28 January 2021

Supreme Court Agrees to Take Up CERCLA Suit Against U.S. Government

On January 8, 2021, the U.S. Supreme Court took up a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) dispute involving the territory of Guam and the United States. At issue in Guam v. United States is who must pay for cleanup costs associated with a landfill formerly operated by the U.S. Navy, into which the Navy deposited spent munitions, chemicals, and other waste. Although Guam asked EPA to address the landfill under CERCLA, the agency proceeded under the Clean Water Act (CWA) instead, and in 2004, Guam entered into a consent decree under the CWA under which the territory agreed to close and remediate the landfill.

With the remediation ongoing, in 2017, Guam filed suit against the United States under CERCLA sections 107 (seeking cost recovery) and 113 (seeking contribution) for over $160 million in cleanup costs. The U.S. Court of Appeals for the District of Columbia Circuit concluded that as Guam was a responsible party under CERCLA, it was limited to seeking contribution — and that as the 2004 consent decree started the limitations clock on the territory’s contribution claim, Guam’s claim was barred by CERCLA’s three-year statute of limitations on contribution claims.

The Court granted certiorari to consider two questions: “(1) whether a settlement that is not under the Comprehensive Environmental Response, Compensation, and Liability Act can trigger a contribution claim under CERCLA Section 113(f)(3)(B); and (2) whether a settlement that expressly disclaims any liability determination and leaves the settling party exposed to future liability can trigger a contribution claim under CERCLA Section 113(f)(3)(B).”

In Guam, the Supreme Court may address the question of whether a private party that is conducting a cleanup under a settlement with the United States under statute other than CERCLA may seek to recover its cleanup costs under the broader authority of CERCLA §107 or is limited to seeking contribution under CERCLA §113. The Court has previously addressed the interplay between CERCLA §§107 and 113 in Cooper Industries, Inc. v. Aviall Services, Inc. and United States v. Atlantic Research Corp., but questions remain about the precise contours between the two provisions for private party claims. This question is important here because a three-year limitations period applies to contribution claims under Section 113, while a different and longer limitations period applies to Section 107 claims. Both parties conducting cleanups — and those facing potential private party claims to recover CERCLA cleanup costs — should monitor this case closely, as the Court’s decision may present a critical strategic consideration.

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