Chapter §3.3 EPA Cleanup Under CERCLA §104 and Subsequent Actions to Recover Cleanup Costs Under CERCLA §107

• Jurisdiction: Washington

§3.3 EPA CLEANUP UNDER CERCLA §104 AND SUBSEQUENT ACTIONS TO RECOVER CLEANUP COSTS UNDER CERCLA §107

The federal government, primarily through the EPA but also through other agencies, can conduct a cleanup of a contaminated site under CERCLA §104, 42 U.S.C. §9604. In addition, states or tribes can apply for authorization by the federal government to carry out such cleanups after entering into a cooperative agreement or contract with the federal government. See 42 U.S.C. §9604(d)(1). In these instances, the cleanup will be paid for by the Superfund.

Note: Historically, the Superfund was funded through a tax on petroleum, chemical feedstock, and corporate income. These taxes expired in 1995, and the revenues related to these taxes were depleted by 2003. Currently, the U.S. Treasury general fund finances the Superfund.

CERCLA §113(h), 42 U.S.C. §9613(h), bars judicial review of any claims that would interfere with a response action that the government has selected under §104. See, e.g., Fort Ord Toxics Project, Inc. v. Cal. Envtl Protection Agency, 189 F.3d 828, 834 (9th Cir. 1999) (holding §113(h) bar inapplicable because Army was conducting cleanup under §120, not §104); Hanford Downwinders Coal., Inc. v. Dowdle, 71 F.3d 1469, 1482 (9th Cir. 1995) (affirming dismissal of citizen suit seeking injunction requiring Agency for Toxic Substances and Disease Registry to conduct health surveillance because agency was conducting a removal action under §104); Wash. Envtl. Council v. Mount Baker-Snoqualmie Natl Forest, No. C06-1249-JCC, 2009 WL 1543452 (W.D. Wash. June 2, 2009) (granting summary judgment to U.S. Forest Service on plaintiffs Clean Water Act citizen suit claim because the Forest Service had selected and was implementing a remedy under §104).

After using Superfund money to fund a cleanup, the EPA (or a state or tribe) can seek to recover those costs from one or more liable parties under CERCLA §107, 42 U.S.C. §9607. To recover its costs under §107, the EPA must establish the following elements: (1) there has been a release (or threatened release) of a hazardous substance; (2) from a facility; (3) that has caused the EPA to incur response costs; and (4) the defendant is a covered person. 42 U.S.C. §9607(a); United States v. Chapman, 146 F.3d 1166, 1169 (9th Cir. 1998) (prima facie elements of a §107 claim); United States v. Hardage, 982 F.2d 1436, 1442-43 (10th Cir. 1992) (same), cert. denied sub nom. Advance Chemical Co. v. United States, 510 U.S. 913 (1993); United States v. Newmont USA Ltd., 504 F.Supp.2d 1050 (E.D. Wash. 2007) (same).

(1) What constitutes a release of hazardous substances under CERCLA?

The term release comprises any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment. 42 U.S.C. §9601(22). A release does not fall within the ambit of CERCLA liability if it only affects employees in a workplace, involves emissions from engine exhaust, is nuclear material from a nuclear incident, or arises from the normal application of fertilizer. 42 U.S.C. §9601(22)(A)-(D). Passive migration can in some instances constitute a release. See Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066, 1075 (9th Cir. 2006) (leaching of hazardous substances from mining slag is a CERCLA release), cert. denied, 552 U.S. 1095 (2008); A&W Smelters & Refiners, Inc. v. Clinton, 146 F.3d 1107, 1111 (9th Cir. 1998) (wind blowing particles from a pile of ore is a CERCLA release); United States v. CDMG Realty Co., 96 F.3d 706, 714-15 (3rd Cir. 1996) (examining the meaning of release and noting that it includes the term leaching, which demonstrates that [Congress] was aware of the concept of passive migration in landfills ....).

(2) What constitutes a facility under CERCLA?

Facility is broadly defined in CERCLA §101(9)(A), 42 U.S.C. §9601(9)(A), to include any building, structure, installation, equipment, pipe or pipeline ..., well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft. Alternatively, a facility may encompass any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located. 42 U.S.C. §9601(9)(B). Facility does not include a vessel or a consumer product in consumer use. 42 U.S.C. §9601(9)(B); see Dayton Indep. School Dist. v. U.S. Mineral Prods. Co., 906 F.2d 1059, 1065 (5th Cir. 1990) (buildings containing asbestos were not facilities under CERCLA because the building materials fell within the consumer products exception).

(3) What costs can the EPA recover in a §107 claim?

As long as the EPA can show that its costs are not inconsistent with the NCP, it can recover all of the costs it expends for the cleanup of the hazardous substances at issue, including its overhead administrative costs. United States v. E.I. Dupont De Nemours & Co., Inc., 432 F.3d 161 (3d Cir. 2005) (EPAs oversight costs for response actions are recoverable under CERCLA). (See §3.5, below, for a discussion of the general NCP-mandated cleanup process.) The EPAs recoverable costs under §107, 42 U.S.C. §9607, also includes costs for health assessments by the Agency for Toxic Substances and Disease Registry (ATSDR) pursuant to §104(i), 42 U.S.C. §9604(i). See Pritikin v. Dept of Energy, 254 F.3d 791, 795 (9th Cir. 2001), cert. denied, 534 U.S. 1133 (2002) (noting that the Department of Energy, owner of the Hanford Nuclear Reservation, is liable for the costs of any health assessments conducted at that site pursuant to §104(i)). Importantly, the EPA can also recover all of its reasonable attorney fees under §107 (unlike a private party).

A defendants liability under §107 generally will be joint and several. See Firemans Fund Ins. Co. v. City of Lodi, Cal., 302 F.3d 928 (9th Cir. 2002), cert. denied, 538 U.S. 961 (2003). Divisibilityalso called apportionmentis a defense to joint and several liability under §107. Thus, when a defendant can show that there are distinct harms or that there is a reasonable basis for division, the harm will be divided on that basis. Burlington N. & Santa Fe R.R. Co. v. United States (Burlington II), 556 U.S. 599, 613-15, 129 S. Ct. 1870, 173 L. Ed. 2d 812 (2009); United States v. Chem-Dyne Corp., 572 F. Supp. 802, 810 (S.D. Ohio 1983). Potentially reasonable bases for dividing harm include volumetric, chronological, or other types of evidence, including appropriate geographic considerations. United States v. Burlington N. & Santa Fe Ry. Co. (Burlington I), 520 F.3d 918, 936 n.18 (9th Cir. 2008), revd, 556 U.S. 599 (2009).

Volumetric apportionment may be appropriate [i]f the court can estimate with some confidence the amount of waste that each defendant disposed of and has a basis for determining that the extent of contamination of the site is proportional to the amount of waste disposed of. Id. at 937-38. Geographic apportionment may be appropriate if a defendant can demonstrat[e] a reasonable basis for concluding that a certain proportion of the contamination did not originate on the portion of the facility that the [defendant] owned or upon which the defendant conducted liability-triggering activities. Id. at 938. If there is no reasonable...