Maybe EPA Can Collect Its Damages More Than Once

In the case of U.S. v. Occidental Chemical Corporation, 1999 W.L. 1268110 (December28, 1999), the United States Court of Appeals for the Third Circuit overturned a decision from the Middle District of Pennsylvania that was reported in the January 1999 EnviroChecklist. In 1997, EPA entered into a consent decree with Ruetgers - Nease Corporation, under the terms of which Ruetgers - Nease was required to pay all EPA's past and future costs for the cleanup of a site contaminated by Ruetgers - Nease's and its predecessor's manufacturing operations. At approximately the same time, EPA issued a Unilateral Administrative Order to Occidental Chemical Corporation ordering it to pay the same remediation costs. When Occidental refused to comply with the Order, EPA sued to collect not only the remediation costs, but its attorneys' fees and punitive damages. The District Court dismissed EPA's complaint citing §9613(f)(2) of CERCLA. The District Court held that EPA can sue to recover its costs only to the extent that it has not obtained "complete relief" elsewhere. It found the United States had obtained complete relief from Ruetgers - Nease and therefor there was nothing left for it to obtain from Occidental. On the other hand, the Circuit Court found that it should defer to EPA's interpretation of the statute and agreed that EPA had not obtained "complete relief" merely because it had obtained a consent decree from Ruetgers - Nease in which Ruetgers - Nease agreed to perform the required remediation. Instead, the court found that "complete relief" is obtained only when the endangerment providing the basis for EPA's §106(a) authority has been abated. The court found that the District Court's interpretation would favor "non - settling parties by shielding them from §106 actions prior to completion of the work and abatement of endangerment while denying such protection to the settling party." It also found that EPA's interpretation of the statute made sense from a practical matter. No consent decree or settlement guarantees that the settler will successfully complete all the promised work. "By bringing more parties into the cleanup effort, EPA protects itself against the risk that any one party may become unable or unwilling to perform the remedy as EPA instructs. Thus by issuing administrative orders to non - settling PRPs under §106, EPA fulfills CERCLA's objectives of promoting fairness at multi - party sites, increasing the likelihood of settlements, and accelerating the statute's ultimate goal - - site cleanup."