On Dec. 3, 2019, the United States Supreme Court will hear arguments in the important case of Atlantic Richfield (ARCO) v. Christian, the named plaintiff representing a Montana community impacted by ARCO's contamination. The Supreme Court will determine whether property owners are able to seek restoration damages beyond what is mandated by the Environmental Protection Agency (EPA).
ARCO Seeks To Have MT Decision Overturned
The appeal to the U.S. Supreme Court is ARCO’s attempt to overturn a decision by the Montana Supreme Court allowing property owners to seek restoration damages that went beyond the cleanup determined by the EPA. The group of property owners initially filed legal action in 2008 citing common law trespass, nuisance, and strict liability against ARCO.
The Supreme Court has been asked to provide answers to these three questions:
1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with EPA-ordered remedies is a "challenge" to EPA's cleanup jurisdictionally barred by § 113 of CERCLA.
(2) Whether a landowner at a Superfund site is a "potentially responsible party" that must seek EPA's approval under CERCLA § 122(e)(6) before engaging in remedial action, even if EPA has never ordered the landowner to pay for a cleanup.
(3) Whether CERCLA preempts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.
Federal Protection of CERCLA
in 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to help cleanup sites contaminated by hazardous waste, and to protect human health and the environment. CERCLA enables areas to be designated as Federal “Superfund” sites to cleanup the contaminated site and hold responsible parties accountable. Parties that caused the contamination are forced to either perform the cleanup or reimburse the U.S. government for doing so. The Act also established a trust to fund the cleanup when no responsible party could be identified. The requirements under CERCLA are essential to the environment and public health, w great importance on the decision of this case.
The impacted site is over 300 square miles and includes a residential community whose residents brought the case. The Anaconda Smelter now owned by ARCO was designated a Superfund site in 1983. The EPA selected a remedy to the site that required ARCO remediate residential yards within the Smelter Site with soil that exceeds 250 parts per million (ppm), and to remediate all wells used for drinking water with arsenic in excess of ten parts per billion (ppb). A group of ninety-eight property owners located near the smelter site sought out experts’ opinions to determine what would be needed to restore their community to pre-contamination levels. The actions recommended by the experts were above and beyond what the EPA required ARCO to perform in its remedy. The experts recommended the top two feet of soil be removed from the affected properties and permeable walls be installed to remove arsenic from the groundwater. The experts’ opinions formed the basis of the property owners legal action against ARCO.
Property Owners’ Claims
The property owners brought legal action against ARCO for: injury to and loss of use and enjoyment of property; loss of value of real property; damages, including relocation expenses and loss of rental income; discomfort over the loss of property value; and expenses for the investigation and restoration of property value. Of these five claims, ARCO objected to damages because it argued this claim was preempted by CERCLA. It moved for summary judgment arguing that CERCLA barred the property owners’ claims. After the District Court dismissed the case on the basis that the property owners claims were barred by statute of limitations, the property owners appealed, and the District Court denied all ARCO’s contested motions for summary judgment. On remand, after appealing to the Supreme Court of Montana, the District Court denied ARCO’S motions for summary judgment. The Montana Supreme Court once again reviewed the District Court’s denial of summary judgment before ARCO appealed to the U.S. Supreme Court.
ARCO’s first argument before the Montana Supreme Court was the issue of whether private landowners can bring a state law claim for damages to restore their property. ARCO argued that such claims can be made once the EPA completed its remediation because CERCLA “protects the execution of a CERCLA plan during its pendency from lawsuits that might interfere with the expeditious cleanup effort.” The Montana Supreme Court however noted that the property owners did not ask the Court for additional reporting requirements on the cleanup. It did not ask the Court to interfere with federal law or the EPA’s cleanup standards, disproving ARCO’s argument.
ARCO argued that under CERCLA, the property qwners are “Potentially Responsible Parties” (PRP) and are prohibited from conducting remedial action inconsistent with EPA’s remedy. A PRP may occur either by having a party enter into a voluntary settlement with the EPA, by judicial determination, or if the party is a defendant in a CERCLA lawsuit and found not to be entitled to statutory defenses. The Court noted the Property Owners did not fit into any of these categories. They are only seeking restoration damages, which will have no affect on EPA’s work in any way.
ARCO asserted that other conflicts exist between CERCLA and the property wwners’ claim for restoration damages. ARCO stated the EPA has sole authority to select environmental remedies, precluding alternative standards and remedies. It argued the Congressional intent was to preclude state law remedy that challenges or obstructs the remedy of the EPA. ARCO described the property owners’ claims as a challenge to EPA’s remedy, and stated the claim can only proceed when EPA’s remedy is fully performed. The Montana Supreme Court however held that neither of these arguments applied because the claims against ARCO did not prevent EPA’s implementation of a remedy.
The Montana Supreme Court held that the District Court ruling favoring the Property Owners was correct. ARCO argues that a U.S. Supreme Court ruling would disincentivize polluters from cooperating with the EPA. Others believe this may lead to an influx of property owners seeking remedies without EPA’s authorization. The cleanup of Superfund sites can be a slow and arduous process that residents bear the burden while impatiently waiting to have their environment safe to live. If you would like to know more on how this case may affect you, contact Whitcomb Selinsky PC at (303) 534-1958 or contact us online.