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"Ruling Puts Contamination Law Back on Track"

Daily Journal
By: Paul S. Weiland
07/05/07

On June 11, the Supreme Court issued its decision in U.S. v. Atlantic Research. Atlantic Research sued to recover some of the costs it incurred cleaning up contamination at a Department of Defense ammunition depot that it had leased from the United States. The contamination resulted from the use of a high-pressure water-spray system to remove rocket propellant from the motors that Atlantic had retrofitted for the Department of Defense. The United States claimed that Atlantic Research could not recover its costs because it was partially responsible for the contamination.

Atlantic Research filed its lawsuit under the Comprehensive Environmental Response, Compensation, and Liability Act, a law that was enacted following the discovery of contamination from the infamous Love Canal site in New York in the late 1970s , to provide for the swift and effective cleanup of hazardous-waste sites. The court decided 9-0 that the CERCLA plainly allows Atlantic Research to recover its costs.

The court's holding clears up confusion that the same court created 2½ years earlier when it decided another CERCLA case, Cooper Industries v. Aviall Services. Aviall sued after it cleaned up contamination at airplane maintenance facilities that both Aviall and Cooper had owned. When Aviall tried to recover some of the cleanup costs from Cooper, the case worked its way to the Supreme Court, which held that Aviall could not recover its costs because it was partially responsible for the contamination.

Atlantic Research and Aviall relied on different provisions of CERCLA in order to recover the cleanup costs that they incurred while addressing contamination. For this reason, the two decisions can be reconciled from a legal perspective. But when the court decided Cooper Industries, it called into question the ability of parties that voluntarily clean up hazardous contamination to recover their costs under any provision of CERCLA. The court's holding came dangerously close to turning the law on its head by discouraging private parties from voluntarily cleaning up hazardous contamination. Voluntary cleanups are critical to the success of the law because 450,000 sites are contaminated nationwide. The federal and state governments have the resources to address only a small number of those sites.

The court's decision in Atlantic Research removed the obstacle to voluntary cleanup created by its earlier decision. The positive ripple effects of the decision likely will be considerable. For example, as the U.S. Conference of Mayors explained in an amicus brief filed with the Supreme Court, the decision compliments the brownfields amendments to CERCLA enacted in 2002 and likely will spur the cleanup and re-use of lands that are economically unproductive and contribute to urban blight.

Likewise, as public water agencies and publicly regulated water companies explained in an amicus brief filed with the Supreme Court, the decision provides such agencies and companies, which are tasked with providing safe and reliable drinking water supplies to their constituents and customers, with a powerful tool to recover costs incurred cleaning up contaminated water supplies. The decision allows such water purveyors to seek cleanup costs from those who were initially responsible for contamination instead of shifting those costs to their customers.

The court has taken an important step to clean up a mess that it contributed to when it decided Cooper Industries. In all likelihood, the court's decision will increase cleanup activities notably. The nation will be a step closer to realizing the goals Congress hoped to fulfill when it enacted and amended CERCLA: attaining the swift and effective cleanup of contaminated sites.

Paul S. Weiland is a partner at Nossaman Guthner Knox & Elliott in Orange County. He represented public water agencies and publicly regulated water companies in United States v. Atlantic Research. He represented the United States in Cooper Industries v. Aviall Services.

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