Brave New WQARF

Tales from the Superfund Frontier

by Karen L. Peters and Christopher D. Thomas

Two years of tumult have concluded, and the Legislature has transformed Arizona’s Water Quality Assurance Revolving Fund (WQARF) program¹ for remediating historically contaminated soil and groundwater from a much-scorned enforcement regime into a public-works cleanup program supported by $18 million of annual tax revenues and proportional liability.² Unique among the states — and constitutional or not — the Legislature also has chosen to preclude the state from employing more advantageous federal law. Fingers are crossed as the new WQARF gets under way, but some are muttering silent curses, hoping for failure and an excuse for federal intervention.

Like its federal counterpart, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund),³ WQARF has been criticized as both a lawyers’ full-employment act and a completely ineffective means for addressing contaminated soil and groundwater.⁴ Both statutes have historically employed a joint-and-several liability scheme, designed to enable recovery of cleanup costs from one or more "deep pockets."⁵ National, broad-based criticism has not materialized into meaningful statutory change at the federal level. In Arizona, however, joint liability has been a lightning rod prompting bottom-up reconsideration of the way we deal with contaminated sites.⁶

Background Regarding WQARF Reform

Arizona’s WQARF reform debate began in January 1996, when then-Representative and House Environment Committee Chairman Russell "Rusty" Bowers (R-Mesa) introduced House Bill 2458 (WQARF; Regulatory Reform). Responding to horror stories of bureaucratic sabre-rattling and bungled investigations (some arguably apocryphal), Bowers proposed to eliminate joint and retroactive liability for environmental cleanups. After lengthy legislative hearings featuring testimonial after testimonial of alleged governmental abuse, plummeting profitability, insomnia, family strife and general angst, it looked like HB 2458 was going places. But it didn’t. Why not? Money, plain and simple.

House Bill 2114

Without joint liability, somebody gets stuck paying for "orphan shares," i.e., shares attributable to parties who cannot pay because of insolvency, death or other good reason.⁷ Without retroactive liability, even the viable responsible parties are let off the hook, since most groundwater contamination is the result of disposal prior to WQARF’s initial passage in 1986.⁸ In the face of this problem, WQARF reform proponents took repeal of retroactive liability off of the table. Elimination of joint liability, however, remained in play, subject to funding for orphan shares. Business interests wanted nothing short of a joint liability repeal; the state, supported by water providers and environmentalists, demanded no repeal without adequate funding. Bowers brokered a delicate compromise, leading to passage of a substitute bill — House Bill 2114.⁹

The compromise was a legally nonsensical "temporary repeal" of joint liability¹⁰ that forced both sides to continue negotiating after the legislative session adjourned. Absent legislation during the 1997 session, joint liability would return on July 31, 1997. Business wanted to make the repeal permanent, which required finding the money to pay for it. Better still, if funding for orphan shares was identified and joint liability under WQARF gone for good, business might be able to capture the Holy Grail of WQARF reform: preventing the state from using the federal Superfund statute.¹¹ Short of that, HB 2114 established the Joint Select Committee on WQARF to examine ways to render the program "workable," a term so broad as to include virtually all areas of inquiry.¹²

Clean Sites West Study

To help address the threshold problem of money, HB 2114 authorized the Arizona Department of Environmental Quality (ADEQ) to commission a study to estimate cleanup costs at the 28 existing WQARF Priority List sites. ¹³ ADEQ retained Clean Sites West, Inc., a San Francisco-based nonprofit organization, to rank the sites according to risk, determine appropriate cleanup methods, and estimate costs to implement the cleanup. Clean Sites completed its analysis in November, 1996.¹⁴ Clean Sites estimated the total costs for addressing the 28 sites at between $350 and $600 million, net present value, depending upon the cleanup method to be selected.¹⁵ The estimates begged the question of where to find that kind of money. Depending on what the revised liability scheme is, more or less of that total would have to come from taxpayers.

Groundwater Cleanup Task Force

Reaching consensus on the appropriate liability scheme, among other things, initially was the job of the Groundwater Cleanup Task Force, a body appointed by ADEQ and the Arizona Department of Water Resources (ADWR) in February, 1996. The Task Force consists of 37 members representing a wide array of interests — public agencies, businesses, utilities, mines, cities, water providers, environmental consultants, and affected citizens from around the state. Through seven open subcommittees, more than 200 people eventually helped formulate the Task Force’s recommendations.¹⁶ After protracted debate, the Task Force gave up on reaching consensus regarding a preferred liability approach. Instead, two alternatives — "source liability" and "proportionate share" liability — were presented.¹⁷ Generally speaking, the former proposal would have obligated polluters to remediate on-site contamination and left commingled off-site plumes for remediation by ADEQ. The latter proposed that responsible parties retain proportional liability for their contamination, regardless of location or level. Because of significant cost disparities between the two proposals, the Task Force tabled source liability before the December holidays.¹⁸ On December 23, 1996, the Task Force presented to the Joint Select Committee consensus recommendations on all other aspects of WQARF reform.¹⁹ Bill drafting commenced in January, 1997 and continued through mid-April. In the end, legislation almost everyone involved "could live with" passed in the form of Senate Bill 1452, Chapter 287, 1997 Laws.²⁰

Selected Provisions of SB 1452

In addition to creating an innovative liability allocation scheme, described further below, SB 1452 addressed numerous other thorny issues.

Selection of Cleanup

Methods

Selection of groundwater cleanup goals under both CERCLA and WQARF has been troubled from the start. Both statutes set forth a laborious process for determining cleanup targets and methods.²¹ Worse, legal standards for groundwater cleanup frequently have failed to acknowledge technical reality. United States Environmental Protection Agency (EPA) policy generally has been to require pumping and treating of contaminated groundwater to Safe Drinking Water Act standards for tap water. The costs of "pump and treat" are often prohibitive, and the likelihood of success doubtful at many sites.²² Because parties have been understandably loath to commit to achieving the impossible, achievement of the reasonable also has been delayed. SB 1452 allows increased flexibility in selection of groundwater remedies. ADEQ is authorized to adopt rules for remedy selection that incorporate analysis of a range of cleanup alternatives, from no action to "plume remediation."²³ Significantly, the bill clarifies that cleanup need not always result in achievement of tap water standards in the aquifer itself.²⁴

Impacts on Existing Wells

On request, ADEQ now may fund water treatment, well replacement, alternative water supply or other actions necessary to address hazardous substances migrating from a WQARF site that render the well water unusable for its intended purpose.²⁵ Such "interim remedial actions" are authorized only where the requesting party (presumably the well owner) is not responsible for the contamination, and in some circumstances the advanced funds must be paid back to ADEQ.²⁶ When a final remedy is selected for a WQARF site, it must permanently address wells impacted by the site and maintain the water supply available to the well owner.²⁷

WQARF Site Registry

SB 1452 abandons the notion of a "Priority List" of sites in favor of an all-inclusive site registry.²⁸ The old Priority List was only one of several lists maintained by ADEQ — the significance of a site’s inclusion on the Priority List was merely that the state was authorized to spend WQARF funds for study or cleanup, not the site’s level of contamination or risk to human health. The new site registry will identify every site in the state that ADEQ has investigated and evaluated using a new site scoring model developed by the Task Force Site Prioritization Subcommittee.²⁹ More importantly, the registry will describe the status of investigative and remedial actions at each site.³⁰ Thus, a quick look at the registry will reveal whether a private party is voluntarily conducting a cleanup, or if ADEQ is in the very early stages of investigation.

Petroleum Inclusion

Since CERCLA’s enactment in 1980, petroleum products have been excluded from the definition of hazardous substances.³¹ The same has been true of WQARF since its enactment in 1986. SB 1452 abandons that tradition, allowing releases of petroleum and its constituents to be addressed under WQARF.³² WQARF now applies to releases where underground storage tank laws and regulations are inapplicable and the release has migrated in groundwater beyond the property boundaries.³³

Will Allocation Work?

The new WQARF liability scheme is based upon the "proportionate share" model the Task Force considered. SB 1452 establishes a non-judicial allocation process conducted in three stages. If it works as intended, few, if any, parties will keep going until the third stage.

Stage 1 — ADEQ Allocation and Discounted Settlement

After a site is registered, ADEQ will evaluate whether to pursue responsible parties for the costs of site investigation and cleanup. If so, the agency will initiate a search for responsible parties.³⁴ In the past, ADEQ rarely conducted such investigations, because under a joint liability system the agency needed merely to identify the most obvious targets, then leave contribution claims up to them. Thus, the state’s authority to gather necessary information about responsible parties hasn’t really been tested.³⁵ Assuming the authority is adequate and the agency is not bogged down in litigation over its scope, ADEQ will assemble a preliminary list of potentially responsible parties (PRPs).³⁶

This preliminary list, together with a description of the proposed remedy for the site, is sent out to each person on the list, as well as members of the surrounding community. Named PRPs have an opportunity to identify additional PRPs and to propose methods of allocation.³⁷ After public comment, ADEQ selects the site remedy and prepares an allocation of responsibility among parties it has determined are liable. ADEQ sets forth the allocation in a notice letter, which also estimates the cost of the selected remedy.³⁸ So, for example, a notice letter might indicate that Schmoe’s Plating Shop is allocated a 20 percent share at a site where the remedy is estimated to cost $10 million. This equates to liability of $2 million. Ouch.

Schmoe’s reaction to that notice letter is tempered, because somewhere in the not-too-fine print the letter also says that the state is ready to make a deal. Settle within120 days and receive a 25 percent discount — $500,000 off for Schmoe.³⁹ He can settle, get a covenant not to sue from the state, and get protection against contribution claims by third parties.⁴⁰ Ideally, most parties will choose this option, reducing transaction costs to a fraction of what they would be if the parties litigated liability. Parties like Schmoe, however, probably aren’t going to jump at a $1.5 million settlement. He has two other settlement options. If his business qualifies, ADEQ must accept settlement based upon a flat 10 percent of his average annual gross income, up to $200,000.⁴¹ If his business does not qualify, he can nonetheless plead financial hardship and attempt to negotiate a settlement for an amount less than his allocated share.⁴²

Stage 2 — Allocation by Neutral Third Party

Experience dictates that not all responsible parties are going to accept the state’s allocation, even with the incentive of a substantial discount. Many question ADEQ’s neutrality because it has an interest in minimizing the orphan share. In any event, if there are parties that have not been tempted to settle within 90 days after receiving a notice letter, ADEQ will round them up and an allocation hearing will ensue.⁴³

The parties select a neutral allocator (or, if no agreement on a neutral party can be reached, one is appointed by the Superior Court Presiding Civil Judge). This allocator has the power to subpoena and swear witnesses, and has broad discretion in conducting the allocation proceeding.⁴⁴ The allocator sets a hearing date, and the parties provide a disclosure statement. There is no burden of proof regarding the proportionate share of any party in the allocation proceeding — an oddity born of compromise. The state must prove liability, then everyone just dukes it out regarding shares. Within 60 days after the hearing, the allocator issues a written report of findings and the proportionate shares of liability.⁴⁵

WQARF then provides for a 90-day cease-fire, during which ADEQ will negotiate settlements with willing parties based upon either the allocator’s report, ADEQ’s original allocation, or some other plausible figure. ⁴⁶ On the 90th day, the allocator’s report binds non-settling parties. ADEQ may obtain a judgment against a non-settlor based upon the share determined in the allocator’s report.

Stage 3 — Superior Court Challenge

The truly desperate and frustrated may challenge the allocator’s report in Superior Court. But beware — the disincentives for Superior Court litigation are many, first and foremost the need to read and understand A.R.S. § 49-287.07.

Simply put, the state or the plaintiff, as applicable, bears the burden of establishing WQARF liability against the defendant(s), but after that, it’s a free-for-all that the court has to sort out on its own.⁴⁷ If the non-state plaintiff loses, it must pay a two percent premium on top of its share. If the state is the plaintiff and loses, the defendant gets a two percent discount off its share.⁴⁸

The goal of all of this is to promote early settlement; the earlier, the better. Will it work? It depends upon how ADEQ and the Attorney General’s Office use it. Clearly, at discrete sites where four or five parties have contributed to a problem, non-judicial allocation is vastly superior to the traditional scheme. It is at Arizona’s larger WQARF study area sites, many square miles in size, that allocation could break down into a hopeless morass if mishandled. To be successful, ADEQ must break the big sites into digestible chunks, tackling sources of contamination first, then dealing with more regional concerns.

Is Preclusion Constitutional?

The critical element of a workable WQARF allocation process is that it be used, not circumvented by reliance on other cost recovery mechanisms. This logic helped to persuade the Governor’s Office and Legislature to approve "preclusion" in SB 1452. "Preclusion" is shorthand for the statutory prohibition against initiation by the state of lawsuits seeking imposition of joint liability under the federal Superfund statute.⁴⁹ It drew fire from environmentalists and Democrats, who argued, among other things, that preclusion violates either the United States or Arizona Constitutions. Precluding private parties from employing federal law would be an obvious violation of the Supremacy Clause,⁵⁰ but the issue is trickier when the state merely acts to preclude itself.

Preemption of state law occurs: (1) when federal law explicitly prohibits state action; (2) when the federal law "occupies the field" through enactment of a comprehensive plan of federal control; or (3) when enforcement of state law would frustrate the purpose of a federal statute.⁵¹ CERCLA neither expressly prohibits state action nor completely displaces state action.⁵² Indeed, CERCLA expressly preserves the right of states to maintain additional liability provisions. Thus, preclusion is preempted only if it frustrates the purposes of CERCLA.⁵³ For instance, Courts have found that CERCLA pre-empts local zoning ordinances that impede implementation of EPA-selected remedies.⁵⁴

Discerning CERCLA’s purpose is the central question. Years of litigation have boiled the answer down to two components. First, CERCLA gives government the tools to promptly and effectively respond to hazardous substance contamination. Second, CERCLA attempts to place the ultimate financial burden of such response on those responsible for the problem, i.e., the "polluter pays."⁵⁵ Are these purposes frustrated by preclusion? Preclusion simply takes away the tate’s ability to impose joint liability — which was a creation of the courts and not universally applied to begin with.⁵⁶ Arguably, the "polluter pays" concept is intact, albeit only on a proportionate share basis. Whether preclusion is preempted depends upon the courts’ view of whether joint liability constitutes a necessary and intended "tool" that Congress wanted states to use to achieve prompt and effective cleanup. Legislative history suggests so, but years of practical application might suggest otherwise.

Like most constitutional questions, the best answer is a firm maybe. So long as orphan share funding holds out, there will be no incentive for parties to litigate the issue. If funding ever fails, doubtless this question will be addressed in a courtroom near you.

What is more certain is that the Legislature has created dramatic incentives for even private parties to use WQARF rather than CERCLA. Opting for the allocation process allows parties to take advantage of early settlement discounts and the availability of orphan share funding. Because WQARF defines "orphan shares" by reference to the outcome of the allocation process of A.R.S. § 49-287, orphan share funding apparently is unavailable to those who short-circuit the process by initiating CERCLA litigation. Even at non-Registry sites — where orphan share funding is not available — WQARF has the benefit of certainty; A.R.S. § 49-285.H states that orphan shares shall be proportionally and equitably distributed in private-party litigation. In private-party CERCLA litigation, it remains unclear whether working plaintiffs, defendants, or all parties share this burden.⁵⁷

Conclusion

The Arizona WQARF experiment is under way. Interim rule packages are being prepared and ADEQ is signing contracts for implementation. EPA is watching closely. It has been suggested that it will be years before the drafters of SB 1452 know what they have wrought, and that perhaps a series of technical corrections bills will be necessary to work out the bugs. So, what else is new? For now, at least, there is funding and political momentum. Cross your fingers or mutter a curse, we’ll find out soon enough.

Karen L. Peters and Christopher D. Thomas practice environmental litigation and counselling at Squire, Sanders & Dempsey L.L.P. in Phoenix. Ms. Peters is also co-chair of the Groundwater Cleanup Task Force.

ENDNOTES:

1. A.R.S. §§ 49-281 et seq.
2. According to the Environmental Law Institute, only five other states (Alabama, California, Illinois, Tennessee and Utah) have a state Superfund scheme that provides for proportional liability. Environmental Law Institute, "An Analysis of State Superfund Programs: 50-State Study, 1995 Update" (1996), p. 44.
3. 49 U.S.C. §§ 9601 et seq.
4. Certainly neither WQARF nor CERCLA has been overwhelmingly effective, but arguments that the statutes generate more litigation than cleanup are frequently overstated. For instance, during the 1980s, CERCLA critics complained that fewer than 70 of the 1,200-odd sites on the National Priorities List (NPL) had been cleaned up and delisted, obviously a lousy success rate if accurate. See, e.g., U.S. General Accounting Office, "Superfund: Issues that Need to be Addressed Before the Program’s Next Reauthorization," GAO/T-RCED-92-15, at 3, 4 (Oct. 29, 1991). Left unstated was the important fact the U.S. EPA policy at the time was not to delist sites until after both cleanup was complete and a five-year review conducted. See 55 Fed. Reg. 8666, 8699 (Mar. 8, 1990). Similarly, complaints about CERCLA generating disproportionate attorney’s fees often fail to distinguish fees in collateral litigation regarding the scope of comprehensive general liability ("CGL") policies. Cf. Acton and Dixon, "Superfund and Transaction Costs: The Experiences of Insurers and Very Large Industrial Firms (Rand Institute, 1992) (transaction costs constitute 19 percent of site costs).
5. 42 U.S.C. § 9607; A.R.S. §§ 49-283, 285 (1986). Subject to limited defenses, both statutes generally impose strict and retroactive liability for hazardous substance remediation upon those who currently own or operate contaminated "facilities," those who owned or operated them in the past while hazardous substances were being disposed there; those whose hazardous substances were disposed there; and those who transported the substances to the site, if they selected it. Id.
6. Despite the theoretical risk of joint liability, reports of heavy-handed enforcement by ADEQ have been greatly exaggerated by those unable or unwilling to realistically assess WQARF liability exposure. Only rarely has the state used the leverage of joint liability in pursuing CERCLA litigation, most prominently in litigation regarding the Nineteenth Avenue Landfill National Priorities List site jointly initiated in 1989 with the City of Phoenix. State of Arizona and City of Phoenix v. Motorola, et al., 139 F.R.D. 141, 149 (D. Ariz. 1991). Industry later persuaded the Arizona Legislature to prohibit the state from pursuing joint CERCLA litigation without the personal approval of the Governor. 1996 Arizona Laws, Ch. 259 (H.B. 2114), Section 18.C. Nevertheless, private parties conducting cleanups in Arizona and elsewhere have commonly sought the benefit of joint and several liability rulings. See, e.g., The Pinal Creek Group v. Newmont Mining Corp., 926 F. Supp. 1400 (D. Ariz. 1996), reversed on appeal, 1997 WL 362462 (9th Cir., July 2, 1997).
7. A.R.S. § 49-281(10). A consultant to ADEQ later estimated that orphan shares comprise 28 percent of the proportionate liability of Arizona’s 28 WQARF Priority List Sites. Clean Sites West, Inc., "Evaluation of Risks, Costs, and Liability Alternatives for Arizona WQARF Sites," November 1996, p. ES-8.
8. Cf. "Evaluation of Risks," p. ES-8 (eliminating retroactive as well as joint liability would create an additional funding need of $310 million, net present value.)
9. Chapter 259, 1996 Arizona Laws. See also Peters and Thomas, "Untangling The Web of WQARF — Arizona’s Superfund Reform," Arizona Attorney Vol. 33, No. 1 (August/September 1996).
10. Ch. 259, 1996 Arizona Laws (H.B. 2114), Sections 15 and 16 (providing for resumption of joint liability on and after July 31, 1997).
11. Because WQARF has always been viewed as a weak counterpart to CERCLA, both the state and private parties traditionally have litigated under CERCLA. See Swindle and Thomas, "Toxic Tort, Superfund, and Environmental Insurance Coverage Litigation: Staying on Top of the Changing Wave," Arizona Attorney Vol. 31, No. 7 (March 1995).
12. Ch. 259, Section 14.
13. Ch. 259, Section 15.
14. "Evaluation of Risks."
15. "Evaluation of Risks." The range resulted from different assumptions about the necessity for full restoration of contaminated aquifers to drinking water standards (as opposed to containment of plumes) and for relatively more expensive synthetic liner caps at landfill sites. According to Clean Sites, seeking full restoration would add $160 million to the estimated costs. Id. at p. ES-5. Using modified assumptions, ADEQ later estimated the cleanup costs over the next ten years at $287.9 million. "ADEQ Cost Estimates, WQARF Priority List Sites," December 15, 1996. This figure was substantially below a seat-of-the-pants estimate of $1.2 billion calculated by ADEQ during 1996 WQARF negotiations.
16. The Herculean effort of the Task Force is probably unprecedented in Arizona public policymaking. During the summer and fall of 1996, Task Force members met virtually every day hammering out the framework of a new WQARF program. By November, 1996, approximately 10,000 person-hours had been logged to the effort. By the time WQARF legislation was signed by the Governor on April 29, 1997, no one was still counting the hours.
17. "Groundwater Cleanup Task Force Final Report," December 23, 1996. Appendix I.
18. The Source Liability Proposal had the qualified support of ADEQ until its proponents defined "source" to mean only soil contamination and relatively concentrated groundwater contamination. ADEQ calculated that the definition was so restrictive that only four of the 18 WQARF Priority Sites with solvent contamination in groundwater would have a "source" requiring private-party response. Memorandum of Ethel DeMarr to Groundwater Cleanup Task Force, November 4, 1996. Perhaps the political coup-de-grace for the Source Liability Proposal was administered on October 2, 1996 by Motorola Inc., Arizona’s largest manufacturer. Motorola issued a press release noting that it had spent $73 million on investigation and cleanup of WQARF and CERCLA sites during the past 13 years and stating that it would continue to remediate its own historic contamination regardless of the fate of the Source Liability Proposal.
19. "Groundwater Cleanup Task Force Final Report," December 23, 1996.
20. The history of environmental legislation in Arizona largely has been written by a series of unsuccessful litigants seeking relief from the Legislature. Most entertaining among recent such attempts was SB 1448, introduced during the 1997 legislative session. The flatly unconstitutional special legislation, which never progressed to committee, would have required ADEQ to resolve for $250,000 the alleged Superfund liability of American Linen Supply Company ("ALSCO") with respect to groundwater contamination at a dry cleaning site in west-central Phoenix. ALSCO later agreed to pay $2 million to resolve this liability. State of Arizona v. ALSCO, No. CIV 97-1061 PHX SMM (D. Ariz.) (consent judgment entered on July 9, 1997).
21. CERCLA and WQARF do not set forth their own cleanup criteria but rather require that applicable or analogous cleanup criteria from other environmental programs be adopted as appropriate. 42 U.S.C. § 9621; A.R.S. § 49-285.D; Ariz. Admin. Code §§ R18-104, 108, 109. The Safe Drinking Water Act’s Maximum Contaminant Levels ("MCLs") are commonly selected criteria for groundwater remedies. 40 C.F.R. § 300.430(e)(2)(i).
22. Recent studies have concluded that restoration of groundwater at many sites may either be infeasible or take decades if not centuries to complete. See, e.g., National Research Council, "Alternatives For Ground Water Cleanup" (National Academy Press 1994), p. 213 ("[I]n a number of cases, existing groundwater cleanup goals cannot be met with current technologies").
23. A.R.S. § 49-282.06.B.4.
24. A.R.S. § 49-282.06.D.
25. A.R.S. § 49-282.03.A
26. A.R.S. § 49-282.03.B and C.
27. A.R.S. § 49-282.06.B.4(6).
28. A.R.S. § 49-287.01.D.
29. Chapter 287, Section 56(D); "Groundwater Cleanup Task Force Final Report," December 1996, Appendix C (Final Report on the Proposed Revision to the Arizona Water Quality Assurance Revolving Fund Eligibility and Evaluation Form, November 12, 1996).
30. A.R.S. § 49-297.01.D.
31. 42 U.S.C. § 9601(14).
32. A.R.S. § 49-283.02.
33. Id.
34. A.R.S. §49-287.02.
35. A.R.S. § 49-288.
36. A.R.S. § 49-287.04.
37. Id.
38. A.R.S. § 49-287.05.
39. A.R.S. § 49-287.05.A(9).
40. A.R.S. §§ 49-287.05.C., 49-292; 42 U.S.C. § 9613(f).
41. Small businesses with average gross income (based on the two preceding years) less than $2 million are eligible for this special settlement. A.R.S. § 49-292.01.
42. A.R.S. § 49-292.02.
43. A.R.S. § 49-287.06.
44. A.R.S. § 49-287.06.
45. Id.
46. Id.
47. A.R.S.§ 49-287.07.D.
48. A.R.S. § 49-287.07.E.
49. A.R.S. § 49-287.B. The state also is precluded from seeking similar relief under the citizens’ suit provision of the federal hazardous waste statute, Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972.
50. U.S. Const., Art. VI, Cl. 2. It is well-settled that states cannot enact legislation which interferes with substantive rights otherwise available to litigants under federal law. See, e.g., Felder v. Casey, 487 U.S. 131, 138 (1988).
51. See, e.g., El Paso Natural Gas v. Mohave County, 133 Ariz. 59, 63, 649 P.2d 262, 266 (Ariz. 1982).
52. See, e.g., Witco Corp. v. Beekhuis, 38 F.3d 682, 687 (3rd Cir. 1994).
53. See, e.g., California Fed. Savings and Loan Ass’n v. Guerra, 479 U.S. 272, 280-81, 107 S. Ct. 683, 689 (1987); Kadera v. Superior Court, 187 Ariz. 557, 561, 731 P.2d 1067, 107 (Ariz. App. 1997) (quoting Fidelity Fed. Savings and Loan Ass’n v. de las Cuesta, 458 U.S. 141, 153, 102 S. Ct. 3014, 3022 (1983).
54. U.S. v. Denver, 100 F.3d 1509, 1512-13 (10th Cir. 1996).
55. See, e.g., Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st Cir. 1986).
56. See U.S. v. Chem-Dyne, 572 F. Supp. 802 (S.D. Ohio 1983).
57. See, e.g., U.S. v. Kramer, 953 F. Supp. 592, 593-95 (D.N.J. 1997) (choosing to equitably allocate such shares without regard to parties’ case posture).