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article imageDecision on Superfund site pits Federal law against landowners Special

By Karen Graham     Dec 6, 2019 in Environment
Earlier this week, Montana landowners took their case for additional cleanup of a Superfund site to the Supreme Court. However, the decision of the justices may not be as simple as most people might think.
The case before the Supreme Court dates back to 2008 when 98 Montanans who owned land around the 300-square-mile Anaconda County Superfund site took Atlantic-Richfield (ARCO), a subsidiary of British Petroleum to court.
Arco spent $450 million on soil and groundwater restoration at the sprawling site ordered by the EPA in 1983. The remediation investigation and a Record of Decision ran close to 1,100 pages and was very thorough.
In the suit, the landowners - who all own property in the small towns of Opportunity and Crackerville, claimed that "the company should compensate them for the health hazard the smelter created and pay to remove all the arsenic and lead on their land.
As Digital Journal mentioned on December 3, there was a concern by the justices and a few hints as to which way the court might lean in the Atlantic Richfield Co. v. Christian case.
Talking with an expert
Digital Journal sought out Noah Perch-Ahern, a partner with Greenberg Glusker in Los Angeles, California. Noah is a Partner in the firm's Environmental Department and is well-versed in environmental laws federal statutes and regulatory issues.
Perch-Ahern maintains a broad national environmental and energy practice and has played a key role in a variety of high stakes matters, including cost recovery and tort actions involving Superfund sites, as well as other litigation.
Digital Journal: Noah, could you explain in more detail some of the key elements of this case before SCOTUS?
Noah Perch-Ahern: The landowners are seeking common law restoration damages under Montana law, but the EPA has approved a remedial action that does not require Atlantic Richfield to perform the additional restoration sought by the landowners. The case requires the justices to decide whether the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). prevents this type of claim from proceeding.
On the one hand, the landowners argue that this is a state law matter and that CERCLA does not set a ceiling on what state law may require when it comes to a cleanup. On the other hand, Atlantic Richfield argues that this is a de facto challenge to the remedial action selected by the EPA, that the proposed restoration could exacerbate the underlying environmental conditions, and that there should be federal supremacy and uniformity when it comes to important cleanup decisions.
Digital Journal: Doesn't the “potentially responsible party” clause also apply to private landowners?
Perch-Ahern: One issue that is key to the court's decision is the meaning of “potentially responsible party” (PRP) in CERCLA Section 122(e)(6). That section precludes PRPs from undertaking remedial action at the facility being remediated without EPA consent. Landowners are often referred to as PRPs, but the question is whether this Section intended to block additional remedial action by landowners that may not actually be liable. There is not much precedential case authority interpreting this statutory provision. There are reasonable arguments supporting both positions, but the justices seemed to signal that they found Atlantic’s Richfield’s statutory construction more plausible.
Digital Journal: Well, with this case being "iffy," do you have any thoughts on how the decisions of the justices might go
At the oral argument, it seemed that a majority of the justices were concerned about letting the case proceed without restriction. That said, I think the justices are going to at least try to avoid broad rulings and seek to rule on narrow grounds that avoid unforeseen consequences. That’s likely why there was a focus on Section 122(e)(6) – it’s potentially a narrower issue than whether there was a “challenge” to the EPA or whether there is wholesale preemption.
It is possible that the Justices could find somewhat of a middle ground and remand the case back to state court to determine whether a state could remedy could be imposed that would require coordination with or approval of the EPA. However, at this point, it does not seem likely that the landowners will fully prevail.
More about Anaconda Smelter, superfund site, Scotus, landowners, federal law
 
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