By Ilana R. Morady and Craig B. Simonsen
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) empowers the U.S. Environmental Protection Agency (EPA) to issue an order “as may be necessary to protect public health and welfare and the environment.” A party receiving such an order when not liable under CERCLA for response costs may petition for and obtain reimbursement of costs incurred in complying with the order.
The EPA Environmental Appeals Board (EAB) recently issued a decision that emails and oral communications are not an “order” under CERCLA 106(a) for purposes of reimbursement under 106(b). Petitioner, American Home Mortgage Servicing, Inc. (AHMSI), sought reimbursement of $200,000 in costs, plus interest, it incurred in responding to what it characterized as an order issued under section 106(a) of CERCLA. The EAB issued its Final Order Denying Reimbursement at In Re American Home Mortgage Servicing, Inc., Petition No. 10-02 (May 27, 2011). The EAB found that AHMSI did not receive an order issued under CERCLA section 106(a).
Although it did not receive a document entitled section 106(a) administrative order, AHMSI claimed that a series of emails and oral communications received from an Assistant Regional Counsel in the Region’s Office of Regional Counsel is tantamount to receipt of a section 106(a) order. The EAB found that AHMSI’s evidence of an order lacked three principal features: an enforceable directive, sanctions, and formality.
The EAB indicated that the language in the email communications that AHMSI received fell considerably short of formally invoking CERCLA section 106 authority, and the emails did not expressly compel certain clean-up work, or include sanctions for failure to do so. Further, “the methods of communication – email and telephone conversations – reflect an informality that is at odds with the formal way that EPA issues CERCLA section 106(a) orders. Moreover, the sender of these communications was an Assistant Regional Counsel, who has not been delegated the authority to issue section 106(a) orders.”