Section 400(h) of the National Contingency Plan (NCP) contains an unremarked, yet problematic, last sentence. The NCP, of course, governs response actions under the federal Comprehensive Environmental, Response, Compensation and Liability Act (CERCLA or Superfund); the government cannot recover costs incurred inconsistently with that regulation. 42 U.S.C. § 9607(a)(1-4)(A).

Section 400(h) provides:

(h) Oversight. The lead agency may provide oversight for actions taken by potentially responsible parties to ensure that a response is conducted consistent with this part. The lead agency may also monitor the actions of third parties preauthorized under subpart H of this part. EPA will provide oversight when the response is pursuant to an EPA order or federal consent decree.

40 C.F.R. § 300.400(h). The “lead agency” can be any state or federal agency in charge of a response action, provided the state is operating under a cooperative agreement (essentially a Superfund grant) or a Superfund Memorandum of Agreement. Id. § 300.5. Indeed, the NCP encourages state involvement. Id. §§ 300.500 to .525.

So what does that last sentence mean? It was added in response to comments received on the proposed rule to the effect that “EPA will provide site oversight, and not that it ‘may’ provide oversight.” See 55 Fed. Reg. 8666, 8692 (Mar. 8, 1990). By calling out “EPA,” the language arguably distinguishes the specific obligations of “EPA” from the obligations of the “lead agency,” which could be any agency. That is, if the “lead agency” may provide oversight generally, why does EPA have to provide oversight specifically when the response is pursuant to an EPA order or federal consent decree?

Does that mean that oversight of work under an EPA order or a federal consent decree by an agency other than EPA cannot be consistent with the NCP? Would costs incurred by a state in providing oversight be unrecoverable?

One district court has ruled “the objection [to recovery of costs of state oversight] is without merit since there is nothing in the National Contingency Plan that suggests that EPA cannot use a state agency to meet its oversight responsibilities.” United States v. NCR Corp., No. 1:10-cv-910-WCG, slip op. at 12 (E.D. Wis. July 13, 2018). But as a condition to a consent decree entered March 14, 2019, that decision was vacated by agreement of the parties. United States v. NCR Corp., No. 1:10-cv-910-WCG (E.D. Wis. Mar. 14, 2019).

The U.S. v. NCR reading makes some sense, but if that were what EPA intended the third sentence to mean, the sentence is oddly drafted in context. Should it not use a verb other than “provide” or a subject more generic than “EPA”? When a state undertakes an oversight role, careful litigators should take this issue into account.

For more on CERCLA, click here.