OLYMPIA… Attorney General Rob McKenna today hailed the decision by the U.S. Supreme Court to allow individuals and corporations who voluntarily clean up hazardous waste sites to recover costs from other liable parties as a victory for the state and the environment.
In a unanimous decision in U.S. v. Atlantic Research Corporation, the Court affirmed that the federal Superfund law authorizes individuals and companies who voluntarily incur costs to clean up hazardous waste contamination to recover costs from other persons who share liability.
“The Court’s decision ensures that many contaminated sites which might have been unaddressed for a significant time will be cleaned up,” 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.”
The ruling concerns the federal Comprehensive Environmental Response, Compensation and Liability Act, also known as “CERCLA” or the “Superfund” law.
The case arose after the Atlantic Research Corporation retrofitted rocket motors for the United States in the 1980s. The rocket propellant contaminated soil and groundwater, which Atlantic Research voluntarily cleaned up.
When Atlantic Research sought to recover some of its clean-up costs from the United States under CERCLA, the government objected. It argued that only persons who were “innocent” could seek cost recovery under CERCLA.
The United States contended that when a party was itself also liable for a site, like Atlantic Research, the party could sue only for “contribution” and then only if the E.P.A. sued or settled with the party.
The government’s interpretation made "little textual sense," said the unanimous opinion by Justice Clarence Thomas.
The ruling vindicates the position of Washington state. Washington led 37 other states, the District of Columbia and Commonwealth of Puerto Rico in submitting a “friend of the court” brief to the Court. The Court also granted Washington permission to present oral argument along with the private company.
At the April 23, 2007, argument, Deputy Solicitor General Jay Geck explained the importance of cost recovery under CERCLA to finance costly cleanups. “Private parties rely on cost recovery as a financial incentive to conduct a clean-up,” said Geck.
The amicus states emphasized that the federal government’s position would leave the bulk of voluntary cleanups without cost recovery or contribution rights. Both E.P.A. and state environmental agencies focus on the most serious sites, making voluntary cleanups the primary mechanisms by which lower-priority sites are cleaned up.
“The Court’s decision today preserves vital incentives for voluntary cleanups to continue in Washington,” said Ecology Director Jay Manning. Manning also noted that cost recovery is limited to voluntary parties who comply with the state and federal requirements, thus ensuring that voluntary cleanups provide full protection to people and the environment.
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 claimed 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 argued that CERCLA does authorize lawsuits to recover costs spent voluntarily investigating and cleaning up contaminated sites as Atlantic Research did. The states supported this argument by discussing the plain language of CERCLA and the policies supporting CERCLA.
Other states joining this brief were: 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.
A broad array of other interested parties, from cities to industry to environmental leaders, filed similar briefs supporting parties who voluntarily clean-up contaminated sites.
Contact: Janelle Guthrie, AG Communications Director, (360) 586-0725
Jay D. Geck, Deputy Solicitor General, (360) 586-2697