Natural Resources Damages Under CERCLA § 107: How the Liability Rules Differ Between Actions for Natural Resource Damages and Response Costs

Mehron Azarmehr

Editors' Summary: CERCLA § 107 is perhaps best known as creating a cause of action for the recovery of costs incurred in responding to releases of hazardous substances. Recently, however, federal and state governments have used it increasingly in suits to recover natural resource damages. This Article describes the elements of a CERCLA cause of action for the recovery of natural resource damages and compares them to the elements of a CERCLA cause of action for the recovery of response costs. The author examines who may bring suits for natural resource damages, the nexus requirement between the resources and a government authority, and the key definitions of "release" and "hazardous substance." He also analyzes the requirement of causation, the applicable statute of limitations, permitted releases, retroactive application of CERCLA, and the right to trial by jury. The author concludes that the increasing use of CERCLA § 107 by state and federal governments to recover natural resource damages, coupled with both the absence of a dollar limit on natural resource damage recoveries and the tremendous number of sites nationwide that could give rise to natural resource damages suits, suggests that such suits will likely increase tremendously and the amount of money involved will be staggering.

Mr. Azarmehr is an attorney employed with the Environmental Protection Division of the Texas Attorney General's Office in Austin, Texas, but is not an assistant attorney general. The views expressed in this Article are the author's and do not represent the views of the Texas Attorney General's Office.

[22 ELR 10655]

Finding common law theories and existing federal environmental legislation inadequate to address the problem of hazardous waste contamination, in 1980 Congress enacted what has been referred to as one of the most radical environmental statutes in American history¹ — the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).² As amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA),³ CERCLA authorizes courts to hold the responsible parties⁴ [22 ELR 10656] liable for releases of hazardous waste that result in government response costs,⁵ private response costs,⁶ and natural resource damages.⁷

While suits for response costs have dominated CERCLA jurisprudence, in recent years federal and state governments have increasingly used CERCLA § 107's natural resource damages provision. Since there is no dollar limit on the amount that may be recovered under this provision, natural resource damages relief has enormous potential to remunerate federal and state governments for damages to their natural resources.⁸ Some commentators foresee an explosion of natural resource damages suits in the 1990s.⁹ In addition, the Department of the Interior's (DOI's) Proposed Natural Resource Damage Assessments regulations¹⁰ would extend the monetary damages recoverable under CERCLA and provide a powerful incentive for federal and state governments to initiate suits under CERCLA and seek large monetary damages for injury to their natural resources.

This Article surveys the issues that have arisen and may arise under CERCLA's natural resource damages provision, and compares the law governing CERCLA response cost recovery actions with the law developing in suits for natural resource damages. The Article discusses how natural resource damages suits differ from response costs actions with respect to the persons who may sue, the nexus requirements between the resources and a government authority, and the definition of "release" and "hazardous substance." The Article also examines how these two causes of action differ with respect to the causation requirement, the statute of limitations, permitted releases, the retroactive effect, and the right to jury trial.

Who May Sue to Recover Natural Resource Damages?

Unlike some response cost suits, suits for natural resource damages may not be brought by private parties.¹¹ They must be brought by designated federal and state trustees of the injured resources.

Designation of Federal Trustees

CERCLA requires the President to designate federal officials to act as trustees on the behalf of the public.¹² The federal trustees are required to assess damages under both the Federal Water Pollution Control Act (FWPCA)¹³ and CERCLA for injury to natural resources under their trusteeship.¹⁴ At their discretion and on request and reimbursement from a state, the federal trustees may assess damages for natural resources under a state trusteeship.¹⁵

The basic implementing regulations of CERCLA are contained in the U.S. Environmental Protection Agency's (EPA's) National Oil and Hazardous Substances Pollution Contingency Plan.¹⁶ The secretaries of the Department of Commerce and the Department of the Interior are designated trustees of the resources under their respective management or protection,¹⁷ and the trustee for the natural resources located on or under land administered by the United States is the head of the department of which the land-managing agency is a part.¹⁸ Thus, for most federal lands, the trustees are the secretaries of the following departments: Interior, Agriculture, Defense, and Energy.¹⁹

Designation of State Trustees

CERCLA requires the governor of each state to designate state officials to act as natural resource trustees under CERCLA and the FWPCA and to notify the President of this designation.²⁰ EPA regulations limit a state trusteeship's [22 ELR 10657] scope to natural resources within the boundary of the state or "belonging to, managed by, controlled by, or appertaining to such state."²¹ The state trustees are obligated to "assess damages" to natural resources under their trusteeship.²² Multiple trustees are required to coordinate and cooperate in performing their responsibilities.²³

Some courts have held that in addition to the federal and state governments, municipalities may also recover damages to natural resources over which they exercise management or control.²⁴ These courts reasoned that CERCLA's broad remedial intention is furthered by a broad definition of the term "state."²⁵ However, other courts have recently rejected both the reasoning and holdings of these decisions and ruled that municipalities may not recover for natural resource damages under CERCLA.²⁶

Nexus Requirement

CERCLA § 101(16) defines "natural resources" to include

… land, fish, wildlife, biota, air, water, groundwater, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States …, any State or local, any foreign government, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian tribe.²⁷

This definition arguably requires that a nexus exist between the resources and a governmental authority.²⁸ The nexus requirement is clearly met where the resources involved are owned by a government, or where the government otherwise has exclusive possession of them, as through a lease.²⁹ Thus, public domain land, parkland, national forests, state forests, military installations, government-owned reservations and lakes, and other similar property where the government's interest is proprietary should be covered. The definition also speaks of resources held in trust by government.³⁰ By this language, Congress arguably meant to draw in the various state common laws defining the contours of the public trust doctrine.³¹

It seems unclear from the CERCLA definition of natural resources whether the nexus requirement is met for resources, such as endangered species, coastal zone, public drinking water supplies, and air, that are regulated directly by a government for purposes of environmental protection, and for resources that are not directly regulated by a government for purposes of environmental protection, but that could constitutionally be regulated.³² Arguably the first type of resources should be covered since environmental protection regulations give the government substantial control over the protected resources.³³ However, the second type of resources has a more tenuous nexus. Under present case law and statutory and regulatory schemes, it is unclear whether damages to these resources are recoverable.³⁴

One commentator argues that no special nexus should be required.³⁵ This commentator points to CERCLA §§ 111(b) and 107(f), which appear to give broad reach to causes of action for natural resources.³⁶ Section 111(b)³⁷ allows the United States to assert claims "as trustee" of any natural resources over which it has "sovereign rights," a term that could be equated with the power to regulate. Section 107(f) [22 ELR 10658] specifically provides that the United States and any individual state may seek damages "for natural resources within the state."³⁸ It has been argued that the broad language of "within the state" shows that the only nexus requirement is that the natural resource be within the state's boundaries.³⁹

In Ohio v. Department of the Interior,⁴⁰ the U.S. Court of Appeals for the District of Columbia Circuit attempted to reconcile CERCLA §§ 107(f) and 101(16). In this case, several states and environmental groups argued that based on § 107(f), CERCLA covers injuries to any natural resource that exists "within [a] state."⁴¹ The court rejected this argument and held that

[the phrase] "natural resources within the state" incorporates section 101(16)'s definition of "natural resources" as resources "belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by" the state. Thus, it is this series of phrases, and not the "within the state" language, that controls the issue.⁴²

The court went on to examine the legislative history of CERCLA and concluded that natural resource damages liability does not extend to private property absent any government involvement, management, or control.⁴³ Because of the inconsistency in the positions expressed in the preamble to the DOI's regulation⁴⁴ and the oral argument of the DOI's counsel,⁴⁵ the court ordered the DOI to clarify its position on whether its rules extend to private property.⁴⁶

In response to the court's order, the DOI states in the preamble to its 1991 proposed rules that "the … terms 'managed by, held in trust by, appertaining to, or otherwise controlled by' ensure a wide range of legitimate government interest in natural resources that may, in fact, be held in private ownership."⁴⁷ If adopted, these rules would appear to allow, for example, a state natural resource trustee to sue for damages to an aquifer in a state that follows the English private ownership of underground water doctrine, if that state regulated the withdrawals from the aquifer.

The Terms "Release" and "Hazardous Substance"

"Release"

To recover response costs, a plaintiff must show that there was "a release or a threatened release … of a hazardous substance."⁴⁸ However, "threatened release" would not textually or logically apply to natural resource damages actions. CERCLA § 107(a)(4)(C) limits the liability for injury to natural resources to the "injury, destruction, or loss resulting from … a release."⁴⁹ Therefore, to impose liability for natural resource damages, there must be an actual release of a hazardous substance.⁵⁰

CERCLA defines "release" to mean "any spilling, leaking, pumpage, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment."⁵¹ This definition should apply to response cost and natural resource damages cases. Under CERCLA the "environment" includes groundwater, surface water, land surface or subsurface strata, and air.⁵² The statutory definition of release specifically includes abandoning or discarding barrels and other closed receptacles containing hazardous substance.⁵³ At the same time, this definition explicitly excludes (1) "any release which results in exposure to persons solely within workplace, with respect to a claim which such persons may assert against the employer of such persons"; (2) motor vehicle, aircraft, or vessel emissions; (3) certain releases of radioactive material; and (4) the normal application of fertilizer.⁵⁴

Courts in response cost recovery cases have construed the definition of release broadly "to avoid frustrat[ing] the beneficial legislative purposes."⁵⁵ Courts have found a release when hazardous substances migrate into public and private sewer systems,⁵⁶ leak from waste drums wastes and underground tanks or continue to leak and seep from earlier spills,⁵⁷ or escape into the environment after they have been transported and disposed of at a second facility.⁵⁸ Releases also include transportation of asbestos by the wind.⁵⁹

[22 ELR 10659]

In Amoco Oil Co. v. Borden, Inc.,⁶⁰ the question of liability for response costs turned on whether a release of a hazardous substance had occurred.⁶¹ Amoco, having bought a tract of industrial property from Borden which turned out to be contaminated, brought a private action under CERCLA seeking a declaratory judgment for liability and response costs from Borden.⁶² The purchased property contained large inactive piles of phosphogypsum, which emitted low levels of radioactivity.⁶³ Borden had allegedly dumped more highly radioactive slugs and scales from processing equipment into the phosphogypsum piles, creating "hot areas."⁶⁴ Amoco claimed that it had no knowledge of the radioactive nature of phosphogypsum until it was informed of this by the then Texas Department of Water Resources.⁶⁵ One of Borden's primary defenses was that the levels of radiation emanating from the site were not high enough to be considered a hazardous substance release under CERCLA.⁶⁶

The district court held that Amoco must prove that some threshold level of radioactivity existed at the site in order to establish liability under CERCLA.⁶⁷ The U.S. Court of Appeals for the Fifth Circuit disagreed. Construing the definition of "release" broadly, it held that Borden's disposing of the phosphogypsum and highly radioactive waste on the property constituted a "release" under § 101(22).⁶⁸ The court also held that the gas emanating from the radionuclides constituted a release.⁶⁹

In United States v. Carolina Transformer Co.,⁷⁰ the U.S. District Court for the Eastern District of North Carolina held that to establish that there has been a release for purposes of CERCLA liability, a plaintiff need only show that any hazardous substance as defined by CERCLA in any amount was found at the site.⁷¹

"Hazardous Substance"

CERCLA defines "hazardous substance"⁷² by reference to CERCLA § 102 (allowing EPA to designate hazardous substances by publishing rules⁷³ saying which elements, compounds, mixtures, solutions, and substances may present a substantial danger to the public) and by reference to other federal environmental statutes such as the FWPCA, the Resource Conservation and Recovery Act (RCRA),⁷⁴ the Clean Air Act,⁷⁵ and the Toxic Substances Control Act.⁷⁶ The statutory definition specifically excludes natural and synthetic gas and petroleum, including crude oil or any fraction thereof which is not otherwise specifically designated as usable fuel.⁷⁷

The term "hazardous substance" is more inclusive than "hazardous waste" because the term "substance" includes primary products intended for manufacturing as well as by products and waste products.⁷⁸ Also, there is no quantitative requirement for radioactive materials to constitute "hazardous substances" under CERCLA.⁷⁹

In Idaho v. Hanna Mining Co.,⁸⁰ Idaho brought a CERCLA suit against the owners of a copper and cobalt mine alleging that mining wastes had caused the death of fish and the pollution of lakes and streams with high amounts of acid and copper.⁸¹ The defendants argued that mining wastes were not "hazardous substances" under CERCLA since the regulation of mining wastes had been suspended under RCRA.⁸² The U.S. District Court for the District of Idaho held that regardless of the suspension of RCRA mining waste regulation, such wastes are "hazardous substances" within meaning of CERCLA because mining wastes are covered under the FWPCA as well as RCRA.⁸³ The mere fact that mining wastes have not been considered "hazardous waste" under RCRA does not mean that they cannot be "hazardous substances" under CERCLA.⁸⁴

[22 ELR 10660]

Causation Requirement

The courts have interpreted CERCLA § 107 as requiring a different causation requirement for response cost claims than for natural resource damages claims. Generally, courts do not require plaintiffs seeking recovery of response costs to prove causation between the defendants' actions and the pollution. However, courts have required plaintiffs seeking recovery for natural resource damages to prove proximate cause.

Response Cost Suits

In United States v. Wade,⁸⁵ one of the earliest CERCLA cases discussing causation in cost recovery suits, the United States District Court for the Eastern District of Pennsylvania held that to satisfy the causation requirement, the government need only show that a defendant disposed of hazardous waste found at both the defendant's plant and the disposal site.⁸⁶ The court further noted that the government need not link its cleanup costs to the particular wastes that each generator sent to the site.⁸⁷

New York v. Shore Realty Corp.⁸⁸ is frequently cited for the proposition that there is no proximate causation requirement in response cost suits. In Shore Realty, the U.S. Court of Appeals for the Second Circuit reasoned that the structure of CERCLA and its legislative history⁸⁹ did not support requiring the plaintiff to prove proximate cause. In United States v. Monsanto Co.,⁹⁰ the U.S. Court of Appeals for the Fourth Circuit agreed, holding that a showing of chemical similarity between hazardous substances released from a waste storage facility and chemical waste of defendants who generated and stored chemical waste at the facility was sufficient.⁹¹ The court also noted that Congress "allocated the burden of disproving disposal causation to the defendant who profited from the generation and inexpensive disposal of hazardous waste."⁹²

Other decisions show that the majority view does not require a plaintiff in a CERCLA § 107 action for response costs to prove that there is causation between the defendant's acts and the pollution. Rather, the plaintiff may recover response costs after merely showing that the defendant released or threatened to release a hazardous substance.⁹³

CERCLA § 107(f) provides in pertinent part that "[t]here shall be no recovery … where … damages and the release of a hazardous substance for which such damages resulted have occurred wholly before December 11, 1980."⁹⁴ CERCLA § 107(a)(4)(C) provides that responsible parties are liable for damages for injury to natural resources "resulting from" a release of a hazardous substance or oil.⁹⁵ In natural resource damage claims, courts have interpreted these provisions to require proof of proximate cause.⁹⁶

In Idaho v. Bunker Hill Co.,⁹⁷ the U.S. District Court for the District of Idaho addressed the causation requirement under § 107(f). Idaho sought recovery of damages for injury to natural resources allegedly caused by the defendant's operation of its facility for over a century.⁹⁸ The court held the defendant liable for releases occurring prior to CERCLA's enactment that resulted in post-enactment damages.⁹⁹ However, the court rejected the state's argument that since there is strict liability under CERCLA, causation is unnecessary.¹⁰⁰ The court reasoned that "strict liability does not abrogate the necessity of showing causation, but merely displaces any necessity for showing some degree of culpability by the actor."¹⁰¹ Relying [22 ELR 10661] on the language of § 107(f),¹⁰² the court further held that the damages for which recovery is sought must be causally linked to the defendant's act.¹⁰³

Ohio v. Department of the Interior¹⁰⁴ provides perhaps the most elaborate analysis of causation under CERCLA. In this case, various individuals, states, environmental groups, chemical industry trade associations, manufacturing companies, and utility companies sought review of the DOI's 1986 natural resource damage assessment regulations.¹⁰⁵

Among other parties, the states and environmental groups challenged the DOI's regulations establishing a set of "acceptance criteria" as a framework for determining whether a hazardous substance release actually caused injury to a particular biological resource for which a trustee seeks damages.¹⁰⁶ They argued that the acceptance criteria were "extraordinarily burdensome" and required "virtually absolute scientific proof" of causation.¹⁰⁷ The regulations established the following acceptance criteria, which must all be satisfied:

(1) biological response caused by exposure to oil or hazardous substances,

(2) exposure to oil or hazardous substance is known and documented to cause this biological response in free-ranging organisms,

(3) exposure to oil or hazardous substance is known and documented to cause this biological response in controlled experiments, and

(4) the biological response measurement is sufficiently routine and practical to perform and produces scientifically valid results.¹⁰⁸

In addition to requiring that all acceptance criteria be met, the regulations require the trustee to show a "statistically significant difference in the biological response between samples from populations in the assessment area and in the control areas."¹⁰⁹ The regulations also define an actionable injury as a measurable adverse change to a natural resource directly or indirectly from an oil spill or the release of hazardous substance.¹¹⁰

The environmental groups and the states argued that the acceptance criteria required traditional common law causation analysis for determining whether a hazardous substance release caused a particular injury, and that the criteria, therefore, frustrated CERCLA's purpose of liberalizing the common law causation-of-injury standard.¹¹¹ The U.S. Court of Appeals for the District of Columbia Circuit rejected these claims.¹¹²

In reviewing the criteria, the court applied the two-step analysis of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.¹¹³ Step one of the Chevron analysis requires the court to determine "whether Congress has directly spoken to the precise question at issue."¹¹⁴ If the statute is silent on a particular issue or just ambiguous, under step two of Chevron, the court must defer to the agency's interpretation of the statute so long as it is reasonable and consistent with the statutory purpose.¹¹⁵

Having found the language of CERCLA ambiguous on causation, the court turned to CERCLA's legislative history.¹¹⁶ In doing so, the court noted that Congress' general concern for liberalizing the common law standard provided the background for the passage of CERCLA.¹¹⁷ The court, however, found little "evidence showing that Congress specifically intended to ease the standard of proof for showing that a particular spill caused a particular biological injury."¹¹⁸ Furthermore, the court noted that Congress knew how to reject "the ordinary requirements" for proof of causation, as it considered and rejected a causation standard in relation to a never-enacted provision establishing liability for the medical exposure of persons injured by hazardous substance spills.¹¹⁹

Thus, the court concluded that "CERCLA is at best ambiguous on the question of whether the causation-of-injury standard under § 107(a)(c) must be less demanding than that [22 ELR 10662] of the common law."¹²⁰ Accordingly, the court, under step two of Chevron, upheld the DOI's "plausible reading of CERCLA as adopting traditional causation standards in this context."¹²¹

Statute of Limitations

CERCLA, as amended by SARA, provides a specific statute of limitations for response cost recovery claims¹²² and a separate limitations provision for natural resource damages claims.¹²³ CERCLA § 112(d)(2) states that

[n]o claim may be presented under this section for recovery of the damages referred to in [§ 107(a)] unless the claim is presented within 3 years after the later of the following:

(A) The date of the discovery of the loss and its connection with the release in question.

(B) The date on which final regulations are promulgated under section 9651(c) of this title.¹²⁴

The latter event refers to CERCLA's requirement that the President promulgate regulations within two years after December 11, 1980, for the assessment of natural resource damages resulting from the release of oil or hazardous substances.¹²⁵ Acknowledging President Reagan's failure to meet the deadline, SARA provided that "[n]otwithstanding the failure of the President to promulgate the regulations required under this subsection on the required date, the President shall promulgate such regulations not later than 6 months after October 17, 1986."¹²⁶

Having been delegated this regulatory authority by the President,¹²⁷ the DOI proposed regulations on August 1, 1986,¹²⁸ which were later promulgated and amended on March 20, 1987.¹²⁹ Thus, March 20, 1987, arguably triggers the three-year statute of limitations under CERCLA § 112(d)(2)(B),¹³⁰ so that on March 20, 1990, subsection (B) ceased to matter, and only subsection (A) applies.¹³¹ However, in 1989 the U.S. Court of Appeals for the District of Columbia Circuit¹³² remanded the March 20, 1987, rules back to the DOI for revision and clarification. In its preamble to the proposed rules issued on April 29, 1991, the DOI states that the date on which the proposed rules become effective will mark the date on which the "final regulations" are promulgated for purposes of § 112(d)(2)'s statute of limitations.¹³³

Contribution actions for damages must be commenced within three years of (1) the date of judgment in an underlying action, (2) the date of an administrative order, or (3) the date of entry of a judicially approved settlement with respect to such damages.¹³⁴ Subrogation actions must be filed within three years after payment of the claim.¹³⁵

Permitted Releases

CERCLA § 107(f) and (j) provide an exception from liability for releases that were authorized by permit. Section 107(f), which does not apply in response cost suits, provides that no liability for natural resource damages shall be imposed:

Where the party sought to be charged has demonstrated that the damages to natural resources complained of were specifically identified as an irreversible and irretrievable commitment of natural resources in an environmental impact statement, or other comparable environmental analysis, and the decision to grant a permit or license authorizes such commitment of natural resources, and the facility or project was otherwise operating within the terms of its permit or license.¹³⁶

The U.S. District Court for the District of Idaho addressed this exception in Idaho v. Hanna Minig Co.¹³⁷ In their motion for summary judgment, defendant mine owners claimed that § 107(f) barred the state's action because the damages claimed by the state had been identified in an environmental impact statement (EIS) and an environmental assessment (EA).¹³⁸ The court held that the EIS exception in § 107(f) did not apply, "because the specific words 'irreversible' and 'irretrievable' were not used in the EIS."¹³⁹

Although the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's holding, it chose to focus on whether the EIS exception covers past activities that create [22 ELR 10663] continuing harm.¹⁴⁰ In the early 1980s, one of the defendant mine owners had obtained a national pollutant discharge elimination system permit to construct a $ 1.5 million wastewater treatment plant at one of the mines.¹⁴¹ The U.S. Forest Service, after doing an EA, issued a use permit to the mine owner, followed in 1982 by an EIS.¹⁴² The mine owner then ceased its mining activities.¹⁴³

The court of appeals began its analysis by holding that "the EIS exception … is to allow liability to be waived only for pollution caused by the facility, not by the problems that existed before the facility."¹⁴⁴ An otherwise liable party may not use the EIS to absolve it of liability for natural resource damages arising from its pre-EIS activities.¹⁴⁵ Finally, the court held that the terms "irreversible" and "irretrievable" need not be specifically recited in the EIS for the defense to apply, so long as the EIS contains a clear and unambiguous statement whether natural resources have been specifically identified as an irreversible and irretrievable commitment of resources.¹⁴⁶

Section 107(j) provides that the recovery for "damages resulting from a federally permitted release shall be pursuant to existing law in lieu of [CERCLA]."¹⁴⁷ CERCLA § 101(10)¹⁴⁸ broadly defines "federally permitted releases" to include discharges and releases in compliance with permits under various federal environmental statutes, such as the FWPCA, the Clean Air Act, RCRA, and the Safe Drinking Water Act.¹⁴⁹

The "federally permitted release" defense does not bar recovery where a release or releases causing natural resource damages were not expressly permitted or in excess of a permit limitation.¹⁵⁰ Nor does the exception bar recovery for releases that are otherwise exempt from permitting requirements. For example, a RCRA small quantity generator that is exempt from otherwise applicable requirements may still be liable under CERCLA for damages from the release of hazardous waste.¹⁵¹

Retroactivity

On the issue of retroactivity, natural resource damages actions differ greatly from actions to recover response costs. Courts have held that CERCLA may be applied retroactively to preenactment response costs incurred by the government in cleaning up hazardous sites.¹⁵² Such retroactive application has been held not to offend due process or impair the right to contract.¹⁵³

CERCLA § 107(f)(1)'s last sentence provides that there is no natural resources damages liability "where such damages and the release of a hazardous substance from which such damages resulted have occurred wholly before December 11, 1980."¹⁵⁴ In In re Acushnet River & New Bedford Harbor: Proceedings re Alleged PCB Pollution¹⁵⁵ (Acushnet River I), the U.S. District Court for the District of Massachusetts held that this exemption precludes liability only when both the release and the resulting damages occurred prior to CERCLA's enactment on December 11, 1980, and do not continue to occur after enactment.¹⁵⁶

Section 107(f)(1)'s last sentence raises several issues for the courts. First, what constitutes "damages" under § 107(f)? CERCLA § 101(6) defines the term "damages" as "damages for injury or loss of natural resources…."¹⁵⁷ In Acushnet River I, the court, after expressing its frustration with the ambiguities of CERCLA,¹⁵⁸ interpreted § 101(6) as defining damages to mean "monetary quantification stemming from an injury" rather than the injury itself.¹⁵⁹ The court interpreted the term "occurred" in § 107(f) to mean that natural resource damages "occur" when "the property owner …, or some entity as a general rule, incurs expenses due to the injury to natural resources…."¹⁶⁰ As a result, the court required the state to introduce evidence of the monetary quantification that proximately stemmed from the polychlorinated biphenyl (PCB) injury to the environment in order to establish damages under CERCLA.¹⁶¹

The next issue raised by § 107(f)(1)'s last sentence is the [22 ELR 10664] extent of liability when there are pre- and post-enactment releases and damages. At least one court has held that where natural resource damages are readily divisible, the state can only recover for such damages incurred post-enactment.¹⁶² Conversely, where the damages are not divisible, the state can recover for such nondivisible damages in their entirety.¹⁶³ Natural resource damages may be measured, among other ways, as the decrease in aesthetic value of the resources.¹⁶⁴ Aesthetic injury that results from both the pre- and post-enactment releases is an example of indivisible damages. Therefore, a plaintiff may recover aesthetic injury damages that occurred during pre- and post-enactment.¹⁶⁵

Right to Jury Trial

The Seventh Amendment of the U.S. Constitution preserved the right to trial by jury in suits at common law.¹⁶⁶ The U.S. Supreme Court in Tull v. United States¹⁶⁷ held that, under the Seventh Amendment, defendants are entitled to a jury trial on the issue of liability when the government seeks civil penalties under the FWPCA. Are jury trials also constitutionally required in CERCLA response cost and natural resource damages suits?

In Tull, the government filed an FWPCA suit seeking injunctive relief and civil penalties against a developer, who had been filling wetlands around Virginia.¹⁶⁸ At trial, the developer requested and was denied a trial by jury.¹⁶⁹ After a bench trial, the district court imposed civil penalties and granted injunctive relief. The U.S. Court of Appeals for the Fourth Circuit affirmed the district court's denial of a jury trial, and the developer appealed to the U.S. Supreme Court.¹⁷⁰

The U.S. Supreme Court applied the traditional Seventh Amendment test. It determined whether the statutory cause of action is more analogous to suits at common law in the eighteenth-century English law courts or to suits tried in that era's courts of equity, and whether the remedy sought is legal or equitable in nature.¹⁷¹ The Court held that the liability aspects of an FWPCA cause of action are more like a common law action in debt than a suit in equity.¹⁷² Liability, therefore, must be tried before a jury.¹⁷³ The amount of civil penalties, however, may be set by the court without transgressing the Seventh Amendment.¹⁷⁴

Response Cost Suits

In United States v. Wade,¹⁷⁵ decided before Tull, the U.S. District Court for the Eastern District of Pennsylvania had held that an action for response costs under CERCLA § 107(a)(4)(A) is equitable in nature, like a restitution suit, and therefore, there is no constitutional right to a jury trial.¹⁷⁶ Other district courts have agreed.¹⁷⁷

After Tull, the U.S. District Court for the District of Massachusetts in In re Acushnet River & New Bedford Harbor: Proceedings re Alleged PCB Pollution¹⁷⁸ (Acushnet River II), noting the Tull decision, followed the holdings of Wade and United States v. Allied Chemical Corp. A commentator has argued that

the fact that the government only recovers actual costs, and that such costs were incurred to return society to the situation it was in before the hazardous wastes were released and no more … favor[s] … the developing trend toward analyzing section 107 cost recovery actions as equitable in nature.¹⁷⁹

Natural Resource Damages

Wade involved government claims under CERCLA for natural resource damages, as well as response costs. The court held that because Pennsylvania was only seeking reimbursement for money spent assessing injury to natural resources and rehabilitating and restoring injured resources, it was presenting equitable claims that did not have to be tried to a jury.¹⁸⁰

In Acushnet II, the U.S. government and the Commonwealth of Massachusetts brought an action under CERCLA against alleged polluters for damages resulting from diminution in value and loss of use of natural resources contaminated by defendants' release of PCBs.¹⁸¹ The court distinguished between (1) the claims for rehabilitation and restoration of natural resources and costs of assessing injury to natural resources and (2) the claims for recovery of the value of natural resources that were lost forever, the cost of resources over time, and the cost of assessing the lost use and value of resources.¹⁸² The court categorized group 1 claims as response cost claims under CERCLA § 107(a)(4)(A) and group 2 claims as natural resource damages claims under § 107(a)(4)(C).¹⁸³ The court held that the claims for natural resource damages "present legal issues that must be tried by a jury as a matter of law."¹⁸⁴

[22 ELR 10665]

The court reasoned that an action for natural resource damages, like an action for damages under the Civil Rights Act, "sounds basically in tort."¹⁸⁵ When suing for natural resource damages, the state and federal governments are "… suing, albeit under a statute, for injury to the property over which they hold trusteeship…. From these allegations a money judgment might well have been had at common law under either a nuisance or trespass theory."¹⁸⁶

Conclusion

Twelve years after its enactment, CERCLA continues to be a formidable remedial environmental statute. While response cost suits continue to dominate CERCLA litigation, in the past few years natural resource damages actions have emerged as another strong remedial mechanism under CERCLA. Many states are likely to make increasing use of CERCLA's natural resource damages provisions notwithstanding the causation requirement. By extending the monetary damages recoverable under CERCLA, the DOI's Proposed Natural Resource Damage Assessments regulations would provide a powerful incentive for these government suits. Considering recent high profile oil spills and the hundreds of inactive hazardous waste sites around the country that could form the basis for natural resource damages claims in the near future, the stage is set for an explosion of litigation involving staggering stakes.

1. Developments — Toxic Waste Litigation, 99 HARV. L. REV. 1458 (1986) [hereinafter Developments].

2. Pub. L. No. 96-510, 94 Stat. 2767 (codified as amended at 42 U.S.C. §§ 9601-9675 (1988)). Prior to enactment of CERCLA, Congress passed the Resource Conservation and Recovery Act of 1976 (RCRA), Pub. L. No. 94-580, 90 Stat. 2795 (codified as amended at 42 U.S.C. §§ 6901-6992i (1988)). That legislation focused on the management and regulation of hazardous waste disposal. RCRA authorized the regulation of hazardous waste from the time of its creation to the time of its disposal. However, it failed to address the problem of abandoned hazardous waste sites. This omission prompted Congress to fill in the regulatory gaps by enacting CERCLA. See H.R. REP. NO. 1016, 96th Cong., 2d Sess., pt. 1, at 22 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6125; S. REP. NO. 848, 96th Cong., 2d Sess. 10-11 (1980). See also United States v. Shell Oil Co., 579 F. Supp. 1064, 1071 (D. Colo. 1985) ("deficiencies in RCRA have left regulatory gaps"); United States v. Northeastern Pharmaceutical & Chem. Co., 579 F. Supp. 823, 839, 14 ELR 20212, 20218 (W.D. Mo. 1984) ("It was the precise inadequacies resulting from RCRA's lack of applicability to inactive and abandoned hazardous waste disposal sites that prompted the passage of CERCLA."), aff'd in part, rev'd in part, 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986); Richard C. Belthoff, Private Cost Recovery Actions Under Section 107 of CERCLA, 11 COLUM. J. ENVTL. L. 141, 144 (1986) ("the major purpose behind CERCLA is to remedy the inadequacies of prior environmental legislation"); Frank P. Grad, A Legislative History of the Comprehensive Environmental Response, Compensation, and Liability ("Superfund") Act of 1980, 8 COLUM. J. ENVTL. L. 1, 2 (1982) (Congress enacted CERCLA "for the protection of health and the environment").

3. Pub. L. No. 99-499, 100 Stat. 1613 (1986). For a comprehensive legislative history of SARA, see Timothy Atkeson et al., Annotated Legislative History of the Superfund Amendments and Reauthorization Act of 1986, 16 ELR 10363 (Dec. 1986).

4. CERCLA imposes liability on four groups of potentially responsible parties. Section 107 provides:

[S]ubject only to the defenses set forth in subsection (b) of this section —

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable…

CERCLA § 107(a), 42 U.S.C. § 9607(a), ELR STAT. CERCLA 024.

5. CERCLA § 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A), ELR STAT. CERCLA 024.

6. CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B), ELR STAT. CERCLA 024-025.

7. CERCLA § 107(a)(4)(C), 42 U.S.C. § 9607(a)(4)(C), ELR STAT. CERCLA 025.

8. One commentator has called natural resource damage recovery potentially "astronomical." Flye, Superfund's Potentially Nasty Surprises, ENV'T REG. ANALYST, Mar. 1981, at 8.

9. See Andrew J. Simons & James M. Wicks, Natural Resources Damages Under CERCLA, Here They Come, Ready or Not, 63 ST. JOHN'S L. REV. 801 (1990); Frank L. Amoroso, Natural Resource Damage Recovery Actions: A Legal Tidal Wave Looming, 17 WESTCHESTER B.J. 109 (1990); Lloyd W. Landreth & Kevin M. Ward, Natural Resource Damages: Recovery Under State Law Compared With Federal Laws, 20 ELR 10134 (Apr. 1990).

10. These proposed rules were issued on April 29, 1991. 56 Fed. Reg. 19752, 19755-60 (1991) (to be codified at 43 C.F.R. pt. 11).

11. See United States v. Southern Pa. Transp. Auth., 17 ELR 20001 (E.D. Pa. July 2, 1986) (private cause of action for natural resource damages does not exist). Compare CERCLA § 107(a)(4)(C), 42 U.S.C. § 9607(a)(4)(C), ELR STAT. CERCLA 025, with CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B), ELR STAT. CERCLA 024-025 (allowing private persons to sue for response costs incurred in a manner consistent with the National Oil and Hazardous Substances Pollution Contingency Plan). One commentator argues that allowing citizen suits for natural resource damages would invigorate the natural resource damages doctrine to the extent that Congress had intended. Barry Breen, Citizen Suits for Natural Resource Damages: Closing a Gap in Federal Environmental Law, 24 WAKE FOREST L. REV. 851 (1989).

12. CERCLA § 107(f)(2)(A), 42 U.S.C. § 9607(f)(2)(A), ELR STAT. CERCLA 026.

13. 33 U.S.C. §§ 1251-1376, ELR STAT. FWPCA 003-071.

14. CERCLA § 107(f)(2)(A), 42 U.S.C. § 9607(f)(2)(A), ELR STAT. CERCLA 026; 40 C.F.R. § 300.600 (1991).

15. Id.

16. 40 C.F.R. pt. 300 (1991). The NCP became effective on December 10, 1982. 47 Fed. Reg. 55488 (1982). See also Comment, EPA Proposes Court-Ordered Plan Provisions Under "Superfund," Stresses Flexible Cleanup Standards, 12 ELR 10040 (Apr. 1982).

17. 40 C.F.R. § 300.600(b) (1991).

18. Id. § 300.600(b)(3).

19. Id.

20. CERCLA § 107(f)(2)(B), 42 U.S.C. § 9607(f)(2)(B), ELR STAT. CERCLA 026. CERCLA and EPA regulations designate the tribal chairmen of Indian tribes or a person designated by the tribal officials to act as a trustee for the natural resources belonging to, managed by, controlled by, or appertaining to such Indian tribes, or held in trust for the benefit of the Indian tribe. CERCLA § 107(f)(1), 42 U.S.C. § 9607(f)(1), ELR STAT. CERCLA 026; 40 C.F.R. § 300.610 (1991). For CERCLA's definition of Indian tribe, see CERCLA § 101(36), 42 U.S.C. § 9601(36), ELR STAT. CERCLA 010; 40 C.F.R. § 300.5 (1991).

21. CERCLA § 107(f)(1), 42 U.S.C. § 9607(f)(1), ELR STAT. CERCLA 026; 40 C.F.R. § 300.605 (1991).

22. CERCLA § 107(f)(2)(B), 42 U.S.C. § 9607(f)(2)(B), ELR STAT. CERCLA 026.

23. 40 C.F.R. § 300.615(a) (1991). The responsibilities of trustees are outlined in 40 C.F.R. § 300.615 (1991).

24. City of New York v. Exxon Corp., 633 F. Supp. 609, 16 ELR 20850 (S.D.N.Y. 1986); Mayor of Boonton v. Drew Chemical Co., 621 F. Supp. 663, 16 ELR 20328 (D.N.J. 1985); see also Joseph J. Maraziti Jr., Local Governments: Opportunity to Recover for Natural Resource Damages, 17 ELR 10036 (Feb. 1987).

25. See Maraziti, supra note 24.

26. Werlien 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).

27. CERCLA § 101(16), 42 U.S.C. §9601(16), ELR STAT. CERCLA 008.

28. See Barry Breen, CERCLA's Natural Resource Damage Provision: What Do We Know So Far?, 14 ELR 10304 (Aug. 1984). See generally S. SCHRAFF & R. STEINBERG, RCRA AND SUPERFUND: A PRACTICE GUIDE WITH FORMS § 3.06 (1989).

29. In New York v. Exxon Corp., Judge Weinfeld held that

the waters of Jamaica Bay, East Chester Bay, and Richmond Creek, along with the underground aquifers lying beneath the affected landfills, which are under the control or management of the city, are natural resources within the meaning of the statute, and damage to them may be compensated by an action under CERCLA.

New York v. Exxon Corp., 633 F. Supp. 609, 618 (S.D.N.Y. 1986) (emphasis added).

30. CERCLA § 101(16), 42 U.S.C. § 9601(16), ELR STAT. CERCLA 008.

31. During its early development, the public trust doctrine was used to retain fisheries and land under navigable waters in trust for the use and benefit of the public. Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970); VICTOR J. YANNOCONE ET AL., ENVIRONMENTAL RIGHTS AND REMEDIES § 2:3 (1972). The U.S. Supreme Court has held that "the state holds the title to the lands under the navigable waters…. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters … and the liberty of fishing therein." Illinois Cent. R.R. v. Illinois, 146 U.S. 387 (1892). The doctrine also extends to the national parks. Sax, supra 485; Davenport v. Buffington, 97 F.2d 234 (8th Cir. 1899). Under the law of some states, the trust is active, not passive, and imposes a responsibility on states to preserve and promote the trust corpus. See, e.g., National Audubon Soc'y v. Superior Court of Alpine County, 33 Cal. 3d 419, 13 ELR 20272 (1983), cert. denied, 464 U.S. 977 (1983); City of Milwaukee v. State, 193 Wis. 423, 820 (1927). For a more elaborate discussion of the use of the public trust doctrine for protection of natural resources, see Gary D. Meyers, Variation on a Theme: Expanding the Public Trust Doctrine to Include Protection of Wildlife, 19 ENVTL. L. 723 (1989); Eric E. Nelson & Curt R. Fransen, Playing With a Full Deck: State Use of Common Law Theories to Complement Relief Available Through CERCLA, 25 IDAHO L. REV. 493 (1989); Howard Kenison et al., State Actions for Natural Resource Damages: Enforcement of the Public Trust, 17 ELR 10434 (Nov. 1987).

32. See Breen, supra note 28.

33. Id.

34. Id.

35. Developments, supra note 1, at 1566.

36. Id.

37. CERCLA § 111(b), 42 U.S.C. § 9611(b), ELR STAT. CERCLA 034.

38. CERCLA § 107(f), 42 U.S.C. § 9607(f), ELR STAT. CERCLA 026.

39. Simons & Wicks, supra note 9.

40. 880 F.2d 432, 19 ELR 21099 (D.C. Cir. 1989).

41. Id. at 459, 19 ELR at 21113.

42. Id.

43. Id. at 460, 19 ELR at 21114.

44. The preamble stated:

The Department believes that Congress has defined "natural resources" with sufficient specificity to leave no doubt that resources owned by parties other than Federal, State, local or foreign governments (i.e., privately-owned resources) are not included…. The Department notes, as stated above, that section 101(16) of CERCLA clearly indicated that damage to privately-owned natural resources are not to be included in natural resource damage assessments.

51 Fed. Reg. 27674, 27696 (1986).

45. Counsel for the DOI, at oral argument, stated that a substantial degree of government regulation over privately-owned property would make it a CERCLA natural resource. For example, a state law requiring owners of tidal land property to permit public access could bring the land within CERCLA definition. 880 F.2d at 461, 19 ELR at 21114.

46. Id.

47. These proposed rules were issued on April 29, 1991. 56 Fed. Reg. 19752 (1991) (to be codified at 43 C.F.R. § 11).

48. CERCLA § 107(a)(4), 42 U.S.C. § 9607(a)(4), ELR STAT. CERCLA 024-025.

49. CERCLA § 107(a)(4)(C), 42 U.S.C. § 9607(a)(4)(C), ELR STAT. CERCLA 025.

50. Id. Compare CERCLA § 107(a)(4)(A) — (B), 42 U.S.C. § 9607(a)(4)(A) — (B), ELR STAT. CERCLA 024-025 with CERCLA § 107(a)(4)-(C), 42 U.S.C. § 9607(a)(4)(C), ELR STAT. CERCLA 025.

51. CERCLA § 101(22), 42 U.S.C. § 9601(22), ELR STAT. CERCLA 008; 40 C.F.R. § 300.5 (1991).

52. CERCLA § 101(8), 42 U.S.C. § 9601(8), ELR STAT. CERCLA 007; 40 C.F.R. § 300.5 (1991).

53. CERCLA § 101(22), 42 U.S.C. § 9601(22), ELR STAT. CERCLA 008; 40 C.F.R. § 300.5 (1991).

54. Id.

55. Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081, 17 ELR 20223, 20226 (1st Cir. 1986); accord Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 20 ELR 20281 (5th Cir. 1989).

56. New York v. Shore Realty Corp., 759 F.2d 1032, 1041-42, 15 ELR 20358, 20361-62 (2d Cir. 1985).

57. Vermont v. Staco, Inc., 684 F. Supp. 822, 832-34, 18 ELR 20589, 20592-93 (D. Vt. 1988).

58. Missouri v. Independent Petrochemical Corp., 610 F. Supp. 4, 5, 15 ELR 20161 (E.D. Mo. 1985).

59. United States v. Metate Asbestos Corp., 584 F. Supp. 1143, 1147, 14 ELR 20433, 20434 (D. Ariz. 1984).

60. 889 F.2d 664, 20 ELR 20281 (5th Cir. 1989).

61. Id. at 668, 20 ELR at 20283.

62. Id. at 666, 20 ELR at 20283.

63. Id.

64. Id.

65. Id.

66. Id. at 667, 20 ELR at 20283.

67. Id.

68. Id. at 669, 20 ELR at 20284.

69. Id.

70. 739 F. Supp. 1030, 20 ELR 20935 (E.D.N.C. 1989).

71. Id. at 1036, 20 ELR at 20936-37. In this case, the government presented evidence linking the defendant to oil spills containing polychlorinated biphenyls (PCBs), which is a hazardous substance under CERCLA § 101(14), and evidence showing the existence of PCBs at the site. Id. However, in Electric Power Bd. of Chattanooga v. Westinghouse Elec. Corp., 716 F. Supp. 1069 (E.D. Tenn. 1988), aff'd, 879 F.2d 1368, 19 ELR 21458 (6th Cir. 1989), cert. denied, 493 U.S. 1022 (1989), the U.S. District Court for the Eastern District of Tennessee held that a relatively small quantity of electric fluid from a damaged transformer, within the confines of a penthouse containing electrical equipment, is not a release within the meaning of CERCLA § 101(22). 716 F. Supp. at 1081.

72. CERCLA § 101(14), 42 U.S.C. § 9601(14), ELR STAT. CERCLA 007-008; 40 C.F.R. § 302.5 (1991). A substance may be considered a hazardous substance under CERCLA if it falls within any of the six subsections found in CERCLA section § 101(14). The six categories of substances, broken down by subsection, are as follows: (1) any substance designated under FWPCA § 311(b)(2)(A), (2) any substance designated pursuant to CERCLA § 102, (3) any hazardous waste listed under § 3001 of the Solid Waste Disposal Act, (4) any toxic pollutant listed under FWPCA § 307(a), (5) any hazardous air pollutant listed under Clean Air Act § 112, and (6) any imminently hazardous chemical substance with respect to which EPA has acted pursuant to § 7 of the Toxic Substances Control Act. See Eagle-Picher Indus. v. EPA, 759 F.2d 922, 927, 15 ELR 20460, 20462 (D.C. Cir. 1985); United States v. Metate Asbestos Corp., 584 F. Supp. 1143, 14 ELR 20433 (D. Ariz. 1984).

73. 40 C.F.R. § 302.4 (1991).

74. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 004-050.

75. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA 006-183.

76. 15 U.S.C. §§ 2601-2671, ELR STAT. TSCA 003-056.

77. CERCLA § 101(14), 42 U.S.C. § 9601(14), ELR STAT. CERCLA 007-008.

78. United States v. Conservation Chem. Co., 619 F. Supp. 162, 239-40, 16 ELR 20193, 20229 (W.D. Mo. 1985); Edward Hines Lumber Co. v. Vulcan Materials Co., 685 F. Supp. 651, 654, 18 ELR 21223, 21224 (N.D. Ill. 1988), aff'd, 861 F.2d 155, 19 ELR 20187 (7th Cir. 1988).

79. Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 20 ELR 20281 (5th Cir. 1989).

80. 699 F. Supp. 827, 18 ELR 20360 (D. Idaho 1987), aff'd in part, 882 F.2d 392, 19 ELR 21358 (9th Cir. 1989).

81. Id.

82. Id. at 833, 18 ELR at 20362.

83. Id.

84. Idaho v. Bunker Hill Co., 635 F. Supp. 665, 673, 16 ELR 20879, 20882 (D. Idaho 1986); see United States v. Conservation Chem. Co., 619 F. Supp. 162, 222, 16 ELR 20193, 20219 (W.D. Mo. 1985); United States v. Union Gas Co., 586 F. Supp. 1522, 14 ELR 20491 (E.D. Pa. 1984). EPA's administrative interpretation of CERCLA includes mining wastes. EPA has stated that "the Agency believes that mining wastes can be considered hazardous substances under CERCLA if it [sic] meets any of the other statutory criteria…." NCP, 48 Fed. Reg. 40658, 40663 (1983). Legislative history also supports this point. S. REP. NO. 1480, 96th Cong., 2d Sess. 4(a) (1980).

85. 577 F. Supp. 1326, 14 ELR 20096 (E.D. Pa. 1983).

86. Id. at 1333, 14 ELR at 20098.

87. Id. at 1332, 14 ELR at 20098.

88. 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985).

89. Id. at 1044, 15 ELR at 20363. The court observed that Congress considered and rejected an earlier House of Representatives version of what ultimately became § 107(a). The rejected version would have limited liability to "any person who caused or contributed to the release or threatened release." Id. (quoting H.R. REP. NO. 7020, 96th Cong., 2d Sess. § 3071(a) (1980)).

90. 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989).

91. Id. at 169, 19 ELR at 20088.

92. Id.

93. See, e.g., Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 20 ELR 20334 (1st Cir. 1989) (proximate causal link is not required for plaintiff to establish prima facia case to recover response costs); United States v. Mottolo, 695 F. Supp. 615, 623, 19 ELR 20442, 20445 (D.N.H. 1988) (plaintiff need not prove off-site pollution actually caused response costs in order to recover response costs under CERCLA); United States v. Bliss, 667 F. Supp. 1298, 1309, 18 ELR 20055, 20059 (E.D. Mo. 1987) (under CERCLA, "traditional tort notions, such as proximate cause, did not apply"); United States v. Stringfellow, 661 F. Supp. 1053, 1060, 17 ELR 21134, 21135 (C.D. Cal. 1987) (case law and legislative history indicate that CERCLA § 107(a) contains no causation requirement); United States v. Maryland Bank & Trust Co., 632 F. Supp. 573, 16 ELR 20557 (D. Md. 1986) (CERCLA § 107 imposes strict liability without regard to causation); United States v. B.R. Mackay & Sons, 13 Chem. Waste Litig. Rep. 253, 258 (N.D. Ill. 1986) ("CERCLA section 107(a) does not require proof of causation"); United States v. Tyson, 12 Chem. Waste Litig. Rep. 872, 882, 17 ELR 20527, 20533 (E.D. Pa. Aug. 21, 1986); United States v. Conservation Chem. Co., 619 F. Supp. 162, 234, 16 ELR 20193, 20225 (W.D. Mo. 1985) (a generator whose hazardous substances are treated or disposed of at any site owned or operated by someone other than the generator is liable for response costs incurred with respect to that site); United States v. Cauffman, 21 Env't Rep. Cas. (BNA) 2167, 15 ELR 20161 (C.D. Cal. Oct. 23, 1984) (government may maintain CERCLA action to recover cleanup costs absent proof that defendant proximately caused release of hazardous substance into environment); see also Developments, supra note 1, at 1520-24 (discussing standards of causation). But see Artesian Water Co. v. Government of New Castle County, 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988) (a "substantial factor" test applies to determining the causation element in response cost suits).

94. 42 U.S.C. § 9607(f), ELR STAT. CERCLA 026.

95. 42 U.S.C. § 9607(a)(4)(C), ELR STAT. CERCLA 025.

96. In re Acushnet River & New Bedford Harbor: Proceedings re Alleged PCB Pollution, 716 F. Supp. 676, 683, 19 ELR 21471, 21474 (D. Mass. 1989) (the state must introduce evidence of damages that proximately stem from the injury to the environment); Idaho v. Bunker Hill Co., 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986) (plaintiff must establish causal link between releases and post-enactment damages in order to recover natural resources damages). It is argued that "[a]dopting a proximate cause test would best effectuate CERCLA's purpose." Note, CERCLA Section 107: An Examination of Causation, 40 WASH. U.J. URB. & CONTEMP. L. 83 (1991).

97. 635 F. Supp. 665, 16 ELR 20879 (D. Idaho 1986).

98. Id. at 674, 16 ELR at 20882.

99. Id.

100. Id.

101. Id.

102. The court reasoned that the use of the word "resulted" ties the damages to the release. Id.

103. Id.

104. 880 F.2d 432, 19 ELR 21099 (D.C. Cir. 1989).

105. These regulations were promulgated on August 1, 1986. 51 Fed. Reg. 27647. They are codified at 43 C.F.R. § 11.10-.93 (1991).

106. 880 F.2d at 468-69, 19 ELR at 21118.

107. Id.

108. 43 C.F.R. § 11.62(f) (1991).

109. The regulations provide that the "selection of the control area must be consistent with the guidance provided in § 11.72 of these regulations." Id. The determination of statistical significance must be consistent with the quality assurance provisions of the assessment plan. Id.

110. Id. § 11.14(v). For biological resources, an injury exists if the spill or release causes the resource or its offspring to suffer death, disease, behavioral abnormalities, cancer, genetic mutations, physical malfunctions, or physical deformations. Id. § 11.62(f)(1).

111. Ohio, 880 F.2d at 469, 19 ELR at 21119. The court points to floor comments of Senator Baucus, the sponsor of SARA. Senator Baucus criticized the acceptance criteria as "inordinately stringent." See 132 CONG. REC. S14931 (daily ed. Oct. 3,1986) (remarks of Sen. Baucus). However, SARA did not amend any CERCLA provisions pertaining to the causation-of-injury standard.

112. Ohio, 880 F.2d at 469, 19 ELR at 21119.

113. 467 U.S. 837, 14 ELR 20507 (1984).

114. Id. at 842-43, 14 ELR at 20508.

115. Id. at 844-45, 14 ELR at 20509.

116. Id.

117. Id.; see, e.g., S. REP. NO. 848, 96th Cong., 2d Sess. 13 (1980), reprinted in 1980 U.S.C.C.A.N. 6119; 126 CONG. REC. 30941 (daily ed. Nov. 24, 1980) ("The guiding principle of those who wrote S. 1480 was that those found responsible for harm caused by chemical contamination should pay the costs of that harm.") (remarks of Sen. Mitchell); see also S. REP. NO. 848, supra 13-14 ("[T]raditional tort law presents substantial barriers to recovery…. [C]ompensation ultimately provided to injured parties is generally inadequate."); H.R. REP. NO. 172(I), 96th Cong., 1st Sess. 17 (1979) ("Common law remedies [are] … inadequate to compensate victims in a fair and expeditious manner"); 126 CONG. REC. 26347 (daily ed. Sept. 19, 1980) ("Existing environmental, common, compensatory, and liability laws are not adequate … [and] provide little or no relief for cleanup and compensation.") (remarks of Rep. Weiss).

118. Ohio, 880 F.2d at 470, 19 ELR at 21119.

119. Id. The court cited to an early bill, which provided:

(c) Notwithstanding the ordinary requirements for proof of cause in fact or proximate cause of damages, injury, or loss, a person liable under this section for any discharge, release, or disposal of any hazardous substance shall be liable for all medical expenses under [never enacted] subsection (a)(2)(F) of this section if a reasonable person could conclude that such medical expenses and the injury or disease which caused them are reasonablyrelated to such discharge, release, or disposal.

S. 1480, 96th Cong., 1st Sess. § 4(c) (1979), reprinted in 1 SENATE COMM. ON ENVTL. & PUB. WORKS, 97TH CONG., 2D SESS., A LEGISLATIVE HISTORY OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980, at 488 (Comm. Print 1983).

120. Ohio, 880 F.2d at 472, 19 ELR at 21121.

121. Id.

122. CERCLA § 112(d)(1), 42 U.S.C. § 9612(d)(1), ELRA STAT. CERCLA 038.

123. This statute of limitations does not, however, apply to claims brought by governments to recover response costs or abatement at hazardous waste sites. United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986) (statute of limitations for "claims" and "action" for damages under CERCLA did not apply to U.S. civil action under CERCLA to recover costs incurred in cleaning up landfill); United States v. Conservation Chem. Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985) (statute of limitations in CERCLA § 112 does not apply to claims brought by the United States for abatement at hazardous waste site and response costs incurred in cleaning up site); United States v. Mottolo, 605 F. Supp. 898, 15 ELR 20444 (D.N.H. 1985) (CERCLA's three-year statute of limitations applies to actions for damages to natural resources, but not to actions for cost reimbursement).

124. 42 U.S.C. § 9612(d)(2), ELR STAT. CERCLA 038.

125. CERCLA § 301(c)(1), 42 U.S.C. § 9651(c)(1), ELR STAT. CERCLA 062-063.

126. Id.

127. Exec. Order No. 12316, § 8(c), 46 Fed. Reg. 42237, 42240 (1981).

128. 51 Fed. Reg. 27674 (1986).

129. 43 C.F.R. pt. 11 (1991).

130. CERCLA § 112(d)(2), 42 U.S.C. § 9611(d)(2), ELR STAT. CERCLA 038.

131. Id.

132. Ohio v. Department of the Interior, 880 F.2d 432, 19 ELR 21099 (D.C. Cir. 1989).

133. 56 Fed. Reg. 19752 (1991) (to be codified at 43 C.F.R. pt. 11).

134. CERCLA § 113(g)(3), 42 U.S.C. § 9613(g)(3), ELR STAT. CERCLA 039-040.

135. CERCLA § 113(g), 42 U.S.C. § 9613(g), ELR STAT. CERCLA 039-040.

136. CERCLA § 107(f), 42 U.S.C. § 9607(f), ELR STAT. CERCLA 026. The legislative history indicates that Congress intended that where specific resource trade-offs are understood, anticipated, and taken into account in issuing a permit or license for a release of a hazardous substance, CERCLA liability for natural resource damages caused by those permitted or licensed releases will not lie. S. REP. NO. 848, supra note 117, at 88.

137. 627 F. Supp. 1274, 16 ELR 20407 (D. Idaho 1986), aff'd in part, rev'd in part, 814 F.2d 1376, 17 ELR 20659 (9th Cir. 1987); see supra note 80 and accompanying text.

138. Idaho, 627 F. Supp. at 1277, 16 ELR at 20408.

139. See Idaho v. Hanna Mining Co., 699 F. Supp. 827, 18 ELR 20360 (D. Idaho 1987), aff'd in part, 882 F.2d 392, 19 ELR 21358 (9th Cir. 1989).

140. Idaho v. Hanna Mining Co., 882 F.2d 392, 396, 19 ELR 21358, 21360.

141. Id. at 393, 19 ELR at 21359.

142. Id. at 394, 19 ELR at 21359.

143. Id.

144. Id. at 395, 19 ELR at 21360.

145. Id.

146. Id. at 396, 19 ELR at 21360; see also Kevin M. Ward, Recovery of Natural Resource Damages Under CERCLA, 25 TORT & INS. L.J. 559 (1990).

147. CERCLA § 107(j), 42 U.S.C. § 9607(j), ELR STAT. CERCLA 027. CERCLA § 107(i) provides a similar defense for damages caused by the normal use of registered pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA 002-034. 42 U.S.C. § 9607(i), ELR STAT. CERCLA 027.

148. 42 U.S.C. § 9601(10), ELR STAT. CERCLA 007.

149. 42 U.S.C. § 300f to 300j-26, ELR STAT. SDWA 002-024.

150. Idaho v. Bunker Hill Co., 635 F. Supp. 665, 673, 16 ELR 20879, 20882 (D. Idaho 1986); see also Reporting Exemptions for Federally Permitted Releases of Hazardous Substances, 53 Fed. Reg. 27268-70 (1988) (to be codified at 40 C.F.R. §§ 117, 302, 355).

151. 53 Fed. Reg. 27268, 27270 (1988).

152. O'Neil v. Picillo, 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989), cert. denied, 493 U.S. 1071 (1988).

153. United States v. Dickerson, 640 F. Supp. 448, 16 ELR 20970 (D. Md. 1986); United States v. Conservation Chem. Co., 619 F. Supp 162, 16 ELR 20193 (W.D. Mo. 1985); United States v. Shell Oil Co., 605 F. Supp. 1064, 15 ELR 20337 (D. Colo. 1985).

154. CERCLA § 107(f), 42 U.S.C. § 9607(f), ELR STAT. CERCLA 026. Congress clearly intended CERCLA to apply retroactively in order to clean up wastes generated prior to enactment. See, e.g., United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 732-33, 17 ELR 20603, 20606-07 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987); United States v. Shell Oil Co., 605 F. Supp. 1064, 1072, 15 ELR 20337, 20340 (D. Colo. 1985). See generally Developments, supra note 1, at 1555-62.

155. 716 F. Supp. 676, 19 ELR 21471 (D. Mass. 1989).

156. Id.; United States v. Reilly Tar & Chem. Corp., 546 F. Supp. 1100, 12 ELR 20954 (D. Minn. 1982); United States v. Wade, 14 ELR 20435, 20436 (E.D. Pa. Feb. 2, 1984).

157. CERCLA § 101(6), 42 U.S.C. § 9601(6), ELR STAT. CERCLA 007.

158. The court remarked on the "difficulty of being left compassless on the trackless wastes of CERCLA." Acushnet River I, 716 F. Supp. at 681, n.6, 19 ELR at 21473. It said that

[i]t astounds this court that a statute as important as CERCLA is to the protection of our environment and the public health remains as inscrutable as ever … notwithstanding the major legislative overhaul of the statute via the SARA amendments in 1986.

Id.

159. Id. at 681, 19 ELR at 21473.

160. Id. at 683, 19 ELR at 21474.

161. Id. at 682, 19 ELR at 21473.

162. Id. at 685, 19 ELR at 21475. For example, in Acushnet I, the state alleged that, due to the harbor's PCB contamination, the local lobsterers had abandoned old lobstering grounds and were required to sail further out to continue lobstering. Id. The court held that the lobsterers incurred damages in terms of the added cost of travelling further out to pursue their trade. Since such a cost may be calculated on a daily basis, the court found the lobsterers' economic loss to be readily divisible. Id. at 686, 19 ELR at 21475.

163. Id.

164. See Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 1288, n.34, 18 ELR 20785, 20792 (D. Del. 1987), aff'd on other grounds, 851 F.2d 643, 18 ELR 21012 (3d Cir. 1988); Idaho v. Bunker Hill, 635 F. Supp. 665, 675-76, 16 ELR 20879, 20883 (D. Idaho 1986).