*1 of the regarding the effectiveness tive data of America
transplant. UNITED STATES addition, always particular there will v. may application affect ease that facts COMPANY; AND Rohm ROHM HAAS In this case factors we have outlined. Valley, Inc.; and Haas Delaware Chemi- tumors makes it rarity of neuroendocrine Inc.; Properties, Township cal Bristol statistically significant to collect difficult Authority, Appellants. data, and to conduct double-blind amounts of No. 92-1517. to the district court studies. We leave inference, any, to draw from proper Appeals, United States Court assessing rarity whether of the disease Third Circuit. experimental procedure. transplant was an Argued Jan. 1993. remand, parties submit testi- both On “ex- mony concerning application of the term Aug. Decided Heasley’s procedure” to trans- perimental Rehearing Petition for Oct. Sur concerns we light of the factors and plant party may sup- But neither have identified. generated since data
plement the record with ruling. For exam- initial
the district court’s performed transplants
ple, evidence of liver pub- or studies
for neuroendocrine tumors appeal of this during pendency
lished inadmissible. This distinction
would be Heasley re- because
makes sense longer living. transplant and is no
ceived his awaiting a Heasley alive and decision
Were treatment, more recent evi- payment or
on
dence would be admissible. recognize that determination
We experimen- particular procedure is
whether a necessarily on the facts of the
tal will turn are we unaware of the
particular case. Nor ar- these cases arise. The
context which gravely patient ill
chetypal presents a ease injunction being denied
requesting an after exigencies of such Faced with
benefits. conflicting com- a wealth of
a claim and testimony, has a
plex expert the trial court
daunting task.
V. reasons, foregoing we vacate
For the will and remand
the district court’s order opin- with this proceedings
further consistent
ion. *2 Zoll,
Bockius, F. Dell E. Perel- and David man, Sincore, Jacqueline A. Chemical Mfrs. DC, Ass’n, Washington, for Chemical Mfrs. Ass’n. *3 Frick, Crabtree, H.
G. William William Institute, Wagner, American Petroleum John DC, Washington, for American Petroleum Institute. Bourdeau, Goldberg, Aaron H.
Karl S. DC, P.C., Washington, Beveridge & Diamond American Iron and Steel Institute. for Green, Allen, Tony Douglas Piper K. H. & DC, Marbury, Washington, Edison Elec. for Ass’n, Institute, Power the American Public op. National Rural Elec. Co Ass’n. and the Conrad, Liti- Robin S. National Chamber Center, Inc., DC, Washington, for gation of Commerce of the U.S. Chamber Merlino, Crabtree, H. Thomas R. William U.S., Inc., Mfrs. Ass’n of the Motor Vehicle Detroit, MI, Mfrs. Ass’n. for Motor Vehicle Evans, Cynthia Paper American Insti- H. DC, tute, Paper Washington, for American Institute, ap- support for amici curiae Gen., O’Meara, Acting Atty. Asst. A. Vicki pellant. Justice, Thode, Stahr, Dept, Anna John Div., Mi- Natural Resources Environment & COWEN, and Before: STAPLETON Atty., Baylson, James G. Shee- chael M. U.S. BARRY, Judges, District Circuit (Ar- han, Chief, Div., L.W. Cohn Civ. Debra Judge*. PA, Atty., Philadelphia, gued), Asst. U.S. Igoe, E.P.A. U.S. Office counsel: Sheila THE COURT OPINION OF E.P.A., Counsel, Hykel, Of- Judith U.S. Gen. STAPLETON, Judge: Circuit Counsel, appellee. for Regional fice of presents important issue of case This Harkins, (Argued), Harkins G. Jr. John of a impression regarding the extent first Riehman, Pepper, Ham- Cunningham, David liability under 107 of responsible party’s PA, Scheetz, Philadelphia, P. Gerald ilton & Re- Comprehensive Environmental. Norton, Washington, Cunningham, Harkins Liability Act sponse, Compensation, and Subak, Friedell, DC, Rohm T. Ellen S. John (“CERCLA”), We PA, Co., appel- Philadelphia, for and Haas incurred whether costs asked to decide are Co., Rohm and Haas lants Rohm and Haas overseeing a hazardous Inc., Tp. Authority. Valley, Bristol Delaware for cleanup performed paid waste (Argued), A. Philip L. Hinerman John Con- pursuant to the Resource private party Bramnick, III, Pepper, Hamil- May, Michael (“RCRA”) are Recovery Act servation PA, Scheetz, appel- Philadelphia, for ton and liability provi- under' CERCLA’s recoverable Properties, Inc. lant Chemical recovery of all costs provides for sion which incurred remedial action Rubin, Steinberg, of removal and Michael Kenneth A. W. doing, must In so we also Prillaman, Morgan, & the United States. Lewis Hunter L. * designation. sitting by Barry, Maiyanne Trump States United Honorable Jersey, Judge New for the District of District question portions H-DVI, fundamental
reach the more of the site owned R & provision allowing BTA, whether CERCLA’s re- and CP. covery of federal removal and remedial costs 10, 1985, April proposed On to add contemplates of costs incurred the site to the National Priorities List and on overseeing private party’s removal and re- 28, 1986, August EPA sent R & H-DVI a Proper- medial action. Defendant Chemical draft consent order under 106 of CERC- separate relating ties also raises issues LA, requiring certain work whether an owner of of a CERCLA providing be done at the site and jointly severally should be liable reimbursement of all of the response costs incurred at the entire costs. R & H-DVI facility. appeal challenge This involves no *4 sign, did not but rather sent a letter to EPA findings
the district court’s of fact. 10, 1986, that, stating on October in R H-& Background opinion,
I. Factual inappropriate DVI’s the site was for CERCLA, handling published under under cleanup This case from the arises of haz- policy, managed but rather should be ardous wastes from a 120-acre landfill willing RCRA.1 Because R & H-DVI was Township, Pennsylvania, Bristol next to the take up corrective action and clean the site at (“R H”) Delaware River. Rohm and Haas & expense, agreed. February its own EPA On owned the entire site from 1917 to 1963. In 4, 1987, EPA R informed & H-DVI it 1963, it sold 14.5 acres to the Bristol Town- manage had decided to the site under RCRA. (“BTA”) ship Authority and in 1968 and 1971 personnel New from EPA’s RCRA office sold total of 10.94 acres to Chemical assigned were subsequently and the site was Leasing Corporation, now known as Chemi- proposed removed from the National Priori- (“CP”). 1978, Properties, cal Inc. In R & H ties List. transferred the remainder of the site to its wholly Haas, subsidiary, owned Rohm and 6, 1989, February On R & H-DVI and (“R H-DVI”). Valley, Delaware Inc. & EPA entered into an Administrative Consent 1975, From R 1917 to & H used the site 3008(h) RCRA, Order under 42 U.S.C. refuse, disposal general for process 6928(h). provided order This for R & H- wastes, offgrade products and from R & H’s perform DVI to cleanup various ac- related plastics manufacturing and plants. chemical portions site, including tivities on all of the 1981, In R & H-DVI notified EPA that by those owned BTA and CP. It did not 309,000 disposed tons of waste were of at the provide govern- for reimbursement of the 4,600 including site at least tons of hazardous implementing ment’s costs in the order. substances as defined order, Pursuant to this R & H-DVI has 9601(14). 1984, From 1970 to a tank-truck performed required work at the site and
hauling facility operated portion at CP’s been, continues to do so.2 This work has and site; maintained, dispatched, trucks were be, continues to overseen EPA. occasionally facility. cleaned at this Be- 1979, November, 1990, ginning in began EPA monitoring the the United States brought site and the defendants’ activities at the site. this action to CERCLA 107, Investigations by 9607, attempting both EPA and the defen- to recov- dants found present hazardous substances er from at the defendants all costs incurred air, soil, the site in groundwater. government in connection with the site These present 1979, hazardous substances were at since seeking declaratory judgment 31, Superfund 1. In pro- order to conserve through July (pri- funds and 2. From October private cleanups, promulgated mote policy EPA order), approxi- or to the R & H-DVI removed whereby potentially facilities which could 11,700 be sub- mately yards cubic of waste and soil from ject managed to both CERCLAand RCRAwill be portion the BTA site. monitored this under RCRA and not listed on the National Pri- work. list, except operator orities where the owner or unwilling unable or take corrective action. EPA, Listing Policy, Fed.Reg. See RCRA/NPL 21057-59 declaring all future in- recoverable RCRA has been amended several times enactment, these since curred at the site.3 Most of costs were its and as of its intend- “cradle-to-grave” ed regulatory system incurred after it had noti- waste, H-DVI, hazardous February the statute fied R & that it contains a num- provisions designed ber to correct managing would the site under problems posed by existing hazardous waste. rather than CERCLA.4 The district court provisions These contemplate monitoring and government against found in favor of the all “corrective performed action” to be defendants, paid holding four that all the elements by private parties. liability of CERCLA were met and that none applicable. of the five defenses were offered RCRA, Section 3013 of adopted in holding It therefore issued order defen- gives right EPA the to order owners or $401,348.78 dants hable for and for “all costs operators monitor, test, analyze facili- properly incurred under thereaf- ties order to ascertain the extent of Haas, ter.” v. Rohm United States & environmental If hazards. the owner un- (E.D.Pa.1992). F.Supp. 1255 satisfaction, able to do so to EPA’s EPA can perform the work itself and have its costs appeal, argue On defendants reimbursed from the owner. If EPA con- are not *5 testing ducts its own and such tests confirm 107; thus, § recoverable under CERCLA the testing by private results of conducted they suggest they are not liable for most party order, pursuant an EPA to EPA can- costs, including all those party not order the to reimburse EPA’s 4, February incurred after 1987. addi- (1988). § 42 costs. See U.S.C. 6934 tion, argues that it defendant CP should not RCRA, Section 7003 of the “imminent haz- jointly severally liable for full the RCRA, provision ard” has existed since by government. haveWe initial RCRA’s enactment in 1976 but was appellate jurisdiction over this case by 1291, enhanced amendments 1980 and § to 28 U.S.C. and because there are If any EPA finds that solid or hazardous disputed appeal no facts on and the resolu- presents waste an “imminent and substantial exclusively tion of the case turns on matters environment,” endangerment to law, health or the plenary. our review is permits the current version of the statute bring any person EPA to suit to force who Statutory II. Context contributed, contributing, has or is to the A. RCRA problem appropriate to take corrective ac- permits tion. The section EPA also to issue Recovery The Resource Conservation and necessary. 42 administrative orders as See (“RCRA”) originally passed Act was in 1976. (1988). § U.S.C. 6973 primary purpose regulatory: regu- Its is to storage, transportation, disposal program, late the The RCRA corrective action add- (STD) through permit of hazardous wastes ed to the statute the Hazardous and Solid treatment, 1984, system. storage designed To obtain a Waste Amendments of disposal permit, applicant identify remedy must demon- environmental contami- strate that it will conduct its all activities nation at facilities that hold hazardous compliance permits Specifically, with strict standards. waste RCRA’s under RCRA. 3004(u) permitting program prospective. ap- § It RCRA mandates that all RCRA 8, 1984, plies only permits to active STD facilities and to issued after November must STD 19,1980. permittee require facilities closed after November to take “corrective ac- court, According to the district as of June 4. The costs incurred include (i.e. $385,587.41 hiring pro- both direct costs contractors costs of had been incurred sampling support investigation) and field ($379,063.45 vide since 1979 EPA (i.e. costs, payroll, and indirect travel hir- $6,523.96 Justice), by Department ing contractors to review the work of R & H-DVI $15,761.37 interest on the amount had reached 4, 1987, contractors). February and its Prior to $401,348.78. resulting in a total amount of $173,409.59 costs; EPA incurred after that date, $205,653.83 was incurred. 1270 authority § id. EPA’s 14.02[1][c]. wastes or see also releases of hazardous for all
tion
§
§
is not limited to activ
from
solid waste
104 and
106
constituents
hazardous
permitted
at the
NPL.
management unit” located
at sites listed on the
ities
at which
“regardless of the time
EPA
authorizes
to sue
CERCLA 106
unit.” 42
placed in the
U.S.C.
waste was
or-
private parties, or issue administrative
(1988).
6924(u)
provisions of the
Other
ders,
compel
parties to
in order to
such
require
authorize
amendments
1984
at their own
cleanup hazardous waste sites
ad-
through the issuance of
corrective action
very
is therefore
simi-
expense. Section 106
6928(h)
42
orders. See U.S.C.
ministrative
7003,7
and is also somewhat
lar to RCRA
(1988).
ap-
program is
The corrective action
3008. See
U.S.C.
similar
RCRA
every facility required to have
plicable to
orders are often
Section 106
major
includes most
permit, which
RCRA
negotia-
consensually following
entered into
facilities in the United States.
industrial
par-
responsible
tion between EPA and
ac-
scope
corrective
Given
(1988) (regarding
ties. See U.S.C.
program and the thousands of facilities
tion
settlements).
Indeed, § 106 consent orders
involved,5
surprising that EPA over-
it is not
cleaning
the favored method of
appear to be
action activities
sight of
corrective
quick-
they generally are
up waste sites since
expense.
involves substantial
government expense than
er and involve less
government pur-
cleanups conducted
B. CERCLA
suant
104. See
passed in
was
December
preference
(indicating congressional
for set-
closing days
admin-
during the
Carter
“expedite
effective reme-
tlements
order to
con-
to the Love Canal
istration
litigation”);
actions
and minimize
dial
troversy.6
primary purpose is
CERCLA’s
Cong.,
H.R.Rep. No.
99th
1st Sess.
*6
up
to clean
hazardous waste sites.
remedial:
(1985)
party
are
(“Negotiated private
actions
identify
prioritize
required to
and
EPA is
program ... and it is
essential to an effective
threatened releases of hazard-
releases and
encourage
to
the intent of this Committee
by promulgating a National Priori-
ous waste
private party cleanup at all sites....
[Ne-
(NPL).
ty
provides what es-
List
CERCLA
rate of
gotiated clean-ups will accelerate the
sentially
separate mechanisms for
are two
by
clean-ups
expense
their
mak-
and reduce
cleaning up
government
a
con-
waste sites:
private sector
re-
ing maximum use of
§
cleanup
104 fol-
ducted
under CERCLA
Whitman,
sources.”);
Superfund
F.
Bradford
107,
§
recovery
a cost
action under
by
lowed
(1991)
Practice,
(discussing
at 208
Law and
cleanup,
private party
a
ordered
and
settlements);
preference for
see also 3
EPA’s
See,
EPA,
e.g.,
§
pursuant 106.
CERCLA
Cooke,
§
supra,
15.01[8][b].
Cooke,
2
M.
The Law Hazardous
Susan
CERCLA, 42
(1993) (“As
U.S.C.
Waste,
12.02[4],
Section
§
at 12-20
an
9604(a),
government,
§
cer-
authorizes
response
governmental
to a
action
alternative
circumstances,
or
action,
to undertake removal
tain
followed
a cost
CERCLA
response
to a release or
EPA,
remedial actions
order or
authorizes
administrative
substances,
action,
of hazardous
judicial
compel responsible parties
threat of release
contaminants,
action.”);
im-
pollutants.8
107
perform
required response
or
Section
Cooke,
4,600
See,
(compar
§
e.g.,
supra,
14.02[3][c]
2
5. We are told that more than
facilities
noting
ing
§
§
and
permitting
RCRA 7003 to CERCLA 106
are in the RCRA
universe.
nationwide
similarities);
(same).
§
[1 1][c]
3 id.
15.01
complained
have
about the
6. Numerous courts
inartful,
response
"Payment
governmental
in-
confusing,
ambiguous language
and
and
See,
may
legislative history.
e.g.,
9604”
be made
curred
to section
the absence of useful
9611(a)(1)
Hunt,
355, 363,
§
Corp.
Superfund. 42 U.S.C.
S.Ct.
from the
Exxon
v.
475 U.S.
1109-10,
(CERCLA
(1988).
1103,
(1986)
by variety
Superfund
The
is financed
(A) all costs of removal or remedial ac- RCRA and provisions CERCLA have allow- ing tion incurred United States Govern- EPA question access ... ment not inconsistent with the national potentially to the responsible par- records of contingency plan; .... ties. See RCRA 42 U.S.C. (1988); 104(e), general, Id. removal actions are short 9604(e) (1988). CERCLA, Under EPA responses term to a release or threat of typically prepares Preliminary Assessment long release while remedial actions involve (PA), RCRA, prepares and under term remedies. The statute defines both (RFA). Facility RCRA Assessment specificity. terms with they activities. “Removal” is defined as follows: ed under this oversight activities involved here are includ- without tance which welfare or to the under section release. rial, of or ment, stances, otherwise result from a release or threat of taken in the event of the threat of release of hazardous substances into the environ or threat of release of hazardous sub ardous substances from the [2] such actions as The [1] monitor, assess, may mitigate damage CERCLA], are or parties agree [3] such actions as “removal,” [5] cleanup be being [4] This necessary the may provided definition, 9604(b) limited taking term or removal of released haz disposal environment, rather than and evaluate the release that, may to the any emergency includes, of this title [§ of to, prevent, such other actions if the be of removed mate would under the Disas ... action taken public necessary environment, “remedial,” which be necessary minimize, health or addition, because 104(b) assis may [sic] before the See U.S.C. term removal action Measures is devised efficiently eliminate or ameliorate the risk. proaches C.F.R. action). pares der to better sures considerable RI/FS, analogous steps, namely Investigation (RI/FS) sort of cal to this determination under CERCLA is a Remedial Based on the information 42 typical on the Study alternative as well as the which to the Similarly, under Investigation that, hopefully, (IM) may RI/FS urgency (CMS). *7 investigation (RFI) (1992) (guidelines identifies, evaluates, formulate and problem. Ultimately, plan may 9621 approaches is process completed. of the be deemed may and a RFI, generally be The RI (1988). appropriate. be will a RCRA situation, Feasibility involves Corrective RCRA, necessary, gathered, to remediation. effectively portion Depending testing appropriate. analyze ap See, on removal and com involves a short- roughly Interim Facility e.g., a in or Study Criti some Mea even 40 Emergency ter Relief and Assistance Act. Finally, designated response plan is implemented previously in the field. As not- 9601(23) (1988). 42 U.S.C. ed, plan be execut- under CERCLA Anatomy C. The a Corrective Action of responsible party. ed EPA or a See framework, 104, 106; §§ statutory logic, §§ as well as CERCLA (1988). RCRA, generally response dictate that a to a of haz- it is release Under (1988). government, purposes. costs incurred See 42 U.S.C. 9611 Superfund may variety also be used for a of other being execut- plan that the is party to assure performs the cor party that responsible 3008(h), 7003; intended. §§ ed as RCRA action. See rective 6928(h), §§ Parties. III. Contentions authority its to take exercises EPA When course, itself, will, per- it of action correction straightforward. Its position EPA’s is associated with virtually all of the work form activities, includ- oversight of R & H-DVI’s commonly, hire contrac- stage, more or each required by the oversight activities ing its Even when a' the work. perform tors order, literally corrective action RCRA private out action is carried corrective of a “removal” the definition comes within or administrative to a consent party pursuant concededly oversight was not and that action 3008(h) entered under order contingency national with the inconsistent CERCLA, however, EPA RCRA, §or 106 of thus, under defendants are liable plan; that necessar- significant role —a role plays a 107(a). itself While it is true ily expense. entails recovery the cost EPA does not authorize whether for EPA to determine In order RCRA, that conducted appropriate intervention is even 107(a)impos- legally irrelevant since fact is situation, necessary that EPA given it is in a actions “notwithstand- liability for removal es all, most, of the initial assess- if not conduct law, provision or rule of ing Thus, and CERC- under both RCRA ment. subject only the defenses” enumerated per- LA, of the risk is initial assessment CERCLA. PA, EPA, through a RFA or formed respond that EPA does not Defendants respectively. costs as recovery of removal here seek the necessarily large role in plays EPA also for two reasons: over- in CERCLA defined appro- determining response action is what party’s and reme- sight removal EPA Ultimately, it is that decides priate. action, not itself a removal dial activities is response action under to conduct a whether statutory authority is in- regardless of what require private corrective 104 or voked, and, §if of CERCLA even § 106 or RCRA under CERCLA action contemplate government does 3008(h), Although §§ can RI/FS private party re- overseeing a private par- EPA or the conducted either CERCLA, it sponse action ordered under privately places limitations on a ty, CERCLA liability of over- impose for the cost not does party responsible can conducted RI/FS: under RCRA. seeing activities conducted if EPA determines conduct RI/FS so, if EPA qualified to do party that the positions, im- competing Given these arranges qualified for a “contracts with or thus, argued, not portant to note what is and review- person [it] to assist noted, here. As we have is not at stake what RI/FS,” and if the ing conduct of such no acknowledges that RCRA contains *8 government the party agrees to reimburse expenses the it authority for it to recover oversight of the incurred with cost action or- in corrective incurred 9604(a)(1) (1988).9 See RI/FS. Thus, the defendants under RCRA. dered generally oversees RFI’s and EPA also liable, they must as EPA claims can be held by private parties conducted CMS’s be, impose lia- only Congress intended to to RCRA. adopted when it bility in these circumstances 107(a) part, defen- On their of CERCLA. great- potentially the parties Private have subject acknowledge facilities that upon dants executing agreed re- role in est may, cir- in certain However, regulation under RCRA during the sponse even action. cumstances, subject government re- response plan be agreed upon execution CERCLA remedial action under by moval and party, plays EPA a role private event, and, responsible private private in such performance of the overseeing the RI/FS, responsible party potentially party between the to conduct the Where a 104(b), authority §§ CERCLA agreement EPA under the terms of the it is common that 122(a), 122(d)(3). Order entered into memorialized in a Consent
1273
may
government’s
parties
regulated
be liable for the
the benefit of
parties by imposing
burdens,
of CERCLA.
additional
costs
financial
whether charac-
‘taxes,’
parties.”
terized as ‘fees’ or
on those
Finally, we note that
this case does not
Co.,
Skinner v.
Pipeline
Mid-America
490
indirect,
the issue of whether
over-
involve
212, 224,
1726, 1734,
U.S.
109 S.Ct.
104
government
head costs associated with
re-
(1989);
L.Ed.2d 250
Algon-
see also FEA v.
activity
particular
moval or remedial
at a
SNG, Inc.,
quin
548,
10,
426 U.S.
559 n.
107(a).10
are recoverable under
2295,
(1976).
S.Ct.
2302 n.
the statement
3008(h)
They
be-
of circumstances. We
ar-
narrow set
Consent Order.
that
RCRA
a
principle of
to be
guiding
NCTA
lieve the
represent two
gue that RCRA and CERCLA
one,
applied in this
particularly as
sound
statutory
that costs in-
schemes and
distinct
process
budget
appropriation
case.
are not recovera-
curred
to RCRA
oper-
to
agencies an incentive
gives executive
§ 107.
In the defen-
ble under CERCLA
efficiently
accountable
and makes them
ate
view, costs which would be removal
dants’
agency asserts
Congress. When an
to the
if
are never-
costs
incurred under CERCLA
right
financing of its activities
the
to secure
if
removal costs
incurred under
theless not
against
whom it
by assessing its costs
those
unpersuaded.
We are
RCRA.
accountability
regulates,
that
incentive
context,
Moreover,
present
107(a)
in the
are lost.
stipulates
“all
expressly
that
Section
authority EPA asserts
recognition of the
...
incurred
the United
costs of removal
funding
for a substantial
could result
recoverable,
are
States Government”
activity,
under a
of EPA
undertaken
amount
of “removal”
neither it nor the definition
statutes, being
variety of different
shifted
specific language.
contains CERCLA
general
specific
to
levies
away from
revenue
added).
9601(23),
(emphasis
§§
private parties.
it is not the
on certain
While
107(a)
Moreover,
expressly provides
judiciary
determine whether
role of the
the situation in which more than one statuto-
public policy,
change
constitutes wise
such
ry
purports
provide
governing
scheme
in-
duty
congressional
to ascertain
it is our
opening
“notwithstanding
rule. The
clause—
statutory language. We will not
tent behind
any
provision
or rule of law” —decrees
Congress
have intended a statute
presume
statute,
another
as well as
where
create the dramatic and unusual effect
107(a),
liability provisions
applicable,
regulated parties
pay
large
requiring
107(a)
prevail
the com-
will
even where
share of
administrative
of the two statutes are
conflict. It
mands
statutory
overseeing agency
unless
if
follows that
both RCRA
CERCLA
clearly
requires
language
explicitly
us, the fact that
read on the situation before
Thus,
only prevail
EPA can
if the
result.14
authority
assessing
provides
RCRA
no
unambiguous-
statutory definition of removal
government oversight costs could take noth-
ly
to recover the
allows for
ing away
any authority found in
from
oversight costs it here seeks.
Thus,
for such assessment.
Applicability
B.
107’s
qualifies
particular government action
as a
to RCRA Costs
the definition con-
“removal action” under
CERCLA,
tained
note that most of the
Defendants
unambiguous lan-
in-
are recoverable under the
oversight
question
costs in
here were
agency inter-
appropriately
and re-
deference accorded a reasonable
more
considered a tax
quired explicit congressional
ambiguous statutory provision
pretation
authorization.
of an
NCTA,
here, Congress contemplated
Chevron, U.S.A.,
that the
inapplicable. See
Inc. v. Natural
regulated
agency
recover monies from the
Council, Inc.,
would
467 U.S.
Resources Defense
question
parties;
whether
was
2778, 2781-83,
842-45,
1275 107, guage regardless statutory of what oversight activity question, of sort of then 107(a) authority EPA in government was invoked connection does recovery not allow with its action. of the costs in conducting incurred such over- sight activity. making determination, our support legisla We find no the text or keep NCTA, we must in mind that under history suggestion tive of CERCLA for the government may oversight recover the costs activity oversight that identical on the it Congress clearly here seeks if intend- government should be a re considered recoverable; ed that such costs be any ambi- CERCLA, government moval if the invokes guity must be resolved in favor of the defen- statutory authority but not a removal if other dants. Moreover, given similarity is invoked. provisions of RCRA and CERCLA au thorizing private parties EPA to order activity, perceive
conduct corrective we fail to Nowhere in the definition of removal is any why Congress might reason have wished explicit there an oversight reference to government oversight expenses to make re paid activities by private conducted and party. coverable if the invoked CERC- explicit Nowhere is there an state- statutory authority, LA but not if it Congress invoked ment that considers administrative RCRA.15 regulatory overseeing
removal and remedial
actions of a
party
C.
Removal
to be removal
costs
and of them-
Definition of
Nevertheless,
selves.
EPA contends that the
Given our conclusion that a “removal”
requisite
congressional
clear statement of
in-
pursu
is a removal whether it is undertaken
recoverability
tent as to the
oversight
statute,
ant
key
to CERCLA or another
may
costs
be found in the third of the five
issue becomes: should CERCLA’s definition
categories
“removal,” i.e.,
in the definition of
encompass
gov
of “removal” be read to
necessary
“such actions as
to moni-
activity
ernment’s
removal or
tor, assess, and evaluate the release or threat
paid
remedial action
for and conducted
of release of hazardous substances.”
16
private parties?
oversight activity
If such
may properly
govern
vacuum,
be characterized as a
language
Examined
this
could
action,
ment removal
then
encompass
be understood to
at least some
entitled to
oversight
oversight
recover the costs of that
private party,
of the activities of a
107(a)
pursuant
oversight
particularly private
focusing
whether the
activities
on as-
hand,
was conducted under RCRA or
sessment of the risk. On the other
hand,
statutory authority. On the other
plausible
language
is at least as
to read this
we conclude that
referring only
monitoring
CERCLA’s definition of
to actual
of a
“removal” should not be read to include the
release or threat of release rather than over-
CERCLA),
denied,
15. We
note that
number of courts have held
cert.
484 U.S.
108 S.Ct.
(1987);
defendants liable for costs of removal or remedi
whether determine, no environmen- able to have been reading of statuto- the believe gations. We authorized predating CERCLA tal statute distinction is this ry that embraces definition parties regulated of imposition upon the plausible one.17 more linguistically the monitoring compli- of regulatory cost EPA’s inquiry Moreover, our to expand when we noted, there law. As we have ance with the provisions of consideration general for the provision is no place of CERCLA the and to CERCLA the recovery of costs incurred legis- landscape federal environmental of at the thou- corrective actions the view lation, support for find additional we licensed sites. of RCRA sands All intended reading one. that this was considered, say clause CERCLA, cannot things we passed Congress When constitute [3] of the removal clear statement definition is sufficient of intent re- to when doubtedly it amended the statute was aware that 1986, it un- statutes, by NCTA. quired § as well as other CERCLA par- forcing private numerous EPA would be activi- remedial to conduct removal and ties implementation of overseeing the its ties was in which CERCLA the context Given Indeed, congressional given the enacted, significant that directives.18 highly we find it § 106 consent oversight, preference settlements any mention of Congress omitted 122(a), might §in it be expressed orders conducted government activities or of activity removal and remedial expected that noted § of removal. As in the definition parties paid private conducted earlier, Congress when enacted gov- more than much common CERCLA, contemplated mecha- would be 107 of contemplated in cleanups per- would ernment nism which the 9622(a) (1988). 104(a). See U.S.C. then cleanups hazardous waste and of form private expected of in ad- Given the extent this parties; from the seek reimbursement practice prior activity and the established however, second dition, Congress created a appropri- from financing oversight activities problems hazard- mechanism which funds, that EPA would a directive ated might be ameliorated. releases ous waste all of the costs to recover contemplated be able Congress suits henceforth passing § overseeing private actions un- corrective to force orders and administrative statute any applicable environmental ex- der at their own up clean waste parties to and not actions to stronger threat of release in our lease or argument EPA’s would fifth, performance catchall those who have un- predicated on the view if it were oversee taking category the removal definition—"the with risk. to deal dertaken necessary may be as of such other actions minimize, mitigate damage prevent, fact, to force provisions allow EPA which 18. In environment, public or to the health or welfare action private parties corrective at to undertake a release or result from which otherwise policy tool of expense own favorite their language Arguably, this threat of release.” number Congress can be found in a and one that enough of R & EPA's broad include See, e.g., RCRA statutes. environmental However, we believe that it H-DVI's activities. 6928(h) (1988); 3008(h), Federal 42 U.S.C. language as to read this is at least reasonable referring 1321(e) 311(e), Clean Water Act (1988); of the same character actions Drinking Act Safe Water categories first four those described —other § 300i re- risk created actions to deal with *12 represent major policy change. party agrees would We to reimburse the Fund for Congress under, find it difficult to believe that by cost incurred the President change to with, would choose manifest such sole- inor connection oversight con ly including in definition of CERCLA’s arrangement. tract or removal a reference to “such actions as 9604(a) (1988). § An is an RI/FS monitor, assess, necessary to and evaluate “investigation” type contemplated of the the release of threat of release of hazardous 104(b) § clearly and is a removal action. If substances.” Congress considered oversight likely Congress We think it far more that private of a removal action to be a removal overseeing private party’s viewed EPA’s of a itself, 104(a) action in provision § re- qualitatively removal activities as different quiring reimbursement of costs incurred actually performing from EPA’s removal ac- government overseeing tivities and intended for EPA to recover the 107(a) unnecessary § would be as RI/FS costs of the latter but not the costs of the would recovery authorize the of such over- former. Had its view and intent been other- sight significant costs. Even more is the fact wise, we are confident that it would at least 104(a) although § authorizes EPA to have made some reference to permit private parties to undertake all kinds activity § carefully under 106 when it was actions, of removal only and remedial dis- providing examples of removal actions at the government oversight, cusses and reimburse- conclusion of the definition.19 oversight, ment for such regard with to RI/ Congress govern- FS’s. Had intended the overseeing private party ment’s cost of re- Turning Congress from that which omitted activity moval and remedial other than RI/ include, to that which it saw fit to various recoverable, surely FS’s to be it would have statutory provisions, general as well as the 104(a) something added to manifest that CERCLA, suggest structure of to us that intent. Congress did not intend to include Equally strong Congress’s in the Although definition of removal. evidence of in- primary concerning oversight function of tent CERCLA is costs can be found authorize removal and remedial action 111 of That CERCLA. section sets government, permits it also EPA categories payments to allow forth six different responsible parties carry necessary Superfund. out that can be made from the long first, (a)(1), removal and remedial actions so “Payment as found in subsection properly finds that “such action governmental "willbe done response pur- However, promptly.” the section also “Response [§ 104].” suant to costs” consist provides that: of “removal” and “remedial” costs. (cid:127) 9601(25)(1988). fourth, sep- A investigation feasibility
No remedial (RI/FS) arate, category Superfund pay- of authorized study [by responsible party] (a)(4) “Pay- ments is found in subsection except shall be authorized on a determina — (c) President[20] specified ment of costs party tion under subsection that the (c) qualified if this section.” Subsection of 111 conduct the lists RI/FS arranges President contracts with or excess of fourteen items of costs that can qualified person Superfund. for a to assist the Presi be funded from the Subsection (c)(8) reviewing designates appropriate dent in Superfund the con responsible duct of charges: such RI/FS
19. The definition of removal ac- includes certain ments are recoverable as a cost under 6939a(b), tion taken under the Disaster Relief and Emer- (g) 107. See 42 U.S.C. gency Assistance Act as well as taken action 104(b). addition, provi- under CERCLA delegated 20. The President has most of his au govern- sions added to RCRA in 1984 allow the ment to order the Toxic Substances and Disease See, thority e.g., under CERCLAto EPA. United Corp., States v. Alcan Aluminum 964 F.2d Registry to undertake health assessments and (3d 1992). Cir. explicitly provide that the cost of those assess- Accordingly, the clear indication we find ... entered into of contracts [t]he lacking and hold 9604(a)(1) mandated NCTA be title this section is not entitled to States 104(a)(1) United re- to oversee and ] [CERCLA oversight costs it seeks. investigations conduct of remedial view the *13 by per- feasibility undertaken studies D. Recoverable Costs and the than the President other sons conclusion, court de- our the district Given appropriate Federal and State costs of recovery of allowing government cision at National oversight of remedial activities costs, costs, including oversight cannot all its resulting from consent Priorities List sites necessary for the dis- stand. A remand is agreements. or orders settlement trict court to reconsider 9611(c)(8)(1988). If costs § EPA’s 42 U.S.C. which, any, if are reim- and determine costs or remedial activities overseeing removal of We, course, discre- of leave to the bursable. costs, they removal would in themselves were it would be tion of the district court whether allowing EPA provision under the be covered parties an additional helpful to afford “payment gov of Superfund funds for to use regarding the opportunity to offer evidence 9611(c)(8) § response costs” and ernmental question. character of the costs Moreover, unnecessary. it seems be would carry district court in To assist the of subsection apparent to us that the drafters task, ing our discussion out this we conclude (a) § 111 viewed the items included of regarding oversight further elucidat (a)(4) qualitatively as of subsection virtue statutory ing perceive to be the what we included in subsection from those different recoverable and non-re distinction between (a)(1). government coverable costs. Where § summary, 104 is con In while CERCLA evaluate, or investigate, action to takes direct exclusively with cerned almost release, release, a threat of or monitor a waste, cleanups of hazardous CERCLA activity danger posed by problem, such 3008(h), § § § RCRA RCRA a “removal” and its costs are recoverable. concerned almost as other statutes are well 9604(b) (1988). § This in 42 U.S.C. See cleanups. gov exclusively with costs, stage matter at what cludes the no overseeing private clean role in ernment’s incurred, ascertaining to whether and from sort of up effort is far removed been reduced or what extent the risk has activity pe government “removal” or literal response. eliminated the chosen Similar to such removal. ripherally connected activity ly, if the is intended enable appears § draft 107 to have been position on what would be to formulate mind; § 104 in primarily ed with CERCLA given appropriate response action at a most recovery recovery provisions allow its cost Thus, as we facility, the cost is recoverable. government removal and remedial all costs of seen, conducting an have the costs of RI/FS (i.e. activity activity explicitly authorized 9604(b) § 42 are recoverable. See U.S.C. 104(a)) investiga §by as well as the costs of addition, although the cost tory activity type authorized cost,” is not a “removal an RUFS 104(b). hand, § is no the other there On in accordance that cost is also recoverable 107, § §in the definition clear indication reflected in congressional intent with removal, 9604(a) (1988).22 104(a). over or 106 See sight stage, in connection with actions conducted the costs of Even at the execution 7003) (or 3008(h), directing government in activity §§ were associated with action are recovera- removal and remedial recoverable removal costs.21 tended However, Cooke, overseeing an 14.02[5][g], because the costs of supra, at 14-239 2Cf. ("Section contemplate appear 106 does not and because CMS are not removal costs RFI or govern- recovery either the incurrence or the gov- specifically provided Congress for has not Indeed, "). ‘response we note that mental § costs.' costs, those costs are ernment of those separate contains its own remedies non-recoverable. contemplated apart 107. Sec- from those penalties provides for failure of a tion 106 private party comply adequately with EPA’s 9606(b) (1988). directives. See 9604(b) (1988) (autho- facility ble.23 See U.S.C. and thus cannot be liable for investigations “necessary rizing studies and response costs under disagree. 107. We appropriate plan and direct view, § Under liability predicated CP’s actions”). on ownership current can exist where hand, gov On what the the defendant owns the entire be- monitoring ernment is is not the release or cause each owner in multiple-ownership itself, performance hazard but rather the of a merely situation is “an” owner and not “the” private party, the costs involved are non Thus, owner. multiple facilities with reeoverable costs. Costs of this owners, no one is liable under the “current type would include the costs of contractors ownership” prong §of suggests 107. CP plans hired EPA to review the and work seemingly that this anomalous result makes *14 private party agents executing of a or its a Congress may sense because have intended response action. Because orders under EPA,, that when faced with a release involv- 3008(h) general 106 or RCRA ing disparately several properties, owned de- ly private involve removal and remedial activ property facility fine each as a bring and ity rather than removal and re multiple proceedings. enforcement We find activity, govern medial explanation First, unsatisfying. this we administering ment in connection -with such think it evident from the statutory broad normally orders will not be recoverable re “facility”25 Congress definition that did moval costs.24 not straight-jacketed intend to be in this in involving manner situations Properties Challenge V. Chemical a release transcending property Second, boundaries. joining arguments addition raised Congress even if contemplated that EPA’s defendants, Properties the other Chemical authority enforcement (“CP”) would be so con- argues before us that it should not be strained, reading CP’s of the jointly severally statute would govern- and liable for the still in Township ownership” ment’s costs at the Bristol result no “current liability site. It separate arguments makes three that all re- any situation where more than one individ- volve around common theme: CP should ual or firm own an undivided interest jointly severally not be and liable where it single property. only facility owns a small of the and was Congress We decline to attribute to disposed not shown to have hazardous distinguish single intention to between owner portion wastes at its of the site. multiple and owner situations. A current facility may owner of a be liable under A. regard without to whether it is the sole own- 107(a)(1) impos Section of CERCLA er or one of several owners. liability response es costs on “the owner reject argument, While we CP’s first we do operator facility.” and of a vessel or a recognize holding that 9607(a)(1) (1988). the owner of a small argu U.S.C. CP’s first portion jointly severally of the ment is that because it site liable owns less than 10% of area, the contaminated it is not “the may owner” costs for the whole site EPA, instances, type permits 23. Action of this would include in certain to conduct supervision contractors that it hires "monitoring, testing, analysis ... to ascertain pays to conduct removal action. The costs the nature and extent of the hazard associated supervision materially of such are different from 6934(d)(1) with the site concerned.” 42 U.S.C. oversight costs we here find to be non-recov- activity Such is similar to that autho- supervision analogous erable. Those costs of are 104(b), 9604(b) (1988), by § rized supervision by private to the costs of party incurred action; may be considered a removal its agents responsible cleanup for a when its might costs therefore be recoverable in an action supervise employees the activities of its or its brought independent contractors. The costs here held to be non-recoverable are incurred at a 9601(9) (1988) supervision. They different level of are the (defining 25.See "fa- performance entity structure, of the that cility” "any building, to include instal- responsibility cleanup. has assumed for the lation, ditch, pond, lagoon, impoundment, ... landfill, container, vehicle, storage motor ... [or] may 24. RCRA costs nevertheless be recoverable area”). any site or instance, under some circumstances. For response costs incurred However, the solu- some unfairness. involve them) fairly attributable dealing with apportion- unfairness potential tion to this parties. CP, responsible opposed to other appropriate circum- contribution ment and portion of the The fact that CP owns Indeed, apportion- propriety stances. portion of the says nothing about what site second is the focus of CP’s in this case ment fairly to it. may be attributed harm argument. suggested factor —that second CP’s all, most, substances of the not hazardous B. disposed there property on the were found closer by R H and R & H-DVI —comes & v. Alcan States Aluminum In United Indeed, if CP warranting apportionment. (3d Cir.1992), noted we Corp., 964 F.2d hazard prove that none were able liability is joint several although fairly at site were found ous substances actions, ap §in appropriate generally it, might conclude to we well attributable certain warranted in portionment ap appropriate and CP’s apportionment was specifically, we relied More circumstances. However, it would be zero. portioned share (Second) of the Restatement 433A of on findings of the dis the factual is clear from “[d]amages for harm holding that Torts in prove not that none of that CP did trict court Relying it. among two or more apportioned the harm was attributable are to be *15 chemical-carrying that large part on the fact is a basis where ... there reasonable causes dispatched to and from CP’s trucks were of each determining the contribution for and maintained property and were cleaned (quoting single Id. at to a harm.” cause plant locat using pretreatment a wastewater 433A). (Second) of Torts Restatement court con property, the district ed on that However, held that is the we also defen prove “that the failed to cluded CP had that harm is prove “that the burden to dant’s solely by a third caused contamination was damages capable are of divisible and that whether the party” that “it is doubtful and 270. apportionment.” Id. at some reasonable solely Rohm & was caused contamination This, to do.26 CP failed Haas, 790 v. & Haas.” United States Rohm (E.D.Pa.1992).27 Because F.Supp. factors to us that two suggests CP proof burden of before to meet its CP failed owns apportionment regard in this case: CP to a “reason support court with district of its determining the extent able for facility basis” area of the and only of land 10% the harm, it is not entitled to to the contribution most, all, apparently the waste was if not of apportionment. prior H and R & H-DVI disposed of &R regard purchase of the site. With to CP’s C. factor, to hold that sim we decline the first “equitable Finally, argues that CP showing portion one owns ply that jointly require that it be held principles” not sufficient warrant facility question is government’s re severally liable for the and appor In order to warrant apportionment. We at the full acre site. sponse costs tionment, provide simply cannot a defendant enjoyment the benefits of agree that CP’s damages may divided some basis on which the site is an ownership than 10% of of less show that is up, rather it must there but may suggest that which “equitable factor” determining contri for “reasonable basis recoverable re most of the single cause to a harm.” bution each by someone sponse should be borne words, that is a prove must there other CP However, are equitable considerations else. portion inquiry of the “harm” way apportionment what to determine not to the relevant and Alcan Alu (i.e. 433A present at the under Restatement substances hazardous initially the Indeed, Again, that it is erroneously attempts 27. we stress while that CP 26. we note proof respect prove place government's with the elements of the burden of burden to govern- met, divisibility apportionment on the part, liability when burden —a ("In See, absence e.g., Brief at 12 CP ment. government proved that was the current CP portion of proof as to the is the defendant's owner —it Properties, to Chemical that harm this Court is attributable apportionment warrant- prove is burden Properties’ that Chemical hold must ed. zero.”). is share of the costs minum; they joint do not alter having CP’s rehearing by voted the court in liability. hand, banc, several On the other petition such rehearing is denied. equitable Judge factors are relevant in granted a contribu Becker would have rehearing. against tion responsible action CP
parties. actions, Such consideration
equitable courts, factors federal are ex
plicitly authorized under CERCLA’s statuto 9613(f) (1988)
ry scheme. See 42 U.S.C.
(authorizing private contribution actions
permitting courts to “allocate response costs
among parties using liable equitable such factors the court appropri determines are America; UNITED STATES of ate”); Aluminum, Alcan at 270 n. F.2d Virgin Government of the 29. No contribution claim currently before Islands us, It however. follows that the district court correct in holding joint was v. CP ly severally liable for costs that the XAVIER, Appellant. Clement is entitled to recover under § 107. No. 92-7575. United States Appeals, Court of
VI. Conclusion Third Circuit. judgment of the district court will be Argued April reversed and this case will be remanded so court, that the district applying precepts Aug. Decided *16 set opinion, may forth this determine which, any, of the costs are
recoverable under
SUR PETITION FOR REHEARING
Oct. SLOVITER, Judge,
Before: Chief
BECKER, STAPLETON, MANSMANN,
GREENBERG, HUTCHINSON, SCIRICA,
COWEN, NYGAARD, ALITO, ROTH and
LEWIS, BARRY, Judges, Circuit Judge.*
District petition rehearing by appel- filed
lees in the having above-entitled case been judges
submitted to the participated who decision this Court and to all the other judges
available circuit of the regu- circuit in service,
lar judge active and no who con- having
curred in the decision asked for re-
hearing, majority and a judges the circuit in regular circuit active not service
* Maryanne Trump Barry, sitting by designation. Honorable United States Judge District Jersey, for the District of New