ALI-ABA Course of Study Environmental Litigation

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1 949 ALI-ABA Course of Study Environmental Litigation Sponsored with the cooperation of the University of Colorado School of Law June 16-18, 2010 Boulder, Colorado CERCLA Overview By John C. Cruden U.S. Department of Justice Washington, D.C.

2 950 CERCLA OVERVIEW TABLE OF CONTENTS A. INTRODUCTORY/OVERVIEW HISTORY STRUCTURE AND PURPOSE FURTHERANCE OF STATUTORY GOALS... 2 B. CERCLA'S LIABILITY STANDARD STRICT LIABILITY JOINT AND SEVERAL ("J&S") LIABILITY RETROACTIVE LIABILITY... 5 C. GOVERNMENTAL ALTERNATIVES AT A SUPERFUND SITE RESPONSE ACTIONS INFORMATION GATHERING AND SITE ACCESS CLEANUP PROCESS WORK OPTIONS... 8 D. PRIVATE PARTY RESPONSE ACTIONS UNDER GOVERNMENT DIRECTION - CERCLA SECTION STANDARDS (WHETHER ADMINISTRATIVE ORDER OR INJUNCTION) SANCTIONS FOR NON-COMPLIANCE... 9 E. COST RECOVERY ACTIONS - CERCLA 107(a)(4)(A) BASIC ELEMENTS OF LIABILITY FOR FEDERAL GOVERNMENT, STATES, OR INDIAN TRIBES THE FOUR ELEMENTS OF LIABILITY - SECTION 107(a) CURRENT OWNERS AND OPERATORS PAST OWNERS AND OPERATORS GENERATORS TRANSPORTERS F. RECOVERABLE COSTS GOVERNMENTAL RESPONSE COSTS RECOVERABILITY OF PRE-CERCLA COSTS PRIVATE COST RECOVERY ACTIONS UNDER 107(a)(4)(B) EXTRATERRITORIALITY i

3 951 G. DEFENSES TO LIABILITY - SECTION 107(b) ACT OF GOD ACT OF WAR THIRD PARTY DEFENSE PROCEDURES H. EXCLUSIONS PETROLEUM SECURITY INTEREST HOLDERS INNOCENT LANDOWNERS FEDERALLY PERMITTED RELEASES COMMON CARRIERS PESTICIDE CONSUMER PRODUCTS RECYCLERS DE MICROMIS EXEMPTION SECTION 107(o) MUNICIPAL SOLID WASTE EXEMPTION (MSW) SECTION 107(p) CONTIGUOUS PROPERTY OWNERS SECTION 107(q) PROSPECTIVE PURCHASER SECTION 107(r) BROWNFIELDS 128(b) RADIONUCLIDES SECTION 101(22)(c) I. STANDARD OF REVIEW ADEQUACY OF RESPONSE COSTS ASSERTED BY GOVERNMENT J. STATUTE OF LIMITATIONS K. SECTION 107 COST RECOVERY ACTIONS DO NOT ALLOW FOR TRIALS WITH JURIES L. CERCLA SETTLEMENTS (SECTION 122, codified at 42 U.S.C. 9622, et seq.) STATUTORY GOAL DISCRETIONARY AUTHORITY PROCEDURE AND SCOPE CONSENT DECREE DE MINIMIS SETTLEMENTS CONTRIBUTION PROTECTION ii

4 MIXED FUNDING NON-BINDING ALLOCATIONS OF RESPONSIBILITY ("NBAR") RELEASES FROM LIABILITY / COVENANT NOT TO SUE STANDARD OF REVIEW FOR CONSENT DECREES M. CONTRIBUTION SUITS (SECTION 113, codified at 42 U.S.C. 9613, et seq.) BASIC STANDARD EFFECT ON PROCURING JOINT AND SEVERAL LIABILITY ELIGIBILITY TO BRING CONTRIBUTION ACTION ALLOCATION OF COSTS RIGHT TO A JURY TRIAL STATUTE OF LIMITATIONS N. NATURAL RESOURCES DAMAGES (SECTION 107) STATUTE NATURAL RESOURCES ELIGIBILITY TO BRING NRD CLAIMS NRD STATUTE OF LIMITATIONS NRD ASSESSMENTS MEASUREMENT OF DAMAGES O. JUDICIAL REVIEW EXCLUSIVE FEDERAL JURISDICTION TIMING OF REVIEW OF RESPONSE ACTIONS PRE-ENFORCEMENT REVIEW CITIZEN SUITS INTERVENTION STANDARD SOVEREIGN IMMUNITY CERCLA AND BANKRUPTCY LAW P. OBLIGATIONS AT FEDERALLY-OWNED FACILITIES FEDERAL AGENCY HAZARDOUS WASTE ASSESSMENT AND EVALUATION: SECTION 120(d) FEDERAL PROPERTY TRANSFERS: 120(h) (as amended) THE COMMUNITY ENVIRONMENTAL RESPONSE FACILITIES ACT iii

5 953 CERCLA OVERVIEW 1 A. INTRODUCTORY/OVERVIEW 1. HISTORY a. CERCLA was passed in 1980 at the end of the ninety-sixth Congress to clean up leaking, inactive or abandoned sites and provide emergency response to spills. CERCLA is the abbreviation for the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C , as reauthorized and substantially amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub L. No , 100 Stat (1986). SARA introduced more stringent cleanup standards, created a new independent regulatory program - the Emergency Planning and Community Right-to-Know Act, 42 U.S.C , and codified some court decisions. b. The statute was initiated as a response to severe environmental and health problems at toxic waste sites such as Love Canal in New York and Times Beach in Missouri. 2 c. Federal funding for the "Superfund" was initially $1.6 billion ( ). The revenue source was primarily a direct tax on sales of petroleum and certain chemical feedstocks. SARA increased the fund to $8.5 billion through additional taxes. In 1991, Congress reauthorized CERCLA for an additional three years and the funding authority for an additional four years. The taxing authority expired on December 31, d. Superfund Reauthorization - In the 103rd Congress, two bills were introduced at the request of the administration to reauthorize CERCLA: H.R and S In the 104th Congress the most significant bills were S and H.R In the 105th Congress, S. 8, as amended, was voted out of the Senate Environment and Public Works Committee on March 26, 1998 and H.R was voted out of the House Transportation and Infrastructure Committee, Water Resources and Environment Subcommittee on March 11, In the 106th Congress, S was the major Senate Bill. Although none of the reauthorization bills passed, there 1 By John C. Cruden. This outline was prepared in my individual capacity and does not necessarily reflect the position of the Department of Justice. 2 The Resource Conservation & Recovery Act ("RCRA"), 42 U.S.C et seq., as amended by the Hazardous and Solid Waste Amendments of 1984 ("HSWA"), Pub. L. No , 98 Stat (1984), and other environmental statutes provided only limited authorities to deal with abandoned sites at the time CERCLA was enacted. RCRA 7003, 42 U.S.C. 6973, now provides corrective action requirements similar to CERCLA authorities, and covers hazardous or solid wastes presenting an "imminent and substantial endangerment to public health or the environment." 1

Chapter VIII SUPERFUND LAWS. In the aftermath of Love Canal and other revelations of the improper disposal of

Chapter VIII SUPERFUND LAWS. In the aftermath of Love Canal and other revelations of the improper disposal of Chapter VIII SUPERFUND LAWS In the aftermath of Love Canal and other revelations of the improper disposal of hazardous substances, the federal and state governments enacted the Superfund laws to address