From: Pete Yost, Associated Press
Published June 12, 2007 12:00 AM

Justices Let Companies Sue To Recover Costs in Voluntary Cleanups

WASHINGTON -- The Supreme Court ruled against the Bush administration Monday in an environmental lawsuit, allowing a company to seek recovery of some of its costs for voluntarily cleaning a hazardous site.


The unanimous decision in a case that could have curbed the reach of the Superfund law dealt with a company that contracted with the U.S. government to retrofit rocket motors. The work led to propellent seeping into the soil and groundwater at Camden, Ark.


Atlantic Research Corp. voluntarily cleaned up the pollution and then sued the government in an effort to share the cleanup costs. The Bush administration opposed sharing the cost.


The Justice Department contended the companies themselves must be sued by regulators under the Superfund law or be targeted with government enforcement action before they can sue others.


The government is one of the nation's largest polluters, with environmental liability of more than $300 billion, federal data indicate.


Major corporations, state regulators and environmental groups suggested the Bush administration was trying to insulate itself from lawsuits.


In his opinion, Justice Clarence Thomas said the "plain language" of the law authorizes cost-recovery actions by any private party.


The administration said the approach favored by Atlantic Research is contrary to congressional intent, that Congress wanted to reduce lawsuits while encouraging settlement and government-supervised cleanups.


"The government's interpretation makes little textual sense," Thomas wrote.


The "good corporate citizens who voluntarily clean up polluted sites should not be left holding the government's bag," said Robin Conrad, executive vice president of the National Chamber Litigation Center, the public policy law firm of the U.S. Chamber of Commerce.


State officials were relieved.


Over 450,000 sites nationwide are contaminated with hazardous material, and waiting for enforcement action could mean decades of delays in some cases, said Jay Geck, the deputy solicitor general for the state of Washington.


The U.S. Environmental Protection Agency brings a few hundred enforcement cases a year.


"We also had some concern that the federal government might insulate itself from liability" if its position had been upheld, said Geck, who argued the case on the states' behalf in the Supreme Court.


Barring suits aimed at spreading the cost kills the incentive for voluntary cleanups, state regulators argued in the case.


In a separate case that will be impacted by the ruling, E.I. Du Pont de Nemours and Co. has sued the federal government to pay a share of cleanup costs at 15 industrial facilities involved in wartime production. At one of the 15 plants, in Louisville, Ky., DuPont had spent $24 million.


In another pending case that will be affected by the ruling, Consolidated Edison Co. of New York Inc. has sued UGI Utilities Inc., seeking to share the costs of a cleanup that Con Ed estimates may exceed $100 million at sites in Westchester County, N.Y.


The case the court ruled on is U.S. v. Atlantic Research, 06-562.


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