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The enactment of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. � � 9600 et seq, was a boon to property owners seeking reimbursement for costs associated with remediation of contamination that was left by others on their property. As a strict liability, no-fault based statutory scheme, CERCLA stretched back in time to provide a remedy for contamination caused decades earlier and provided a powerful means to seek reimbursement that was not previously available to the property owners. In the years of litigation following the statute’s inception, however, many of its clear advantages have been blunted by a curtailing of its expansiveness and have been replaced by the use of the traditional common law torts of negligence and nuisance. In fact, the more traditional torts of negligence and/or nuisance may provide a superior remedy in many circumstances. For example, torts provide joint and several liability and a greater array of damages while CERCLA mandates apportionment and limits its damages to response costs. In addition, CERCLA liability is conditioned on compliance with the National Contingency Plan (NCP), a regulatory scheme that controls most details of a remediation and can significantly increase the costs of remediation. Common law torts do not provide for how a particular piece of property must be remediated. The only requirement in a tort action is that the recoverable damages must be reasonable. In most instances, CERCLA actions are combined with tort claims. But there may be circumstances where a party may not wish to pursue its CERCLA remedies because tort claims alone will be much more advantageous. The practitioner should perform this analysis at the outset of the case in order to effectively maximize recovery for a property owner client in the potentially arduous litigation that lies ahead. CERCLA DOES NOT PRE-EMPT STATE TORT LAW The first hurdle in determining whether to pursue a tort claim under state law involves an analysis of whether CERCLA pre-empts such a claim. A review of the applicable statutes and case law shows that most torts are not pre-empted although state claims for contribution and indemnity may be. PMC v. Sherwin-Williams, 151 F.3d 610, 618 (7th Cir. 1998). Congress intended to allow a property owner all of the state tort law remedies available to it in addition to the new remedies fashioned under CERCLA. Section 302(d) of CERCLA provides: “Nothing in this chapter shall affect or modify in any way the obligations or liabilities of any person under other federal or state law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants.” 42 U.S.C. � 9652(d). According to a congressional conference report on the federal statute, CERCLA � 113(f) was “not intended to affect in any way the rights of persons to bring nuisance actions under state law with respect to releases or threatened releases of hazardous substances. . . .” H.R. Conf. Rep. No. 99-962, at 224 (1986). At most, CERCLA pre-empts only equitable relief claims such as contribution, restitution, unjust enrichment and indemnity. It does not pre-empt substantive state tort claims such as negligence or nuisance. In re Matter of Reading Co., 115 F.3d 1111, 1116 (3rd Cir. 1997) (claims for contribution and restitution pre-empted); Bedford Affiliates v. Sills, 156 F.3d 416, 426 (2nd Cir. 1998) (state law restitution and indemnification claims pre-empted); P.C., Inc. v. Sherwin-Williams Co., 151 F.3d 610, 618 (7th Cir. 1998) (state law unjust enrichment and restitution claims pre-empted, but stating nuisance is not a pre-empted state claim); and U.S. v. Cannons Engineering Corp., 899 F.2d 79, 92-93 (1st Cir. 1990) (dismissing a state-based claim for indemnity). When presented with arguments that CERCLA pre-empted state tort laws, a federal district court, in City of Merced v. R.A. Fields, 997 F.Supp. 1326, 1335-36 (E.D. Cal. 1998), looked to CERCLA’s savings clause for guidance. The plaintiff had sued under CERCLA and state law theories of negligence, continuing nuisance, continuing trespass and equitable indemnity. The defendants moved to dismiss the state law claim for equitable indemnity based on the following argument: “An equitable-indemnity claim requires the equitable-indemnity plaintiff to be jointly and severally liable with the equitable-indemnity defendant.” The defendants also argued that Pinal Creek Group, 118 F.3d 1298 (9th Cir. 1997), and other cases “establish that CERCLA defendants are only severally liable when the initial plaintiff is a [potentially responsible party]. Therefore, an equitable-indemnity claim cannot exist between the movants and the opposition.” The district court rejected this argument since it incorrectly assumed that “the federal common law that governs and interprets CERCLA also applies to state-law claims. This is not the case” as provided in CERCLA’s saving clause in � 302. The court noted that CERCLA’s � 9652(d) makes it clear that the federal statute “is not intended to alter in any way the liabilities of any person under state law with respect to releases of hazardous substances.” The court then turned to the question of whether the moving and opposing parties in the case were jointly and severally liable to the city or only severally liable under California law. In California, joint, concurrent or successive tortfeasors generally have joint liability for economic damages. (See Cal. Civ. Code � 1431.2.) In a negligence claim under California law, liability among joint defendants is joint and several even if the plaintiff is partially at fault. The damages are simply diminished in proportion to the amount of negligence attributable to the recovering party. These comparative principles also apply to negligence-based nuisance actions. In short, the district court found nothing to indicate that, under California law, the moving party would not be jointly and severally liable to the city as to the state-law causes of action. “Therefore, the court holds that while liability for the CERCLA claims is several, liability of all parties to the city under state-law theories is joint and several.” The defendants also argued that the plaintiff could not recover CERCLA response costs under state-law theories. The court, however, found otherwise because CERCLA does not pre-empt state-law causes of action that concern the cleanup of hazardous substances. “Moreover,” ruled the court, “CERCLA expressly prohibits a plaintiff from winning a double recovery of cost-of-repair damages under both CERCLA and state law. (See 42 U.S.C. � 9614(b).) The express prohibition against double recovery for removal costs would be unnecessary and inexplicable if costs that may be recovered under CERCLA may not be recovered under state law.” Thus, CERCLA does not impede the bringing of a nuisance or negligence claim. COMPLIANCE WITH THE NCP Compliance with the National Contingency Plan is a minefield that can potentially wreak havoc on even the most attractive CERCLA action. The NCP is a comprehensive regulatory scheme that is intended to control almost every action of a CERCLA claim. It not only requires that remediation of a site be done in a cost-effective manner, but also imposes a complicated schedule of numerous reports and plans. In addition, at almost every stage of the remediation the NCP requires public participation in the decision-making process. During the preliminary stages of a remediation, for example, the public must be informed of possible remedies. Complying with these requirements can present formidable obstacles. Moreover, failure to substantially comply with the NCP prohibits the property owner from recovering any of the costs of remediation. Equally important to the property owner is the fact that compliance with the NCP adds numerous costs to the remediation that would not be necessary but for the NCP-imposed obligations. In some situations, NCP compliance can increase the costs by as much as 50 percent. In addition, the need to comply with the NCP adds a higher evidentiary burden than in a cost recovery action. Defendants have become extremely sophisticated in challenging NCP compliance and then utilizing the alleged failure to comply to argue that a lesser settlement should be accepted. On the other hand, tort remedies only require that claimed damages be reasonable. More importantly, there is no requirement that, even when a CERCLA cleanup is in progress, tort damages be incurred consistent with the NCP. In Beck v. Atlantic Richfield Company, 62 F.3d 1240 (1995), the Ninth Circuit found that state tort claims did not have to comply with the NCP because they did not “challenge” the CERCLA cleanup plan. And in the Fields decision cited above, the district court relied on CERCLA’s express language that it is not intended to “affect or modify common law [claims] with respect to releases of hazardous substances. . . .” Pursuant to this language, the court held that a state indemnity claim could proceed. Some of the benefit of not having to comply with the NCP for tort remedies is mitigated when one is conducting a remediation pursuant to a cleanup order issued by the state of California. The state is rapidly moving towards making its procedures consistent with the NCP. However, even in those circumstances, one would have greater latitude in seeking variances with state procedures if one is not concerned with CERCLA recovery LIABILITY AND DAMAGES In comparing a CERCLA action with a tort action, the most significant issues involve damages and liability. CERCLA damages are generally limited to the costs of remediation that are actually spent in compliance with the NCP. This compares with traditional tort damages that include punitive damages and loss of rents or diminution in value. Some of these damages, however, may be limited if one is proceeding with a continuing nuisance claim. In a nuisance case future damages such as diminution in value are not available and, in its place, one can only obtain an injunction requiring the defendant to abate the nuisance. The biggest disadvantage of tort actions is a requirement that there be some showing of wrongful conduct on the part of the defendant. Creative advocates are always coming up with arguments that their client’s conduct, even though it contaminated the property, was reasonable under the circumstances. The exception to this general rule may arise in instances where a defendant’s conduct has negatively affected groundwater supplies. At least one California court has found that a nuisance per se has been created in such a situation. Newhall Land and Farming Company v. Superior Court, 19 Cal.App.4th 334, 341 (1993). Other California courts have not been so generous. See Beck Development v. Southern Pacific Transportation Company, 44 Cal.App.4th 1160, 1206-07 (1996). This article is not meant to infer that CERCLA actions should not be filed or should not be considered as part of a plaintiff’s potential arsenal. However, in many instances the strict liability provisions of CERCLA do not convey a sufficient benefit to overcome CERCLA’s disadvantages in having to comply with the NCP nor the large advantages in damages of a traditional tort action. Before filing, the practitioner should consider both the benefits and detriments of a CERCLA action and a traditional common law tort action or even a combination case. Only then can the practitioner fashion the best case possible at the very outset. Fred M. Blum and Marte J. Bassi are partners at Bassi, Martini & Blum, a San Francisco firm that focuses on environment-related litigation.

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