Recovering Hazardous Waste Cleanup Costs: The Private Cause of Action under CERCLA

Abstract

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a broadly defined group of landowners, transporters, and generators of hazardous waste are liable for the costs of cleaning up hazardous waste sites. CERCLA provides the government with powerful tools to impose this liability. The United States Environmental Protection Agency (EPA) has the authority both to compel responsible parties to clean up the site or to clean up the site itself and recover its expenses from these parties. The government is not the only party, however, that can impose liability for hazardous waste cleanup costs. Section 107(a)(4)(B) of CERCLA provides that responsible parties are also 'liable for . . . any other necessary costs of response incurred by any other person consistent with the national contingency plan.' This new cause of action creates a significant role for private parties in the national hazardous waste cleanup effort. This Article examines issues raised by the section 107(a)(4)(B) private cause of action. Section I provides an overview of the provisions of CERCLA that are essential to understanding the issues under section 107(a)(4)(B). Section II addresses the threshold question of whether section 107(a)(4)(B) does, in fact, provide an independent cause of action for recovery of hazardous waste cleanup costs. Section III examines the requirements for asserting the cause of action. Issues examined range from standing requirements to questions of ripeness. The most difficult questions, however, may involve the requirement that private cleanups be 'consistent with the national contingency plan.' EPA's recent revisions to this national cleanup plan attempt to provide some control over private cleanup efforts. Section IV discusses significant problems that may constrain parties from undertaking private hazardous waste cleanups.