Superfund clean-up orders
🧪 What Are Superfund Clean-up Orders?
Overview of CERCLA (1980)
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) — commonly known as Superfund — was enacted to address the cleanup of hazardous waste sites and to hold responsible parties (PRPs) liable for the costs of environmental remediation.
Key Features:
Empowers the Environmental Protection Agency (EPA) to:
Identify and prioritize contaminated sites
Issue unilateral administrative orders (UAOs) for cleanup
Undertake cleanup and recover costs from PRPs
Liability is:
Strict: No need to prove intent
Joint and Several: Any one PRP may be held responsible for all cleanup costs
Retroactive: Applies even to past contamination
🛠️ Types of Orders Under CERCLA
Section 106 Orders: EPA can issue unilateral administrative orders to PRPs to conduct cleanup.
Section 104 Actions: EPA can clean up the site itself and seek cost recovery.
Consent Decrees: Settlements negotiated between PRPs and the EPA, approved by courts.
Contribution Claims: PRPs can sue others for sharing cleanup costs under §113(f).
⚖️ Detailed Case Law on Superfund Clean-up Orders
Case 1: United States v. Ottati & Goss, Inc., 900 F.2d 429 (1st Cir. 1990)
Facts:
EPA ordered multiple companies, including Ottati & Goss, to clean up a contaminated site in New Hampshire. PRPs argued the cleanup was overly expensive and not cost-effective.
Issue:
Can PRPs refuse to comply with a §106 order based on disagreement over EPA's selected remedy?
Holding:
The court held that once the EPA has selected a remedy, courts must defer to EPA’s choice unless it is arbitrary and capricious.
Significance:
Reinforced the EPA’s broad discretion in determining cleanup methods.
PRPs cannot avoid compliance simply because they prefer a cheaper remedy.
Case 2: United States v. Rohm and Haas Co., 2 F.3d 1265 (3d Cir. 1993)
Facts:
EPA sued Rohm and Haas under CERCLA to enforce a cleanup order. The company claimed that third parties were more responsible.
Issue:
Is CERCLA liability avoidable by pointing to other more responsible parties?
Holding:
The court held that CERCLA liability is joint and several unless the defendant proves a reasonable basis for apportioning harm.
Significance:
PRPs are held liable even if others contributed more, unless they can clearly allocate responsibility.
Encouraged PRPs to seek contribution from others under §113.
Case 3: United States v. Atlantic Research Corp., 551 U.S. 128 (2007)
Facts:
Atlantic Research voluntarily cleaned up contamination and sought to recover costs from another PRP under §107(a).
Issue:
Can a PRP that voluntarily cleans up a site (without being sued or ordered) sue others under §107(a)?
Holding:
The Supreme Court held yes — PRPs that clean up a site voluntarily may seek cost recovery under §107(a).
Significance:
Clarified difference between cost recovery (§107) and contribution claims (§113).
Expanded rights of PRPs to pursue reimbursement even if they were not compelled.
Case 4: Cooper Industries v. Aviall Services, Inc., 543 U.S. 157 (2004)
Facts:
Aviall voluntarily cleaned up contamination and sought contribution from Cooper under §113(f)(1), even though no EPA suit had been filed against it.
Issue:
Can a party seek contribution under §113(f)(1) without first being sued under CERCLA?
Holding:
The Supreme Court said no — §113(f) contribution is only available after a PRP has been sued under CERCLA.
Significance:
Limited when PRPs can seek contribution.
Created incentive to negotiate settlements or wait for EPA action.
Case 5: United States v. Bestfoods, 524 U.S. 51 (1998)
Facts:
EPA sought to hold a parent corporation liable for cleanup costs at a site operated by its subsidiary.
Issue:
Can a parent corporation be held liable under CERCLA for actions of its subsidiary?
Holding:
The Supreme Court ruled that a parent company is not liable just by owning the subsidiary, unless it actively participated in operations or directly managed pollution.
Significance:
Set limits on corporate veil-piercing under CERCLA.
Focused on actual control over environmental operations.
Case 6: General Electric Co. v. Jackson, 610 F.3d 110 (D.C. Cir. 2010)
Facts:
GE challenged the constitutionality of §106 unilateral orders, claiming that they violated due process since PRPs must comply or face massive fines without prior judicial review.
Issue:
Do §106 orders violate due process by lacking pre-enforcement judicial review?
Holding:
The court ruled the statute does not violate due process because PRPs can refuse to comply and challenge enforcement later in court.
Significance:
Upheld EPA’s strong enforcement authority.
PRPs assume risk if they choose not to comply, but legal challenge remains an option.
🔑 Summary Table
| Case | Key Issue | Ruling | Principle |
|---|---|---|---|
| Ottati & Goss (1990) | Challenging EPA remedy | EPA's discretion upheld | Deference to EPA |
| Rohm and Haas (1993) | Liability apportionment | Joint & several liability | Burden on PRPs |
| Atlantic Research (2007) | Voluntary cleanup & recovery | Allowed under §107 | Broadened PRP rights |
| Cooper Industries (2004) | When contribution allowed | Only after suit | Restricts §113 use |
| Bestfoods (1998) | Parent-subsidiary liability | Limited liability | Active control required |
| GE v. Jackson (2010) | Constitutionality of UAOs | Orders upheld | No due process violation |
🧠 Lessons from Case Law
EPA’s discretion is broad in selecting cleanup methods — courts are deferential.
PRPs are strictly and jointly liable unless they prove divisibility of harm.
Voluntary cleanup may entitle PRPs to cost recovery, but contribution requires being sued.
Corporations may avoid liability if they had no operational control.
Legal challenges to UAOs are possible, but risky and limited to post-compliance.
✅ Conclusion
Superfund clean-up orders are a powerful tool under CERCLA to ensure hazardous sites are remediated. The courts have consistently:
Supported the EPA’s broad authority
Maintained strict and joint liability
Required PRPs to be proactive in seeking contribution or recovery
Balanced due process concerns with environmental urgency
These cases provide a robust foundation for understanding both the powers of the EPA and the strategic decisions PRPs must make in navigating cleanup responsibilities.
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