Audit, Compliance and Risk Blog

The US government promulgates a “National Oil and Hazardous Substances Pollution Contingency Plan” – more commonly referred to as the National Contingency Plan (NCP) – as the blueprint for responses to spills of oil and hazardous substances. The NCP is used for responses under the Clean Water Act (CWA) and the Superfund law (Comprehensive Emergency Response, Compensation and Liability Act (CERCLA)), and is overseen by the Environmental Protection Agency (EPA) (although you should note that the first NCP was issued in 1968, not only before CWA and CERCLA were enacted, and even before EPA before was created).

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The many overlaps and disjunctions in environmental protection laws mean that many situations are potentially subject to multiple laws and their associated enforcement provisions. On May 24, the US Supreme Court decided the latest incarnation in a long-running dispute between the federal government and the territory of Guam over contamination at a landfill, which included an earlier round involving the Clean Water Act (CWA) and the latest round involving the Superfund law (Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)) (Guam v. United States). The court decided that a 2004 settlement in a CWA enforcement case did not – and could not – affect Guam’s latest search for financial contributions to cleanup under CERCLA. This decision provides not just specific clarification of the relationship between two CWA and CERCLA cost recovery provisions, but also a general reminder about the need to craft settlements carefully.

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Forty years ago, the federal “Superfund” law -- Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) – was enacted to provide legal requirements and procedural methodologies to speed identification and cleanup of contamination. Today, cleanups continue and the requirements and procedures continue to evolve. In April, the United States Supreme Court issued its latest decision interpreting a Superfund provision, this one defining clearer limitations on when the owners of contaminated land can force Responsible Parties for that contamination to pay for cleanup more extensive (and expensive) than cleanup ordered by the Environmental Protection Agency (EPA). The case is Atlantic Richfield Company v. Christian.

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