A ruling Monday from the U.S. Supreme Court could make it harder for state environmental officials to reach settlements with some polluters to clean up hazardous waste sites.
Without comment the justices upheld a decision by the 9th U.S. Circuit Court of Appeals that a trial judge did not properly examine deals the Department of Environmental Quality reached with 22 polluters. The divided appellate court rejected arguments the judge could simply defer to DEQ’s opinion of what was fair.
Monday’s ruling most immediately affects efforts by the state to get polluters to pay the estimated $75 million cost to clean up the Broadway-Pantano landfill on Tucson’s east side. The Superfund site became a place where numerous companies dumped toxic wastes in the years after World War II and for decades beyond.
But the ruling also says courts must take a closer look at similar deals DEQ reaches with polluters at other sites to ensure they are paying their fair share.
That means the companies that want to settle without fighting could find a judge concluding that their offers of funding are insufficient. And that, in turn, could mean fewer deals and more time in court before cleanup efforts can be properly funded.
At issue are efforts to deal with various industrial solvents left at the Tucson site. It originally was a wildcat dump that later developed into two nearby landfills operated by local governments.
Solvents were discovered on site as far back as 1987. It became a state Superfund site in 1998.
DEQ installed pumps, saying that from 2003 through June 2015 nearly 3.2 billion gallons of water was treated, with 55.5 pounds of contaminants removed. The wells are not currently running based on DEQ’s assessment that levels are below water quality standards.
The agency has estimated the cost of cleanup at $75 million.
The litigation stems from efforts by DEQ in 2009 to prepare to sue companies which dumped toxic wastes at the site to recover its costs.
Several companies that were potentially the sources of the pollution sought a deal with the state, paying cash up front in exchange for immunity. Such deals are permissible under both state and federal laws.
The state sent settlement offers to them, with agreements reached with 22 parties for a total of $512,000, in individual amounts from $10,000 to $150,750.
U.S. District Court Judge Cindy Jorgenson approved the deals. That led to an appeal by others implicated in the pollution, including several large corporations, who contended that these contributions may not cover those polluters’ share of the costs.
In a split decision — the one the Supreme Court upheld on Monday — the appellate court said Jorgenson should have engaged in a closer examination before letting the smaller polluters off the financial hook.
Attorney Christopher Thomas, who represented the settling parties, said that undermines the whole purpose of the settlements.
“Petitioners avoided defense costs by investing in speedy cleanup instead,” he argued to the high court in asking them to void the appellate ruling. He said the irony is that the companies, which wanted to “help pay for the site cleanup rather than to pay attorneys to fight about relative culpability” will now wind up back in court.
The case now goes back to Jorgenson.
DEQ spokeswoman Caroline Oppleman pointed out that the appellate court never said the settlements were unfair. She said what may now be needed is for her agency to give the judge additional information to justify each of the deals.
Thomas said he believes a case can be made to uphold it once he and the state do a better job of explaining the numbers.
“The test for consent decree approval is whether it is procedurally and substantively fair, reasonable, and consistent with the Comprehensive Environmental Response, Compensation, and Liability Act, as the Superfund law is more formally known. At that point, he said, the judge can either approve the deal or reject it, a move that would force the state to start over.
The bigger issue may be how Monday’s ruling could complicate efforts to clean up other Superfund sites around Arizona. Oppleman said that, at the very least, it will require any trial judge reviewing a future settlement “to explain its reasoning in greater detail than previously.”
She said the court can give “some deference” to her agency’s judgments on making these deals. But it remains the judge’s responsibility to ensure the agreements are fair.
Thomas said he sees problems.
“The broad impact of this ruling will be to deter settlements,” he said, a move that will make the process more expensive for some polluters.
He said both federal and state environmental agencies generally try to get a global deal that includes all parties or at least pays for all the necessary work.
“The government doesn’t want to undertake the burden of dealing with small players unless and until it’s absolutely necessary,” Thomas said. “That can require small players to invest disproportionate attorneys’ fees in monitoring the process while the elephants fight.”
And Thomas said if DEQ has to make a record of all costs before settling with “the little guys” the state isn’t going to spend a lot of time helping them pay up and get out of the litigation.
Calls to the attorney for the major polluters who successfully challenged the deals were not returned.