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April 05, 2007
Washington files brief urging fairness in voluntary Superfund clean-ups

OLYMPIA…The state of Washington led 37 other states, the District of Columbia and Commonwealth of  Puerto Rico today in submitting a “friend of the court” brief to the U.S. Supreme Court in a case regarding the authority to recover costs in the voluntary clean-up of contaminated sites.

“Washington took the lead in this case because it will encourage more fair and expeditious clean-up of contaminated sites,” said Attorney General Rob McKenna.  “Those who take the initiative to voluntarily clean-up contaminated sites should enjoy the same protections they would have obtained if they had been forced to clean-up the site through court action.”

The case, United States v. Atlantic Research Corp., involves a question under the federal Comprehensive Environmental Response, Compensation and Liability Act, also known as CERCLA or the “Superfund” law.

Atlantic Research had a contract with the United States in the 1980s to retrofit rocket motors for defense purposes at the company’s Arkansas facility.  The company’s work included working with rocket propellant, which resulted in contaminated soil and groundwater.

Atlantic Research voluntarily investigated and remediated this contamination.  The company then sought to recover some of these costs by filing a lawsuit against the U.S. under several provisions of CERCLA. 

The Eighth Circuit ruled in Atlantic Research’s favor, finding that CERCLA gives potentially responsible parties (PRPs) the opportunity to seek contribution from other PRPs to clean up Superfund sites even if the EPA has not filed any enforcement action against them.

The US requested and was granted Supreme Court review.  The Supreme Court will hear argument in this case on Monday, April 23, 2007. 

"We believe the decision from the 8th Circuit Court is the correct decision. If it is reversed, it will lead to inefficiencies in the cleanup process that will only slow down the rate at which cleanups occur here in Washington,” said Ecology Director Jay Manning. “That's why we are leading other states in asking the Supreme Court to uphold the lower court's decision."

“The states’ position is particularly important because not all contaminated sites can be addressed under formal governmental oversight,” McKenna said.  “In Washington, more than 1,200 sites are listed on the 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,” he said. “This means that a party who has liability for cleaning up the property will undertake the cleanup without any action by the federal or state government.  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.”

Washington has requested permission from the Court to present argument.  The state expects a ruling on the request to present argument around April 13. The Court is expected to issue a ruling on the case itself before the end of June.

CERCLA establishes broad categories of parties liable for cleaning up or paying for the clean-up of contaminated sites, including those who own or operate the site and those who dispose of the waste on the site.

At many sites, the state Department of Ecology or the US Environmental Protection Agency works with the liable parties to require them to perform the necessary clean-up. If the parties refuse, the government may sue a liable party and obtain a court order requiring action. If one liable party is sued, it may then sue other liable parties and the court then divides up the costs for which each party is liable depending on the party’s contribution to the contamination.

In US v. Atlantic Research Corp., the federal government argued the provisions in CERCLA that authorize lawsuits to recover costs spent investigating and cleaning up contaminated sites are not available unless the party seeking to recover the costs has already been sued by the state or federal government for the cleanup.  They claim those provisions are not available to parties who voluntarily remediate contamination, like Atlantic Research. 

In the amicus brief prepared by assistant attorneys general from the state of Washington, the states argue that CERCLA does authorize lawsuits to recover costs spent voluntarily investigating and cleaning up contaminated sites as Atlantic Research did.  The states support this argument by discussing the plain language of CERCLA and the policies supporting CERCLA.

Other states joining this brief are: Alabama; Alaska; Arkansas; Colorado; Connecticut; Florida; Georgia; Hawaii; Idaho; Illinois; Indiana; Iowa; Kentucky; Louisiana; Maine; Maryland; Massachusetts; Michigan; Minnesota; Mississippi; Missouri; Montana; Nevada; New Hampshire; New Jersey; New Mexico; New York; North Carolina; North Dakota; Ohio; Oregon; Rhode Island; Tennessee; Texas; Utah; Vermont; and Wisconsin.

The states expect a broad array of other interested parties, from cities to industry to environmental leaders, to file similar briefs supporting parties who voluntarily clean-up contaminated sites.
Contact:  Janelle Guthrie, AG Communications Director, (360) 586-0725

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