Voluntary Superfund Cleanup: Show Me the Money

On June 11, the US Supreme Court unanimously decided to allow polluters who engage in voluntary Superfund site cleanups to recoup costs from other responsible parties - possibly paving the way for faster cleanups around the country.

• US v. Atlantic Research, case 06-562. US Supreme Court docket. Background and link to opinion from Duke Univ. Law School.

The Bush Administration strongly opposed the court's decision - not surprising, since AP estimates the federal government currently has an environmental liability of more than $300 billion, based on federal data.

Are there stalled Superfund projects in your area? This might be a good time to check in with the potentially responsible parties to see whether they're now considering footing the cleanup bill up front. Pay particular attention if they mention something called "section 107." The Supreme Court decision may encourage more voluntary cleanups by increasing the odds that other polluters will eventually pay their share. In the past, voluntary cleanups commonly ran higher financial risks if other responsible parties resisted paying.

The San Gabriel Valley (CA) Tribune published an excellent example of how to localize this story, by staff writer Fred Ortega.

Other papers have run editorials on this decision, including the Contra Costa (CA) Times and the Tacoma (WA) News Tribune.

ABOUT THE CASE:

Environmental law attorney Scott Deatherage recently blogged, "These two cases are extremely important for parties who pay more than their fair share to cleanup contaminated sites, as they set forth how parties can recover from others who are also liable, but have not taken action to address environmental contamination of the relevant site. The ability of parties to recover costs from other potentially responsible parties ... is a critical public policy issue in terms of encouraging parties to take action to remediate contaminated sites."

A backgrounder by Michael Kasiborski, Medill News Service, summarized this case. "Atlantic Research Corp. was hired by the US government to retrofit rocket motors. In the process, rocket propellant, removed from the motors and then burned, contaminated the soil and groundwater near its Alabama plant[.] Atlantic voluntarily paid to clean up the site and incurred all of the costs. ... The question before the Court [was] whether a party can recover costs from another potentially responsible party to clean up a hazardous waste site before some legal action is taken against the first party. This case deals with Section 107 of the Superfund - [an important distinction] because the high court decided a similar case two terms ago regarding Section 113 ... and decided that Section 113 could only be invoked if legal action had previously been taken against a responsible party. ... Atlantic ... invoked 107 as its justification to sue the government."

The earlier case, Cooper v. Aviall, was covered in the Nov. 10, 2004, Tipsheet.

• Attorneys for Atlantic Research: Thomas O. Armstrong or Frank L. Steeves, Von Briesen & Roper, 414-276-1122.
• Attorney for US. Dept. of Justice: Paul D. Clement, 202-514-2217.

This case is a big issue for many states. For instance, WA State Attorney General Robert McKenna recently noted, "more than 1,200 sites are listed on [our] state's contaminated sites list. Of these, approximately 250 are in the process of being cleaned up by liable parties under the state's formal oversight. Because the state does not have resources to address every known site in the state, the remaining sites will likely be addressed as voluntary cleanups. ... The ability to obtain contribution to the costs of cleanup from other parties who have liability for a contaminated site is one of the key incentives for parties to perform these voluntary cleanups" (June 11, 2007, release).

• Thirty-seven states joined WA in filing an amicus brief in US v. Atlantic Research: AL, AK, AR, CO, CT, FL, GA, HI, ID, IL, IN, IA, KY, LA, ME, MD, MA, MI, MN, MS, MO, MT, NV, NH, NJ, NM, NY, NC, ND, OH, OR, RI, TN, TX, UT, VT, and WI.
• Local governments are interested in this case, too. The US Conference of Mayors also filed an amicus brief.
• Links to more briefs in this case.
• Still more analysis and briefs from Ross Runkel's Law Memo.

ADDITIONAL SOURCES:

• Find Superfund sites in your area.
• Superfund law expert: A. Dan Tarlock, Chicago-Kent College of Law, 312-906-5000 (bio).
• What questions about Superfund remain open? Read this analysis from McDermott, Will, Emery (free registration required).