The Nickel Report

On May 18, 2022, in York et al. v. Northrop Grumman Corp. Guidance and Electronics Co. Inc. et al., No. 21-cv-03251 (W.D. Mo.), a federal district court dismissed state-law tort claims for alleged groundwater contamination, finding that they were preempted by an existing Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) consent decree. The court rejected the plaintiffs’ argument that two CERCLA “savings clauses” allow their claims to proceed.

As explained below, this decision shows that a consent decree can provide protection to responsible parties under CERCLA by precluding later-filed tort claims seeking additional or different remedial action.

The defendants own an industrial site in Springfield, Missouri. In 2010, the state environmental agency sued the defendants under CERCLA, alleging that previous groundwater contamination had spread to adjoining properties and that prior settlements regarding the contamination were inadequate. The state and the site owners reached a consent decree requiring remedial action on-site and off-site, if necessary. Pursuant to CERCLA, the parties published the consent decree for public notice and comment. In 2011, the court entered the consent decree, and the site owners have been performing under it since then.

In 2021, the plaintiffs brought state law tort claims in a putative class action against the site owners, based on allegations that their well water was contaminated. Among other things, they sought an injunction requiring the defendants to remediate the site and their properties. 

The site owners moved to dismiss the complaint on conflict preemption grounds because 42 U.S.C. § 9622(e)(6) provides that once a CERCLA consent decree is entered, “no potentially responsible party may undertake any remedial action” for a site that is not authorized by the responsible agency. In response, the plaintiffs argued that either of two CERCLA “savings clauses” apply:

• 42 U.S.C. § 9652(d), which provides that CERCLA does not “affect or modify in any way the obligations or liabilities of any person under other Federal or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants,” and

• 42 U.S.C. § 9614(a), which provides that CERCLA is not to be “construed or interpreted as preempting any State from imposing any additional liability or requirements with respect to the release of hazardous substances within such State.”

The court rejected the plaintiffs’ arguments, explaining that the Supreme Court’s 2020 decision in Atlantic Richfield Co. v. Christian, 140 S. Ct. 1335 (2020) (which discussed § 9622(e)(6), specifically) “makes clear” that courts must reject interpretations of “sweeping saving clauses that prove absolutely inconsistent with the provisions of the cast in which they are found.” Thus, although “CERCLA does not occupy the field of environmental regulation and litigation, issues of conflict preemption . . . are different and are not affected by the saving clauses.” (emphasis added). This is because conflict preemption concerns whether a specific claim for relief (as opposed to state law, generally) conflicts with a consent decree. 

The court held that the plaintiffs’ claims were preempted to the extent they 1) sought equitable relief requiring efforts different from or in addition to those set forth in the consent decree, or 2) sought damages because the site owners did something required by the consent decree or failed to do something not required by the consent decree. Claims could proceed to the extent that they alleged that the site owners negligently performed tasks required by the consent decree, or arose from actions that were not required by the consent decree. 

Because none of the plaintiffs’ claims fell into the non-preempted category, the court dismissed the complaint. “[T]he Consent Decree establishes Defendants’ obligations to remediate damage caused by hazardous waste from the Site–including damage to Plaintiffs’ (and others’) properties. Therefore, in asking for an injunction requiring Defendants to remediate hazardous waste on their (and others’) properties, Plaintiffs seek relief that conflicts with the Consent Decree.”

The court granted leave for the plaintiffs to file a second amended complaint to more clearly plead a claim related to an alleged “failure to disclose” information about the contamination, but cautioned that it was not suggesting that such a claim is necessarily “legally viable” or “not preempted.”