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24 ELR 10116 | Environmental Law Reporter | copyright © 1994 | All rights reserved Negotiating EPA Consent Orders and Consent Decrees: Steering Your Client Through the ShoalsPeter E. Hapke and Andrew N. Davis Mr. Hapke is an Assistant City Attorney in the Environmental Protection Section of the Seattle Law Department. He holds a J.D. and B.A. from the University of North Carolina at Chapel Hill and an M.A. in Public Policy from Duke University. The views presented in this Dialogue do not in any way reflect the views of the Seattle Law Department. Mr. Davis is an environmental attorney with the New England regional law firm of Brown, Rudnick, Freed & Gesmer. He holds a J.D. from the National Law Center, George Washington University, an M.S. and Ph.D. from the University of Massachusetts at Amherst, and a B.S. from Trinity College. The authors thank Sharon S. Metcalf, Esq., and Douglas A. Cohen, Esq., for their valuable comments. Under the Superfund program,1 the U.S. Environmental Protection Agency (EPA or the Agency) faces a dilemma. The Agency wants potentially responsible parties (PRPs) to perform voluntary response actions pursuant to administrative consent orders or judicial consent decrees (collectively referred to as "orders" unless otherwise specified), but does not want to commit extensive attorney resources to negotiating the details of every order. Besides expending limited government attorney and program staff time, case-by-case negotiation of orders undercuts a national policy favoring uniform orders that reflect broad-based Agency goals, such as protection of human health and the environment and preservation of Superfund monies. Often, the result is a checkerboard of language mixed and matched from orders used at various Superfund sites around the country. The Agency fears that such hybrid orders may be overly protective of PRPs' interests and erode national uniformity as more and more EPA Regions issue them. Further, EPA is under increasing congressional and public pressure to speed the pace of Superfund cleanups and contain transaction costs, while ensuring that the PRPs, rather than the government, perform response actions. Agency attorneys, following the dictates of their clients -- the Superfund program staff -- bring these potentially conflicting goals to the negotiating table. This Dialogue discusses issues that typically arise during negotiation of orders under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).2 The principles of negotiation discussed, however, apply with equal force to the negotiation of orders under other statutes, including the Resource Conservation and Recovery Act (RCRA),3 the Federal Water Pollution Control Act,4 the Clean Air Act,5 and the Toxic Substances Control Act,6 as well as EPA and state environmental agency enforcement orders. EPA has issued several model administrative consent orders or consent decrees (model orders) for the major response action components of CERCLA, including removal actions, remedial investigation and feasibility studies, and remedial design and remedial actions.7 In internal transmittal letters, the Agency has emphasized that the purpose of the model orders is to streamline CERCLA's cleanup process by avoiding lengthy negotiation with the PRPs.8 When faced with an EPA Assistant Regional Counsel who maintains that a model order is cast in stone, however, PRP counsel should not despair. Many Agency counsel will engage in limited negotiation, especially of certain key provisions. While EPA often initially refuses to deviate in any meaningful way from the text of model orders, negotiation about some issues can still be valuable to the PRPs and result in [24 ELR 10117] substantial cost savings by minimizing subsequent problems, such as court battles over stipulated penalties.9 Even before negotiating the details of an order, the PRPs may want to consider requesting EPA to segment the remedial investigation phase into a separate order from the feasibility study phase, or, similarly, the remedial design phase from the remedial action phase. The Agency might accept a segmented approach to avoid issuing an enforcement order. The PRPs have more leverage for such an approach where costs and the remedy are uncertain. In any negotiation with EPA, however, the PRPs should bear in mind that the playing field is not level and an EPA order is not a typical settlement agreement. By definition, it is biased in favor of the Agency, and the negotiation process will never right the imbalance. The PRPs enter into such orders because CERCLA's strict, joint and several liability scheme allows few defenses.10 Additionally, the PRPs may have more control and realize greater cost savings by performing the work themselves. With a few important caveats, the overall approach to negotiation of an order is substantially similar to that of any contractual or settlement negotiation. Because EPA has the legal upper hand, a PRP group should select representative negotiators who have credibility with Agency counsel and program staff and understand Agency concerns. Although not essential, a technical background or familiarity with CERCLA site investigation/remediation issues, concepts, and nomenclature enhances this credibility. Negotiators should prioritize concerns and identify issues they may be willing to trade, on a quid pro quo basis, for more important provisions. They should choose their battles carefully and not stubbornly cling to positions that do not provide any additional legal protection for their clients. This is especially true in negotiations under Superfund, because unnecessary arguing of every point will only vex Agency counsel and staff with whom the PRPs will likely negotiate during another stage of the process, or from whom the PRPs may seek a permit in the future. After all, in this context, the PRPs are doing battle with an opponent who is also their regulator. Conversely, if the desired terms are sufficiently important and both technically and legally defensible, then the negotiators should go to the mat. Practical Approaches to Specific Issues That Arise During Negotiation The Agency generally requires the PRPs to waive all their objections and defenses to the terms of their order and the jurisdiction of the Agency or a court. Although EPA typically will not yield on this issue, a PRP should insist that the order clearly indicates that the PRP only waives defenses to jurisdiction for the limited purpose of entering into the order and proceedings to enforce it. Otherwise, the waiver may prejudice PRPs' ability to raise objections or defenses to jurisdiction in subsequent or other proceedings. Findings of Fact and Conclusions of Law EPA often insists on including a detailed description of site-specific facts and unproven allegations of statutory or regulatory violations, which may include a parade of horribles involving specific PRPs. The Agency rationale for requiring this description is that the information is needed to justify the response action and comply with the national contingency plan (NCP).11 EPA may want to include factual statements that the PRPs believe to be inaccurate, unproven, or unrelated to the subject matter of the order. For example, even if the order is for a limited removal action or a specific operable unit, the Agency may attempt to include facts about unrelated contamination at the site. Faced with such a situation, the PRPs may either attempt to negotiate out the extraneous or unproven facts or insist that the facts and conclusions be labeled in the order as EPA findings of fact and conclusions of law. The PRPs should also insist on a statement that they neither admit nor deny the factual or legal conclusions contained in the order. Without such changes from the model, the Agency or courts might construe the facts and allegations as admissions, thus exposing the PRPs to future liability (e.g., in private litigation or citizen suits), and may impair PRPs' ability to obtain financing, insurance coverage, or environmental permits for their operating facilities. The PRPs should attempt to limit the parties bound by the order to the PRP company and its successors and assigns. The Agency will try to list company officers, employees, and agents, and assert that these individuals are named for "notice" purposes only. If EPA refuses to delete these individuals, the PRPs should insist on a qualifying statement explicitly limiting the purpose of the list to provision of notice. Because an order is a negotiated settlement, EPA expects the PRPs to waive all hearings on factual or legal issues arising from the subject matter of the order. The Agency will not compromise this waiver because the very purpose of the model orders is to avoid adjudicative or judicial proceedings. The PRPs should, however, ensure that the waiver is narrowly drafted to exclude issues unrelated to the order and preserve their due process rights regarding those matters. For example, if the order only addresses a specific operable unit or cleanup phase at a site, the PRPs should ensure that the waiver language is not so broad that [24 ELR 10118] it could encompass other operable units or other phases of the cleanup. Four key definitions that the PRPs should pay close attention to are "site," "deliverables," "work," and "effective date." [] Site. In negotiating the definition of the site, the PRPs must balance two conflicting goals. To maximize use of CERCLA § 121(e)(1)'s provision that "No Federal, State, or local permit [is] required for the portion ofany removal or remedial action conducted entirely onsite …,"12 the PRPs may want an expansive site definition, particularly if the site contains "hot-spots" scattered across a wide area or several property boundaries. Such a definition will reduce the scope and cost of site cleanup and the need to access multiple properties. On the other hand, if the extent of contamination is concentrated and well-documented, a narrow site definition may be more appropriate and help the PRPs reduce the need for expansive postcleanup monitoring requirements. Because the site conditions and remedy selected will determine which approach is appropriate, the PRPs may want to defer waging this battle with the Agency until preliminary results of the remedial investigation have been reviewed. Moreover, the site description may not be critical if it appears only in EPA findings of facts and the PRPs are not legally bound by it. [] Deliverables. The PRPs should ensure that the order's Statement of Work section contains a short, unambiguous list of the documents deemed "deliverables," since failure to submit such documents on time may subject the PRPs to stipulated penalties. As noted below, the time at which deliverables are due should be tied to Agency approvals and comments rather than to fixed dates. [] Work. This term should be precisely defined to avoid a dispute with EPA over which activities that the PRPs perform at the site are subject to the order. Cross-referencing the term to the Statement of Work should be sufficient in most cases. When possible, the PRPs should try to negotiate limitations on the Statement of Work under the order. It is especially important to avoid an open-ended commitment if EPA is contemplating additional or future work, as when the work is in phases or the site has more than one operable unit. The more precisely the term "work" is defined in the order, the easier it may be to avoid disputes during implementation. [] Effective Date. The effective date of the order is the date from which all time periods in the order are calculated. To ensure that there is no misunderstanding over the computation of time throughout the implementation of the order, this term should be clearly defined. EPA will generally require that the PRPs use their "best efforts" to obtain access to all portions of the site for EPA and its employees or agents. Best efforts are usually interpreted by the Agency to include making reasonable payment to a property owner for access. If the PRPs cannot obtain access after using their best efforts, then EPA can attempt to obtain access using its statutory authority.13 EPA will not compromise on the access requirement, but the PRPs should ensure that the order does not require them to provide access to property not owned by the settling parties or to property not within the defined site. If EPA refuses to allow such a limitation, the PRPs can request that the order require them to obtain these types of access only if it becomes "necessary." The PRPs should also attempt to get the site access requirement incorporated into the force majeure provision,14 so EPA cannot impose stipulated penalties if the PRPs are unable to obtain timely site access due to factors beyond their control. Finally, the PRPs that own or control portions of the site will want to limit the duration of EPA's access to the site to a "reasonable" time, with prior notice of the Agency's intended entry onto the site, particularly in enforcement actions.15 Withholding Privileged Documents The PRPs should request a provision ensuring the right to withhold privileged documents, though this issue should not be a dealbreaker since PRPs' common-law privileges remain even absent such a provision in the order. EPA will not allow the PRPs to withhold factual information related to their performance of work under the order, but the PRPs should try to limit their obligation to providing EPA with information related only to those site activities that are subject to the order, as opposed to "any activity" performed by the PRPs onsite. Stipulated penalties accrue when the PRPs are out of substantive or procedural compliance with an order, such as when they miss a deliverable deadline or repeatedly submit an inadequate deliverable. The PRPs can use several tactics to minimize stipulated penalties. For example, they can craft language that requires the Agency to notify them if it determines that they have violated the order, so they may correct the violation quickly and minimize the number of days for which penalties are assessed. Additionally, because EPA may change its view regarding the substantive content of required deliverables, the PRPs should request that penalties not accrue when EPA rejects a deliverable submitted for the first time and in good faith. Penalties should accrue only after the PRPs have had the opportunity to correct any deficiencies in the submission. As mentioned above, deadlines for submitting deliverables to the Agency should be "soft," rather than specific, dates. For example, it is to the PRPs' advantage if the order requires them to provide a deliverable within a certain number of days of receiving Agency approval of, or comments on, a Statement of [24 ELR 10119] Work, rather than within a certain number of days of signing the order. The PRPs should also not be required to pay penalties if they invoke dispute resolution and prevail, or if the violation occurred because of a force majeure event. The PRPs should ensure that the order has a broad force majeure clause that clearly protects them from penalties for noncompliance due to factors beyond their control. Although EPA has the authority to reduce or even forego stipulated penalties when there has been a violation, the PRPs should try to insert an affirmative statement to that effect, to avoid disputes with EPA over whether stipulated penalties are mandatory or discretionary. The PRPs can also try to convince EPA to make a binding election between stipulated penalties and statutory civil penalties, which can amount to $ 25,000 per day under CERCLA § 106(b),16 to avoid the possibility of being assessed both types of penalties. However, the Agency typically will not relinquish its authority to seek either type of penalty. Another way to reduce the risk of paying onerous stipulated penalties is to have the PRPs' consultant and contractor agreements allocate responsibility for stipulated penalties to the consultant or contractor. Finally, the PRPs should try to reduce the daily penalty amounts, which are usually on a graduated scale depending on the number of days the PRPs are out of compliance. Although these penalties may be tiered according to the number of days and type of violation, they can be a tremendous financial burden to the PRPs and are often disproportionate to the violation. EPA may be reluctant to reduce these amounts, but the PRPs have had success in doing so at some sites, especially where they have a good working relationship with the Agency. Without any significant legal leverage, the PRPs must resort to equitable arguments in seeking to limit stipulated penalties, such as the unreasonableness of the penalty amount in relation to the work under the order, PRPs' voluntary cooperation in signing the order, or their good faith in dealing with the Agency. These arguments may not be effective, especially since EPA has begun to hold firm to proposed penalty amounts nationwide, and is even applying penalties to noncompliant monthly progress report submissions. Provisions in the order, such as force majeure, that protect the PRPs from stipulated penalties are thus indispensable. Like stipulated penalties, dispute resolution provisions can be a sticking point in negotiations with the Agency. The PRPs should try to include, at a minimum, provisions that: 1) stay the accrual of stipulated penalties during the dispute resolution period, whether or not the PRPs prevail; 2) prohibit EPA from seeking stipulated penalties if the PRPs do prevail; 3) stay activities related to the dispute so the PRPs do not incur penalties pending resolution of the dispute; and 4) with respect to administrative consent orders, deem that the Agency's decision is a final agency decision subject to judicial review. EPA will argue that its decisions on dispute resolution are not reviewable, either because of the preenforcement review bar of CERCLA § 113(h),17 or because such Agency decisions do not qualify as "final agency action" under the Administrative Procedure Act.18 If the PRPs refuse to obey EPA's decision and wait for the Agency to enforce the order in court, they expose themselves to two grave risks. CERCLA § 106(b) imposes fines of up to $ 25,000 per day for failure to comply with an order without sufficient cause.19 In addition, CERCLA § 107(c)(3) imposes punitive damages of three times EPA response costs incurred as a result of a PRP's failure, without sufficient cause, to carry out such an order.20 Judicial review should be easier to obtain if the PRPs are subject to a consent decree because a federal district court retains jurisdiction to resolve disputes after the Agency's dispute resolution process has been exhausted. The Agency generally will insist on the right to unilaterally and orally modify the order's schedule or Statement of Work. This right is usually embodied in an order provision entitled, "Additional Work." PRPs should resist granting EPA such broad powers of modification, or else they risk giving EPA carte blanche to make endless demands for work not originally contemplated by the parties. The PRPs should point out that the cooperative working relationship with EPA project managers at the site makes such unilateral authority unnecessary. After all, the PRPs' and EPA project managers contact each other almost daily by fax or telephone at most sites. As a compromise position, PRPs should request written mutual modification, or, at the least, prior consultation before any modification, except in emergencies. The Agency language that provides finality to the order is generally unambiguous in requiring an EPA sign-off or certification of completion. The PRPs should review it carefully, however, to delete any weasel words, such as "to the satisfaction of the EPA Administrator," which may prevent the PRPs from achieving finality. Certification is important in the Superfund context if the PRPs are obligated to pay oversight costs until project completion. In this situation, certification is necessary to provide the needed finality to end PRPs' responsibility for oversight costs. Furthermore, when future use is contemplated (or when a RCRA or state enforcement order is involved), the site may be an active facility or subject to a real estate transaction, in which case certification may be a prerequisite for financing, insurance, a lease, state transfer act compliance, or transfer of title under the purchase and sale agreement. If the order does not contain a contribution protection provision,21 the PRPs should request one. Addition of such a [24 ELR 10120] provision is not a true concession from EPA, but will merely be a statement of a settlor's statutory and common-law right to be free of contribution suits.22 However, including a provision for contribution protection in the order can still be helpful to the PRPs because, although EPA is unlikely to actually defend a settling party from nonsettling parties and third parties seeking contribution, settling PRPs have successfully raised an order's contribution protection provision as a shield to response cost claims from nonsettling PRPs at the site.23 The "covenant not to sue" is largely an illusory promise because the "reopener" language never lets the PRPs escape liability for unremedied contamination.24 Although EPA never relinquishes its authority to force the PRPs to clean up a site, the covenant does provide some protection because the Agency must either issue a new administrative order or file a lawsuit before requiring additional work, except where the work is requested pursuant to the order's modification provision. EPA has begun insisting that the PRPs indemnify the Agency or its employees and agents against all damages, liability, and causes of action arising from activities at the site. The PRPs should be sure that this language contains an exception for liability or claims caused by EPA or its agents' negligence. If an order, including EPA and state enforcement orders, prescribes a reporting level for analytical parameters, the reporting level should be a published analytical protocol tied to an action level or a cleanup standard, rather than a vague description such as "maximum level of precision and accuracy possible." The latter description could set a level below detection limits. Negotiators should work with the Agency in defining acceptable reporting levels. It is not unusual for these levels to be among the hardest fought issues in the negotiations. National Contingency Plan Compliance In order for the PRPs to successfully bring contribution actions against third parties, Superfund response actions must be consistent with the NCP.25 The NCP provides a presumption that actions taken in compliance with the terms of an order are consistent with the NCP.26 Nevertheless, because it is not usually a contentious issue, the PRPs should request that the order contain a statement that all actions taken thereunder are consistent with the NCP. Reporting, Document Retention, and Notice Reporting, document retention, and notice requirements should be limited as much as possible to ease PRPs' administrative burden. Specifically, the order should require document retention for only three years and submission of progress reports on a monthly, rather than semi-monthly or weekly, basis. The order should be clear that these requirements are limited by the attorney-client and work-product privileges. Finally, the order should clearly specify which individuals among both EPA and the PRPs are authorized to receive oral or written notice during the implementation of the order and include those individuals' names, addresses, and telephone and fax numbers. The model orders usually contain a provision requiring the PRPs to reimburse EPA for its response costs, including costs of "overseeing" PRPs' work.27 While EPA will not sign away its right to these costs, PRPs should try to get the Agency to compromise on the amount of such costs or seek them from nonsettling PRPs. Additionally, the PRPs should review EPA's documentation carefully for accounting accuracy and consistency with the NCP,and negotiate the type of documentation that the Agency will provide to substantiate its costs. For example, EPA should separate direct and indirect costs in its documentation. The PRPs may ask that settlement of past costs be incorporated into a separate order because under certain circumstances (where total response costs exceed $ 500,000) any reduction of such costs constitutes a compromise of claims and will require U.S. Department of Justice review and approval pursuant to CERCLA § 122(h)(1).28 In this instance, approval of an order for past response costs may significantly lag behind approval of a main order. Unless the PRPs want to delay implementing the main order, they should seek a separate order for EPA response costs. A separate order also provides a sum certain that settling PRPs can seek from recalcitrant PRPs through contribution. Whether EPA response cost claims are incorporated in the main order or a separate order, the PRPs should negotiate a long-term payment schedule. At the least, the first payment should not be due until 30 days after the completion of work. The Agency will usually be flexible with such repayment, because the PRPs have already legally obligated themselves to pay these costs by executing the order. Supplemental Environmental Projects Although not typically encountered in the negotiation of Superfund/CERCLA orders, a company entering into an order to settle an EPA or a state enforcement action should propose to perform a Supplemental Environmental Project (SEP). Pursuant to this concept, EPA or a state agency will allow a company involved in an enforcement action to perform an environmental project at its facility that it would not otherwise be required to perform by law, in return for which it receives a reduction in the amount of the civil penalty assessed, though not always on a strict dollar-for-dollar basis. SEPs often focus on waste minimization, pollution prevention, environmental restoration, capital improvements (such as installing air or water pollution control equipment), or performing environmental audits. A significant advantage of SEPs is that they may be considered deductible business expenses. This Dialogue has reviewed important issues commonly encountered in negotiations over CERCLA orders. It has not, of course, addressed every provision a PRP may wish to negotiate, nor has it addressed all the details of negotiating EPA or state enforcement orders. The guiding principles in any EPA negotiation, however, are straightforward: 1) maintain credibility and a good-faith working relationship with Agency attorneys and program staff; 2) know the model order that the Agency will use; 3) ensure that the PRPs are legally protected, but remember that orders will always favor EPA; 4) choose battles with the Agency carefully and consider impacts on PRPs' future relationship with the Agency; and above all, 5) bring common sense and a solid foundation in environmental law and the relevant technical areas to the table. PRP counsel should recognize that although many of the provisions of an order simply are not negotiable, skilled negotiation can significantly improve an order and provide greater protection for the PRP. A substantial investment of PRP counsel's time in attempting to redraft and negotiate all the details of these orders, however, probably will not yield significant benefits. Striking a balance between rising transaction costs and protecting the PRP is the goal. In the end, PRP counsel can make a difference in the Superfund process by negotiating orders that create blueprints for environmentally protective yet cost-efficient cleanups. 1. The "Superfund program" is the popular name for the hazardous substances cleanup program mandated by the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405. 2. Id. 3. 42 U.S.C. §§ 6901-6992(k), ELR STAT. RCRA §§ 1001-11012. 4. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607. 5. 42 U.S.C. §§ 7401-7671(q), ELR STAT. CAA §§ 101-618. 6. 15 U.S.C. §§ 2601-2692, ELR STAT. TSCA §§ 2-311. 7. On February 5, 1990, EPA issued the Model Administrative Order on Consent for Remedial Investigation/Feasibility Study (OSWER Directive No. 9835.3-1A) (ELR ADMIN. MATERIALS 35243). On March 30, 1990, EPA issued the Model Unilateral Administrative Order for Remedial Design and Remedial Action Under Section 106 of CERCLA (OSWER Directive No. 9833.0-2b) (on file with ELR, No. TD-1). On July 8, 1991, EPA completed the set of remedial action model orders or decrees by issuing the Model Decree for Remedial Design and Remedial Action, which was published at 56 Fed. Reg. 30996 (July 8, 1991) (ELR ADMIN. MATERIALS 35383). EPA has also issued two model orders concerning removal actions. On March 16, 1993, EPA issued the Model Administrative Order on Consent for Removal Actions (OSWER Directive No. 9833.06) (on file with ELR, No. TD-2), and the Model Unilateral Administrative Order for Removal Response Activities (OSWER Directive No. 9833.07) (on file with ELR, No. TD-3). 8. See, e.g., 56 Fed. Reg. 30996. 9. PRP counsel should recognize that some EPA Regions will show flexibility on certain issues that are not negotiable in other EPA Regions. Where possible, counsel should use approved language from the U.S. Environmental Protection Agency (EPA or the Agency) orders at other sites across the country to help support their positions. 10. Given this imbalance, the PRPs are often hesitant to enter into these consensual orders. Instead, many PRPs prefer that EPA issue Unilateral Administrative Orders (UAOs) that are generally nonnegotiable. A detailed discussion of the pros and cons of the UAOs versus consent orders is beyond the scope of this Dialogue. Suffice it to say, in certain situations the UAOs may be preferable. See Symposium on EPA's Superfund Settlement Process, 26 CHEM. WASTE LITIG. REP. Nos. 5 and 6, 1036 (Oct. and Nov. 1993); see also EPA's "Guidance on CERCLA Section 106(a) Unilateral Administrative Orders for Remedial Designs and Remedial Actions," OSWER Directive No. 9833.0-1a (Mar. 7, 1990). 11. 40 C.F.R. pt. 300; 42 U.S.C. §§ 9607(a)(1), 9613(f), ELR STAT. CERCLA §§ 107(a), 113(f). 12. 42 U.S.C. § 6921(e)(1), ELR STAT. CERCLA § 121(e)(1). 13. 42 U.S.C. § 9604(e), ELR STAT. CERCLA § 104(e). 14. Force majeure provisions generally cover the extent to which performance is excused due to unforeseen circumstances or circumstances beyond the control of the PRPs, such as acts of God and acts of war. 15. Both under orders and in enforcement actions, the PRPs should require the Agency to provide split samples and any data, lab analyses, and reports generated in connection with its activities on site. The PRPs should also verify that EPA agents entering the site, i.e., oversight consultants and contractors, have adequate insurance. 16. 42 U.S.C. § 9606(b), ELR STAT. CERCLA § 106(b). 17. 42 U.S.C. §§ 113(h)(1)-(5), ELR STAT. CERCLA §§ 113(h)(1)-(5). 18. 5 U.S.C. §§ 500-596, ELR STAT. APA §§ 500-596. 19. 42 U.S.C. § 9606(b), ELR STAT. CERCLA § 106(b). 20. 42 U.S.C. § 9607(c)(3), ELR STAT. CERCLA § 107(c)(3). See United States v. Parsons, 396 F.2d 526, 21 ELR 21316 (11th Cir. July 22, 1991) (CERCLA § 107(c)(3) provides for treble damages in addition to the response costs provided for in § 107(a)). 21. See, e.g., 42 U.S.C. § 9613(f)(2), ELR STAT. CERCLA § 113(f)(2). 22. For a discussion of the contribution protection issue, see F. James Handley, CERCLA Contribution Protection: How Much Protection?, 22 ELR 10542 (Aug. 1992). 23. See, e.g., United States v. Rohm & Haas Co., 721 F. Supp. 666, 20 ELR 20127 (D.N.J. Sept. 29, 1989). 24. See 42 U.S.C. § 9622(f)(6), ELR STAT. CERCLA § 122(f)(6). 25. See supra note 11 and accompanying text. 26. 40 C.F.R. § 300.700(c)(3)(ii) (1992). 27. A Third Circuit decision limits EPA's ability to recover oversight costs when the Agency is monitoring the performance of a private party performing cleanup. However, the court's decision may be limited to its facts because it involved EPA oversight of a RCRA cleanup. United States v. Rohm & Haas Co., 2 F.3d 1265, 23 ELR 21345 (3d Cir. Aug. 12, 1993). The Third Circuit recently denied EPA's petition for rehearing en banc. EPA intends to file a petition for certiorari to the U.S. Supreme Court. Nevertheless, at least one other federal district court has adopted the Third Circuit's holding. See Central Maine Power v. F.J. O'Connor Co., No. 91-0251B (D. Me. Nov. 8, 1993). 28. 42 U.S.C. § 9622(h)(1), ELR STAT. CERCLA § 122(h)(1). 24 ELR 10116 | Environmental Law Reporter | copyright © 1994 | All rights reserved |