The Supreme Court is looking favorable on Atlantic Richfield Co. (ARCO), a unit of British Petroleum in its appeal of a Montana state court ruling allowing a group of private landowners within the sprawling 300-square-mile Anaconda County Superfund site of its former Anaconda copper smelter in western Montana to bring their claims for restoration damages to trial, according to the Associated Press.
Both Liberal and Conservative justices appeared to indicate their concern that landowners could interfere with land remediation efforts ordered by the EPA, especially after Atlantic Richfield argued that the lower court’s decision could result in the filing of thousands of lawsuits against companies nationwide, complicating federally mandated cleanup of contaminated land.
ARCO, in its appeal, is backed by the Trump administration and industry lobby groups including the U.S. Chamber of Commerce and the National Association of Manufacturers. Atlantic Richfield has spent $450 million on soil and groundwater restoration at the site ordered by the EPA reports the Financial Post.
The case before the Supreme Court dates back to 2008 when 98 Montanans who owned land around the site of the smelter within the superfund site sued Atlantic Richfield. In the suit, the landowners 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,” above and beyond what the EPA had ordered, reports Newsweek.
The scope of the Superfund law
This case is important and could result in changes to the Comprehensive Environmental Response, Compensation, and Liability Act, (CERCLA). CERCLA invokes theories and elements of environmental law, property law, and tort law. The Environmental Protection Agency (EPA) is responsible for enforcing CERCLA.
Also known as “Superfund,” CERCLA is aimed at cleaning up sites contaminated with hazardous waste, as well as preventing contamination of future sites by assigning liability to parties involved. The liability requires the parties to pay damages for the clean up of the sites.
Being challenged is the apparently retroactive nature of the Act., because, in the past, parties have been held responsible for actions that predate the statute. The courts have ruled that if the problems caused by the waste are ongoing, and the statute is a reimbursement obligation rather than a punishment, the statute is not retroactive, and is not unconstitutional.
According to CERCLA, this means a current owner or operator will still be liable even if they made no contribution to the hazardous release. And according to the landowners, seeing that Atlantic Richfield was the last known owner of the property in question, it is responsible for all of the pollution caused during the smelter’s years of operation.
The Anaconda Copper Mining Company smokestack
The Anaconda smelter stack is a brick smokestack or chimney, built in 1918 as part of the Washoe Smelter of the Anaconda Copper Mining Company. It is also the world’s tallest surviving masonry structure, standing 585 feet (178.3 meters) tall. It is also the only visible structure left of the smelter.
The stack and its viewing area are now the two-part Anaconda Smoke Stack State Park. Listed in the National Register of Historic Places, the stack may be viewed and photographed only from a distance.
The Anaconda Copper Mining Company ( part of the Amalgamated Copper Company) was an American mining company. It was one of the largest trusts of the early 20th century and one of the largest mining companies in the world for much of the 20th century. It was founded in 1881 by one Marcus Daly who had originally bought a silver mine. But he discovered huge deposits of copper.
Daly built a smelter in Anaconda to process copper mined in Butte. In 1899, Daly sold his assets to HH Rogers and William Rockefeller. By 1910, Amagalated had already seen some expansion, buying the assets of two other Montana copper companies. By 1922, they expanded further, setting up mining operations in Mexico and Chile.
In 1960, the company employed 37,000 employees in North America and Chile. On January 12, 1977, the operations were bought by Atlantic Richfield, and in 1980, Anaconda halted production. ARCO would see its big acquisition turn into an environmental headache.
The areas of Butte, Anaconda, and the Clark Fork River became highly contaminated by mining and smelting operations. Milling and smelting produced wastes with high concentrations of arsenic, as well as copper, cadmium, lead, zinc, and other heavy metals.
Beginning in the 1980s, the Environmental Protection Agency designated the Upper Clark Fork river basin and many associated areas as Superfund sites—the nation’s largest, and named ARCO as the “potentially responsible party.”
