The silent strength of cercla: private party cleanups—and the judicial decisions jeopardizing them

• Pages: 165-206
• Date: 01 January 2024
• Published date: 01 January 2024
• Author: Rachel D. Guthrie
• Subject Matter: Derecho Civil

ARTICLES

The Silent Strength of CERCLA: Private Party

Cleanups––and the Judicial Decisions

Jeopardizing Them

RACHEL D. GUTHRIE*

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

I. The Origins and Omissions of Modern Environmental

Law Leading to CERCLA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

II. Fundamental Flaws: How CERCLA Funds—or

Doesn’t Fund—Cleanups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

III. How Private Party Cleanups Work and Why Private Parties Clean Up

Contamination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

IV. Flawed Judicial Rulings That Undermine CERCLA and Threaten to Slow

Cleanup . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

A. Failure to Recognize the Atlantic Research Gap Between Sections 107(a)

and 113(f)(1) by Improperly Disallowing Simultaneous Claims for Cost

Recovery and Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

B. Improperly Reading § 122(a) Settlements into the § 113(g)(3)(B)

Statute of Limitations for Contribution Actions. . . . . . . . . . . . . . . 188

C. Reimagining the Real Party in Interest . . . . . . . . . . . . . . . . . . . . . 192

D. The Unexpected Benef‌it of Territory of Guam Restricting

Contribution to CERCLA-Derived Liabilities . . . . . . . . . . . . . . . . 198

V. Fixing the Flaws: Recommendations for the Legislature,

EPA and PRP Groups. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

A. Administratively Correcting Hobart and Closing the Atlantic

Research Gap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

B. Legislatively Correcting Hobart and Closing the Atlantic Research

Gap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

* Rachel D. Guthrie received her J.D. cum laude with an Environmental & Natural Resources

Certif‌icate from Lewis & Clark Law School in 2012. She spent much of the last decade in complex

litigation in Superfund cost recovery and contribution cases nationwide. Rachel is also founder of American

Wolf Foundation, an endangered species non-prof‌it, and is an adjunct professor at KU Law School,

Rockhurst University and Kansas City Art Institute, where she teaches courses on environmental law,

environmentalism, and ecology. She thanks her husband for his support. © 2024, Rachel D. Guthrie.

165

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

INTRODUCTION

On November 15, 2021, President Joe Biden signed into law the Infrastructure

Investment and Jobs Act (commonly known as the Bipartisan Infrastructure Law

or IIJA),

1

a law the White House describes as “a once-in-a-generation investment

in our nation’s infrastructure and competitiveness.”

2

THE WHITE HOUSE, FACT SHEET: THE BIPARTISAN INFRASTRUCTURE DEAL (Nov. 6, 2021) https://

perma.cc/TH6X-3FAZ.

Among other goals, the law

is intended to “[d]eliver the largest investment in tackling legacy pollution by

cleaning up Superfund and Brownf‌ield sites, reclaiming abandoned mines, and

capping orphaned oil and gas wells,” funded by an investment of twenty-one bil-

lion dollars.

3

Of this $21 billion, $3.5 billion is allocated to Superfund cleanups

4

EPA, CLEANING UP SUPERFUND SITES: HIGHLIGHTS OF BIPARTISAN INFRASTRUCTURE LAW

FUNDING, (Nov. 16, 2022), https://perma.cc/FK36-ZM99.

and $1.5 billion is allocated to Brownf‌ield cleanups.

5

EPA, BIPARTISAN INFRASTRUCTURE LAW: A HISTORIC INVESTMENT IN BROWNFIELDS (Nov. 17,

2022), https://perma.cc/CKT5-JQY9.

Additionally, the law’s

most signif‌icant contribution to Superfund cleanup is the reinstatement of the

Superfund Excise Tax, which imposes taxes on entities that import, manufacture,

produce or utilize any of forty-two listed chemicals.

6

Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, § 80201 135 Stat. 429, 1328-30

(2021); see also Lynn Mucenski Keck, Superfund Excise Tax is Catching Many Companies by Surprise,

FORBES (July 25, 2022), https://perma.cc/3Q4L-AE5S.

The Superfund Excise Tax

became effective on July 1, 2022 and is anticipated to raise an additional $14.4

billion for Superfund projects through its new expiration date of December 31,

2031.

7

The importance of the Superfund Excise Tax should not be understated. After

it was allowed to expire in 1995, the loss of the Superfund Excise Tax contribu-

tions to the Superfund Trust Fund resulted in stagnation of cleanups at sites listed

on the National Priorities List (NPL)—those most severely contaminated.

Cleanup rates dropped from an average of seventy-one sites per year to a low of

six sites decontaminated in 2019.

8

Vanessa Zainzinger, US Reinstates Superfund Taxes to Clean Up 1300 Contaminated Sites,

CHEMISTRY WORLD (July 1, 2022), https://perma.cc/HXZ4-VBKE. As of September 2021, 78.5% of the

1,334 sites on the NPL had been on the list for more than 20 years. John Rumpler, Make Polluters Pay:

How Public Education and Advocacy Revived the Polluter Pays Principle, ENVIRONMENTAMERICA

(Sept. 30, 2021), https://perma.cc/66NW-SYKU; see also Paul J. Lioy & Thomas A. Burke, Superfund:

Is It Safe to Go Home?, J. OF EXPOSURE SCI. & ENVTL. EPIDEMIOLOGY 20, 113–14 (Feb. 17, 2010),

available at https://perma.cc/5EUK-5LBQ (noting that Superfund sites listed for more than 20 years

expose multiple generations to pollution, and concluding there are inadequate protections to health

throughout the cleanup process).

After 1995, the American taxpayer bore the

1. Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429 (2021).

2.

3. Id.

4.

5.

6.

7. Keck, supra note 6.

8.

166 THE GEORGETOWN ENVTL. LAW REVIEW [Vol. 36:165

f‌inancial burden of cleanups instead of the industries that prof‌it from dealing in

hazardous substances, in an amount of $21 billion over twenty years.

9

E.g., Bryan Anderson, Taxpayer Dollars Fund Most Oversight and Cleanup Costs at Superfund

Sites, THE WASHINGTON POST (Sept. 20, 2017), https://perma.cc/Y2GU-CY8A (citing GOVERNMENT

ACCOUNTING OFFICE (GAO), TRENDS IN FEDERAL FUNDING AND CLEANUP OF EPA’S NONFEDERAL

NATIONAL PRIORITIES LIST SITES, GAO-15-812, (Sept. 2015), available at https://perma.cc/2BDX-

D4FG (stating Superfund appropriations of $23 billion in the period from 1999 through 2013, of which

only a few billion had come from the Superfund trust account)). In addition to Superfund appropriations

to EPA, States must contribute 10% of EPA’s costs of cleaning up NPL sites within their borders. See 42

U.S.C. § 9604(c); see generally EPA, WHO PAYS FOR SUPERFUND?, Pub. No. 9200.5-008G (Nov. 1990),

available at https://perma.cc/272T-2AX8.

In addition

to this tax burden, cleanup delays raise environmental justice concerns and pose

health threats to a signif‌icant number of Americans. Nearly one in four Americans

live within three miles of a Superfund site, and those are disproportionately minor-

ity, low-income, linguistically isolated, and less educated compared to the national

average.

10

EPA, POPULATION SURROUNDING 1,877 SUPERFUND SITES (July 2022), available at https://perma.

cc/7ULZ-RRJV.

Yet, as important as the Superfund Excise Tax is to government-funded cleanup

of NPL sites, it will fund only a fraction of all NPL and non-NPL CERCLA clean-

ups. Only around thirty percent of “nonfederal” NPL sites

11

“Federal” NPL sites––those owned by a department, agency, or instrumentality of the United

States—are funded by the landholding agency and not by EPA’s Superfund appropriation. See GAO-15-

812, supra note 9, at 1 note 2. “Nonfederal” NPL sites are all other sites. As of June 27, 2023, only 158

of the 1,336 currently-listed NPL sites are federal sites. EPA, SUPERFUND: NATIONAL PRIORITIES LIST,

available at https://perma.cc/DN9Q-S5VE (last visited June 26, 2023).

are funded through the

Superfund Trust Fund and cleaned up by EPA.

12

CONGRESSIONAL RESEARCH SERVICE, SUPERFUND TAXES OR GENERAL REVENUES: FUTURE

FUNDING ISSUES FOR THE SUPERFUND PROGRAM (Feb. 4, 2008), available at https://perma.cc/Z75Y-

H95W (“At approximately 30% of the NPL sites, either EPA cannot locate PRPs for these properties, or

the PRPs located do not have the necessary f‌inancial resources to assist with cleanup. It is primarily at

this group of NPL sites that EPA uses funds from the trust fund to conduct cleanup activities.”).

The other seventy percent of non-

federal NPL sites are cleaned up by private parties, many of which are potentially re-

sponsible parties (PRPs). PRPs are the original entities or successors to entities that

polluted a contaminated site.

13

Further, only a fraction of contaminated sites is

deemed contaminated enough to warrant listing on the NPL,

14

leaving most conta-

minated sites privately funded.

It is clear that private party cleanups are the predominant mechanism for

decontaminating the environment in the United States. Yet, recent federal court

decisions have restricted in numerous ways the ability of the PRPs performing

the cleanup to effectively cooperate and pursue claims for cost recovery or contri-

bution from non-performing PRPs.

9.

10.

11.

12.

13. See 42 U.S.C. § 9607(a) (identifying the classes of liable parties).

14. EPA estimates the total number of uncontrolled or abandoned hazardous waste sites at around

44,000, whereas the current number of NPL sites is 1,336 (not counting proposals or already deleted

sites). See supra note 11; see Zainzinger, supra note 8.

2024] THE SILENT STRENGTH OF CERCLA 167