United States v. E.I. DuPont De Nemours & Co.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-4546

UNITED STATES OF AMERICA,

Appellant

v.

E.I. DUPONT DE NEMOURS AND COMPANY

INCORPORATED; CIBA SPECIALTY CHEMICALS

CORPORATION

On Appeal from the United States District Court

for the District of Delaware

D.C. Civil Action No. 02-cv-01469

(Honorable Sue L. Robinson)

Argued En Banc September 8, 2005

Before: SCIRICA, Chief Judge, SLOVITER, ALITO,

ROTH, RENDELL, AMBRO, FUENTES, SMITH, FISHER

and NYGAARD, Circuit Judges

(Filed December 22, 2005)

KATHERINE J. BARTON, ESQUIRE (ARGUED)

United States Department of Justice

Environment & Natural Resources Division, Appellate Section

P.O. Box 23795, L'Enfant Plaza Station

Washington, D.C. 20026

Attorney for Appellant

PETER BUSCEMI, ESQUIRE (ARGUED)

MICHAEL W. STEINBERG, ESQUIRE

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

RAYMOND M. RIPPLE, ESQUIRE

E.I. DuPont de Nemours and Company

Legal Department

1007 Market Street, Suite D-7012

Wilmington, Delaware 19898

Attorneys for Appellees,

E.I. DuPont de Nemours and Company and

Ciba Specialty Chemicals Corporation

LOIS J. SCHIFFER, ESQUIRE

Baach Robinson & Lewis PLLC

1201 F Street, N.W., Suite 500

Washington, D.C. 20004

Attorney for Amici Curiae-Appellees,

American Chemistry Council

2

American Petroleum Institute

Chamber of Commerce of the United States of America

Corporate Environmental Enforcement Council

National Association of Manufacturers

National Petrochemical and Refiners Association

Superfund Settlements Project

OPINION OF THE COURT

SCIRICA, Chief Judge.

At issue is whether the Comprehensive Environmental

Response, Compensation and Liability Act of 1980 (CERCLA),

42 U.S.C. § 9601 et seq., authorizes the United States to recover

costs incurred in the course of supervising a hazardous waste

cleanup conducted by responsible private parties. We hold

CERCLA provides for such recovery. Accordingly, we will

overrule United States v. Rohm & Haas Co., 2 F.3d 1265 (3d

Cir. 1993), and reverse the order of the District Court.

I.

The material facts are undisputed. The DuPont Newport

Superfund Site is an industrial site in Delaware, owned and

operated at various times by appellees E.I. DuPont de Nemours

3

and Company and Ciba Specialty Chemicals Corporation.1

Because of severe contamination to the property and its

groundwater, the site was identified in the early 1980s as a

potential threat to human health. In February 1990, it was

placed on CERCLA’s National Priorities List. See 42 U.S.C. §

9605(a)(8)(B) (establishing the National Priorities List).

The EPA developed a remedial action plan, which called

for various measures, including excavating and dredging

contaminated soil, monitoring contaminated groundwater, and

constructing treatment facilities. Because the parties could not

agree on implementation, the EPA issued a unilateral

administrative order directing DuPont to remediate the site in

the manner set forth in the remedial action plan, subject to EPA

oversight and approval. See § 9606 (authorizing administrative

orders “as may be necessary to protect public health and welfare

and the environment”).

DuPont complied with the EPA’s administrative order

and executed a two-stage “private party cleanup action.” The

first stage—a “removal action” under CERCLA § 101(23), 42

U.S.C. § 9601(23)—consisted of developing project

specifications and schedules tailored to the EPA’s stated

objectives. The second stage—a “remedial action” under

CERCLA § 101(24), 42 U.S.C. § 9601(24)—consisted of the

actual cleanup work, including soil excavation, remedial “cap”

1

Following the convention of the parties, we refer to the

appellees collectively as “DuPont.”

4

construction, groundwater barrier installation, groundwater

monitoring and treatment, and wetland restoration. DuPont

completed the project under budget, ahead of schedule, and to

the EPA’s satisfaction.

The EPA supervised both stages of the cleanup.

Oversight of the first stage entailed reviewing and approving (1)

project specifications, (2) treatment technologies, (3) testing and

sampling methods, and (4) construction schedules. Oversight of

the second stage entailed monitoring, reviewing, and approving

(1) design plan implementation, (2) construction schedules, (3)

health and safety issues, (4) field work, and (5) field change

requests. The parties stipulate that, in supervising the first

stage’s removal action, the government incurred oversight costs

of $746,279.77. They also stipulate that, in supervising the

second stage’s remedial action, the government incurred costs

of $648,517.17. The total cost to the government was

$1,394,796.94.

The government concedes Rohm & Haas, 2 F.3d 1265,

bars recovery of oversight costs of a removal action, but asks

that we reconsider that decision and allow the EPA to recover

oversight costs incurred in supervising both the removal and

remedial actions of DuPont’s cleanup. Alternatively, the

government contends Rohm & Haas does not control recovery

of remedial action oversight costs and asks that we allow for

recovery of its costs in supervising the remedial action

component of DuPont’s cleanup.

5

In a memorandum order and opinion, the District Court

held the government’s recovery of both “removal” and

“remedial” action oversight costs is barred under Rohm & Haas.

See United States v. E.I. du Pont de Nemours & Co., No. 02-

1469, 2004 WL 1812704, at *6-9 (D. Del. Aug. 5, 2004).

Accordingly, the District Court granted summary judgment for

Dupont on all relevant claims.

The government appealed and petitioned for initial

hearing en banc. Because of the importance of the issue and

several intervening decisions from our sister courts of appeals

questioning or rejecting our analysis in Rohm & Haas, see, e.g.,

United States v. Lowe, 118 F.3d 399 (5th Cir. 1997) (holding

such costs recoverable), we granted the petition. See Fed. R.

App. P. 35(b)(1)(B).

II.

The District Court exercised jurisdiction under 28 U.S.C.

§ 1331. We have jurisdiction under § 1291. Our review on

summary judgment of this interpretation of federal statutory law

is plenary. See Wheeling & Lake Erie Ry. Co. v. Pub. Util.

Comm’n, 141 F.3d 88, 94 (3d Cir. 1998).

III.

CERCLA is a broad remedial statute, enacted in 1980 to

ensure that parties responsible for hazardous waste

contamination “may be tagged with the cost of their actions.”

United States v. Bestfoods, 524 U.S. 51, 56 (1998) (quoting S.

6

Rep. No. 96-848, at 13 (1980), as reprinted in 1980

U.S.C.C.A.N. 6119). CERCLA is a product of Congress’s

judgment that “those responsible for problems caused by the

disposal of chemical poisons [must] bear the costs and

responsibility for remedying the harmful conditions they

created.” In re TuTu Water Wells CERCLA Litig., 326 F.3d 201,

206 (3d Cir. 2003) (quoting FMC Corp. v. Dept. of Commerce,

29 F.3d 833, 843 (3d Cir. 1994) (en banc)).

CERCLA grants the executive branch, acting primarily

through the EPA, “broad power to command government

agencies and private parties to clean up hazardous waste sites.”

Key Tronic Corp. v. United States, 511 U.S. 809, 814 (1994).

This “broad power” may be exercised through a government-

conducted cleanup, 42 U.S.C. § 9604(a)(1),2 followed by a cost

2

CERCLA § 104(a)(1), 42 U.S.C. § 9604(a)(1), provides in

part:

Whenever (A) any hazardous substance is

released or there is a substantial threat of such a

release into the environment, or (B) there is a

release or substantial threat of release into the

environment of any pollutant or contaminant

which may present an imminent and substantial

danger to the public health or welfare, the

President is authorized to act, consistent with the

national contingency plan, to remove or arrange

for the removal of, and provide for remedial

7

recovery action, § 9607(a),3 or through a private party cleanup,

action relating to such hazardous substance,

pollutant, or contaminant at any time (including

its removal from any contaminated natural

resource), or take any other response measure

consistent with the national contingency plan

which the President deems necessary to protect

the public health or welfare or the environment.

3

CERCLA § 107(a), 42 U.S.C. § 9607(a), provides in part:

(1) the owner and operator of a vessel or a

facility,

(2) any person who at the time of disposal of any

hazardous substance owned or operated any

facility at which such hazardous substances were

disposed of,

(3) any person who by contract, agreement, or

otherwise arranged for disposal or treatment, or

arranged with a transporter for transport for

disposal or treatment, of hazardous substances

owned or possessed by such person, by any other

party or entity, at any facility or incineration

vessel owned or operated by another party or

entity and containing such hazardous substances,

and

(4) any person who accepts or accepted any

hazardous substances for transport to disposal or

8

§ 9606.4 A private party cleanup typically begins with a cleanup

treatment facilities, incineration vessels or sites

selected by such person, from which there is a

release, or a threatened release which causes the

incurrence of response costs, of a hazardous

substance, shall be liable for–

(A) all costs of removal or remedial

action incurred by the United States

Government or a State or an Indian

tribe not inconsistent with the

national contingency plan;

(B) any other necessary costs of

response incurred by any other

person consistent with the national

contingency plan;

(C) damages for injury to,

destruction of, or loss of natural

resources, including the reasonable

costs of assessing such injury,

destruction, or loss resulting from

such a release; and

(D) the costs of any health

assessment or health effects study

carried out under section 9604(i) of

this title.

9

plan developed by the EPA. §§ 9604(c)(4),5 9621(a).6 The plan

4

CERCLA § 106(a), 42 U.S.C. § 9606(a), provides:

In addition to any other action taken by a State or

local government, when the President determines

that there may be an imminent and substantial

endangerment to the public health or welfare or

the environment because of an actual or

threatened release of a hazardous substance from

a facility, he may require the Attorney General of

the United States to secure such relief as may be

necessary to abate such danger or threat, and the

district court of the United States in the district in

which the threat occurs shall have jurisdiction to

grant such relief as the public interest and the

equities of the case may require. The President

may also, after notice to the affected State, take

other action under this section including, but not

limited to, issuing such orders as may be

necessary to protect public health and welfare and

the environment.

5

CERCLA § 104(c)(4), 42 U.S.C. § 9604(c)(4), provides:

The President shall select remedial actions to

carry out this section in accordance with section

9621 of this title (relating to cleanup standards).

10

is implemented by responsible private parties, under either a

consent agreement, § 9622,7 or a unilateral administrative order,

6

CERCLA § 121(a), 42 U.S.C. § 9621(a), provides:

The President shall select appropriate remedial

actions determined to be necessary to be carried

out under section 9604 of this title or secured

under section 9606 of this title which are in

accordance with this section and, to the extent

practicable, the national contingency plan, and

which provide for cost-effective response. In

evaluating the cost effectiveness of proposed

alternative remedial actions, the President shall

take into account the total short- and long-term

costs of such actions, including the costs of

operation and maintenance for the entire period

during which such activities will be required.

7

CERCLA § 122(a), 42 U.S.C. § 9622(a), provides in part:

The President, in his discretion, may enter into an

agreement with any person (including the owner

or operator of the facility from which a release or

substantial threat of release emanates, or any other

potentially responsible person), to perform any

response action (including any action described in

section 9604(b) of this title) if the President

determines that such action will be done properly

by such person. Whenever practicable and in the

11

§ 9606(a).8 Throughout the cleanup, the EPA maintains

responsibility for oversight and certification. See 40 C.F.R. §

300.400(h) (2005) (“EPA will provide oversight when the

response is pursuant to an EPA order or federal consent

decree”); see also §§ 9622(a), (f)(3), (f)(5) (contemplating EPA

review and certification of private party cleanups). According

to the EPA, private party cleanups comprise a significant

percentage of all CERCLA removal and remedial actions. See

U.S. EPA, Superfund: Building on the Past, Looking to the

Future 72-74 (April 22, 2004) (reporting that private parties

performed 49% of removal actions and 88% of remedial actions

commenced in 2003).

In Rohm & Haas, we held the United States cannot

recover “removal action” oversight costs incurred while

supervising a private party cleanup. 2 F.3d at 1278. We

reasoned that National Cable Television Ass’n, Inc. v. United

States, 415 U.S. 336 (1974), bars recovery of such costs “unless

the statutory language clearly and explicitly requires that result.”

public interest, as determined by the President, the

President shall act to facilitate agreements under

this section that are in the public interest and

consistent with the National Contingency Plan in

order to expedite effective remedial actions and

minimize litigation.

8

See supra note 4 for text of 42 U.S.C. § 9606(a).

12

Rohm & Haas, 2 F.3d at 1274. Emphasizing the lack of any

“explicit reference to oversight of activities conducted and paid

for by a private party,” id. at 1275, and “the dramatic and

unusual effect of requiring regulated parties to pay a large share

of the administrative costs incurred by the overseeing agency,”

id. at 1274, we held CERCLA lacked the requisite “clear

statement.” Id.

After we decided Rohm & Haas, every other court of

appeals that addressed the issue either questioned or rejected our

holding. See United States v. Lowe, 118 F.3d 399, 401, 404 (5th

Cir. 1997) (rejecting applicability of National Cable and holding

CERCLA authorizes EPA recovery of private party response

action oversight costs); United States v. Dico, Inc., 266 F.3d

864, 877-78 (8th Cir. 2001) (same); Atl. Richfield Co. v. Am.

Airlines, Inc., 98 F.3d 564, 568-69 (10th Cir. 1996) (questioning

applicability of National Cable and holding CERCLA provides

for recovery of remedial action oversight costs).9

9

Without reference to Rohm & Haas, other courts of appeals

have rejected the reasoning upon which we relied. See United

States v. Hyundai Merch. Marine Co., 172 F.3d 1187, 1190-91

(9th Cir. 1999) (declining to apply National Cable in similar

cost recovery action under the Oil Pollution Act); New York v.

Shore Realty Corp., 759 F.2d 1032, 1043 (2d Cir. 1985) (noting

EPA oversight costs “squarely fall within CERCLA’s definition

of response costs”).

13

IV.

A.

We begin our analysis with the clear statement doctrine,

established in National Cable, 415 U.S. 336, and applied in

Rohm & Haas, 2 F.3d at 1273-74. Under the clear statement

doctrine, “Congress must indicate clearly its intention to

delegate to the Executive the discretionary authority to recover

administrative costs not inuring directly to the benefit of

regulated parties by imposing additional financial burdens,

whether characterized as ‘fees’ or ‘taxes,’ on those parties.”

Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 224 (1989)

(explaining National Cable). Furthermore, when Congress

intends to delegate this type of discretionary authority to a

federal agency, it must set forth “an intelligible principle” to

constrain the agency. National Cable, 415 U.S. at 342

(quotation omitted).

National Cable addressed the Independent Offices

Appropriation Act, 1952, Pub. L. No. 137, 65 Stat. 290 (1952),

which allowed federal agencies to prescribe any “such fee,

charge or price, if any, as [the agency] shall determine . . . to be

fair and equitable taking into consideration direct and indirect

cost to the Government, value to the recipient, public policy or

interest served, and other pertinent facts.” National Cable, 415

U.S. at 337. This open-ended congressional delegation was

intended to encourage self sufficiency among the agencies. Id.

The Court found that in light of Congress’s constitutionally

14

vested taxing power, see U.S. Const. art. I, § 8, and the

apparently unbridled taxing discretion granted to the agencies

under the terms of the statute, the Act approached the outer

boundaries of Congress’s power to delegate. In the absence of

a clear statement of Congress’s intent to delegate its taxing

power to federal agencies, and an intelligible principle

constraining the agency’s exercise of such power, the Court read

the Act “narrowly to avoid constitutional problems,” finding the

phrase “value to the recipient” to be “the measure of the

authorized fee.” National Cable, 415 U.S. at 342-43.

After National Cable was decided, the Court clarified

that the nondelegation principle is implicated only when

Congress fails to provide “an administrative agency with

standards guiding its actions such that a court could ascertain

whether the will of Congress has been obeyed.” Skinner, 490

U.S. at 218 (quotation omitted). In applying the “intelligible

principle” test to particular statutory delegations, the Court’s

“jurisprudence has been driven by a practical understanding that

in our increasingly complex society, replete with ever changing

and more technical problems, Congress simply cannot do its job

absent an ability to delegate power under broad general

directives.” Mistretta v. United States, 488 U.S. 361, 372

(1989). The Court has “found the requisite ‘intelligible

principle’ lacking in only two statutes,” one which provided “no

guidance for the exercise of discretion,” and the other which

“conferred authority to regulate the entire economy on the basis

of no more precise a standard than stimulating the economy by

15

assuring ‘fair competition.’” Whitman v. Am. Trucking Ass’n,

531 U.S. 457, 474 (2001) (citing Panama Refining Co. v. Ryan,

299 U.S. 388 (1935), and A.L.A. Schecter Poultry Corp. v.

United States, 295 U.S. 495 (1935)). “In short,” the Court has

“‘almost never felt qualified to second-guess Congress

regarding the permissible degree of policy judgment that can be

left to those executing or applying the law.’” Whitman, 531

U.S. at 474-75 (quoting Mistretta, 488 U.S. at 416 (Scalia, J.,

dissenting)).

B.

DuPont contends CERCLA lacks both a clear statement

delegating to the EPA the authority to recover oversight costs

and an intelligible principle constraining the EPA’s actions in

exercising such authority. For these reasons, DuPont contends

reading CERCLA to allow recovery of oversight costs is barred

under National Cable.

After reconsideration, we cannot agree. Because of

significant distinctions between the statutory framework at issue

in National Cable and the one at issue here, we no longer

believe National Cable governs our analysis of CERCLA. See

Dico, 266 F.3d at 877; Lowe, 118 F.3d at 401; Atl. Richfield Co.,

98 F.3d at 568. National Cable addressed the imposition of user

fees by the Federal Communications Commission on parties it

was authorized to regulate. 415 U.S. at 337-38; see Skinner, 490

U.S. at 224 (explaining National Cable struck down “agencies’

efforts to receive from regulated parties costs for benefits

16

inuring to the public generally”). CERCLA neither imposes

user fees or taxes, nor imposes them on a regulated industry.

CERCLA response costs are restitutionary payments, imposed

on those responsible for contamination to cover costs of the

contamination’s cleanup. See Dico, 266 F.3d at 877

(“[P]rovisions allowing the EPA to recover costs are meant to

make the guilty parties pay and thus are not like the user fees at

issue in National Cable.”); Lowe, 118 F.3d at 401 (CERCLA

response costs “are neither fees nor taxes, but rather, payments

by liable parties in the nature of restitution for the costs of

cleaning up a contamination or a threatened contamination for

which they are responsible.”); Atl. Richfield Co., 98 F.3d at 568

(“EPA oversight costs are not fees or taxes levied against

innocent members of a regulated industry to pay the EPA’s

general administrative costs, but part of the damages caused or

contributed to by specific persons.”). Nor does CERCLA target

regulated industries, but rather “responsible parties,” see 42

U.S.C. § 9607(a); United States v. Alcan Aluminum Corp., 964

F.2d 252, 257 n.4 (3d Cir. 1992), who are held strictly liable for

the costs of cleaning up contamination for which they are

responsible. See United States v. Chromalloy Am. Corp., 158

F.3d 345, 351 (5th Cir. 1998) (“CERCLA establishes ‘a federal

cause of action in strict liability.’”) (quoting H.R. Rep. No. 96-

1016(I), 96th Cong., 2d Sess. 22 (1980)).

Additional distinctions between CERCLA and the

statutory scheme in National Cable strengthen our conclusion

that CERCLA’s cost recovery provisions do not implicate

17

National Cable. CERLCA liability is judicially determined

under a federal cause of action—it is not determined by

administrative levy. Nor does CERCLA divorce an agency from

the appropriations process, implicating agency accountability.

Compare 26 U.S.C. § 9507(c)(1) (requiring congressional

appropriation of Superfund accruals), with Rohm & Haas, 2

F.3d at 1274 (applying National Cable to ensure EPA

accountability via the appropriations process).

Even if CERCLA were to implicate National Cable, its

cost recovery provision, 42 U.S.C. § 9607, provides a clear

statement of the power conferred and an intelligible principle

governing the exercise of such power. See Skinner, 490 U.S. at

219 (“It is ‘constitutionally sufficient if Congress clearly

delineates the general policy, the public agency which is to

apply it, and the boundaries of this delegated authority.’”)

(quoting Am. Power & Light Co. v. SEC, 329 U.S. 90, 105

(1946)). The government is authorized to recover, inter alia,

“all costs of removal or remedial action incurred by the United

States government . . . not inconsistent with the National

Contingency Plan.” 42 U.S.C. § 9607(a)(1)–(4)(A).

Government recovery of oversight costs is specifically

authorized, but limited by the detailed statutory definitions of

“removal action” and “remedial action,” id. § 9601(23)–(25),

and by the provisions of the National Contingency Plan. See 40

C.F.R. pt. 300 (2005). The National Contingency Plan sets

forth, inter alia, “methods and criteria for determining the

appropriate extent of removal, remedy, and other measures,” 42

18

U.S.C. § 9605(a)(3), and “means of assuring that remedial

action measures are cost-effective.” § 9605(a)(7). The plan also

requires documentation of all costs that are to be recovered. See

40 C.F.R. § 300.160(a)(1) (2005).

A responsible party may challenge oversight costs as

inconsistent with the plan. See United States v. Hardage, 982

F.2d 1436, 1445 (10th Cir. 1992) (“[A] defendant who is

declared liable for future response costs may still challenge

those costs as unrecoverable because the underlying response

actions giving rise to the costs are inconsistent with the NCP.”).

Where the government’s costs are inconsistent with the plan,

they should not be allowed. See United States v. USX Corp., 68

F.3d 811, 817 (3d Cir. 1995) (noting that the district court

“declined to grant summary judgment in favor of the United

States on its damage claim . . . finding that there were genuine

issues of material fact ‘regarding the reasonableness of the

[Remedial Investigation and Feasability Study] and whether the

United States’ response costs were incurred due to a ‘needless

and expensive monitoring study’”); Dico, 266 F.3d at 879;

Wash. State Dep’t of Transp. v. Wash. Natural Gas Co., 59 F.3d

793, 805 (9th Cir. 1995). The National Contingency Plan

therefore sets forth an intelligible principle limiting the

government’s authority to recover CERCLA costs.

EPA recovery is further limited, and its discretion further

constrained, by the statutory definition of “responsible parties.”

See 42 U.S.C. § 9607(a)(1)–(4); United States v. Alcan

Aluminum Corp., 964 F.2d 252, 257 n.4 (3d Cir. 1992). Under

19

CERCLA’s cost recovery provisions, 42 U.S.C. § 9607(a), the

EPA can recover costs only after making the requisite showing

of liability under the comprehensive “responsible party”

framework. These statutory standards guide the EPA and the

courts, see Skinner, 490 U.S. at 218, and serve as constraints on

the agency’s cost recovery.

In sum, CERCLA represents Congress’s effort to address

a complex environmental problem under a comprehensive

remedial statute. Congress’s decision to hold responsible parties

strictly liable for the government’s costs of responding to

hazardous waste contamination is both a reasonable exercise of

legislative authority and different in kind from the unbounded

delegation of taxing power at issue in National Cable.

Furthermore, CERCLA § 107 contains a clear statement of the

power conferred and “intelligible principles” to guide and

constrain the agency in exercising such power. We see no

constitutional delegation problem and hold National Cable’s

narrow rule of statutory construction does not apply.

V.

Because National Cable is inapposite, ordinary principles

of statutory construction govern the recovery of CERCLA

oversight costs. The starting point is the language of the statute.

If the meaning of the text is clear, “there is no need to . . .

consult the purpose of CERCLA at all.” Cooper Indus., Inc. v.

Aviall Services, Inc., 125 S. Ct. 577, 584 (2004); see id. (“As we

have said: ‘[I]t is ultimately the provisions of our laws rather

20

than the principal concerns of our legislators by which we are

governed.’”) (quoting Oncale v. Sundowner Offshore Servs.,

Inc., 523 U.S. 75, 79 (1998)). We note at the outset, however,

that “CERCLA is not . . . ‘a model of legislative

draftsmanship’.” United States v. Gen. Battery Corp., 423 F.3d

294, 298 (3d Cir. 2005) (quoting Exxon Corp. v. Hunt, 475 U.S.

355, 363 (1986)). Where a statute’s text is ambiguous, relevant

legislative history, along with consideration of the statutory

objectives, can be useful in illuminating its meaning. Gen.

Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004)

(examining “the text, structure, purpose and history” of the

relevant statute).

By its terms, CERCLA’s cost-recovery provision holds

responsible parties liable for, inter alia, “all costs of removal or

remedial action incurred by the United States government or a

State or an Indian tribe not inconsistent with the national

contingency plan,” and “any other necessary costs of response

incurred by any other person consistent with the national

contingency plan.” 42 U.S.C. § 9607(a)(1)–(4)(A), (B)

(emphasis added).

“Removal action” comprises:

the cleanup or removal of released hazardous

substances from the environment, such actions as

may be necessary taken in the event of a threat of

release of hazardous substances into the

environment, such actions as may be necessary to

21

monitor, assess and evaluate the release or threat

of release of hazardous substances, the disposal of

removed material, or the taking of such other

actions as may be necessary to prevent, minimize,

or mitigate damage to the public health or welfare

or to the environment, which may otherwise result

from a release or threat of release.

§ 9601(23).

“Remedial action” comprises:

those actions consistent with permanent remedy

taken instead of or in addition to removal actions

in the event of a release or threatened release of

hazardous substances so that they do not migrate

to cause substantial danger to present or future

public health or welfare or the environment. The

term includes, but is not limited to, such actions at

the location of the release as storage,

confinement, perimeter protection using dikes,

trenches, or ditches, clay cover, neutralization,

cleanup of released hazardous substances and

associated contaminated materials, recycling or

reuse, diversion, destruction, segregation of

reactive wastes, degrading or excavations, repair

or replacement of leaking containers, collections

of leachate and runoff, onsite treatment or

incineration, provision of alternative water

22

supplies, and any monitoring reasonably required

to assure that such actions protect the public

health and welfare and the environment.

§ 9601(24). CERCLA also provides that “removal action” and

“remedial action” shall include “enforcement activities related

thereto.” § 9601(25).

The government contends its oversight of removal and

remedial actions falls within the plain meaning of these

provisions, and its costs are recoverable under CERCLA § 107,

which holds responsible parties liable for “all” removal,

remedial, or other response costs necessarily incurred by the

United States.10 See CERCLA § 107(a), 42 U.S.C. §

10

DuPont contends the government’s position conflicts with

the position the government advanced, and the Supreme Court

accepted, in Cooper Industries, Inc. v. Aviall Services, Inc., 125

S. Ct. 577 (2004). Cooper addressed whether a potentially

responsible party who undertakes a cleanup without having been

sued under CERCLA may seek contribution from other jointly

responsible parties under CERCLA § 113(f)(1), 42 U.S.C. §

9613(f)(1). The government urged the Supreme Court not to

extend the statutory text of CERCLA, which authorizes

contribution claims “during or following” a civil action under

CERCLA § 106 or § 107(a), §§ 9606, 9607(a). See 42 U.S.C.

§ 9613(f)(1). The conflict, DuPont contends, is that the

government in this case “asserts that CERCLA should be

construed broadly to further certain policy concerns, so as to

23

9607(a)(1)–(4)(A) (Responsible parties shall be liable for “all

costs of removal or remedial action incurred by the United

States Government or a State or an Indian tribe not inconsistent

with the national contingency plan.”). For the following

reasons, we agree that EPA oversight falls comfortably within

the definitions of “removal action” and “remedial action.”

A.

“Removal action” entails containing and cleaning up

hazardous waste substances and includes monitoring, assessing,

and evaluating “the release or threat of release of hazardous

substances, the disposal of removed material, or the taking of

such other actions as may be necessary to prevent, minimize, or

mitigate damage to the public health or welfare or to the

environment.” 42 U.S.C. § 9601(23). The term “monitor” in

this definition is most reasonably read to encompass agency

oversight. Lowe, 118 F.3d at 403. We construe a term not

defined in a statute in accordance with its ordinary and natural

meaning. United States v. Alvarez-Sanchez, 511 U.S. 350, 357

(1994); Lowe, 118 F.3d at 402. The court in Lowe surveyed

dictionary and thesaurus meanings of “monitor” and explained:

read ‘oversight’ into the statutory text in provisions in which it

is not present.” We disagree with DuPont’s characterization of

the government’s position. The government asserts, and we

agree, that the text of CERLCA authorizes recovery of oversight

costs. Policy concerns may support this conclusion, but they do

not constitute the foundation of our holding.

24

“The verb ‘monitor’ is generally synonymous with audit, check,

control, inspect, investigate, observe, oversee, regulate, review,

scrutinize, study, survey, test and watch.” Lowe, 118 F.3d at

403; see also Atl. Richfield Co., 98 F.3d at 569 (same).

EPA oversight actions—reviewing, approving, and

supervising project specifications, treatment technologies,

testing and sampling methods, and construction schedules—fall

squarely within the “monitoring” of a “removal action.” These

oversight actions involve inspecting and supervising both the

release of hazardous substances, and the subsequent removal

and disposal of released substances, and are necessary to ensure

a private party cleanup is adequate to protect public health,

public welfare, and the environment. Accordingly, “the term

removal action includes the monitoring conducted by the EPA

via its oversight activities.” Lowe, 118 F.3d at 403.

DuPont contends the term “monitor” refers only to

monitoring the “release or threat of release of hazardous

substances,” 42 U.S.C. § 9601(23), and does not refer to

monitoring the conduct of all removal actions. We disagree.

We believe “monitor” is meant to extend to the phrases that

follow the phrase “release or threat of release of hazardous

substances,” and to include all aspects of preventing hazardous

releases from adversely affecting public health, public welfare,

and the environment, including EPA oversight. See § 9601(23).

Just as EPA oversight is a necessary part of the

monitoring entailed in a “removal action,” so too is it necessary

25

to the monitoring of a permanent “remedial action.” The

definition of “remedial action” focuses on permanent solutions,

comprising those agency actions “consistent with [a] permanent

remedy taken” to clean up and prevent the migration of

hazardous substances. See § 9601(24). This includes, “but is

not limited to . . . any monitoring reasonably required to assure

that such actions protect the public health and welfare and the

environment.” Id. (emphasis added). We believe oversight of

a remedial action—including reviewing, approving and

supervising design plan implementation, water sampling and

treatment activities, and health and safety issues—is monitoring

“reasonably required to assure” a private party remedial action

will “protect the public health and welfare and the environment”

under § 9601(24). See Dico, 266 F.3d at 878 (finding a “clear

statement” in the statutory language authorizing recovery of the

government’s remedial action oversight costs); see also Lowe,

118 F.3d at 403; Atl. Richfield Co., 98 F.3d at 569. Government

oversight ensures a private party remedial action will be

effective in preventing, minimizing, and mitigating current or

threatened releases.

DuPont contends the term “monitoring” used in

“remedial action” refers only to “testing and sampling the

physical environment.” We note no such language appears in

the definition of “remedial action.” But DuPont contends

because the terms preceding “monitoring” describe specific

actions taken to address the physical environment affected by

the release of a hazardous substance, “monitoring” should be

26

similarly limited.11 The government contends the statutory rule

11

DuPont also contrasts CERCLA’s use of “monitoring” with

use of the same term in the Oil Pollution Act of 1990, Pub. L.

No. 101-380, § 1001, 104 Stat. 486 (1990), as discussed in

United States v. Hyundai Merch. Marine Co., 172 F.3d 1187

(9th Cir. 1999). DuPont notes that the Oil Pollution Act

includes an explicit provision authorizing the EPA to recover

costs to “monitor all Federal, State and private actions to remove

a discharge,” see Hyundai, 172 F.3d at 1189-90 (quoting 33

U.S.C. § 1321(c)(1)(B)(ii)), and contends Congress would have

included similar language in CERCLA had it intended to

authorize recovery of EPA oversight costs. We note that the

language DuPont quotes does not appear in the Oil Pollution Act

itself, but is rather cross-referenced from the Federal Water

Pollution Control Act. See §§ 1321(c)-(e). More significantly,

in interpreting the Oil Pollution Act to allow for recovery of

monitoring costs, Hyundai relies not only on the quoted

language above, but also on language providing for recovery of

“costs to prevent, minimize, or mitigate” oil pollution. Hyundai,

172 F.3d at 1190 (quoting 42 U.S.C. § 2701(31)). This

language is identical to the language in CERCLA’s definition of

removal action, which we interpret to encompass oversight

costs. See § 9601(23) (defining removal action to include

actions necessary “to prevent, minimize, or mitigate” damage to

the public health, welfare or the environment). In any event, the

Oil Pollution Act was enacted ten years after CERCLA and

cannot provide guidance for Congress’s intent when it enacted

27

of construction on which DuPont relies—requiring that a

general word associated with or following a series of specific

words must be read in light of the specific terms, see Jarecki v.

G.D. Searle & Co., 367 U.S. 303, 307 (1961)—is inapplicable

here. We agree. The term monitoring in the definition of

“remedial action” is not intended as one of the enumerated

specific actions immediately preceding, but rather as an action

distinct in and of itself, which includes supervising the actions

taken at the location of the release. One such action is the

“cleanup of released hazardous substances and associated

contaminated materials.” 42 U.S.C. § 9601(24). Because

monitoring a cleanup necessarily entails oversight of the activity

that constitutes the cleanup, we conclude EPA oversight is a part

of the monitoring activities referred to in the definition of

“remedial action.”

In a statute designed to impose the costs of cleanup on

those responsible for contamination, the term “monitor” is most

naturally read in the definitions of both “removal action” and

“remedial action” as encompassing agency oversight. But in

reaching this conclusion, we do not imply the term encompasses

only agency oversight. Based on the language of the statute, we

believe the monitoring of removal and remedial actions includes

the inspection and supervision of all stages of a response action,

from risk assessment, to response planning, to execution of the

removal and remedial actions. We recognize monitoring the

CERCLA.

28

physical environment at the site of a release is crucial to

defining the risk and designing an appropriate response, and our

interpretation in no way undermines the EPA’s authority to do

so.

B.

The definitions of both “removal action” and “remedial

action” include actions taken to prevent or minimize danger to

the public and to the environment resulting from a release of

hazardous substances. See § 9601(23) (“[R]emoval action”

includes “such other actions as may be necessary to prevent,

minimize, or mitigate damage to the public health or welfare or

to the environment, which may otherwise result from a release

or threat of release.”); § 9601(24) (“[R]emedial action” includes

actions “to prevent or minimize the release of hazardous

substances so that they do not migrate to cause substantial

danger to present or future public health or welfare or the

environment.”). The government contends EPA oversight fits

within this aspect of both definitions because the very purpose

of EPA oversight is to prevent, minimize, and mitigate damage

that could otherwise result from a release of hazardous

substances by ensuring private party cleanups meet CERCLA

standards. We agree. Mindful that CERCLA delegates

significant authority to the executive branch, acting through the

EPA, to facilitate cleanups and to enforce statutory

requirements, we believe EPA oversight of cleanup activities is

necessary to ensure “compliance with standards aimed at the

public health,” Lowe, 118 F.3d at 403, and is accordingly

29

necessary to protect the public health and welfare under

CERCLA § 101(23) and § (24), §§ 9601(23), (24).

C.

“Remedial action” and “removal actions” are expressly

defined in CERCLA to include “enforcement activities.” 42

U.S.C. § 9601(25).12 A private party cleanup is implemented by

responsible private parties, but is supervised throughout by the

EPA. See 40 C.F.R. § 300.400(h) (2005) (“EPA will provide

oversight when the response is pursuant to an EPA order or

federal consent decree.”); see also 42 U.S.C. §§ 9622(f)(3), (5)

(requiring review and certification of private party cleanups); §

9611(c)(8) (contemplating oversight of remedial activities

resulting from consent orders or settlement agreements). EPA

oversight of cleanup actions constitutes “enforcement

activities,” designed to ensure private party compliance with a

consent agreement or a unilateral administrative order. See

Lowe, 118 F.3d at 403 (finding EPA oversight is an “inherent

and necessary enforcement element of private party response

action”); Atl. Richfield Co., 98 F.3d at 570 (“[M]onitoring or

oversight of a private party remedial action to determine

12

CERCLA § 101(25), 42 U.S.C. § 9601(25), provides:

The terms “respond” or “response” means

remove, removal, remedy, and remedial action;[]

all such terms (including the terms “removal” and

“remedial action”) include enforcement activities

related thereto.

30

whether the action complies with a consent decree and the

provisions of CERCLA is enforcement activity related to a

remedial action, and therefore, is a response under § 101(25).”).

DuPont argues “enforcement activities” refers only to

specific enforcement actions taken to compel compliance when

a private party fails to perform a response action satisfactorily.

But the government contends the term encompasses activities

designed to evaluate compliance, and therefore includes EPA

oversight.13 We believe “enforcement activities” include all

aspects of ensuring CERCLA compliance, from monitoring

whether a private party is in compliance with CERCLA

standards to bringing a specific enforcement action where

compliance is lacking. See Office of Solid Waste and

Emergency Response, U.S. EPA, Guidance on EPA Oversight

of Remedial Designs and Remedial Actions Performed by

Potentially Responsible Parties, EPA/540/G-90/001, OSWER

13

The government contends Congress was well aware the

EPA viewed oversight of responsible party cleanups as an

“enforcement activity” when it added this term to the definitions

of “removal action” and “remedial action.” During Congress’s

consideration of the 1986 amendments to CERCLA, the EPA

submitted information to the hearing record that plainly

identified responsible party oversight as an enforcement activity

and cost. See Reauthorization of Superfund: Hearings before

the House Subcommittee on Water Resources of the Committee

on Public Works, 99th Cong. 667 (1985).

31

Directive 9355.5-01 (Apr. 1, 1990) (characterizing private party

cleanups as “enforcement lead cleanups” and providing for

enforcement activities to both evaluate and compel compliance).

We conclude EPA oversight is an “enforcement activity”

encompassed by the definitions of “remedial action” and

“removal action.”

D.

CERCLA § 107’s authorization to recover “all”

government costs of “monitoring,” “enforcement activities,” and

any other action “necessary to prevent, minimize, or mitigate

damage to the public health or welfare or to the environment,”

42 U.S.C. § 9607(a) (CERCLA’s general cost recovery

provision), demonstrates that Congress intended the government

to recover costs incurred in overseeing and monitoring the

cleanup actions of responsible private parties. This conclusion

comports with the overall structure of CERCLA and the EPA’s

central role in CERCLA’s enforcement. The EPA is required to

manage CERCLA cleanups from beginning to end, and has

authorization to recover the costs of doing so. Id. DuPont’s

narrow construction of § 107 might discourage the EPA from

supervising a critical step in the cleanup process—the actual

removal and remedial activity conducted by responsible private

parties. A more natural reading of CERCLA § 107 permits the

EPA to recover the costs associated with overseeing every stage

of a cleanup action, including that of the site cleanup itself,

whether that action is performed by the government or by

responsible private parties. See Lowe, 118 F.3d at 403

32

(“Government monitoring or oversight is an inherent and

necessary enforcement element of private party response

action.”).

E.

Relying on Rohm & Haas, 2 F.3d at 1277-78, DuPont

contends allowing oversight cost recovery under CERCLA §

107 renders other statutory provisions superfluous. In

14

particular, DuPont cites CERCLA § 104(a)(1) and §

14

CERCLA § 104(a)(1), 42 U.S.C. § 9604(a)(1), provides in

part:

Whenever (A) any hazardous substance is

released or there is a substantial threat of such a

release into the environment, or (B) there is a

release or substantial threat of release into the

environment of any pollutant or contaminant

which may present an imminent and substantial

danger to the public health or welfare, the

President is authorized to act, consistent with the

national contingency plan, to remove or arrange

for the removal of, and provide for remedial

action relating to such hazardous substance,

pollutant, or contaminant at any time (including

its removal from any contaminated natural

resource), or take any other response measure

consistent with the national contingency plan

which the President deems necessary to protect

33

111(c)(8).15 Section 104 addresses government cleanup actions

the public health or welfare or the environment.

When the President determines that such action

will be done properly and promptly by the owner

or operator of the facility or vessel or by any other

responsible party, the President may allow such

person to carry out the action, conduct the

remedial investigation, or conduct the feasibility

study in accordance with section 9622 of this title.

No remedial investigation or feasibility study

(RI/FS) shall be authorized except on a

determination by the President that the party is

qualified to conduct the RI/FS and only if the

President contracts with or arranges for a

qualified person to assist the President in

overseeing and reviewing the conduct of such

RI/FS and if the responsible party agrees to

reimburse the Fund for any cost incurred by the

President under, or in connection with, the

oversight contract or arrangement. . . .

15

CERCLA § 111(c)(8), 42 U.S.C. § 9611(c)(8), provides:

Uses of the Fund under subsection (a) of this

section include—

. . .The costs of contracts or arrangements entered

into under section 9604(a)(1) of this title to

oversee and review the conduct of remedial

34

and settlements, while § 111 addresses Superfund

disbursements. §§ 9604(a)(1), 9611(c)(8). We believe our

interpretation does not render these provisions superfluous or

redundant but rather evidences Congress’s intent to authorize

reimbursement for all cleanup costs, including oversight.

Nonetheless, we address DuPont’s claims and conclude

CERCLA § 104 and § 111 only strengthen our interpretation of

§ 107.

Congress amended § 104 in 1986 to authorize the EPA to

enter into settlements with private parties for private cleanup

actions. See 42 U.S.C. § 9604(a)(1).16 Section 104(a)(1) in part

provides that any settlement agreement or consent order

authorizing a private party remedial investigation or feasibility

study must include reimbursement of government expenses

incurred in overseeing that study. Specifically, § 104 allows a

responsible private party to conduct a remedial investigation or

feasibility study (RI/FS) in accordance with § 122 (pertaining to

settlements) if, but only if, “the President contracts with or

investigations and feasibility studies undertaken

by persons other than the President and the costs

of appropriate Federal and State oversight of

remedial activities at National Priorities List sites

resulting from consent orders or settlement

agreements.

16

See supra note 14 for text of 42 U.S.C. § 9604(a)(1).

35

arranges for a qualified person to assist the President in

overseeing and reviewing the conduct of such RI/FS,” and “if

the responsible party agrees to reimburse the Fund for any cost

incurred by the President under, or in connection with, the

oversight contract or arrangement.” DuPont contends this

directive would be unnecessary if oversight costs were

recoverable as “response costs” in a liability action under § 107.

The government responds that the two sections authorize

distinct forms of cost recovery—§ 104 does not render § 107(a)

superfluous because the former compels an agreement to pay

oversight costs in advance of a settlement, while the latter

merely imposes general liability on all responsible parties, who

will have to pay those costs if the government or another party

pursues a cost recovery action after the cleanup.

We agree with the government. Use of the term

“oversight” in § 104 neither compels nor implies the conclusion

that Congress intended to exclude that term from the cost

recovery provision of § 107. Our reading of § 107 makes a

party liable for oversight costs but does not compel the party to

agree in advance to pay such costs. This is the function of §

104, which requires that as part of a settlement agreement or

consent order, a responsible party must agree in advance to pay

costs incurred in overseeing an RI/FS.

Congress enacted the 1986 amendments, which added §

104(a)’s oversight language, to further CERCLA’s general

policy of encouraging settlement. See Alcan Aluminum Corp.,

25 F.3d at 1184 (“Congress amended CERCLA because it

36

wanted to encourage early settlement.”). Legislative history

suggests Congress was concerned the EPA might not pursue its

oversight costs in settlement negotiations, leading to fiscal strain

on the Superfund. See S. Rep. No. 99-11 at 39 (1985). In this

context, inclusion of the term “oversight” in § 104 suggests

Congress intended to guard the solvency of the Superfund by

easing the EPA’s recovery of oversight costs, already authorized

by § 107, in settlement contexts. By requiring an express, prior

agreement for payment of certain oversight costs where private

parties have negotiated to undertake cleanup activities, § 104

alleviates the EPA’s burden in litigating cost recovery after the

fact.

The government contends DuPont’s contrary

interpretation creates a disincentive for settlement, conflicting

with fundamental CERCLA policy. See 42 U.S.C. § 9622(a)

(encouraging settlements “in order to expedite effective

remedial actions and minimize litigation”). We agree. Were the

EPA required to recover oversight costs from settling parties

under § 104, but prohibited from recovering costs from non-

settling parties, responsible parties might avoid settlement so as

to avoid paying such costs. Absent textual support, we decline

to accept an interpretation contrary to CERCLA’s statutory

language and objectives.

DuPont also cites CERCLA § 111 as evidence that

oversight costs are not encompassed by the term “response

costs.” Section 111 governs Superfund disbursements to state

and federal governments. Under the introductory heading “In

37

general,” § 111(a) broadly authorizes Superfund payment of

certain “governmental response costs.” § 9611(a)(1). Section

111(c), in turn, provides that acceptable “uses of the Fund under

subsection (a) of this section include” a host of specific

government actions, many of which are encompassed by the

preceding and more general definition of “response costs.” See

§ 9611(c)(1)–(14). Section 111(c)(8) allows disbursement from

the Superfund of “the costs of appropriate Federal and State

oversight of remedial activities . . . resulting from consent

orders or settlement agreements.” § 9611(c)(8). DuPont

contends Congress would not have expressly provided for

Superfund payment of “oversight” costs in § 111(c)(8) if such

costs were considered “response costs” under the preceding and

more general language of § 111(a).

We find this argument unconvincing. As the government

explains, subsection 111(c)(8) was not added to allow for

recovery of costs not otherwise recoverable as “response costs.”

Rather, it was added to ensure that the states, in addition to the

EPA, could recover oversight costs. See 130 Cong. Rec.

H23556 (1984). Moreover, subsection 111(c)(8) is not alone in

overlapping with the more general provisions of subsection (a).

Other provisions of subsection 111(c), clearly encompassed by

the term “response cost,” overlap as well. See, e.g., 42 U.S.C.

§ 9611(c)(3) (authorizing use of the Superfund to “identify,

investigate, and take enforcement and abatement action against

releases of hazardous substances,” actions clearly embraced by

“response costs”). In each of these cases, the overlay does not

38

demonstrate that the specified actions are outside of the scope

of otherwise recoverable “response costs.” Rather, it

demonstrates that the function of subsections (c)(1)–(14) is to

illustrate and explain the more general terms of subsection (a).

We are not convinced § 111 bears on our interpretation

of the cost recovery provision of § 107. To the extent it does,

the section strengthens our reading that government oversight

costs are recoverable. The section provides, on its face, that the

“response costs” recoverable from the Superfund “include” the

“costs of appropriate Federal and state oversight.” §§

9611(c)(1), (8).

That § 104 and § 111 specify recovery of oversight costs

does not mean the government is unable to recover those costs

under § 107. Rather, it demonstrates Congress’s intent in

amending CERCLA to particularize the general cost recovery

provisions of § 107 by specifying that the EPA should recover

costs beforehand in settlement actions, and to ensure that states,

in addition to the EPA, recover oversight costs.17 With this in

17

We reach our conclusion based on the language of the

statute. But the government contends, and we agree, the EPA’s

reasonable construction of § 104(a)(1) and § 111(c)(8) is

entitled to some measure of Skidmore deference. See United

States v. Mead Corp., 533 U.S. 218, 234-35 (2001) (explaining

Skidmore v. Swift & Co., 323 U.S. 134 (1944)). Although the

more deferential doctrine of Chevron, U.S.A., Inc. v. NRDC,

Inc., 467 U.S. 837 (1984), is inapplicable, the “well-reasoned

39

mind, we believe the specific references to recovery costs in §

104 and § 111 reflect Congress’s intent to authorize broadly the

recovery of government oversight costs incurred in connection

with a cleanup action. Rather than evidencing an intent to

foreclose recovery of these costs, the statute appears designed to

guarantee it.

F.

Finally, we note recovery of the EPA’s oversight costs

comports with CERCLA’s functional objectives. The structure

and purposes of CERCLA lend support to our reading of the

plain meaning of the statute’s text. The cleanup of the Newport

Superfund site was a massive undertaking, involving a

comprehensive design phase, a technically challenging

construction phase, and upward of $35 million in cleanup

expenditures by DuPont. Working cooperatively with DuPont

and Delaware state authorities, the EPA provided design input

and technical oversight on matters as disparate as selecting

groundwater barrier technologies, evaluating sonar data,

views of the agencies implementing a statute constitute a body

of experience and informed judgment to which courts and

litigants may properly resort for guidance.” Mead, 533 U.S. at

227 (citations omitted). With respect to the purposes of §

104(a)(1) and § 111(c)(8), the persuasiveness of the

government’s position rests on the “specialized experience” the

EPA brings to bear on the issue of CERCLA enforcement. Id.

at 235.

40

specifying seed mixtures for landfill cover, designing remedial

caps for installation on steep landfill slopes, restoring wetlands,

and reviewing project health and safety protocols. In the

cleanup phase, the agency’s activities included coordinating and

monitoring certain dredging operations, collecting soil samples,

supervising landfill excavation, inspecting wetland remediation,

monitoring a permeable reactive barrier wall, and approving

DuPont’s requests to modify the cleanup plan in response to

unforseen conditions. The EPA also coordinated the assistance

of the U.S. Army Corps of Engineers and the U.S. Fish and

Wildlife Service, among others, in project matters implicating

their areas of expertise. The EPA’s technical and supervisory

expertise was a key element in the successful cleanup of the

Newport Superfund site, showing agency oversight is central to

effective remedial action under CERCLA.

DuPont and its amicus supporters respond that allowing

the government to recover oversight costs encourages

inefficiency in CERCLA enforcement, citing the EPA’s

allegedly excessive oversight expenditures and its “dismal track

record of Superfund mismanagement.” If valid, these arguments

are better directed toward Congress. In any event, CERCLA

itself addresses the purported problem. The statute limits the

recovery of response costs, including oversight costs, to those

that are “necessary” and “not inconsistent with the national

contingency plan.” See 42 U.S.C. § 9607(a)(4)(A)–(B).

41

VI.

Citing the EPA’s “excessive costs and lack of

accountability to Congress,” DuPont’s amici contend that if

oversight costs are recoverable, responsible parties will be held

unfairly liable for the “waste and inefficiency” of EPA practices.

We address this argument by reviewing the limits on cost

recovery provided by the National Contingency Plan and by

detailing the burden of proof and standard of review applicable

to a claim that costs are inconsistent with the plan and

accordingly, unrecoverable.

The National Contingency Plan limits the scope and

nature of activities the EPA is authorized to charge to

responsible parties. As discussed in Part IV. B. supra, the plan

sets forth, inter alia, “methods and criteria for determining the

appropriate extent of removal, remedy, and other measures,” 42

U.S.C. § 9605(a)(3), and “means of assuring that remedial

action measures are cost-effective,” § 9605(a)(7). The plan also

requires all recoverable costs to be documented. See 40 C.F.R.

§ 300.160(a)(1) (2005). CERCLA’s cost recovery provision, §

9607(a)(4)(A)–(B), requires responsible parties to pay all costs

that are not inconsistent with the plan. This standard ensures

that costs will only be recoverable if they result from

compliance with the plan’s methods and criteria for determining

appropriate, cost-effective response actions. Accordingly, the

requirement that responsible parties pay only those costs that are

not inconsistent with the National Contingency Plan limits the

EPA’s discretion in recovering oversight costs.

42

In United States v. Northeast Pharmaceutical &

Chemical Co., the Court of Appeals for the Eighth Circuit held

response costs not inconsistent with the National Contingency

Plan are conclusively presumed reasonable and therefore

recoverable, and responsible parties have the burden of proving

certain costs are inconsistent and not recoverable. See 810 F.2d

726, 747-48 (8th Cir. 1986). The court further held the arbitrary

and capricious standard is the proper measure of review for the

EPA’s actions in incurring response costs, including oversight

costs. Id.; see also Minnesota v. Kalman W. Abrams Metals,

Inc., 155 F.3d 1019, 1024 (8th Cir. 1998). Other courts of

appeals have adopted this burden of proof and standard of

review. See Wash. State Dep’t of Transp. v. Wash. Natural Gas

Co., 59 F.3d 793, 802 (9th Cir. 1995); United States v. Hardage,

982 F.2d 1436, 1442 (10th Cir. 1992); United States v. Azko

Coatings of Am., Inc., 949 F.2d 1409, 1424 (6th Cir. 1991).

We agree EPA response costs are presumed consistent

with the National Contingency Plan unless a responsible party

overcomes this presumption by establishing the EPA’s response

action giving rise to the costs is inconsistent with the National

Contingency Plan. See Ne. Pharm., 810 F.2d at 747. By

authorizing the government’s recovery of all response costs not

inconsistent with the National Contingency Plan, CERCLA

creates an exception for costs that are inconsistent. See 42

U.S.C. § 9607(a)(4)(A)–(B). Responsible parties—the parties

claiming the benefit of this statutory exception—carry the

burden of proving that certain costs fall within the exception.

43

See Ne. Pharm., 810 F.2d at 747; see also United States v. First

City Nat. Bank, 386 U.S. 361, 366 (1967).

To establish an EPA response action is inconsistent with

the National Contingency Plan, a responsible party must show

the EPA acted arbitrarily and capriciously in choosing the

response action. As the statute itself provides, a “court shall

uphold the [EPA’s] decision in selecting the response action

unless the objecting party can demonstrate, on the administrative

record, that the decision was arbitrary and capricious or

otherwise not in accordance with law.” 42 U.S.C. § 9613(j)(2).

We believe “determining the appropriate removal and remedial

action involves specialized knowledge and expertise,” and “the

choice of a particular cleanup method is a matter within the

discretion of the EPA.” Ne. Pharm., 810 F.2d at 748. DuPont

has not established arbitrary or capricious government action in

taking response actions that led to oversight costs. Accordingly,

we “give deference to the EPA’s choice of response action and

will not substitute our own judgment for that of the EPA.”

Hardage, 982 F.2d at 1442.

Our dissenting colleagues contend there will be “no

natural limit to the type and scope of activities that the EPA can

charge to a responsible party,” in part because the arbitrary and

capricious standard “is a difficult one for responsible parties to

meet.” Dissent at 76. We cannot agree. Set forth in the

Administrative Procedure Act, 5 U.S.C. § 706(2)(A), the

arbitrary and capricious standard is well established as the

appropriate standard for most agency action. See Citizens to

44

Preserve Overton Park v. Volpe, 401 U.S. 402, 413-14 (1971).

While deferential to agency decision making, “the arbitrary and

capricious standard . . . contemplates a searching ‘inquiry into

the facts’ in order to determine ‘whether the decision was based

on a consideration of the relevant factors and whether there has

been a clear error of judgment.’” Indus. Union Dep't v. API, 448

U.S. 607, 705 (1980) (citing Citizens to Preserve Overton Park,

401 U.S. at 416). We see no merit in the argument that judicial

review under this standard provides no check on the EPA’s

recovery of oversight costs. Nor do we understand our

dissenting colleagues’ concern that the EPA will be able “to

routinely bill responsible parties for costs that are unnecessary

or excessive, but do not rise to the level of ‘arbitrary and

capricious.’” Dissent at 76 n.25. Costs that are unnecessary and

excessive in light of the National Contingency Plan are arbitrary

and capricious and should be disallowed under this standard of

review. See Kalman W. Abrams Metals, Inc., 155 F.3d at 1025

(holding certain response costs inconsistent with the National

Contingency Plan under the arbitrary and capricious standard of

review); Wash. Natural Gas Co., 59 F.3d at 805 (same).

VII.

In light of the plain meaning of the relevant CERCLA

provisions, the overall statutory framework, the functional

benefits of agency oversight, and the overarching statutory

objective of ensuring that those responsible for environmental

harm are “tagged” with “the cost of their actions,” Bestfoods,

524 U.S. at 56 (quoting legislative history), we conclude

45

CERCLA § 107 authorizes the United States to recover costs

incurred in overseeing private party removal and remedial

actions that are not inconsistent with the National Contingency

Plan.

We will overrule Rohm & Haas, reverse the order of the

District Court, and remand for entry of judgment in favor of the

United States.

ROTH, Circuit Judge, concurring in part:

I join the majority in the result it reaches and, for the

most part, in the reasons for which it does so. I write separately

for the limited purpose of expressing my concern with its

application of the ordinary principles of statutory construction

found throughout Section V, particularly in Subsection A. In

this part of the opinion, the majority argues that the term

“monitor” in the definition of removal and remedial action is

most reasonably read to encompass agency oversight. Although

not the full extent of the majority’s argument, the monitoring

provision is an important hook upon which the opinion locates

agency oversight within CERCLA’s mandate. I disagree with

the majority’s reliance on the “monitoring” provision. Instead,

I agree with the government’s position that the oversight aspect

of removal and remedial activities falls within the description of

the various activities as they are defined in “Removal action”

and “Remedial action” in CERCLA §§ 101(23) and (24), and

46

that therefore the cost of the oversight aspect of remedial and

recovery activities is recoverable under CERCLA § 107(a).

First, I conclude that the reliance on the “monitoring”

provision is unnecessary. Agency oversight should naturally be

included as an inherent part of any removal or remedial action

taken pursuant to CERCLA. That the removal or remediation

be done properly and effectively is a vital part of its being done

in the first place. I find that the need to separate out the

oversight portion of the performance of the enumerated removal

and remedial activities is superfluous.18

Second, not only is the majority’s reliance on

“monitoring” not necessary, but it risks conflating two distinct

concepts: the oversight required to make sure that a project is

done properly and effectively versus the taking of water, soil, or

air samples to determine the level of pollutants at a site. The

interpretation of monitoring as simply the taking of samples is

supported by case law. See Black Horse Lane Assoc. v. Dow

Chem. Corp., 228 F.3d 275, 298 n.13 (3d Cir. 2000) (“this

language plainly refers to actual monitoring, assessment or

evaluation ‘of a release or a threat of release.’”) (emphasis

added). I would not want our decision here, equating

18

By analogy, when one contracts to have a house built, the

contract includes costs for the contractor to oversee his workers

and subcontractors. Generally, there is no need to include a

separate fee for oversight since it is naturally included in the

larger endeavor.

47

monitoring with oversight of every aspect of a removal or

remedial action, to preclude the term “monitoring” as used in

CERCLA from being interpreted in its more particular sampling

sense. The monitoring provision, once meant to describe one

aspect of a project, should not now be confined to encompassing

only general “oversight” of the entirety of a removal or remedial

action.

RENDELL, Circuit Judge, dissenting, with whom Judge

SMITH joins.

While I agree with the majority that the analysis of the

issue before us should proceed along lines distinct from those

employed in the Supreme Court’s opinion in National Cable

Television Ass’n v. United States, 415 U.S. 336 (1974), and,

accordingly, our opinion in United States v. Rohm & Haas, 2

F.3d 1265 (3d Cir. 1993), I disagree that the proper reading of

the relevant statutory provisions leads to the conclusion that

oversight costs are recoverable by the government in this

setting. I suggest, further, that National Cable still offers

valuable lessons that are helpful to us here.

I.

The last thought–that National Cable retains some

relevance–is worthy of discussion at the outset. The concern

animating that opinion was that the government was passing off

onto private parties certain expenses that government agencies

48

incurred as part of their normal operations. The Court felt that

the power to recover administrative costs should not be

unbridled, especially when that power was exercised at the

discretion of the Executive. See id. at 341 (expressing concern

that the Federal Communications Commission’s fee structure

might force broadcasters to pay “not only for the benefits they

received but for the protective services rendered the public by

the Commission”); see also Skinner v. Mid-America Pipeline

Co., 490 U.S. 212, 224 (1989) (“National Cable Television . .

. stand[s] . . . for the proposition that Congress must indicate

clearly its intention to delegate to the Executive discretionary

authority to recover administrative costs not inuring directly to

the benefit of regulated parties by imposing additional financial

burdens.” (emphasis added)). These same concerns formed the

basis for our opinion in United States v. Rohm & Haas Co, 2

F.3d 1265 (3d Cir. 1993). There, we applied National Cable

because we concluded that EPA oversight costs were

“‘administrative costs not inuring directly to the benefit of

regulated parties’ but rather to the public at large.” Id. at 1273

(quoting Skinner, 490 U.S. at 224).

Today we reject our reasoning in Rohm & Haas that

equated the CERCLA scheme with the improper delegation of

power to assess fees in National Cable. In so doing, we also

reject the notion that we need to find a “clear statement” of

Congress’s intent to impose the agency’s costs of removal or

remedial action onto private parties. However, we should not

reject out of hand Judge Stapleton’s well-crafted discussion and

49

study of CERCLA, his well-supported thesis regarding the

language of the relevant provisions, or his conclusion that they

do not reflect an intent to foist onto private parties the

government’s oversight costs. I suggest that Judge Stapleton’s

analysis, if measured under a “plain meaning,” rather than a

“clear statement,” standard, would have reached the same

conclusion. And we should reach the same conclusion today.

The other aspect of National Cable and Rohm & Haas

that we should reflect upon–even if we do not endorse the

“clear statement” rule–is the healthy aversion voiced in those

opinions to permitting agencies to“bill” private parties for a

portion of their cost of doing business. Cf. id. at 1274

(construing CERCLA to allow recovery of EPA oversight costs

“create[s] the dramatic and unusual effect of requiring regulated

parties to pay a large share of the administrative costs incurred

by the overseeing agency”). In this case, the bill amounts to

almost $1.4 million, a significant portion of which will go

towards EPA payroll expenses, in addition to the nearly $35

million that DuPont has already expended to clean up the

Newport site.

While it is easy to say, as the majority does, that

“oversight” performed by an agency as part of its statutory duty

equates to necessary monitoring activity, query whether we

should construe a statutory provision to allow a wholesale

transfer of the expenses of operating government to private

parties where no intent to do so–and certainly no clear

statement–appears on the face of the statute. In CERCLA,

50

Congress undertook to specifically delineate the boundaries of

private party liability to the EPA. Certain provisions authorized

the recovery of oversight costs. Others are silent. Judge

Stapleton believed that, “[g]iven the context in which CERCLA

was enacted,” it was “highly significant that Congress omitted

any mention of oversight, or of government activities conducted

under [CERCLA] § 106, in the definition of removal.” Rohm

& Haas, 2 F.3d at 1276. Given this, and given the Supreme

Court’s reluctance to shift government operating costs to private

parties as expressed in National Cable, we should not stretch

the meaning of the statute to impose monetary obligations that

are not referenced within the four corners of CERCLA. Rather,

we should focus our inquiry on what the provisions of the

statute actually say. Cf. United States v. Olson, 125 S. Ct. 510,

511 (2005) (interpreting words in the Federal Tort Claims Act

to “mean what they say”). Analyzing CERCLA under this

framework, I cannot agree with the majority that CERCLA

reflects any intent on the part of Congress, clear or otherwise,

to allow the EPA to recover the costs of overseeing removal or

remedial actions.

II.

CERCLA section 107 provides that a responsible party

“shall be liable for–all costs of removal or remedial action

incurred by the United States Government . . . not inconsistent

with the national contingency plan.” 42 U.S.C. §

9607(a)(4)(A). Neither section 107 nor any of the other

provisions of the statute that define the terms used in section

51

107 uses the term “oversight.” The majority’s reasoning

involves two textual leaps that I cannot endorse. The first

involves equating the word “monitoring” in the sections

defining “removal” and “remedial action” with “government

oversight of private party activity.” This is simply not a

permissible meaning of the word “monitoring” as it is used in

the statute. The second leap is in saying that the authority for

recovering the costs of overseeing the cleanup can be found

within the definitions of “removal” and “remedial action” while

at the same time contending that these costs are recoverable as

“oversight of removal or remedial action.” This interpretation

is clearly at odds with the precise language of the definitions,

which include “monitoring” within the activities that make up

a cleanup. As a textual matter, oversight of removal and

remedial actions is not subsumed within the definitions of

“removal” and “remedial action.”

I suggest that in Rohm & Haas we were appropriately

skeptical of the reading the majority adopts here. We stated that

“[t]he government’s role in overseeing a private cleanup effort

is far removed from any sort of government ‘removal’ or

activity peripherally connected to such removal.” 2 F.3d at

1278. This observation is confirmed by contrasting the

activities for which the EPA seeks to recover its costs here with

those that DuPont undertook in actually performing the removal

and remedial action. While DuPont excavated contaminated

soil, capped landfills, installed groundwater barrier walls,

recovered, treated and monitored groundwater, and restored and

52

monitored wetlands and the Christina River, the EPA reviewed

DuPont’s remedial designs, reviewed and approved DuPont’s

proposed changes to the remedial plan, oversaw DuPont’s

activities, coordinated DuPont’s activities, supervised DuPont’s

response, monitored DuPont, reviewed the results of one of

DuPont’s treatability studies, and oversaw DuPont’s ground

water studies.

The EPA itself considers its oversight of private party

removal and remedial action to be separate from the actual

performance of the removal and remedial action. In a 50-page

manual detailing its oversight policy, Guidance on EPA

Oversight of Remedial Designs and Remedial Actions

Performed By Potentially Responsible Parties, OSWER

Directive 9355.5-01 (April 1990), the EPA takes great pains to

clarify that the private party, not the EPA, bears responsibility

for the cleanup action. See, e.g., id. at 1-1 (“PRPs and their

agents are responsible for the adequacy of the design and the

implementation of remedies [i.e., removal and remedial

action].”; id. at 1-2 (“[EPA] oversight must always be structured

so the PRPs, not EPA, remain legally responsible and

accountable for the success of the response action.”); id. at 2-2

(“All work is done under the PRP’s control and they [sic] are

responsible for the long term performance of the remedy.”).

The agency’s role, by contrast, is both limited and removed

from the direct response. See, e.g., id. at 5-1 (“It is

inappropriate for the Oversight Official to direct or determine

the means and methods of construction. Clearly defining these

53

roles, and adhering to them, ensures that the responsibility and

accountability of the construction project remains with the

PRP.” (emphasis added)); id. 2-2 (“EPA’s primary goal is to

confirm the PRPs [sic] meet all performance standards specified

in the Settlement Agreement.”); id. at x (“The ultimate goal of

PRP oversight is to hold PRPs responsible and accountable for

the remedial actions.”). In light of the EPA’s own distinction

between the conduct of removal or remedial actions and the

oversight of such actions, I find its arguments to the contrary

here to be disingenuous.

As we said in Rohm & Haas, I “think it far more likely

that Congress viewed EPA’s overseeing of a private party’s

removal activities as qualitatively different from EPA’s actually

performing removal activities and intended for EPA to recover

the costs of the latter but not the costs of the former.” 2 F.3d at

1277. A review of the statute confirms this theory. The

definitions of “removal” and “remedial action” are concerned

only with actions taken directly to address a release or threat of

release of a hazardous substance, not with the type of second-

tier review for which the EPA seeks to recover its costs here.

And other sections of the statute indicate that Congress knew

how to authorize recovery for the EPA’s “oversight” functions

when it wanted to. In the absence of such authorization in

section 107, I conclude that the EPA’s oversight costs are not

recoverable.

54

A.

The majority concludes that the EPA’s “oversight”

activities fall within the definitions of “removal” and “remedial

action” because both definitions include the word “monitoring.”

It assumes that, because “oversee” is one of the possible

meanings of “monitor,” the statute can, and should, be read to

encompass “monitoring” in the sense of “oversight.” Like other

courts that have found that oversight costs are recoverable

under CERCLA, the majority analyzes the meaning of the word

“monitor” in a vacuum. But the Supreme Court has directed

that “the meaning of a word cannot be determined in isolation,

but must be drawn from the context in which it is used.” Deal

v. United States, 508 U.S. 129, 132 (1993). “[W]here a word

is capable of many meanings,” it should be construed in the

context of the provision as a whole “in order to avoid giving

unintended breadth to the Acts of Congress.” Jarecki v. G.D.

Searle & Co., 367 U.S. 303, 307 (1961); see also Cooper

Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 125 S. Ct. 577,

583 (2004) (rejecting permissive construction of the word

“may” in section 9613(f)(1) of CERCLA in favor of “the

natural meaning of ‘may’ in the context” of the broader

statutory provision). Reading the definitions of “removal” and

“remedial action” carefully, and in their entireties, it is clear to

me that Congress was concerned with monitoring the actual

release, or threat of release, of hazardous substances, not

monitoring the party performing the removal or remedial action.

55

The definition of a “removal” is specifically limited to

“such actions as may be necessary to monitor . . . the release or

threat of release of hazardous substances.” 42 U.S.C. §

9601(23). The other actions listed in the definition–the cleanup

or removal of hazardous materials, “necessary” responses to

threatened releases, the disposal of removed materials, security

fencing and other measures to limit access to contaminated

sites–are similarly directed towards the release or threatened

release. Id. As we have previously explained, the definition is

concerned with “actions taken to define,” and contain, “the

scope of the risk created by a release or threatened release,” not

with “actions taken to evaluate the performance of others to

determine whether they are meeting their legal obligations.”

Rohm & Haas, 2 F.3d at 1276. See also United States v. Lowe,

118 F.3d 399, 403 (5th Cir. 1997) (“Under a plain language

statutory reading with an eye to context, the monitoring

provided under the removal definition relates to an evaluation

of the extent of a ‘release or threat of release of hazardous

substances.’”).

Like the definition of “removal,” the definition of

“remedial action” includes some “monitoring” activities. At the

end of a laundry list of activities that make up a “remedial

action,” the definition adds “any monitoring reasonably required

to assure that such actions [i.e., the actions specified in the

preceding list] protect the public health and welfare and the

environment.” 42 U.S.C. § 4601(24). As in the definition of

“removal,” all of the specific actions listed in the definition

56

would typically be undertaken by a first party responder

addressing a release or threatened release directly. Moreover,

the definition specifies that these actions all take place “at the

location of the release.” No text suggests that the phrase “any

monitoring reasonably required,” coming as it does at the end

of a long list of actions “at the location of the release” that

encompass the scope of a typical remedial action, somehow

implicates a third party overseer of another’s remedial action.

Construing “monitoring” here “by the company it keeps,”

Jarecki, 367 U.S. at 307, I therefore conclude that

“monitoring,” in the overall context of the definition, is best

understood to mean direct monitoring of the contaminated site,

not monitoring of the party who is performing the cleanup of

the site.

B.

The majority also points to language in the definitions of

these phrases that includes actions taken to prevent or minimize

danger to the public and the environment from a release or

threat of release in support of its broad reading of those

provisions. See 42 U.S.C. §§ 9601(23)-(24). Of course, in the

abstract, EPA oversight, and, indeed, other types of EPA

activity, could prevent damage that might otherwise result from

a release or threat of release, just as EPA oversight might

generally be described as “monitoring.” But the definitions’

emphases on direct responses to releases or threats of release

belies this interpretation. Read in context, the “other action”

language means such other actions taken by the direct

57

responder, not actions taken to oversee the direct response;

there is no indication in the text that Congress intended

otherwise. Similarly, the fact that CERCLA delegates authority

to the EPA to “facilitate cleanups and to enforce statutory

requirements,” does not imply that it authorizes the EPA to

recover the costs of those activities in actions under section

107.19 Congress specifically defined the parameters of

permissible recovery in removal actions in sections 107 and

101(23) & (24). As discussed above, the plain language of the

definitions includes actions taken to contain and clean up

releases of hazardous waste, but not actions taken to oversee

another’s containment and cleaning up of those sites.

C.

The majority’s final textual argument is that its oversight

activities qualify as “enforcement activities,” which section

101(25) (the definition of “respond” or “response”) adds to the

definition of “removal” and “remedial activities.” See Maj. Op.

at 31 (“We believe ‘enforcement activities’ include all aspects

19

The majority’s attempt to bolster its reading of the statute

by reviewing the conduct of the Newport cleanup and

concluding that it demonstrates that “agency oversight is central

to effective remedial action under CERCLA,” Maj. Op. at 40-

41, is to no avail. The facts of the Newport cleanup have no

bearing on what costs CERCLA authorizes the EPA to recover.

That EPA oversight contributes to a remedial action does not

mean that it is a remedial action under the terms of the statute.

58

of ensuring CERCLA compliance . . . .”) The majority here

follows the lead of other courts that have addressed the issue of

oversight costs and have construed “enforcement activities” in

Section 101(25) broadly to comport with CERCLA’s remedial

objectives. In Atlantic Richfield Co. v. American Airlines, Inc.,

98 F.3d 564 (10th Cir. 1996), the Court of Appeals for the

Tenth Circuit acknowledged that the Supreme Court, in Key

Tronic Corp. v. United States, 511 U.S. 809 (1994), had

construed the term “enforcement activities” narrowly, but

nevertheless concluded:

it does not stretch or distort the meaning of the

phrase to conclude that monitoring or oversight

of a private party remedial action to determine

whether the action complies with a consent

decree and the provisions of CERCLA is

enforcement activity related to a remedial action,

and therefore, is a response under § 101(25). We

note that because CERCLA is remedial

legislation, it should be construed liberally to

carry out its purpose.

98 F.3d at 570 (citations omitted). The Court of Appeals for the

Fifth Circuit reached the same conclusion because it

determined, based on other provisions of the statute, that

“[g]overnment monitoring or oversight is an inherent and

necessary enforcement element of private party response

action.” Lowe, 118 F.3d at 403.

59

The question is not whether it would “stretch or distort

the meaning of the phrase” “enforcement activities” to include

EPA oversight costs; nor is it whether the statute requires the

EPA to oversee private party response actions. The question is

whether, in adding the phrase “enforcement actions” to the

definitions of “removal” and “remedial action,” Congress

intended to authorize the EPA to recover from private parties

the cost of overseeing their removal and remedial actions. I

conclude that it did not. The common sense definition of an

enforcement activity is an action taken to compel a responsible

party to perform a removal or remedial action. Because I do not

think that the “remedial purposes” of the statute are relevant to

this inquiry, I see no need to read “enforcement activities”

broadly, as the majority does, to encompass the full spectrum of

the EPA’s CERCLA-related activities.

D.

Had Congress intended to include EPA oversight within

the scope of activities for which the EPA can recover, it could

have very easily included the word “oversight” in section

107(a)(1)(A) or the statutory definitions of “removal” or

“remedial action.” As we have seen, it chose not to do so. An

inspection of other provisions of CERCLA indicates that

Congress knows how to authorize recovery for “oversight”

expenses when it wants to; it amended two provisions to

explicitly include recovery of EPA “oversight” costs in the 1986

SARA Amendments. These amended provisions set forth

limited circumstances in which Congress intended the EPA to

60

recover its oversight expenses from a private party and obtain

payment of such expenses from the Superfund. To construe the

definitions of removal and remedial action to authorize recovery

of oversight costs in all cases renders these provisions

superfluous, which we are “loath to do.” Cooper Industries,

125 S. Ct. at 583.

SARA amended CERCLA section 104(a)(1), which

authorizes the EPA to conduct the cleanup of a hazardous waste

site itself, to authorize the EPA to allow responsible parties to

conduct the remedial investigation and feasibility study

(“RI/FS”) for potentially contaminated sites in some cases. The

RI/FS is a distinct, preliminary phase of removal. The section,

as amended, requires the EPA to retain outside consultants to

“oversee[ ] and review[ ]” a responsible party RI/FS, and

provides that the responsible party must agree to reimburse

Superfund for costs incurred under such an “oversight”

contract. 42 U.S.C. § 9604(a)(1). Our observation regarding

this section in Rohm & Haas applies with equal force today:

“[a]n RI/FS is . . . clearly a removal action. If Congress

considered governmental oversight of a private removal action

to be a removal action in itself, the provision of § 104(a)

requiring reimbursement of costs incurred by the government

overseeing the private RI/FS would be unnecessary as § 107(a)

would authorize the recovery of such oversight costs.” 2 F.3d

at 1277.

The majority proffers a complicated explanation as to

what section 104 means, reasoning that it performs a function

61

in addition to section 107 because it compels a responsible party

to agree in advance to pay oversight costs, whereas section 107

allows recovery of such costs only after the fact.20 This is

incorrect. All section 104 says is that, if a private party is going

to conduct the remedial investigation or the feasibility study,

and the government will be expending money to oversee that

preliminary activity, then the private party must agree to pay for

that. If, as the majority contends, the “plain language” of

20

The majority’s argument that the reading of section 104 that

I propose above creates a disincentive for private parties to settle

with the EPA, see Maj. Op. at 37, is based on a

misunderstanding of what section 104 actually says. That

section requires the EPA to recover oversight costs from settling

party only from the RI/FS stage of the cleanup and applies to

settling and non-settling parties alike. It does not, as the

majority suggests, require settling parties to agree to pay for all

of the EPA’s oversight costs. For example, although it did not

settle with the EPA, DuPont agreed to pay, and did pay, the

costs of oversight for the RI/FS portion of the cleanup,

according to the terms of the statute. See Appellees’ Br. at 13.

Whether a settling party is required to pay non-RI/FS oversight

costs depends on our decision today. The majority’s fears that

parties will decline to settle to avoid paying such costs under my

reading are thus unfounded. Under my reading, neither settling

nor non-settling parties would pay the EPA’s non-RI/FS

oversight costs because CERCLA does not authorize EPA

recovery for such costs.

62

CERCLA section 107 authorizes the EPA to recover its

oversight costs in all cases, there would certainly be no need to

amend the statute to state that the EPA should recover its

oversight costs for this specific aspect of a removal. Indeed, a

private party would have no choice but to “agree” to reimburse

the EPA for its costs of overseeing the RI/FS work in light of

the fact that the EPA would have a right to recover all of its

oversight costs as a matter of law, and could sue to recover

those costs under section 107. Furthermore, if Congress’s

intent was to ensure that the EPA recovers its oversight costs

from settling parties, one would think that it would have

amended the statute to specify that such parties must agree up

front to pay all of the EPA’s oversight costs. But the

amendment to section 104 requires settling parties to agree to

pay the costs of overseeing only the preliminary assessment

work. It is therefore more naturally read as an exception to the

statute’s general rule that recovery of EPA oversight costs is not

otherwise authorized.

SARA also amended CERCLA to allow the EPA to seek

reimbursement from the Superfund for its oversight costs in

particular situations. Section 111 defines the types of expenses

for which the Superfund can be used. Before SARA, section

111(a) specifically provided that the EPA could use the

Superfund to pay for removal or remedial actions that the EPA

conducted itself under section 104. 42 U.S.C. § 9611(a)(1). To

the extent that the definitions of “removal” or “remedial action”

include overseeing removal or remedial actions, as the EPA

63

contends, this section would presumably authorize the EPA to

fund the costs of overseeing private party actions out of the

Superfund. But the SARA amendments specified that, in

addition to the governmental response costs provided for in

section 111(a), the Superfund could also be used to pay for the

costs of contracts to oversee private party RI/FS’s pursuant to

section 104(a)(1) and the costs of overseeing remedial activities

conducted by a private party through a consent order or

settlement agreement. 42 U.S.C. § 9611(c)(8). If oversight

costs were already included as governmental response costs

under section 111(a)(1), there would have been no need for

Congress to specifically authorize reimbursement from

Superfund for the EPA’s expenses in overseeing private RI/FS

actions in section 111(c)(8). Applying the “settled rule” that

“we must, if possible, construe a statute to give every word

some operative effect,” Cooper Industries, 125 S. Ct. at 584, I

must once again conclude that the costs of overseeing private

party cleanup efforts are not included in the “governmental

response costs” that section 111(a) authorized the EPA to

recover from the Superfund.

Finally, although it purports to base its conclusion on

CERCLA’s language, the majority inexplicably adds that the

EPA’s construction of sections 104(a)(1) and 111(c)(8) is

entitled to Skidmore deference.21 Maj. Op. at 39 n.17. I

21

Of course, given the majority’s disclaimer that Skidmore

deference is not the basis for its decision, its comments on this

64

disagree. An agency is entitled to Skidmore deference where its

policy is “made in pursuance of official duty, based upon more

specialized experience and broader investigations and

information than is likely to come to a judge in a particular

case.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

Although the EPA may have more “specialized experience”

than we do in the day-to-day conduct of CERCLA enforcement,

the determination of the meaning of statutory language in order

to decide what costs the EPA can recover under a statutory

provision has always been a question for the courts. Indeed, no

other court to consider the issue of the recoverability of

oversight costs under CERCLA has deferred to the EPA’s view

as a basis for its decision. See United States v. Dico, Inc., 266

F.3d 864, 877-78 (8th Cir. 2001); United States v. Lowe, 118

F.3d 399, 401-04 (5th Cir. 1997); Atl. Richfield Co. v. Am.

Airlines, Inc., 98 F.3d 564, 570 (10th Cir. 1996). The EPA’s

position is entitled to no deference here.

III.

In my mind, the only way to reach the majority’s

conclusion that CERCLA authorizes the EPA to recover its

oversight costs is to conduct the analysis backwards–beginning

with the premise that CERCLA authorizes cost recovery

broadly and scouring the statute to find a place to shoehorn

oversight costs into its text. In adopting this approach, the

majority follows other Courts of Appeals that have, I suggest,

point are essentially dicta.

65

been less than precise in reasoning that CERCLA is a

“remedial” statute that should be broadly construed, and

allowing this to influence their analysis of the statute, while

purporting to apply “plain language” and other textual

principles of statutory interpretation. Four other Courts of

Appeals have addressed the issue of whether EPA oversight

costs are recoverable under CERCLA. As the EPA and the

majority point out, in each case the courts have held that such

costs are recoverable. The rationale for those findings, where

it is discussed,22 appears to be based (although not always

22

The Second Circuit Court of Appeals remarked, in New

York v. Shore Realty Corp., 759 F.2d 1032, 1042-43 (2d Cir.

1985), that “[t]he State’s costs in . . . supervising the removal of

the drums of hazardous waste squarely fall within CERCLA’s

definition of response costs, even though the State is not

undertaking to do the removal.” This case is of little

precedential value here, however. This statement was made in

the course of evaluating the defendant’s claims that he was not

liable for any costs under CERCLA; the recoverability of the

costs themselves does not appear to have been raised or argued

as an issue in either the district court or the court of appeals.

See id. at 1042-49. For these reasons, and because Shore Realty

does not explain why it concludes that supervising costs are

recoverable (although it does cite to sections 101(23), (24) and

(25), the definitions of “removal,” “remedial action” and

“response action”), I do not discuss it.

66

explicitly) at least in part on the notion that CERCLA, as a

remedial statute, should be construed broadly.

The Court of Appeals for the Tenth Circuit declined to

adopt Rohm & Haas’s analysis because it concluded that “Rohm

& Haas departed significantly from prior case law that had

construed the cost recovery provisions of CERCLA broadly.”

Atl. Richfield Co. v. Am. Airlines, Inc., 98 F.3d 564, 568 (10th

Cir. 1996). It characterized our use of the National Cable

“clear statement” standard in Rohm & Haas as “questionable,”

id., but ultimately concluded that CERCLA’s definitions of

“remedial action” and “response action,” in sections 101(24)

and (25), satisfy the National Cable standard because they

“unabiguously” allow recovery of EPA oversight costs. Id. at

569-571. As discussed above, the plain language of the statute

does not mention or support recovery of oversight costs; it

certainly does not support such recovery “unambiguously.”

Thus, it is at least reasonable to infer that the Tenth Circuit’s

analysis of the meaning of the statute was influenced by its view

that CERCLA should be construed broadly and its assessment

that the Rohm & Haas result represented a departure from

prevailing CERCLA case law in this regard. See id. at 568

(listing cases that held that the EPA could recover its indirect

and administrative costs under section 107 and district court

cases rejecting Rohm & Haas).

The Courts of Appeals for the Fifth and Eighth Circuits

echoed the Tenth Circuit’s concern that Rohm & Haas marked

a “significant departure” from prior case law that construed

67

CERCLA broadly. United States v. Dico, 266 F.3d 864, 878

(8th Cir. 2001); United States v. Lowe, 118 F.3d 399, 401 n.2

(5th Cir. 1997). The Eighth Circuit expressly “decline[d] to

follow the Third Circuit’s narrow approach” to construing

CERCLA, Dico, 266 F.3d at 878, and the Fifth Circuit noted

that, “[i]n rejecting Rohm & Haas,” it was “in good company.”

Lowe, 118 F.3d at 401 n.2. Like the Atlantic Richfield court,

the courts in Dico and Lowe concluded that the EPA’s oversight

costs were recoverable under CERCLA. The Lowe court

reinforced its interpretation of CERCLA’s text by explicitly

invoking the statute’s remedial purpose, concluding that “any

other reading of the statutory terms under discussion would

produce a result that conflicts with CERCLA’s goal of

compelling private parties to perform clean-up operations.” Id.

at 404. As in Atlantic Richfield, the courts in Dico and Lowe

analyzed the statute’s text, but the result that they reached seems

to have been influenced by the assumed tradition of interpreting

CERCLA broadly in accordance with its remedial purpose.

The majority here falls into the trap set for it by these

other Courts of Appeals. Like the courts in Atlantic Richfield,

Dico and Lowe, the majority proceeds from the assumption that

CERCLA encompasses everything that could conceivably fit

within its terms. As a result, it ignores what the statute says in

favor of a reading that comports with its view of what the

statute should do. For example, the majority reads the term

“monitor” broadly in light of its view of the broad purposes of

the statute: “In a statute designed to impose the costs of cleanup

68

on those responsible for contamination, the term ‘monitor’ is

most naturally read in the definitions of both ‘removal action’

and ‘remedial action’ as encompassing agency oversight.” Maj.

Op. at 28 (emphasis added). Similarly, its conclusion that

oversight falls within the statutory language allowing recovery

for actions directed at the public health and welfare is

influenced by its notion of what CERCLA does: “Mindful that

CERCLA delegates significant authority to the executive

branch, acting through the EPA, to facilitate cleanups and to

enforce statutory requirements, we believe EPA oversight of

cleanup activities is necessary to ensure ‘compliance with

standards aimed at the public health.’” Id. at 29 (emphasis

added; citations omitted).

Although there may be good arguments for construing

remedial statutes, and CERCLA in particular, broadly, see

Blake A. Watson, Liberal Construction of CERCLA Under the

Remedial Purpose Canon: Have the Lower Courts Taken a

Good Thing Too Far?, 20 Harv. Envtl. L. Rev. 199, 294-297

(1996), the Supreme Court has not endorsed this approach. See

id. at 258-61 (“[T]he Supreme Court has not employed the

remedial purpose canon when construing the numerous

environmental statutes [including CERCLA] enacted during the

‘modern’ environmental era.” (emphasis added)). In its most

recent pronouncements on CERCLA, in Cooper Industries, Inc.

v. Aviall Services, Inc., 543 U.S. 157, 125 S. Ct. 577 (2004), the

Court emphasized that CERCLA is subject to the same canons

of statutory construction that govern all other federal statutes

69

and cautioned lower courts against straying too far from the

statute’s text. Cooper Industries is only the latest example in

the Court’s CERCLA jurisprudence to decline to apply special

rules of statutory interpretation that would tilt the scales towards

CERCLA’s remedial purpose.23 I read the Court’s CERCLA

cases, and Cooper Industries in particular, to caution against the

expansive interpretation of CERCLA’s provisions that the

majority espouses here.

Cooper Industries involved section 113(f)(1) of

CERCLA, which authorizes private parties who have cleaned

up properties contaminated by hazardous substances to seek

contribution from other CERCLA “responsible parties.” The

first sentence of section 113(f)(1) allows a party to obtain

contribution “during or following any civil action” under

CERCLA section 106 or 107(a); the last sentence provides that

“[n]othing in this subsection shall diminish the right of any

person to bring an action for contribution in the absence of a

civil action under” CERCLA section 106 or 107(a). 42 U.S.C.

23

See, e.g., Key Tronic Corp. v. United States, 511 U.S. 809,

814, 818-19 (1994) (acknowledging that CERCLA is a

“comprehensive statute” that confers “broad powers” on the

executive branch, but declining to read the term “enforcement

activities” broadly to authorize private parties to recover

attorneys’ fees).

70

§ 9613(f)(1).24 The question for the Court was whether a

private party who has not been sued under section 106 or

107(a), i.e., who conducted a CERCLA cleanup voluntarily, can

obtain contribution under section 113(f)(1). Cooper Industries,

125 S. Ct. at 580. The Court concluded that the “natural

meaning” of the first sentence of section 113(f)(1), the

“enabling clause,” is that “contribution may only be sought

subject to the specified conditions, namely, ‘during or

following’ a specified civil action.” Id. at 583. The last

sentence, which the Court characterized as a “saving clause,”

24

The full text of 42 U.S.C. § 9613(f)(1) reads:

Any person may seek contribution from any other

person who is liable or potentially liable under

section 9607(a) of this title, during or following

any civil action under section 9606 of this title or

under section 9607(a) of this title. Such claims

shall be brought in accordance with this section

and the Federal Rules of Civil Procedure, and

shall be governed by Federal law. In resolving

contribution claims, the court may allocate

response costs among liable parties using such

equitable factors as the court determines are

appropriate. Nothing in this subsection shall

diminish the right of any person to bring an action

for contribution in the absence of a civil action

under section 9606 of this title or section 9607 of

this title.

71

provides only that section 113(f)(1) “does nothing to ‘diminish’

any cause(s) of action for contribution that may exist

independently of § 113(f)(1)”; it does not, on its own, authorize

contribution claims outside the scope of those specified in the

sections’s first sentence. Id. at 583-84.

The Court of Appeals for the Fifth Circuit, sitting en

banc, had reached the opposite conclusion, in part based on its

view that the purposes of CERCLA would be furthered by a

more expansive reading. The majority noted the EPA’s broad

remedial powers under CERCLA and the statute’s broad

definition of a “responsible party.” “These circumstances,” it

concluded, “together with the enormous costs of remediating

hazardous waste sites, make the availability of contribution

among PRPs all the more important for achieving the purposes

of the statute.” Aviall Servs., Inc. v. Cooper Indus., Inc., 312

F.3d 677, 681-82 (5th Cir. 2002) (en banc). The Supreme

Court, however, focused exclusively on the statute’s text. It first

examined the “natural meaning” of the first sentence. The

Court construed the words in the sentence narrowly in light of

the sentence’s “enabling” function: “the natural meaning of

‘may’ in the context of the enabling clause is that it authorizes

certain contribution actions–ones that satisfy the subsequent

specified condition–and no others.” Id. at 583 (emphasis

added). The Court also found that a permissive reading would

“render part of the statute entirely superfluous, something we

are loath to do,” id. (citing Hibbs v. Winn, 124 S. Ct. 2276,

2286 (2004)), in light of limiting language in section 113(f)(1)

72

itself and another section, section 113(f)(3)(B), that permits

contribution actions after settlements. It rejected the argument

that the last sentence of section 113(f)(1) authorized

contribution claims outside of the scope of those authorized in

the first sentence because that interpretation “would again

violate the settled rule that we must, if possible, construe a

statute to give every word some operative effect.” Id. at 584

(citing United States v. Nordic Village, Inc., 503 U.S. 30, 35-36

(1992)). Finally, the Court declined to consider arguments from

both parties to the effect that the purpose of CERCLA

supported its position: “Given the clear meaning of the text,

there is no need to resolve this dispute or to consult the purpose

of CERCLA at all.” Id. at 584.

The Cooper Industries Court also impliedly cautioned

lower courts against applying special rules of statutory

construction in the CERCLA context. The Court noted that the

statute, as originally enacted, did not expressly provide a private

right of action for contribution, but that several district courts

had “nonetheless held” that such a right existed even though

“CERCLA did not mention the word ‘contribution.’” Id. at

581. It characterized the holdings of those opinions as

“debatable” in light of Supreme Court decisions that had

refused to recognize implied or common law rights of

contribution in other statutes. Id. And later in the opinion,

when the Court remanded the case for consideration of whether

CERCLA section 107 creates a private right of action for

contribution, the Court warned that “this Court has visited the

73

subject of implied rights of contribution before.” The Court

further noted that “in enacting § 113(f)(1), Congress explicitly

recognized a particular set of claims . . . of the contribution

rights previously implied by courts from the provisions of

CERCLA and the common law,” id. at 586, and cited a case

that explains that “it is an elementary canon of statutory

construction that where a statute expressly provides a particular

remedy or remedies, a court must be chary of reading others into

it.” Transam. Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11,

19 (1979). The Court thus left little doubt about where it stands

on the specific issue of implied rights of contribution in

CERCLA, and hinted strongly that it disapproves of the practice

of construing CERCLA broadly to “give effect” to its remedial

purpose.

Cooper Industries thus provides several lessons for the

interpretation of CERCLA that apply with equal force here. In

construing CERCLA, courts should pay particular attention to

the text of the provisions at issue. We should construe

CERCLA to avoid rendering provisions, or even individual

words, superfluous, and the statute’s remedial purpose should

not affect the analysis if the meaning of the text is “clear.”

Here, were we to heed this advice by reading CERCLA

according to its terms, I conclude that we would find the EPA’s

oversight costs not to be recoverable as costs of “removal” or

“remedial action.”

74

IV.

My reading of the statute is further bolstered by certain

prudential concerns implicated by the majority’s approach.

First, construing CERCLA to authorize the EPA to recover

oversight costs raises questions of fairness and due process.

Principles of fundamental fairness and due process require that

those who violate the law know of their potential exposure. See

BMW of N.A., Inc. v. Gore, 517 U.S. 559, 574 (1996)

(“Elementary notions of fairness enshrined in our constitutional

jurisprudence dictate that a person receive fair notice not only

of the conduct that will subject him to punishment, but also of

the severity of the penalty that a State may impose.”). In the

CERCLA context, responsible parties can work with the EPA

to develop a remedial action plan, which should provide the

party with a reasonable estimate of its ultimate liability. See 42

U.S.C. § 9604(a) (allowing private parties to conduct

preliminary remedial investigation and feasibility studies); §

9621(a) (requiring the EPA to determine appropriate remedial

action plan “which provide[s] for cost-effective response”).

Under section 106, the responsible party can then undertake to

implement that plan itself. One of the primary benefits of this

arrangement is that the private party can control the cost of the

cleanup operation within the parameters of the plan. See Rohm

& Haas, 2 F.3d at 1270 (“[Section] 106 consent orders appear

to be the favored method of cleaning up waste sites since they

generally are quicker and involve less government expense than

cleanups conducted by the government pursuant to § 104.”).

75

Allowing the EPA to bill the responsible party for its

“oversight” activities after the fact destroys the fairness and

predictability of the statutory arrangement.

Second, I worry that there is no natural limit to the type

and scope of activities that the EPA can charge to a responsible

party under the majority’s rationale. The “arbitrary and

capricious” standard it articulates is a difficult one for

responsible parties to meet.25 And although the majority takes

25

The majority cites Minnesota v. Kalman W. Abrams Metals,

Inc., 155 F.3d 1019 (8th Cir. 1998), to show that courts can and

have applied the “arbitrary and capricious” standard to limit cost

recoveries. Maj. Op. at 45. But that case presented egregious

circumstances and actually demonstrates the rare situation in

which an agency’s costs could be challenged. In Kalman

Metals, the court denied the state agency’s cost recovery action

because the state agency that conducted the cleanup “obstinately

insisted on employing an untried, high-risk, high-cost remedy;

failed to adequately study the nature and extent of the

communication problem in advance; and failed to monitor [its

contractor] and modify the remedy when the unevaluated

problem turned out to be greater than anticipated.” 155 F.3d at

1025. That the court denied cost recovery in that case does

nothing to alleviate my concern that the result that the majority

reaches provides no check on the EPA’s ability to routinely bill

responsible parties for costs that are unnecessary or excessive,

but do not rise to the level of “arbitrary and capricious.”

76

comfort in the statute’s limitation of the EPA’s cost recovery to

those costs that are “necessary” and “not inconsistent with the

national contingency plan,” 42 U.S.C. § 9607(a)(4)(A)-(B), it

has not identified any standards within the national contingency

plan that would appear to limit the EPA’s discretion to spend

money to oversee private party cleanups. Indeed, there are

none.26 By contrast, the plain reading of the statute that I have

outlined above clearly distinguishes between recoverable and

non-recoverable costs. The costs of direct action to investigate

or address a release or threat of release of a hazardous substance

are recoverable. “On the other hand, if what the government is

monitoring is not the release or hazard itself, but rather the

performance of a private party, the costs involved are non-

recoverable oversight costs.” Rohm & Haas, 2 F.3d at 1278-79.

In addition to being more faithful to the statutory text, I believe

that this reading provides responsible parties with a fairer result.

26

The sections of the national contingency plan that deal with

removal and remedial action under CERCLA, 40 C.F.R. §§

300.410, 300.415 (removal); §§ 300.420-300.435 (remedial

action), set forth the criteria, methods and procedures that an

agency must follow in conducting a cleanup. They do not even

mention, let alone provide standards against which a court could

evaluate, an agency’s oversight of a cleanup conducted by a

responsible party.

77

V.

For all of the reasons stated above, I conclude that

CERCLA does not authorize the EPA to recover the costs of

overseeing removal and remedial actions conducted by private

parties. I therefore respectfully dissent.

78