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Federal Court Dismisses State Common Law Claims as Preempted By CERCLA Consent Decree

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 Missouri federal court dismissed Plaintiffs’ complaint alleging negligence, nuisance and trespass from alleged groundwater contamination, finding the claims were preempted by an existing consent decree.

Litton Systems, Inc. printed circuit boards at its manufacturing facility (the “Site”) in the 1960s which involved the use of the carcinogen tricholorethyline (“TCE”).  In 1982 Missouri filed suit against Litton and the settlement required Litton to remediate and construct monitoring and extracting wells.  Contamination was discovered in 1991 and the State entered into a consent agreement with Litton which contemplated “ongoing work and future disputes.”  In 2001 Northrop Grumman acquired the site and assumed Litton’s responsibilities under the settlement.  

In 2010, the State brought CERCLA claims against Northrop Grumman, alleging the contamination had spread to adjoining properties.  The parties entered into a Consent Decree which acknowledged the prior settlements were inadequate and “set forth requirements for implementation of on-site and if necessary, off-site remedial action” related to the Site.

The York Plaintiffs own property with contaminated well water.  Plaintiffs claimed the contamination caused health concerns and lowered their property values and asserted four counts: negligence, temporary nuisance, continuing nuisance, and trespass, as well as a claim for damages and injunctive relief requiring Defendants to remediate the Site and their properties.  Defendants moved to dismiss the complaint arguing the claims were preempted because they conflicted with the Consent Decree.

The court noted that under CERCLA once a consent decree is entered, “no potentially responsible party may undertake any remedial action” that is not authorized by the consent decree.  42 U.S.C. § 9622(e)(6).  Discussing various cases in the Second Circuit, the court held that “[c]ourts have universally interpreted this provision as prohibiting the settling party from taking any action not specified in the consent decree, and that state claims that conflict with a consent decree are preempted.”   

Plaintiffs argued that their claims are not preempted because of CERCLA’s savings clause:

  • 42 U.S.C. § 9652(d) 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.”
  • 42 U.S.C. § 9614(a) 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.”

While the court agreed that CERCLA does not occupy the field of environmental regulation and litigation, it held that “issues of conflict preemption are different and are not affected by the saving clauses, because conflict preemption addresses whether a specific claim for relief conflicts with a consent decree.”  Thus the court held that Plaintiffs’ claims were preempted to the extent they sought equitable relief requiring Defendants to undertake efforts different from or in addition to those set forth in the Consent Decree, damages because Defendants failed to do something that was not required by the Consent Decree, or damages because Defendants did something required by the Consent Decree unless there is a claim that Defendants performed that task negligently or improperly.  Plaintiffs’ claims were not preempted to the extent they allege Defendants negligently performed the tasks required by the Consent Decree or arise from Defendants’ actions that were not required by the Consent Decree.

While Plaintiffs argued their claims did not conflict with the Consent Decree because they involved activity away from the Site and the Consent Decree was limited to what happens at the Site, the court rejected this argument because certain of Plaintiffs’ claims alleged Defendants failed to remediate the Site itself, and also because the Consent Decree expressly stated that the Department of Natural Resources had determined “additional work is necessary beyond the Settling Defendants’ property boundaries.”  Because the Consent Decree established Defendants’ obligations to remediate damage caused by hazardous waste from the Site including damage to Plaintiffs’ properties and Plaintiffs were not alleging the tasks required by the Consent Decree were performed negligently, Plaintiffs’ claims conflicted with the Consent Decree and were preempted. 

While the court left open the possibility that a claim related to Defendants’ failure to disclose information about the contamination may not be preempted and granted Plaintiffs leave to amend, the court cautioned it was not suggesting that such a claim would necessarily be viable.  Accordingly, this case demonstrates that an existing consent decree may offer substantial protection to responsible parties by leaving open only narrow categories of tort claims related to the contamination addressed by the Consent Decree.