Kleeman and Graves: U.S. Supreme Court Clarifies Superfund Law and Provides Cautionary Tale

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Real estate and environmental attorney Alexandra Kleeman and environmental compliance attorney James Graves contributed an article to Reuters Legal News titled “U.S. Supreme Court clarifies Superfund law and provides cautionary tale,” published July 1, 2021. The authors discuss a recent U.S. Supreme Court decision holding that a consent decree under the Clean Water Act (CWA) does not trigger a three-year limitation period to bring a contribution claim under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The decision revives the potential for Guam to seek contribution from the U.S. Navy for its share of a $160 million cleanup of a landfill.

After using the World War II-era Ordot Landfill in Guam for decades for disposal of munitions and toxic waste, the U.S. Navy unilaterally conveyed the unlined and uncapped landfill to Guam. Rain and surface water filtering through the site had carried hazardous substances to the Pacific Ocean. After the enactment of CERCLA in 1980, Guam requested that cleanup of the landfill be accomplished under the new regulation, but the U.S. Environmental Protection Agency (EPA) decided that the site would be better addressed through CWA enforcement.

In 2004, the EPA and Guam entered into a CWA consent agreement, which required Guam to pay a penalty, as well as design and install a cover, and close the landfill. Based on the Navy’s use of the landfill to dispose of hazardous waste, in 2017 Guam sued the U.S. under CERCLA for recovery of its remediation costs. The U.S. argued for dismissal of the suit on the basis that the CWA consent decree, which did not refer to CERCLA at all, triggered the availability of a CERCLA contribution claim.

In deciding the case, the Court looked at CERCLA’s definition of “contribution,” – a “tool for apportioning the burdens of a predicate ‘common liability’ among the responsible parties” – and concluded that the “most obvious place to look” for that common liability is CERCLA, and a resolution of CERCLA-specific liability is required to trigger the availability of the contribution action.

According to the authors, the Court’s decision will mean that parties will no longer need to guess whether a settlement under another statute triggers the availability of a CERCLA contribution action, which then becomes the party’s only viable CERCLA remedy, with attending three-year limitation period.

They conclude: “Above all, despite the spotlight of clarity provided by the Guam case, CERCLA remains a murky, complex, and confusing terrain with expensive traps for the unwary. As one court put it, ‘[W]ading through CERCLA’s morass of statutory provisions can often seem as daunting as cleaning up one of the sites the statute is designed to cover.’”

For further information on the decision, see our legal alert.

Key Contributors

James T. Graves
Alexandra Kleeman
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