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CERCLA Enforcement: Recent Key Developments and Perspectives

Elizabeth H. Temkin, Today's Environmental Agencies: Regulatory Enforcement, Citizen Suits, and the Natural Resources Industries (Dec 2018)

CERCLA is not your typical environmental enforcement statute. No wrongdoing or current violation of any law or regulation is required to trigger its application. In fact, outside an emergency spill situation, the liability trigger typically is an historical environmental condition that environmental regulators and, typically, neighbors and other stakeholders deem an unacceptable risk to human health and the environment. Whether the facility complied with then-applicable environmental requirements is, relative to the liability determination, irrelevant. That, plus a liability scheme that is generally strict, and joint and several, tips CERCLA into its own special class among the environmental enforcement statutes. Notwithstanding its breadth and scope, the statute has survived multiple constitutional challenges. With the stakes often quite high, CERCLA caselaw has evolved thematically over time to address the four key issues posed by CERCLA's draconian liability scheme: (1) challenges to the listing of a site on the National Priorities List ("NPL"), where listing virtually assures multiple costly legal and technical battles; (2) the so-called "pre-enforcement review bar" in CERCLA Section 113(h) that, effectively, cuts off any rights to appeal an enforcement order; (3) who can be held jointly and severally liable for these expensive CERCLA cleanups in the first instance; and (4) how the cleanup costs should be divided among the liable parties thereafter. Given the high stakes, in terms of both liability and costs, particularly at historic mining sites, much of "the action," so to speak, in CERCLA legal practice involves often-protracted settlement negotiations leading to either administrative orders on consent ("AOCs") or judicially-approved consent decrees ("Consent Decrees"). In this context, the focus shifts from whether a party is liable at all, to the question of "liable for what"? Then the key additional question is whether this alleged liability is going to be resolved with the performance of work, the payment of money, or both, as that directly impacts the structure and the complexity of both the settlement itself and the settlement negotiations. For CERCLA settlements, precedent and outcomes are driven most immediately by a confusing array of so-called "model" agreements and orders, plus non-binding guidance documents, that define the key, "model" terms that the United States, and particularly the U.S. Environmental Protection Agency ("EPA") and the U.S. Department of Justice ("DOJ") deem legally acceptable in a CERCLA settlement. In addition, in a work performance settlement, the National Contingency Plan ("NCP"), along with many additional, non-binding guidance documents, drive the technical discussions, often on a parallel track, to define the work to be performed consistent with CERCLA and NCP mandates. CERCLA caselaw, which, along with the statute, provide the backdrop for those settlement discussions, is dynamic. There are always new challenges and claims, some strong, some not. This paper highlights certain recent important decisions from the courts on the topics noted above: challenges to NPL listings; defining the reach and limits of the pre-enforcement review bar; CERCLA owner liability and particularly the United States' CERCLA liability based on its status as a landowner; and liability apportionment and allocation. The paper also addresses