In an important decision yesterday, Judge Douglas Woodlock of the District of Massachusetts confirmed that CERCLA preempts local cleanup bylaws. The case involved one aspect of the cleanup of the W.R. Grace Superfund Site in Acton, Massachusetts. In 2005, EPA issued a Record of Decision requiring operation of a groundwater pump and treat system in what is known as the Northeast Area of the Site. However, EPA recognized that the contamination in the area was limited and stated in the ROD that the treatment system might be turned off in three years if certain criteria were met. After three years, the criteria were met and EPA allowed shutdown of the system.
The rest of the story is that in 1997, the Town of Acton passed its own cleanup bylaw. The bylaw purports to impose Maximum Contaminant Level Goals, or MCLGs, as the cleanup standard for all contaminants in groundwater (and sets a standard of 1 ppb for contaminants with an MCLG of 0), and prohibits PRPs from turning off treatment systems if the standard has not been met.
Thus, when EPA authorized shutdown of the treatment system, Acton sued, seeking an injunction to require Grace to continue to operate the treatment system. Judge Woodlock denied the injunction last November and has now dismissed the action, finding the case for preemption fairly straightforward.
Courts have held that local laws which impose more stringent restrictions than those imposed by the EPA under a selected CERCLA remedial plan are preempted because they pose an obstacle to accomplishment of CERCLA’s objectives. In Lodi, the Ninth Circuit explained that: “[o]ne of the greatest obstacles to the cleanup of properties that are, or are perceived to be, contaminated by hazardous substances is the risk of uncertain or overly strict regulatory demands.” Allowing local governments to impose disparate requirements upon responsible parties would thwart, or at least pose a significant obstacle to the accomplishment of, CERCLA’s objectives. “To allow literally thousands of different local governments to impose their own liability schemes . . . that make it more difficult to apportion liability than under CERCLA would foster uncertainty and discourage site cleanup.”
The Town argued that its bylaw was consistent with CERCLA because Grace could comply with both CERCLA and the bylaw, noting that CERCLA provides a “floor”, but not a “ceiling”. Judge Woodlock was having none of it.
Bare citation to the homely metaphor of “floor” and “ceiling,” however, obscures the fact that case law employing the metaphor actually makes clear that CERCLA has specific and exclusive mechanisms to incorporate more stringent State regulations.
In short, if the Town wanted to have EPA impose more stringent standards, it had to persuade EPA to incorporate those standards in the federal cleanup. Since it tried but failed to do so, it was out of luck.
For Massachusetts practitioners, it is worth noting that Judge Woodlock also found the bylaw preempted by Chapter 21E, the state Superfund statute. Rehearsing provisions of Chapter 21E that demonstrate its comprehensive nature, Judge Woodlock concluded that they “demonstrate an intent to have the DEP comprehensively occupy the field of hazardous waste remediation.”
(Finally, in the interests of full disclosure, I note that I was counsel of record for Grace in this case. Kudos to EPA and DOJ for recognizing that allowing enforcement of such local bylaws would interfere with CERCLA’s objectives and for intervening as a defendant to join with Grace in seeking dismissal.)