Is it too late for Guam to sue the Navy to pay for the cleanup of its dumpsite?

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Symposium: The individual plaintiffs in California v. Texas suffer a greater Article III injury than did the individual plaintiffs in NFIB v. Sebelius

Case preview

By Robert Percival


at 11:43 a.m.

On Monday, the Supreme Court will hear a dispute between the U.S. Navy and the Guam area over the interpretation of the Comprehensive Environmental Impact, Compensation and Liability Act, also known as the CERCLA or Superfund Statute. Guam is a 30 mile long island in the Pacific Ocean, 3,800 miles west of Hawaii. The 170,000 residents are citizens of the United States. Since Guam is west of the international date line, the island’s airport greets visitors with a sign that reads “Guam: Where America Begins Its Day”. A short distance southwest of the airport is the Ordot Dump, a superfund location that sparked the case in the Guam Court against the United States.

Factual and legal background

Guam was captured by the United States in June 1898 during the Spanish-American War. In the Treaty of Paris, which formalized the end of this war, Spain ceded Guam to the USA with effect from April 1899. The US Navy ruled Guam until December 1941, when it was seized by the Japanese in an attack four hours after the Pearl bombing of the port. In 1944, Guam was retaken from the United States and returned to the Navy after a bloody battle that killed more than 20,000 people.

The Navy then began dumping toxic waste in a valley that became the Ordot Dump. In 1950, Congress passed the Guam Organic Act, transferring the island (and dump) from the Navy to a new civilian government. Guam used the Ordot Dump as the island’s only landfill, and the Navy continued to dump toxic waste (including DDT, Agent Orange, and discarded ammunition) there during the Korean and Vietnam Wars. The landfill expanded over time from four hectares to more than 40 hectares. When the dump was finally closed in 2011, a former valley had become a 280-foot-high mountain of toxic waste and rubbish. With no cover or liner, the landfill absorbed rainwater and put out contaminants into the Lonfit River, which flows into the Pago River and eventually into the Pacific Ocean.

In December 1980, Congress enacted CERCLA to end the spills of hazardous substances, particularly from landfills. Pursuant to Section 107 (a) of CERCLA, their current owners, previous owners, and those who arranged for the disposal or transportation of hazardous materials to the sites are responsible for the cost of landfill remediation. Liability is strict – it does not require proof of fault – and also applies retrospectively to potentially responsible parties whose waste was dumped before the law came into force. Liability is also joint and several, which means that in theory either party can be held liable for all cleaning costs. To alleviate the harshness of this liability, Congress amended CERCLA in 1986. He added Section 113 so that those who believe they have paid more than their fair share of the cleanup costs can bring contributory actions against other potentially responsible parties.

In 1983, the Environmental Protection Agency added the Ordot Dump to CERCLA’s national priority list for cleanup. Five years later, the EPA named the Navy as a potentially responsible party for the site. Instead of using the federal Superfund money to redevelop the site, the federal government tried to make Guam do it under the Clean Water Act in 2002 – though the Guam government argued it couldn’t afford to for one to pay for such refurbishment. In 2004, Guam landed with the EPA by signing a consent decree requiring the area to close and cover the Ordot Dump. The decree stated that it was closed “without any determination or acknowledgment of liability to or by the government of Guam”.

After Guam breached the decree, the district court appointed a recipient who closed the Ordot dump in 2011. Guam estimated the cost of cleaning the dump could be as high as $ 160 million and sued the Navy in 2017 for a contribution to cleanup costs. Since the Navy, as the former owner of the landfill under CERCLA Section 107 (a), was a potentially responsible party, Guam sought reimbursement under this Section or, alternatively, a contribution under Section 113 (f) (3) (B.), the contribution actions of a Approves person who “accepts their liability to the United States or any state for part or all of the response action, or for part or all of the cost of such action in a[] … Court-approved settlement agreement [with the U.S. or a state]. ”

The U.S. Court of Appeals for the District of Columbia Circuit ruled that Section 107 (a) Coverage Measures and Section 113 (f) (3) (B) Contribution Measures are mutually exclusive. The court ruled that only the latter action could be brought, as the 2004 consent decree constituted an agreement that triggered Guam’s right to contribute under Section 113 (f) (3) (B). However, the court ruled that Guam’s contribution action was statute-barred by a three-year statute of limitations from the date of the settlement. The court admitted that the outcome was “harsh” from Guam’s point of view because the Navy “dumped dangerous ammunition and chemicals on the Ordot Dump for decades and left Guam to pay the bill”. It was also noted that the EPA has now revised its sample settlement language to explicitly indicate which statements trigger Section 113 (f) (3) (B). Guam is appealing this ruling.

Arguments of the parties and their supporters

Before the Supreme Court, Guam argues that Section 113 (f) (3) (B) was not triggered by the settlement because his 2004 consent decree with the EPA settled an enforcement measure of the Clean Water Act and not a CERCLA case. This determination, the Territory says, cannot be triggered by non-CERCLA settlements at all – and therefore Guam should be allowed to continue its reimbursement action under Section 107 (a). The concept of “contribution” requires that the parties share a common source of liability that a non-CERCLA settlement lacks. Guam argues that the language in Section 113 (f) (3) (B) relating to “Response Actions” and “Response Costs” suggests that only CERCLA-specific comparisons should trigger its determinations. If the judges agree, Guam said, the court can avoid interfering with other regulatory systems to address the pollution. Guam also argues that the 2004 consent decree could not have “resolved” any of its CERCLA liabilities, as it specifically denied liability, only provided conditional release, and contained a caveat.

The United States argues that even non-CERCLA-specific settlements can trigger Section 113 (f) (3) (B) because Congress designed CERCLA to work in conjunction with other federal and state environmental laws aimed at landfill remediation . It is alleged that the references in Section 113 (f) (3) (B) to “Response Measures” may contain legally binding guidelines issued under other laws to take action to remediate landfill sites. Therefore, it doesn’t matter that the 2004 consent decree was made under the Clean Water Act as Guam had to take action to clean up the Ordot Dump. The federal government argues that Guam’s failure to allow liability in the settlement is negligible as the law does not provide for such authorization, only a warrant of liability for part of a response measure.

An amicus letter filed by attorneys general from 24 states, the District of Columbia, and the Northern Mariana Islands in support of Guam is exceptional because the states are evenly divided between red and blue states and large and small states from all regions of the United States are nation. The AGs claim that only settlements that finally dissolve the CERCLA liability can trigger the limitation period of § 113 (f) (3) (B). They argue that the DC Circuit’s decision “affects the settlement of incentives and results in a slower, more expensive cleanup that goes against the purpose of CERCLA and goes against the interests of states.” They claim that the United States, which operates military bases often associated with toxic contaminants, should not be able to saddle states and territories with a disproportionate financial burden by evading CERCLA liability. They also claim that the decision below is contrary to the “Basic Principles of Federalism” as it could limit the ability of states to use state law to facilitate the remediation of contaminated sites.

In its most recent tenure in the Atlantic Richfield Co. v Christian case, the court declined an invitation from Atlantic Richfield, the owner of a huge Superfund site, to use CERCLA to thwart any government redevelopment. Atlantic Richfield has now filed an amicus letter supporting the United States in the Guam case as a three-year statute of limitations would prevent another company (Asarco) from recovering millions from Atlantic Richfield in a contributory lawsuit. The letter argues that Guam’s approach “would allow the settlement parties to indefinitely delay before contributing, affecting the non-settlement [parties] and compromising the evidence necessary to fairly determine the relative contributions of the parties. Atlantic Richfield argues that Guam’s position would “create massive opportunities for game art and sandbagging.”

In response, Guam argues that the federal government’s position would discourage settlements “across a wide range of other environmental laws”. It is said that defendants “are less likely to act non-CERCLA if the settlement suddenly triggers an exclusive three-year timer to determine the full extent of the problem and everyone else responsible, despite their continued potential risk of CERCLA liability identify parties and bring lawsuits against them – or forfeit any CERCLA recovery in the future. “

Guam v. United States shows that more than 40 years after CERCLA came into effect, the courts are still grappling with legal issues that are not clearly clarified by the legal language. In the Atlantic Richfield Ruling, Judge Samuel Alito’s partly concurring and partly dissenting opinion described Section 113 as “a jigsaw puzzle of pieces that are extremely difficult, if not impossible, to put together.” On Monday, the court will examine another piece of the puzzle.