July 27, 2020 Feature

Permit Me to Explain: Superfund Restricts State and Local Permitting Requirements

by Carolyn L. McIntosh and Shoshana Schiller

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund, is a broad statutory scheme that, among other things, provides for cleanup of hazardous substances released into the environment. Congress, in enacting and reauthorizing CERCLA, determined that to effect the prompt and permanent cleanup of such sites to protect the environment and public health from harm, state and local permitting requirements needed to be preempted. Thus, section 121(e)(1) of CERCLA provides that no permits shall be required for remediations conducted pursuant to CERCLA. Defining the contours of this permit bar has, however, been left to the U.S. Environmental Protection Agency (EPA) and the courts. Moreover, this simple directive has resulted in states and municipalities attempting to impose permitting requirements under the guise of “permit equivalence” requirements, zoning changes, or municipality by-laws. This article will discuss the scope of the permit bar as currently interpreted and how remediating entities may respond to the concerns of local and state governments while carrying out CERCLA’s mandate.

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