates the property to identify the hazardous substances that burden the property and notifies appropriate state and federal agencies of the impending abandonment, the Franklin court found that the trustee had taken "adequate precautionary measures to ensure that there is no imminent danger to the public as a result of abandonment." Id.

570. Peerless, 17 ELR 20826; In re Wall Tube & Metal Products Co., 831 F.2d 118, 18 ELR 20013 (6th Cir. 1987).

571. Id. See also In re T.P. Long Chemical, Inc., 45 Bankr. 278, 15 ELR 20635 (Bankr. N.D. Ohio 1985) (holding the estate is imputed with the same owner/operator liability as the bankrupt owner).

572. See In re FCX, Inc., 19 ELR 20849 (Bankr. E.D.N.C. Feb. 3, 1989); In re Smith-Douglass, Inc., 856 F.2d 12, 18 ELR 21472 (4th Cir. 1988); In re Dant & Russell, Inc., 853 F.2d 700, 18 ELR 21312 (9th Cir. 1988).

573. 19 ELR 20849 (Bankr. E.D.N.C. Feb. 3, 1989) (stating that this was true whether applied to CERCLA or state environmental laws).

574. 42 U.S.C. § 9607(b), ELR STAT. CERCLA 025.

575. See, e.g. United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986).

576. Id.; United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

577. 42 U.S.C. § 9607(b)(3), ELR STAT. CERCLA 025. Section 107(b)(1), the Act of God defense, has been the subject of one decision. In that case the court held that heavy but foreseeable rains are not contemplated by the term "Act of God." United States v. Stringfellow, 661 F. Supp. 1053, 17 ELR 21134 (C.D. Cal. 1987).

578. O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988) (quoting United States v. Stringfellow, 661 F. Supp. 1053, 17 ELR 21134 (C.D. Cal. 1987)), aff'd 883 F.2d 176, 20 ELR 20115 (11th Cir. 1989), cert. denied 110 S. Ct. 1115 (1990).

579. United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied 490 U.S. 1106 (1989). Accord New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985). See also Kelley v. Thomas Solvent Co., 727 F. Supp. 1532, 20 ELR 20684 (W.D. Mich. 1989); United States v. Fleet Factors Corp., 724 F. Supp. 955, 19 ELR 20529 (S.D.Ga. 1988) (third party must be solely liable for release or threatened release), aff'd on other grounds 901 F.2d 1550, 20 ELR 20832 (11th Cir. 1990), reh'g denied en banc 911 F.2d 742 (11th Cir. 1990), cert. denied 111 S. Ct. 752 (1991); United States v. Hooker Chemicals & Plastics Corp., 680 F. Supp. 546, 18 ELR 20580 (W.D.N.Y. 1988) (defendant must show that it was "totally blameless" with respect to the release to qualify for the defense under § 107(b)(3)).

580. CERCLA § 107(b)(3), 42 U.S.C. § 9607(b)(3), ELR STAT. CERCLA 025.

581. See United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied 490 U.S. 1106 (1989); International Clinical Laboratories, Inc. v. Stevens, 710 F. Supp. 466, 19 ELR 21084 (E.D.N.Y. 1989); United States v. Northernaire Plating Co., 670 F. Supp. 742, 18 ELR 20712 (W.D. Mich. 1987); United States v. Argent Corp., 14 ELR 20616 (D.N.M. May 4, 1984).

582. United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988). See also United States v. Parsons, 723 F. Supp. 757, 19 ELR 21420 (N.D.Ga. 1989).

583. O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988) (citing Violet v. Picillo, 613 F. Supp. 1563, 16 ELR 20331 (D.R.I. 1985)), aff'd 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989), cert. denied 110 S. Ct. 1115 (1990).

584. Id. (rejecting defendant's claim to defense based on the lack of evidence that its regular disposer had ever used the site in question).

585. 743 F. Supp. 208 (S.D.N.Y. 1990).

586. Id.

587. CERCLA § 107(b)(3)(a) and (b), 42 U.S.C. § 9607(b)(3)(a) and (b), ELR STAT. CERCLA 025.

588. United States v. Hooker Chemicals & Plastics Corp., 680 F. Supp. 546, 18 ELR 20580 (W.D.N.Y. 1988).

589. New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985).

590. 42 U.S.C. § 9607(b)(3), ELR STAT. CERCLA 025. See, e.g., United States v. Ward, 618 F. Supp. 884, 16 ELR 20127 (E.D.N.C. 1985) (transporter either an employee or agent of the defendant).

591. City of Philadelphia v. Stepan Chemical Co., 18 ELR 20133 (E.D. Pa. July 28, 1987).

592. Id. (citing 126 CONG. REC. 26783 (daily ed. Sept. 23, 1980) (statement by then Rep. Gore). But see Violet v. Picillo, 648 F. Supp. 1283, 17 ELR 20629 (D.R.I. 1986), which states that the third-party defense incorporates "general principles of vicarious liability." If the facts and result of the City of Philadelphia case seem remorseless already, it will not surprise the reader to find that the city's liability was established on a counterclaim by the company after the city sued under CERCLA. City of Philadelphia, 18 ELR at 20133.

593. See §§ 101(35) and 107(b)(3), 42 U.S.C. §§ 9601(35) and 9607(b)(3), ELR STAT. CERCLA 009, 025.

594. See, e.g., United States v. Mirabile, 15 ELR 20994 (E.D. Pa. Sept. 4, 1985).

595. CERCLA § 101(35)(A)(i), 42 U.S.C. § 9601(35)(A)(i), ELR STAT. CERCLA 009.

596. See, e.g., Wickland Oil Terminals v. Asarco Inc., 19 ELR 20855 (N.D. Cal. Feb. 23, 1988) (corporation held not to be an innocent purchaser because it had not demonstrated either that it did not know that contaminants were released at the site or that it had made all proper inquiries into the previous ownership and uses of the property); Washington v. Time Oil Co., 687 F. Supp. 529, 18 ELR 21376 (W.D. Wash. 1988) (oil company held not entitled to raise an "innocent landowner" defense because it failed to take due care or appropriate precautions regarding hazardous substances on the property); BCW Associates Ltd. v. Occidental Chem. Corp., No. 86-5947 (E.D. Pa. Sept. 30, 1988), reported in 3 Tox. L. Rep. (BNA) 943 (Jan. 4, 1989) (property owner and lessee held liable for cleanup costs even though neither disposed of lead at the site and both commissioned environmental audits that gave the site a clean bill of health — court found that any time an audit proves to be inaccurate, sufficiency of purchaser's due diligence becomes a question of fact). But see International Clinical Laboratories, Inc. v. Stevens, 20 ELR 20560 (E.D.N.Y. Jan. 11, 1990) (current landowner found not to be liable for contamination, of which it had no knowledge, caused by tenant of prior owner).

597. PVO International, Inc. v. Drew Chemical Corp., 19 ELR 20077 (D.N.J. June 27, 1988). See also Wickland Oil Terminals v. Asarco, Inc., 19 ELR 20855 (N.D. Cal. Feb. 23, 1988) (landowner not entitled to innocent purchaser defense, notwithstanding lack of knowledge of contamination, because of failure to conduct "all appropriate inquiry" regarding the property prior to acquisition).

598. See, e.g., U.S. v. Pacific Hide & Fur Depot, Inc., 716 F. Supp. 1341, 19 ELR 20897 (D. Idaho 1989) (persons who acquired interest in contaminated property through inheritance or gift entitled to assert innocent landowner defense because they did not know, or have reason to know, of the contamination at time of transfer); United States v. Serafini, 706 F. Supp. 346, 19 ELR 20828 (M.D. Pa. 1988).

599. 804 F.2d 1454, 17 ELR 20209 (9th Cir. 1986).

600. See, e.g., Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 19 ELR 20733 (D.N.J. 1988) (under § 107(e)(1), parties remain accountable for any costs incurred in a government instituted cleanup regardless of conveyance or transfer, but as between private parties they retain the freedom to contract out of CERCLA liability) (citing Mardan). See, also, Central Illinois Public Service Co. v. Industrial Oil Tank & Line Cleaning Service, 730 F. Supp. 1498, 1507 (W.D. Mo. 1990) ("a liable party remains liable (e.g., to the United States) regardless of whether it has an indemnity agreement, but the liable party still may proceed against a third party (e.g., an insurance company) which has agreed to indemnify the liable party"); Channel Master Satellite Systems, Inc. v. JFD Electronics Corp., 702 F. Supp. 1229, 19 ELR 20839 (E.D.N.C. 1988) ("The thrust of § 107(e) is that although one may not deny liability for response costs by virtue of an indemnity or hold harmless agreement, such agreements to indemnify are not eliminated by the strict liability provisions of CERCLA."); FMC Corp. v. Northern Pump Co., 668 F. Supp. 1285, 18 ELR 20293 (D. Minn. 1987) (enforcing a release of CERCLA liability between liable parties).

601. See, e.g., Wiegmann & Rose International Corp. v. NL Industries, 735 F. Supp. 957, 20 ELR 21140 (N.D. Cal. 1990); International Clinical Laboratories, Inc. v. Stevens, 710 F. Supp. 466, 19 ELR 21084 (E.D.N.Y. 1989); Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 19 ELR 20733 (D.N.J. 1988). The case law generally favors agreements that make specific reference to CERCLA liability allocations. See, e.g., Chemical Waste Management v. Armstrong World Industries, 669 F. Supp. 1285, 18 ELR 20191 (E.D. Pa. 1987) ("If owner/operators and generators wish to redistribute the risks distributed by Congress, they must do so clearly and unequivocally.").

602. 743 F. Supp. 825, 21 ELR 20332(N.D. Ohio 1990).

603. Id.

604. Id.

605. 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

606. Id. But see United States v. Hardage, 116 F.R.D. 460, 17 ELR 20738 (W.D. Okla. 1987) (equitable defenses unavailable for purposes other than liability).

607. Id. See also United States v. Mottolo, 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988); O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988), aff'd 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989), cert. denied 110 S. Ct. 1115 (1990).

608. Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 19 ELR 20472 (E.D. Pa. 1988); Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 19 ELR 21254 (N.D. Ill. 1988); United States v. Stringfellow, 661 F. Supp. 1053, 17 ELR 21134 (C.D. Cal. 1987). Cf. New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20538 (2d Cir. 1985) (each of the defenses in § 107(b) "carves out from liability an exception based on causation"), quoted in United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied 490 U.S. 1106 (1989); Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 19 ELR 20733 (D.N.J. 1988) (equitable defenses "go to the issue of damages").

609. See United States v. Tyson, 17 ELR 20527 (E.D. Pa. Aug. 21, 1986); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985). SARA added § 122(g), which provides for expedited settlements with de minimis contributors in certain narrow circumstances.

610. See United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986); United States v. Mottolo, 605 F. Supp. 898, 15 ELR 20444 (D.N.H. 1985).

611. United States v. Moore, 703 F. Supp. 455, 18 ELR 21274 (E.D. Va. 1988). See also United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986); United States v. Mottolo, 605 F. Supp. 898, 15 ELR 20444 (D.N.H. 1985); Violet v. Picillo, 613 F. Supp. 1563 (D.R.I. 1985). But see United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985), where the court notes that laches is not automatically barred against the United States.

In dicta, the Moore court states that if called to look for an analogous federal statute of limitation as guidance to the application of laches, it would be the six years for implied-in-law contracts under 28 U.S.C. § 2415(a), not the three year tort limitation in 28 U.S.C. § 2415(b). Accord United States v. Mottolo, 605 F. Supp. at 898, 15 ELR at 20444; But see United States v. Wade (E.D. Pa. 1984) (finding 28 U.S.C. § 2415 inapplicable in any event).

612. Merry v. Westinghouse Electric Corp., 684 F. Supp. 852, 18 ELR 21220 (M.D. Pa. 1988).

613. See, e.g., United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985) (estoppel may apply to government actions, conduct, or statements by its employees); United States v. Conservation Chemical Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1988). See also United States v. Vineland Chemical Co., 692 F. Supp. 415, 19 ELR 20160 (D.N.J. 1988) (government may be equitably estopped when exercising its sovereign powers only upon a showing of compelling government misconduct).

614. See, e.g., United States v. Western Processing Co., 734 F. Supp. 930, 20 ELR 20990 (W.D. Wash. 1990); Mardan Corp. v. C.G.C. Music, Ltd. 600 F. Supp. 1049, 15 ELR 20370 (D. Ariz. 1984), aff'd on other grounds 804 F.2d 1454, 17 ELR 20209 (9th Cir. 1986) (holding that the doctrine of unclean hands can bar a private party, but not the government). Cf. United States v. Shaner, No. 85-1372, Haz. Waste Lit. Rep. (BNA) 19816 n. 15 (E.D. Pa. June 25, 1990) (noting that unclean hands could not bar the government's cost recovery suit, but leaving undecided whether the doctrine could mitigate the amount).

615. O'Neil v. Picillo, 682 F. Supp. 706, 18 ELR 20893 (D.R.I. 1988), aff'd 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989), cert. denied 110 S. Ct. 1115 (1990).

616. Allied Corp. v. Acme Solvents Reclaiming, Inc. 691 F. Supp. 1100, 19 ELR 21254 (N.D. Ill. 1988). The Allied court reasoned that the language of § 107 allowed "any person" to recover costs, that this language "overrides any common law rules to the contrary," and, thus, precludes the application of the unclean hands doctrine. See also Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 18 ELR 21026 (3d Cir. 1988), cert. denied 488 U.S. 1029 (1989) (holding that caveat emptor is not a defense to liability for contribution).

617. See, e.g., Mardan Corp. v. C.G.C. Music, Ltd., 600 F. Supp. 1049, 15 ELR 20370 (D. Ariz. 1984) aff'd on other grounds 804 F.2d 1454, 17 ELR 20209 (9th Cir. 1986).

618. 695 F. Supp. 615, 19 ELR 20442 (D.N.H. 1988).

619. Id.

620. General Electric Co. v. Litton Business Systems, Inc., 715 F. Supp. 949, 19 ELR 21433 (W.D. Mo. 1989). See also Westwood Pharmaceutical, Inc. v. National Fuel Gas Distribution Corp., 737 F. Supp. 1272 (W.D.N.Y. 1990) (rejecting claim of defense based on caveat emptor where the sale in question predated CERCLA).

21 ELR 10367 | Environmental Law Reporter | copyright © 1991 | All rights reserved