From David G. Mandelbaum, a member of the Massachusetts State Bar:

As is familiar, section 121(e)(1) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9621(e)(1), exempts Superfund cleanups from all federal, state, and local permits. In addition, section 113(b) grants the federal district courts exclusive jurisdiction “over all controversies arising under” CERCLA. Accordingly, you would think that all lawsuits to enforce the section 121 permit bar would be brought in federal court. However, sometimes the permit bar comes up in circumstances that places the dispute in state court.

The other week, the Massachusetts Appeals Court (the intermediate appellate court in the Commonwealth) issued an unreported opinion with that feature. City of Lawrence v. Lawrence Firefighters, No. 18-P-360 (Mass. App. Apr. 30, 2019), was an appeal from an arbitration award in favor of the firefighters union. The collective bargaining agreement required the city to require a demolition contractor to hire a “fire watch detail” during the project. The city did not arrange for such a detail during a remediation project conducted by the Environmental Protection Agency at a Superfund site. The firefighters sought the lost payments.

The city contended that it could not have required a fire watch detail at a CERCLA project because of section 121(e)(1). The court acknowledged that point, but suggested that the city should have hired the detail itself. That suggests two things. First, according to the Massachusetts court, a standby fire crew is the equivalent of a local permit, but only if EPA has to pay for it. If someone else pays, then the local firefighters presumably do not interfere with the remediation. And the arbitrators and state court had jurisdiction to decide this.