§15.3 ELEMENTS OF A CERCLA NATURAL RESOURCE DAMAGEs ACTION
CERCLA does not define the elements of an NRD action or the standard of liability. Courts have addressed some of these issues in the context of CERCLA response cost litigation, but whether courts will apply the same analysis when considering NRD actions is unresolved. This chapter will not review the substantial body of CERCLA response cost law, but its development, policy, and associated analysis have direct implications for the development of NRD actions. See Chapter 3 (Comprehensive Environmental Response,Compensation, and Liability Act (CERCLA or Superfund)) and 14 (Cost Recovery and Contribution) of this deskbook for detailed discussion.
(1) Notice
CERCLA requires that federal and state trustees provide 60 days notice of a damages action before filing suit, with respect to facilities listed on the National Priorities List (NPL), federal facilities, and facilities where remedial action is scheduled. CERCLA §113(g)(1)(B), 42 U.S.C. §9613(g)(1)(B), provides as follows: In no event may an action for damages under this Chapter with respect to such a vessel or facility be commenced (i) prior to 60 days after the Federal or State natural resource trustee provides to the President and the potentially responsible party a notice of intent to file suit .... Under this provision, trustees must provide notice to the heads of agencies conducting response actions under the NCP. See Exec. Order No. 12,580, §6(c), 52 Fed. Reg. 2,923 (Jan. 23, 1987).
It is unclear whether the 60-day notice requirement applies to NRD actions at sites that are not federal, not on the NPL, and not scheduled for remediation. The U.S. Court of Appeals for the Ninth Circuit has held that the 60-day notice requirement under the claims procedure section of CERCLA, CERCLA §112(a), 42 U.S.C. §9612(a), applies to claims against the Superfund but not to actions brought against PRPs. See Idaho v. Howmet Turbine Component Co., 814 F.2d 1376 (9th Cir. 1987). The Howmet court did not interpret the 60-day notice requirement of CERCLA §113(g), 42 U.S.C. §9613(g). See also United States v. Allied Chem. Corp., 587 F. Supp. 1205 (N.D. Cal. 1984) (CERCLA §112(a) requires the federal government to comply with the notice provision the same as any other claimant).
(2) Standard of liability
CERCLA does not expressly impose strict liability or joint and several liability; however, courts impose joint and several liability for response cost damages when injury is indivisible. See United States v. S.C. Recycling & Disposal, Inc., 653 F. Supp. 984, 994 (D.S.C. 1984), affd in part, vacated in part sub nom. United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989). CERCLA permits, but does not require, the imposition of joint and several liability for response cost damages. See United States v. Wade, 577 F. Supp. 1326, 1337 (E.D. Pa. 1983); see also United States v. Shell Oil Co., 605 F. Supp. 1064, 1083-84 n.9 (D. Colo. 1985).
Clarifying the application of joint and several liability, the Supreme Court, in Burlington Northern and Santa Fe Railway Co. v. United States (BNSF), 556 U.S. 599, 613-14, 129 S. Ct. 1870, 1874, 173 L. Ed. 2d 812 (2009), stated that CERCLA imposes joint and several liability but liable parties may bring contribution claims or prove the harm is divisible and capable of apportionment. Liability under CERCLA is generally joint and several unless the defendant meets its burden to prove the harm is divisible and capable of apportionment. Id. at 613. The universal starting point for divisibility of harm analyses in CERCLA cases is § 433A of the Restatement (Second) of Torts. Id. at 614 (quoting United States v. Hercules, 247 F.3d 706, 717 (8th Cir. 2001)). Under that section of the Restatement, when two or more persons acting independently caus[e] a distinct or single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he has himself caused. Id. (quoting Restatement (Second) of Torts §433A (1976)). The Supreme Court acknowledged, however, that [n]ot all harms are capable of apportionment and that [w]hen two or more causes produce a single, indivisible harm, courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm. Id. at 614-15 (quoting Restatement (Second) of Torts §433A, at 440 cmt. i (1963-64)).
The court noted, however, that while divisibility of harm analysis finds its roots in the Restatement (Second) of Torts §433A and may allow for apportionment among liable parties, CERCLA is designed to promote the cleanup of hazardous waste sites and to ensure that cleanup costs are borne by those responsible for the contamination, and such purpose must govern any divisibility of harm. Id.
Further clarifying the BNSF Courts sentiments, the U.S. District Court for the Western District of Washington more recently discussed divisibility of harm in Pakootas v. Teck Cominco Metals, Ltd., 868 F.Supp.2d 1106, 1110-11 (E.D. Wash. 2012). The court noted that imposition of joint and several liability, when appropriate, serves that purpose by making solvent liable parties, rather than the responding government, bear the risk that other liable parties are insolvent and therefore, places the financial burden of CERCLA cleanup on those responsible for the contamination. Id. at 1110 (citing United States v. Chem-Dyne Corp., 572 F. Supp. 802, 808 (S.D. Ohio 1983)). The court, like the BNSF Court, stated that the harshness of joint and several liability is ameliorated by the statutes creation of a right of action for contribution against other liable parties, through which equitable considerations may be considered. Id. (citing 42 U.S.C. §9613). However, the court confirmed that, although generally founded in tort principles, even when apportionment is proper and supports divisibility of the damages caused by the PRPs, [e]quitable considerations play no role in the apportionment analysis. Id. (quoting BNSF...
