Duck, Duck, Sued! – CERCLA’s Game of Contribution Tag
April 27, 2019 by Rebecca Strauss
By Sean Murphy, Staff Contributor
Imagine the polluters in a CERCLA Superfund suit sitting in a circle playing Duck Duck Goose. That’s right—this game isn’t just for kids. CERCLA, the Superfund statute lets polluters play a similar game of liability tag in contribution actions. But is CERCLA really all fun and games?
Remember the children’s game duck, duck, goose? Chances are if you ever attended summer camp, you experienced its thrill: children seated in a circle with their heads down, they await the playful tap of the then-officiating goose. “Duck. Duck. Duck. Goose!” One of the seated players becomes the newly selected goose. But if she can tag the goose that tapped her, that goose is out! The officiating goose—upon selecting the next goose—can avoid getting tagged only by sitting in the space of the new goose she selected. And this goes on and on until there’s only one duck left sitting. It’s all fun and games in this circle. Around and around the geese chase one another until they get exhausted or distracted, or there aren’t any ducks left.
Now, change that circle to CERCLA, the statute to clean up Superfund sites. The game of environmental duck, duck, gooseis no fun and is hardly a game at all.
CERCLA is like duck, duck, goosein a strange way. A Potentially Responsible Party (PRP) gets sued under §107—imagine they are the standing goose—and then circles around other potential PRPs looking for the next player. This is a game of contribution duck, duck, goosepursuant to §113.
This federal environmental statute is a complex piece of law with a simple purpose: to effectuate timely cleanup of hazardous waste sites and to ensure that cleanup costs are borne by those responsible for the pollution. Basically, the EPA (and private parties) is empowered to clean up polluted sites and then sue any “potentially responsible party” to cover the bill—this is a §107 action. But sometimes that particular party is insolvent or hard to track down. So an amendment named SARA was added to let the §107 plaintiff sue the most involved or easiest to locate PRP, who then can locate and sue other PRPs for their share—this is the §113 contribution counterpart.
Like in the children’s game, the standing goose in the CERCLA game doesn’t want to select one of the seated players that it knows will be able to catch up and tag it. The standing goose wants a party that might be slow to rise, might stumble, and who likely will get stuck standing. The CERCLA goose wants to find the party who, because of evidentiary issues or other defects in their defense, will be left holding the bag. And so, they select the player with the deepest pockets and then let that new goose select who to tag next.
So why are we talking about duck, duck, gooseand CERCLA? First, because §113 creates a game of CERCLA tag. The 1986 SARA amendments injected the contribution provision with the goal of allowing PRPs to hold other PRPs equitably accountable for their polluting acts. Strikingly, the PRPs who seek contribution are those who the EPA—or private plaintiffs—determined are the most culpable, most responsible parties worth instituting suit against. The contributing PRPs are equitable afterthoughts. To be sure, some §113 defendants will be entirely culpable; but often enough, they are innocent landowners or companies that have merely an incidental presence at the polluted site. The only reason they are tagged is so the §107 PRPs can reduce or avoid their liability. They select §113 geese who they know will be left standing.
Second, when the players are good, the game lasts a long time—but the PRP’s parents aren’t going to pick them up from the playground. §113’s CERCLA tag is a game with tremendous costs, both for the players and the environment. Like duck, duck, goose, it’s entirely possible that there is no winner in a CERCLA suit. New litigants are named as PRPs, each seeking to avoid liability and each bringing to the circle a robust team of lawyers. The parties are all decent at playing the game, and this cycle of tag can go on for decades. Much like a never-ending playground game, this consumes considerable energy and resources, and diverts attention from more serious matters. The amount of money used to pay expert witnesses, conduct discovery, compensate lawyers, and sometimes even to manage media coverage is mindboggling. Plus, it is tax payer dollars keeping the courts and EPA staffed. And all of this is expended just so that the PRPs have a fighting chance of not getting tagged out!
The money leads to the thirdand last point: contribution tag detracts from diligently cleaning the environment. Sure, when children play duck, duck, goose, their time and energy might be better spent elsewhere—homework, chores, extra curriculars—but the opportunity to play the game is also beneficial. Maybe CERCLA §113 contribution tag game is also beneficial; after all, it’s designed to ensure that superfund sites at least have the adequate funding they need to be remediated. And §113 actions are also a great exercise in litigation tactics and techniques—first-year associates have plenty of motions practice to look forward to! But unlike the children’s game, CERCLA tag doesn’t stop when it’s dinnertime or when the sun goes down or when it’s time for school. CERCLA tag stops for nothing short of a final judgment or settlement decree. We already know how long, difficult, and expensive that process is. But maybe the PRPs should be doing their chores—cleaning up the environment. The purpose of CERCLA is to afford the speedy and efficient cleanup of polluted sites. But when the PRPs are too busy playing contribution tag, this goal is about as memorable as the goose and her duck’s homework assignment and is quickly lost in the contribution commotion.
So again, why are we talking about duck, duck, gooseand CERCLA? Because as you read this short piece, a host of contaminated sites remain. “Okay,” you might think, “well why doesn’t someone sue the parties?” The short of the answer is, they have been sued, but that doesn’t mean the sites have been cleaned. “So the parties are playing CERCLA tag?” Right you are. Because who would want to do their chores—clean up a polluted site—when one could spend their time chasing around PRPs who might become “it” after you tag them… “Fine, so CERCLA tag is unproductive, but how can you stop PRPs from playing?” In all reality, they can’t be stopped. But perhaps they could be incentivized to better manage their resources. “Oh, I know! Let’s tell the PRPs that for every month that goes by fighting the suit without a response effort, a statutory penalty will grow, applicable to each PRP found liable! It’s like with duck, duck, gooseor any kids game really—for every minute the kids spend playing, they have to do a proportionate number of chores.” Great idea. I think you’ve got it.
Perhaps it is time once again for Congress to amend the Superfund statute. The contribution provisions have their merits—after all, they are designed to secure funding for cleanups—but the game of tag it entices PRPs to play seems to prioritize the litigation aspect of these cases over its purpose of environmental protection.
Comprehensive Environmental Response, Compensation, and Liability Act. 42 U.S.C. §9601 et seq.(1980).
For the statutory text of CERCLA’s liability (§107) and contribution (§113) provisions, see id.at §§9607 & 9613(f).
Superfund Amendment and Reauthorization Act. 100 Stat. 1616, P.L. 99–499 (Oct. 17, 1986). “SARA reflected EPA’s experience in administering the complex Superfund program during its first six years and made several important changes and additions to the program,” including, inter alia, “provid[ing] new enforcement authorities and settlement tools.” See U.S. Envtl. Protection Agency, “SARA Overview,” available at, https://www.epa.gov/superfund/superfund-amendments-and-reauthorization-act-sara.
42 U.S.C. §9613(f). SeeJeffrey M. Gaba, The Private Causes of Action Under CERCLA: Navigating the Intersections of 107(a) and 113(f), 5 Mich. J. Envtl & Admin L117 (2015) (“Following SARA, courts of appeals, without exception, resolved the confusion by holding that any PRP seeking cost recovery from other PRPs must sue for contribution under 113(f).”); Hal J. Pos, Strategic Considerations in Litigating and Settling Private Cost Recovery Actions for Environmental Cleanups, Mineral Law Institute(1994), at 30 (“Contribution claims under CERCLA may arise under a variety of procedural settings. Certainly private parties that are subject to liability may bring an independent action for contribution under section 113 against other responsible parties. Additionally, defendants in a cost recovery action under section 107 may assert counterclaims and cross-claims for contribution or file third party complaints for contribution against other responsible parties.”)
See Jerry L. Anderson, The Hazardous Waste Land, 13 Va. Envtl L.J. 1 (1993) (commenting on CERCLA’s “polluter pays” model, noting that in “cases involving multiple parties, what appears to be a fair distribution of the cleanup costs deteriorates rapidly into a liability lottery, in which a few randomly-selected parties…bear the entire cost of cleanup.”)
42 U.S.C. §9613(f)(1)
See Anderson, supra note 5 (“In the typical CERCLA case, the EPA sues a small group of PRPs, usually those against whom there is the most evidence, who had substantial involvement in the site,and who have deep enough pockets to shoulder the cleanup costs. Those PRPs then attempt to identify other PRPs to sue for contribution.”) (emphasis added).
See id. (“The system breeds transaction costs that in some ways outstrip the response costs themselves,” and insofar as multiple parties’ interests conflict, “[s]tudies become protracted, and the EPA’s flexibility in dealing with sites is limited by the knowledge that every decision will be subject to challenge and review.”)
See id. (“Determining a suitable allocation of costs, either by a court or by settlement, is enormously expensive and difficult” to litigate because multiple party involvement “increases the difficulty of reaching an agreement and increases the costs of bringing the allocation [of costs] issue before the court,” and CERCLA’s “lack of a firm formula for allocating costs hampers attempts at early settlement.”)
Cf.Envtl Trans. Sys.,Inc. v. ENSCO,Inc., 763 F. Supp. 384, 388 (C.D. Ill. 1991) (defendant is a responsible party and, thus, strictly liable for contribution under CERCLA § 107(a) means only that defendant is potentiallyliable for contribution depending upon the relative fault of the parties; once defendant is found to be responsible under § 107(a), the question shifts to how much defendant is responsible for under § 113(f)(1)).
See Jerry L. Anderson, The Hazardous Waste Land, 13 Va. Envtl L.J. 1 (1993) (“The dilatory pace of waste cleanups can be traced at least partially to [CERCLA’s] inequitable distribution of liability. Responsible parties faced with costs greatly exceeding the amount the equitably should pay are likely to dig in their heels, call for more studies, attack the remedy, attempt to reduce the scope of the cleanup and spend significant amounts of time and money arguing over how to split the costs among those left standing in this game of musical chairs.”)