Supreme Court To Determine Scope of Private Remedies Seeking Cleanup at Superfund Sites

The U.S. Supreme Court will resolve whether certain private state tort claims are permitted despite directly conflicting with EPA-ordered cleanup pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  Specifically, the Supreme Court of Montana held that landowners at one of the largest Superfund sites in the country could pursue common-law claims for “restoration” requiring environmental cleanup at odds with the EPA-ordered cleanup at the site.  Yesterday, the Court granted the site owner’s petition for a writ of certiorari.

The petition identified there questions presented in the case.  First, whether a common-law claim for restoration seeking cleanup remedies that conflict with EPA-ordered remedies is a ‘challenge’ to EPA’s cleanup that is jurisdictionally barred by CERCLA.  Second, whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA’s approval pursuant to CERCLA before engaging in remedial action even if EPA has never ordered the landowner to pay for a cleanup.  And third, whether CERCLA preempts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.

The site owner contends, “The state court’s holding throws remediation efforts at [this site] and other massive sites into chaos and opens the door for thousands of private individuals to select and impose their own remedies at CERCLA sites at a potential cost of many millions of dollars per site.”  The site owner has allegedly already spent $470 million in remediation efforts at the site over the last 35 years.  The cert. petition argued, “In other words, EPA will have spent the last 35 years, and will spend the next seven years, remediating one of the largest and most complex Superfund sites in the Nation just so the plaintiffs can bulldoze it and start all over again.  This is the very definition of madness.”