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Polluters faced with the cost of toxic waste cleanup also can be billed for the expense of government supervision of their cleanup efforts, the 3d U.S. Circuit Court of Appeals held in overturning a decade-old precedent. The 8-2 en banc decision-which includes U.S. Supreme Court nominee Samuel Alito joining the majority-holds that E.I. du Pont de Nemours & Co. must pay the Environmental Protection Agency $1.4 million to cover the EPA’s costs of supervising cleanup of a 120-acre Superfund waste site on Delaware’s Christina River. DuPont spent $42 million to clean up the site after years of contamination from a pigment manufacturing plant. Runoff from the site into the river and wetlands contained lead, cadmium, zinc and other toxic metals. The 3d Circuit rolled back its own precedent, U.S. v. Rohm & Haas Co., 2 F.3d 1265 (1993), which denied government recovery by holding that the Superfund law was an improper delegation of power to assess fees. Five other circuits later rejected its position in that case. The majority found its original application of Supreme Court precedent in Rohm was wrong and didn’t apply to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA). Judge Anthony Scirica pointed out in the majority opinion that Superfund response costs are neither fees nor taxes imposed on polluters, but “payments by liable parties in the nature of restitution.” CERCLA represents “Congress’s effort to address a complex environmental problem under a comprehensive remedial statute,” Scirica said. He pointed out that five circuits have broken from the now-invalid Rohm case. The DuPont appeal drew a host of amicus responses opposed to government charging for its own oversight costs, from the American Petroleum Institute, the U.S. Chamber of Commerce and associations of refiners and manufacturers. They argued that allowing government recovery of its costs would encourage inefficiency in CERCLA enforcement, citing the EPA’s “dismal track record of Superfund mismanagement.” Scirica suggested that argument was better directed to Congress. But in dissent, Judge Marjorie Rendell said the thrust of the Supreme Court’s original concern in National Cable Television Ass’n v. U.S., 415 U.S. 336 (1974), was that “the government was passing off onto private parties certain expenses that government agencies incurred as part of their normal operations.” Rendell, joined by Judge D. Brooks Smith, said that if Congress intended to include EPA oversight within the scope of activities for which the EPA can recover, it could have made that clear. The only way to reach the majority’s conclusion is by starting from the premise that CERCLA authorizes oversight cost recovery and then “scouring the statute to find a place to shoehorn oversight costs into its text,” Rendell wrote. DuPont’s attorney, Peter Buscemi of Morgan, Lewis & Bockius’ Washington office, declined to comment on the decision and indicated that the company has not yet decided whether to appeal. EPA oversight costs represent 5% to 10% of the overall cleanup costs of a Superfund site, according to the EPA. The agency estimates that in 2005, $43 million to $86 million in oversight response costs will be recovered nationally. “This decision represents a significant win for EPA’s enforcement program, and the Superfund program in general,” said Granta Nakayama, assistant administrator for enforcement at the EPA. Among the circuits that allow EPA recovery of oversight costs are the 2d, 5th, 8th, 9th and 10th circuits. They include New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985), and U.S. v. Lowe, 118 F.3d 399 (5th Cir. 1997).

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