ELR Citation: ELR 20050
No(s). 1:09-CV-0821 (M.D. Pa. Feb 1, 2010)

A district court denied a company’s motion to dismiss the claims of the Pennsylvania Department of Environmental Protection (PADEP) to recover under CERCLA costs it incurred to cleanup Strontium-90 (Sr-90), a radioactive and hazardous nuclear byproduct material, from the Quehanna Wild Area Nuclear Site. As a preliminary matter, the court held that, based on statutory language and legislative history, CERCLA cost recovery actions are permitted for the cleanup of NRC decommissioned sites so long as the actions otherwise meet the requirements for cost recovery imposed by CERCLA. As to these other requirements, although Sr-90 is excluded from the CERCLA definition of “disposal” as a byproduct material under the Atomic Energy Act (AEA), it is included in the CERCLA definition of “hazardous substance.” The fact that Congress chose to give EPA discretion to define specifically what substances constitute “hazardous substances” means that the court can appropriately infer an implicit congressional delegation of interpretative authority of CERCLA to EPA. Deferring to EPA, the disposal of Sr-90 can constitute a “disposal of a hazardous substance” for purposes of CERCLA liability. At this stage of the proceeding, (1) PADEP has adequately alleged that the company disposed of Sr-90 during its operation of the site; (2) it cannot be concluded whether the “release” exemption found in CERCLA §101(22) applied to the release of Sr-90 at the site because there is a factual dispute as to whether the contract at issue required financial protection; and (3) it cannot be concluded whether the release of Sr-90 at the site was “in compliance with” the byproduct materials license at issue and, as such, subject to the exclusion of CERCLA liability for “federally permitted releases.” As to state-law claims, such claims are not preempted by the AEA because they do not directly involve nuclear safety concerns, there is no direct and substantial effect on the decisions made by those who run nuclear facilities, and there are no irreconcilable conflicts between the claims and the AEA.