The NAM joined with the American Chemistry Council, American Petroleum Institute, National Mining Association, the U.S. Chamber of Commerce, the U.S. Council for International Business and 5 other associations in an amicus brief 5/27/05 in the U.S. Court of Appeals for the 10th Circuit. We argued that the state of New Mexico may not seek money damages from companies involved in the clean-up of hazardous materials in the South Valley Superfund Site. The lower court had ruled that New Mexico did not prove that it would have used the water under the Superfund site, and therefore could not prove damages.The NAM brief informed the court that New Mexico’s claim seeks double recovery. The companies worked together for nearly 15 years with the U.S. Environmental Protection Agency and the New Mexico Environmental Department to return water at the site to drinking water standards, yet were being sued to replace the resource that they cleaned up. Allowing such double recovery is a direct threat to the federal and state cleanup programs. To be successful, such cleanup efforts must have the maximum voluntary participation by the companies involved. It is unfair to allow the state with one hand agree to the clean-up plan and implementation at the site, and then have it turn around and sue for damages because it thinks the clean-up should have done more.
In addition, CERCLA (the Superfund law) provides a limited number of ways in which an EPA remediation remedy may be challenged in court. This is to help prevent time-consuming litigation that would hinder the prompt clean-up of Superfund sites. Furthermore, we argued that the state cannot claim damages for the lost use of the water if no one in fact ever suffered damages from not having the water available. Now that the water has been cleaned, it is available for future use. The state admits that the more than $1 billion in damages it seeks will not be used for water quality remediation.
The industrial community and natural resource trustees have been working toward increased cooperation and trust in the resolution of natural resource damage cases at individual sites, as well as to increase mutual understanding and certainty in the process as a whole. Claims like the one brought by the State of New Mexico have the potential to gravely set back this progress.
Attorneys general from 13 other states filed an amicus brief in support of New Mexico.
On October 31, 2006, the Tenth Circuit rejected New Mexico's challenge. It ruled that the state could not challenge CERCLA remediation efforts until they are completed, and seeking money damages does just that. It ruled that CERCLA preempts "any state remedy designed to achieve something other than the restoration, replacement or acquisition of the equivalent of a contaminated natural resource."
The state also has no claim for damages from the loss of water, since New Mexico is part of the Middle Rio Grande Administrative Area, which controls the use of water and substituted another well's water for the water temporarily lost to the clean-up effort. Thus, there was no net loss of water to Albuquerque.