Contaminated Land Liability Scheme in the US: Lessons for China?

Zhao, Xiaobo

doi:10.1007/978-3-662-59557-2_5

Xiaobo Zhao²

134 Accesses

Abstract

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA ) defines responsibility for the costs of remediation and who should be responsible for existing contamination. It contains a stringent liability scheme and creates a new cause of action; the statute establishes the nature of the new liability, the identity of liable parties, and the triggers for liability, remedies, and defences to liability. This chapter aims to answer one significant research question of what can the Chinese legislature learn from the CERCLA liability system with respect to the contaminated land issue.

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Notes

1.
Pub L No 96-510, 94 Stat 2767 (1980) (codified as amended at 42 USC §§ 9601-75 (2006)).
2.
CERCLA §107(a).
3.
CERCLA §107(a) (4).
4.
Bregman and Edell (2002), at 180.
5.
Bregman and Edell (2002), at 180.
6.
A proportion is derived from legislative history and judicial decisions made shortly after CERCLA was enacted.
7.
Keeton and Prosser (1984), at 534-80.
8.
Applegate and Laitos (2006), at 178.
9.
Applegate and Laitos (2006), at 179.
10.
Meyer et al. (1995), at 78.
11.
New York v Shore Realty Corp., 759 F 2d 1032 (2d Cir. 1985).
12.
Applegate and Laitos (2006), at 180.
13.
Ramseur and Reisch (2006).
14.
United States v Chem-Dyne Corp, 572 F Supp 802 (SD Ohio, 1983). The court noted that the US Congress had deleted a provision to require the imposition of joint and several liability in all cases under CERCLA . The court held that Congress intended liability to ‘be determined from traditional and evolving principles of common law’, under which a defendant is jointly and severally liable unless it proves that the harm is divisible and there is a reasonable basis for apportioning damages. There is no requirement under this approach to prove that harm caused by an individual PRP is substantial. Courts that followed the Chem-Dyne approach include: United States v RWMeyer Inc, 889 F 2d 1497 (6th Cir, 1989); Amoco Oil Co v Borden Inc, 889 F 2d 664 (5th Cir, 1989); O’Neill v Piccillo, 883 F 2d 176 (lst Cir, 1989); United States v Monsanto Co, 858 F 2d 160 (4th Cir, 1988). See Applegate and Laitos (2006), at 252.
15.
See, e.g., New York v Adamowicz, 16 F Supp 3d 123 (ED NY, 2014); Lockheed Martin Corporation v United States, 35 F Supp 3d 92, (DDC, 2014).
16.
United States v Alcan Aluminum Co, 315 F 3d 179 (2d Cir, 2003) (failure to prove that harm was divisible where defendant merely argued that the waste it caused was minimal and benign); Chem-Nuclear Systems v Bush, 292 F 3d 254 (DC Cir, 2002) (party responsible for 80 drums of hazardous waste not entitled to reimbursement absent proof beyond preponderance of the evidence that additional waste at the site was not also attributable to this source); United States v Township of Brighton, 153 F 3d 307 (6th Cir, 1998); Town of New Windsor v Tesa Truck Inc, 919 F Supp 662 (SD NY, 1996). Applegate and Laitos (2006), at 182.
17.
Fogelman (2005), at 253.
18.
Fogelman (2005), at 253.
19.
Church and Nakamura (1993), at 164.
20.
Church and Nakamura (1993), at 164.
21.
Browning-Ferris Industries of Illinois Inc v Ter Maat, 195 F 3d 953 (7th Cir, 1999).
22.
Ropiequet (1993).
23.
United States v Olin Co, 927 F Supp 1502 (D Ala, 1996).
24.
United States v Olin Corporation, 107 E3d 1506 (11th Cir, 1997); see also United States v Alcan Aluminum Corporation, 315 E3d 179 (2d Cir. 2002) (agreeing that challenge to CERCLA ’s retroactivity is not a ‘winning argument’); Franklin County Convention Facilities Authority v American Premier Underwriters, Inc., 240 E3d 534 (6th Cir, 2001) (retroactive application of CERCLA does not breach due process clause of, or amount to taking that requires payment of compensation under, US Constitution).
25.
Usery v Turner Elkhorn Mining Co, 428 US 1 (1976); Concrete Pipe and Products of California, Inc v Construction Laborers Pension Trust for Southern California, 508 US 602 (1993).
26.
CERCLA § 103(g).
27.
CERCLA § 103(3).
28.
CERCLA section 107(a)(1).
29.
CERCLA 107(a)(2).
30.
CERCLA 107(a)(3).
31.
CERCLA 107(a)(4).
32.
CERCLA , Section 107(a).
33.
Applegate and Laitos (2006), at 185.
34.
State of New York v Shore Realty Corp., 759 F 2d 1032 (2d Cir, 1985) (‘releases’ include leaking tanks and pipelines, the continuing leaching and seepage from earlier spills, and leaking drums); City of Phoenix v Garbage Services Co, 816 F Supp 564 (D Ariz 1993).
35.
In Tanglewood East Homeowners v Charles-Thomas Inc, the court held that the trustee could be personally liable for wastes disposed onsite during tenure as trustee. See Tanglewood East Homeowners v Charles-Thomas Inc, 849 F 2d 1568 (5th Cir, 1988).
36.
State of New York v Shore Realty Corporation, 759 F 2d 1032 (2d Cir, 1985).
37.
United States v Northernaire Plating Company, 670 F Supp 742 (WD Mich, 1987).
38.
For example, The Ninth Circuit in Long Beach Unified School District v Dorothy B. Godwin California Living Trust concluded that imposing CERCLA liability on an easement holder would unfairly penalize legitimate, non-polluting actors such as telephone and electric companies which, in running pipelines and cables, have no greater responsibility for the nation’s toxic waste problem than the public at large. See Long Beach Unified School District v Dorothy B. Godwin California Living Trust, 32 F 3d 1364 (9th Cir, 1994).
39.
United States v A & N Cleaners and Launderers Inc, 788 F Supp 1317 (SD NY, 1992).
40.
See e.g., United States v McLamb, 5 F 3d 69 (4th Cir, 1993); Lansford-Coaldale Joint Water Authority v Tonolli Corp, 4 F 3d 1209, 1221 (3rd Cir, 1993).
41.
In Commander Oil Corp v Barlo Equipment Corp, the court held that a lessee under a 99-year lease would probably be a de facto owner. See Commander Oil Corp v Barlo Equipment Corp, 215 E 3d 321 (2d Cir).
42.
CERCLA § 101(20)(A)(iii).
43.
United States v Fleet Factors Corp, 901 F 2d 1550 (11th Cir, 1990).
44.
CERCLA § 101(35)(B).
45.
Applegate and Laitos (2006), at 189.
46.
United States v Bestfoods, 524 U.S. 51 (1998).
47.
See, e.g., Aluminum Company of America v Beazer East Inc, 124 F 3d 551, 565 (3rd Cir, 1997) (operators were major shareholders of landowner); Edward Hines Lumber Co v Vulcan Materials Co, 861 F 2d 155 (7th Cir, 1988) (company that designed and built wood processing facility that became contaminated is not operator); United States v Consolidated Rail Corp, 729 F Supp 1461 (D Del, 1990) (company that pre-approved shipments of raw materials and bought products of company that had contaminated its facility is not operator).
48.
The best-known decision following this approach is Nurad Inc v William E. Hooper & Sons Co, where the Fourth Circuit reasoned that the ‘authority to control’ test ‘is one which properly declines to absolve from CERCLA liability a party who possessed the authority to abate the damage caused by the disposal of hazardous substances, but who declined to actually exercise that authority by undertaking efforts at a clean-up.’ See Nurad Inc v William E. Hooper & Sons Co, 966 F 2d 837, 843 (4th Cir, 1992).
49.
United States v Gurley, 43 F 3d 1188 (8th Cir, 1994); Lansford-Coaldale Joint Water Authority v Tonolli Corp, 4 F 3d 1209, 1221 (3d Cir, 1993). Applegate and Laitos (2006), at 190.
50.
See FMC Corp v Department of Commerce, 29 F 3d 833, 843 (3d Cir, 1994). The court found that the United States qualified as an operator of the plaintiff’s facility where it required a company to manufacture a product that yielded a hazardous waste product and maintained a significant degree of control over the production process through regulations and on-site inspectors.
51.
FMC Corp v Department of Commerce, 29 F 3d 840 (3d Cir, 1994).
52.
See United States v Brighton, 153 F 3d 307, 315-16 (6^th Cir, 1998) (mere regulation does not suffice to make a government entity liable, but actual operation and ‘macro management’ does); United States v American Colour and Chemical Corp, 858 F Supp 445 (MD Pa, 1994) (United States not an ‘operator’ when it is acting in a regulatory capacity to bring about a clean-up). See also American Cyanamid Co v Capuano, 381 F 3d 6, 23 (1^st Cir, 2004) (finding operator liability to be not clearly erroneous where party developed the idea for using the site, prepared the site for dumping, arranged for waste to be dumped at the site, showed transporters where to dump on the site, and collected payment and transmitted a share to the owner of the site for allowing the dumping).
53.
RCRA defines a ‘disposal’ as ‘the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters’. See 42 U.S.C. § 6903(3).
54.
Nurad Inc v William E. Hooper & Sons Co, 966 F 2d 837, 843 (4th Cir, 1992).
55.
United States v CDMG Realty Co, 96 E 3d 706 (3d Cir, 1996).
56.
Carson Harbor Village Ltd v Unocal Corp, 270 F 3d 863 (8th Cir, 2001).
57.
Applegate and Laitos (2006), at 194. More recently, in US v Saporito, the Court ruled that the lessor operator of equipment at a contaminated metal plating facility was liable as an owner under CERCLA . This case demonstrates the inherent dangers of a small family business operating in a heavily regulated area, under which circumstance intertwining of ownership and operations among family members may result in CERCLA liability. See US v Saporito, 684 F Supp 2d 1043 (ND Ill, 2010).
58.
CERCLA , §107(a) (3). See, for example, in United States v Washington State Department of Transportation, the Court reasoned that the Washington is an arranger because it designed the drainage system and had the ability to redirect, contain, or treat the contaminated runoff. See United States v Washington State Department of Transportation, 716 F Supp 2d 1099 (WD Wash, 2010).
59.
Lannetti (1998).
60.
Amcast Indus Corp v Detrex Corp, 2 F 3d 746 (7th Cir, 1993).
61.
See Lannetti (1998).
62.
See Fogelman (2005), at 269.
63.
In the United States v Monsanto Co, the Fourth Circuit held that the plaintiff need only to prove that (1) the generator’s waste was shipped to the site, and (2) hazardous substances similar to those belonging to the defendant generator’s waste remained present at the site at the time of release. United States v Monsanto Co, 858 F 2d 160 (4th Cir, 1988).
64.
See, e.g., United States v Monsanto, 858 F.2d 160 (4th Cir. 1988); United States v Mottolo, 695 F Supp 615, 625 (DN H, 1988); United States v Wade, 577 F Supp 1326 (ED Pa, 1983; Morton Int’l, Inc v A.E. Staley Mfg. Co., 343 F.3d 669, 679 (3d Cir,2003). See also Applegate and Laitos (2006), at 196.
65.
See, for example, Prudential Insurance Co v United States Gypsum Co, 711 F Supp 1244 (DN J, 1989); Florida Power & Light Co v Allis Chalmers Co, 893 F 2d 1313 (11th Cir, 1990). The United States v A & F Materials Company, 582 F Supp 842 (SD Ill, 1984); CP Holdings Inc v Goldberg- Zoino & Associates Inc, 769 F Supp 432 (D NH, 1991). See Applegate and Laitos (2006), at 196. Recently, US Supreme Court declined to impose arranger liability on a defendant who arranged for the shipment of hazardous chemicals, see United States v Burlington Northern & Santa Fe Ry Co, 520 F 3d 918 (9th Cir, 2008). This case was cited by Court in Celanese Corp v Martin K Eby Construction Co, the Fifth Circuit rejected a claim that a party had ‘arranger’ liability, when the offending party did not have the intent to release or dispose of a hazardous substance. See Celanese Corp v Martin K Eby Construction Co, 620 F 3d 529 (5th Cir, 2010).
66.
Catellus Development Co v United States , 34 F.3d 748 (9th Cir. 1994).
67.
CERCLA , §107(a) (4).
68.
See, e.g., United States v Bliss, 667 F Supp 1298, 1303 (ED Mo 1987).
69.
E.g., see Kaiser Aluminum & Chemical Corporation v Catellus Development Corporation, 976 E2d 1338 (9th Cir, 1992); Tanglewood East Homeowners v Charles-Thomas, Inc 849 E2d 1568 (5th Cir, 1988).
70.
Geraghty & Miller, Inc v Conoco, Inc., 234 F 3d 917 (5th Cir, 2000).
71.
In United States v Maryland Bank & Trust Co, the court held that bank should be liable as owner under CERCLA in case it foreclosed and purchased facility . See United States v Maryland Bank & Trust Co, 632 F Supp 573 (D Md, 1986).
72.
See CERCLA § 101(20)(A).
73.
See CERCLA § 101(20)(A).
74.
United States v Maryland Bank & Trust Co, 632 F Supp 573 (D Md, 1986).
75.
For example, in United States v Fleet Factors Co, court held that a creditor’s activities constituted participation in management, the reason is it had the ability to exercise control over environmental matters, no matter such control was actually exercised. See United States v Fleet Factors Co, 498 US 1046 (1991).
76.
40 CFR § 300.1100(c)-(d) (1992).
77.
Final Rule on Lender Liability under CERCLA , 57 Fed Reg 18,344 (29 April 1992). See also Jeffery (1991).
78.
Final Rule on Lender Liability under CERCLA , 57 Fed Reg 18,344 (29 April 1992).
79.
Kelley v US EPA , 513 US 1110 (1995).
80.
Pub L No 104-208, 110 Stat 3009-462(1996).
81.
CERCLA § 101 (20)(F)(ii).
82.
See, e.g., in New York v HSBC USA NA, (SD NY, 2007), the State of New York asserted that the lender did not qualify for the secured creditor exemption because it had ‘seized’ the operating funds of the borrower and left the borrower with no financial ability to comply with environmental regulations. In this case, rather than litigate the case, HSBC entered into a Settlement and Consent Decree with the New York State Department of Environmental Conservation, whereby it paid a fine of US$850,000 and state response and enforcement costs totaling US$115,680.
83.
CERCLA § 101 (20)(E)(ii).
84.
CERCLA § 107 (n)(4).
85.
Ahrens and Langer (2008).
86.
See United States v Bestfoods, 524 US 51 (1998).
87.
United States v TIC Investment Co, 118 68 F 3d 1082, 1091-92 (8th Cir, 1995).
88.
Mathias et al. (2006), at [4-10].
89.
See United States v Best foods, 524 US 51 (1998).
90.
In United States v Carolina Transformer Co, the Fourth Circuit declared the corporation’s president was an ‘operator’ where he was in charge of the company and responsible for its operations. The court reasoned that he was liable because he had the power to prevent the release of hazardous waste. See United States v Carolina Transformer Co, 978 F 2d 832 (4th Cir, 1992). In Riverside Market Development Co v International Bldg Products Inc, the Fifth Circuit concluded that a majority shareholder whose only corporate activities were visiting the facility on occasion, reviewing financial statements, and attending periodic officers’ meetings, was not an ‘operator’. See Riverside Market Development Co v Bldg Products Inc, 931 F 2d 327 (5th Cir, 1991).
91.
Under this test, several criteria have been considered by the court: (1) the individual’s degree of authority with respect to hazardous waste disposal; (2) the individual’s position in the corporate hierarchy; (3) actual responsibility undertaken for waste disposal practices; and (4) evidence of responsibility undertaken and neglected, as well as affirmative attempts to prevent unlawful hazardous waste disposal. See Kelley v Thomas Solvent Co, 727 F Supp 1532 (WD Mich, 1989).
92.
The best-known case defining what possession means under CERCLA is United States v Northeastern Pharmaceutical & Chemical Co, where a corporate vice-president authorized the transport of hazardous substances to an unlicenced farm for disposal. The Eighth Circuit ruled that the officer ‘possessed’ the wastes because he (1) had actual control over the waste, (2) approved an arrangement for their transportation, and (3) was directly responsible for deciding how and where they would be discharged. See United States v Northeastern Pharmaceutical & Chemical Co, 810 F 2d 726 (8th Cir, 1986).
93.
See, for example, United States v CDMG Realty Company, 96 F 3d 706 (3d Cir, 1996).
94.
See Applegate and Laitos (2006), at 204.
95.
North Shore Gas Co v Solomon Inc, 152 F 3d 642 (7th Cir, 1998).
96.
See, e.g., in Aluminum Company of America v Beazer East Inc, company that assumed all predecessor’s liabilities prior to enactment of CERCLA was deemed as a successor company. See Aluminum Company of America v Beazer East Inc 124 F 3d 551 (3rd Cir, 1997). Following factors considered by the court in determining whether a company is a mere continuation of the selling company include whether:
1. (1)
  officers, directors and stock of the purchasing company are identical to those of the selling company;
2. (2)
  there is continuity of ownership and control of the company;
3. (3)
  both or only one company exists after the assets have been transferred; and
4. (4)
  the purchasing company paid adequate consideration for the assets.
97.
United States v Carolina Co, 978 F 2d 832 (4th Cir, 1992).
98.
For example, the federal District Court for the Northern District of Texas held that the purpose of CERCLA would be frustrated if a company could avoid liability by dissolving itself. Burlington Northern & Santa Fe Railway Company v Consolidated Fiber Inc, 7 F Supp 2d 822 (ND Tex, 1998). See Fogelman (2005), at 282.
99.
Idylwoods Associates v Mader Capital Inc, 915 F Supp 1290 (WD NY, 1996).
100.
In AM Properties Co v GTE Products Corporation, the issue of conflicting case law and deciding that CERCLA pre-empts state law governing capacity of companies to be sued were discussed, the court held that dissolved companies with assets are persons under CERCLA. See AM Properties Corporation v GTE Products Corporation, 844 F Supp 1007 (D NJ, 1994). See also Global Landfill Agreement Group v 280 Development Co, 992 F Supp 692 (D NJ, 1998).
101.
Burlington Northern & Santa Fe Railway Company v Consolidated Fiber Inc, 7 F Supp 2d 822 (ND Tex, 1998).
102.
AM Properties Co, 844 F Supp 1007 (D NJ, 1994).
103.
In Edward Hines Lumber Co v Vulcan Materials Co, 861 F 2d 155 (7^th Cir, 1988), the federal Seventh Circuit Court of Appeals held that a company that had designed and built a wood processing facility that had become contaminated was not liable as an operator. See Edward Hines Lumber Co v Vulcan Materials Co, 861 F 2d 155 (7th Cir, 1988).
104.
CERCLA lists activities in which fiduciaries can participate without incurring liability such as:
1. (1)
  conducting response action at the facility ;
2. (2)
  inspecting the facility ; and
3. (3)
  administering an already-contaminated facility .
It should be noted that, however, these protections do not apply if the fiduciary’s negligence causes or contributes to the release or threatened release. See CERCLA §107(n)(1)-(5).
105.
Briggs & Stratton Co v Concrete Sales & Services, 20 F Supp 2d 1356 (MD Ga, 1998).
106.
See Fogelman (2005), at 285.
107.
In Canadyne-Georgia Corporation v Bank of America NA, the plaintiff sued the PRP who subsequently died, leading the plaintiff to substitute his estate as the defendant. The court found that the estate had been properly substituted and could be sued. See Canadyne-Georgia Co v Bank of America NA, 174 F Supp 2d 1360 (MD Ga, 2001).
108.
CERCLA § 107(b)(3).
109.
CERCLA § 101 (21).
110.
CERCLA § 107(d)(1).
111.
State and local governments are protected from liability under CERCLA arising from their negligence, but not from their gross negligence or intentional misconduct for any damages or clean-up costs that arise: ‘as a result of actions taken in response to an emergency created by the release or threatened release of a hazardous substance generated by or from a facility owned by another person’. CERCLA § 107(a)(1)-(2).
112.
CERCLA § 107(a)(3).
113.
CERCLA § 119(a)(4).
114.
Fogelman (2005), at 286.
115.
CERCLA § 101 (22).
116.
But see Niagara Mohawk Power Corp v Jones Chemical Inc, 315 F 3d 171 (2d Cir, 2003) (passive movement of hazardous substance over defendant’s property from another’s property was not a ‘disposal’ or ‘release’ where the chemicals spread onto defendant’s property without defendant’s fault). Additionally, a number of actions are specifically exempted by CERCLA , e.g., §101(22) exempted releases in the workplace, emission from motor vehicles, nuclear material from a processing site, and the normal application of a fertilizer because they are covered by other federal statutes. Similar exemptions have been prescribed by section 104(a)(3).
117.
See, e.g., GJ Leasing Co v Union Elec Co, 854 F Supp 539 (SD Ill, 1994); Amland Properties Co v Aluminum Company of America, 711 F Supp 784 (D NJ, 1989).
118.
CERCLA § 101(8).
119.
In BF Goodrich v Betkoski, chemicals are designated as waste in following ways. First, CERCLA §101(14) defines ‘hazardous substances’ by incorporating lists of substances regulated under other federal environmental statutes, such as the Resource Conservation and Recovery Act , Clean Water Act , Clean Air Act , and Toxic Substances Control Act. Second, any substance that ‘may present substantial danger’ when released into the environment could be designate as hazardous under the §102(a). Third, mixtures of hazardous and non-hazardous substances can be hazardous if a CERCLA hazardous substance is somewhere within the mixture. See BF Goodrich v Betkoski, 99 F 3d 505 (2d Cir, 1996).
120.
United States v Alcan Aluminum Co, 990 F 2d 711(2d Cir, 1993); United States v Alcan Aluminum Co, 964 F 2d 252 (3d Cir, 1992).
121.
For example, the Second Circuit has clearly provided that quantity is not a factor when determining CERCLA liability. The reason is that ‘Congress wanted to distinguish liability on the basis of quantity, it would have so provided’. See BF Goodrich v Betkoski, 99 F 3d 505 (2d Cir, 1996). See also United States v Alcan Aluminum Co, 990 F 2d 711 (2d Cir, 1993), in which case the statute on its appearance can be applied to ‘any’ hazardous substance, and it does not impose quantitative requirements. But in Amoco Oil Co v Borden Inc, the case law suggested that a ‘release’ does not occur unless the quantity of the hazardous substance involved actually threatens public health and safety. See Amoco Oil Co v Borden Inc, 889 F 2d 664 (5th Cir, 1989); see also Fox (2001).
122.
Examples of MSW include food and garden waste, paper, clothing, appliances, packaging on consumer products, disposable nappies, office supplies, cosmetics, glass and metal containers, elementary and secondary school science laboratory waste and household hazardous waste. See CERCLA §107(p)(4).
123.
Applegate and Laitos (2006), at 218.
124.
CERCLA §107 (p).
125.
Applegate and Laitos (2006), at 218.
126.
Applegate and Laitos (2006), at 220.
127.
Some jurisdictions assume that the burden of proof falls on the defendant to disprove causation; however, other jurisdictions hold that the plaintiff must establish causation between a release and incurrence of response costs, and they also conclude that such causation is not shown if response costs are incurred merely because of a finding of hazardous substances above background levels. See, e.g., United States v Dico Inc, 136 F 3d 572 (8th Cir, 1998); Liccardi v Murphy Oil USA Inc, 111 F 3d 396 (5th Cir, 1997).
128.
CERCLA § 107 (a)(4)(C).
129.
CERCLA § 107 (a)(4)(C).
130.
For example, the EPA v Sequa Corporation (In the Matter of Bell Petroleum Services Inc) 3 F 3d 889 (5th Cir, 1993).
131.
Kelley v Ei De Nemours & Co, 17 F 3d 836 (6th Cir, 1994).
132.
A person who has resolved its liability to via an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. See Pub L107-118, 115 Stat 2360 (11 Jan 2002).
133.
CERCLA §107 (c).
134.
CERCLA §106 (b).
135.
CERCLA §122. In Gen Elec Co v Jackson, General Electric (GE) challenged the constitutionality of the EPA ’s statutory authority under CERCLA to issue unilateral administrative orders (UAOs). The DC Circuit denied this challenge of and upheld the constitutionality of UAOs. See Gen Elec Co v Jackson, 610 F 3d 110 (DC Cir, 2010).
136.
Failure to follow an UAO may expose the PRP to fines of US$37,500 per day. If the recipient fails to respond and the EPA steps in, a recipient may face punitive damages of up to three times the agency’s costs.
137.
CERCLA §107 (c)(1)(D).
138.
CERCLA §107 (c)(1)(D).
139.
CERCLA §107 (c)(2)(A).
140.
CERCLA §107 (b).
141.
See, e.g., United States v Alcan Aluminum Co, 96 F 3d 1434 (3d Cir, 1996); State of New York v Lashins Arcade Co, 91 F 3d 353 (2d Cir, 1996).
142.
For example, if the facility were located in a region where earthquakes are known to occur, then the owner or operator should have designed the facility to withstand earthquake damage, and the act of God defence would not apply. See Huaiman (2005), at 8.
143.
See, e.g., United States v Shell Oil Company, 294 F 3d 1045 (9th Cir, 2002). More discussion on this case see Bienvenu (2002).
144.
According to CERCLA §107 (b)(3), criteria include following elements:
1. (a)
  a third party was the sole cause of the release or threatened release of the hazardous substance;
2. (b)
  the third party is not the defendant’s employee or agent;
3. (c)
  the third party’s acts or omissions did not occur ‘in connection with a contractual relationship, existing directly or indirectly, with the defendant’;
4. (d)
  the defendant took precautions against any such third party’s foreseeable acts or omissions and their foreseeable consequences; and
5. (e)
  the defendant ‘exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances’.
145.
See also California ex rel Department of Toxic v Neville Chem, 358 F 3d 661 (9th Cir, 2004) (limitations period cannot accrue until after final adoption of remedial action plan).
146.
Applegate and Laitos (2006), at 246.
147.
Applegate and Laitos (2006), at 247.
148.
See, e.g., United States v Mottolo, 26 F 3d 261 (1st Cir, 1994). See also Sullivan and Adams (2007), at 510.
149.
Church and Nakamura (1993). See also Meyer et al. (1995), at 78.
150.
Sullivan and Adams (2007), at 488.
151.
Craig (2010), at 88.
152.
Craig (2010), at 88.
153.
CERCLA § 107(a)(4). Klass (2004).
154.
CERCLA § 107(a)(4). Klass (2004).
155.
For a discussion of the continuing importance of common law claims in contaminated property cases, including strict liability claims, See Maloney (1972); III and Utain (2000); or see also Klass (2004).
156.
Klass (2004).
157.
Sullivan and Adams (2007), at 511.
158.
Xiaobo and Yougang (2007).
159.
Superfund Amendments and Reauthorization Act of 1986, Pub L No 99-499, 100 Stat 1613 (1986).
160.
SARA § 122(g).
161.
Gerrard and Gross (2006), at 39.
162.
SARA § l13 (f)(1).
163.
Judy and Probst (2009).
164.
GAO (2009).
165.
GAO (2009), at 14.
166.
GAO (2009), at 31.
167.
Craig (2010), at 89.
168.
Craig (2010), at 97.
169.
Williams (2005), at 171.
170.
Williams (2005), at 171.
171.
See, for example, Myers et al. (1986); Kakalik and (US) (1988); MEP et al. (2010); Acton (1989); Dixon (1994).
172.
Acton et al. (1992).
173.
Revesz and Stewart (1995), at 172.
174.
Revesz and Stewart (1995), at 171.
175.
Revesz and Stewart (1995), at 172.
176.
Revesz and Stewart (1995), at 171-85.
177.
Meyer et al. (1995), at 183.
178.
State here refers a country with full sovereignty, instead of local governments or states under a commonwealth.
179.
Boyd (1999).
180.
Boyd (1999).
181.
Boyd (1999).
182.
See Acton (1989); see also Revesz and Stewart (1995), at 172.
183.
Acton et al. (1992), at 36.
184.
Such countries are referred to as those have undertaken environmental reforms. See Jaffe and Strode (2008), at 6.
185.
Rhodes v County of Darlington, 833 F Supp 1163 (DSC 1992).
186.
Powell (1991); see also Schwartz and Serebro (2001).
187.
Ahrens and Langer (2008).
188.
Heffernan (2010).
189.
See United States v Northeastern Pharmaceutical & Chemical Co, 810 F 2d 726 (8th Cir, 1986). In this case, the court held that Congress intended to impose the cost on ‘those parties who created and profited from the sites’ based on a discussion of the legislative history and concluding; see also Watson (1996).

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Xiaobo Zhao

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Zhao, X. (2019). Contaminated Land Liability Scheme in the US: Lessons for China?. In: Developing an Appropriate Contaminated Land Regime in China. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-59557-2_5

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DOI: https://doi.org/10.1007/978-3-662-59557-2_5
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