Case No. 17-1498 | Mont.
Preview by Mary Crowell
For almost 100 years, the Anaconda Copper Mining Company emitted thousands of tons of toxic metals including arsenic, lead, and other heavy metals that blanketed a nearby town: Opportunity, Montana. These heavy metals contaminated soil and tainted water with arsenic. Atlantic Richfield Company (“ARCO”) bought the Anaconda Company in 1977, acquiring both the smelting facility and its liability for decades of toxic contamination.
Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), the Environmental Protection Agency (“EPA”) lists priority sites for hazardous waste cleanup (called Superfund sites) and then manages the remediation process. The EPA designated the 300 square-mile area surrounding the Anaconda Company smelter site, including land owned by residents of Opportunity, Montana, a Superfund site in 1983. Over the past 35 years, the EPA has managed the site’s cleanup.
Notwithstanding this cleanup effort, some residential property owners inside the Superfund site (the “Landowners”) have been unsatisfied.
In 2008, the Landowners filed suit against ARCO in Montana State Court seeking restoration damages to fund the removal of more pollution from their property. In addition to remediation work already required by the EPA, experts hired by the residents recommended removing two feet of contaminated topsoil from yards and installing treatment wells to remove arsenic from the groundwater.
In the state district court, both parties moved for partial summary judgment on the claim for restoration damages. After the district court denied ARCO’s motion, the Montana Supreme Court granted ARCO’s writ for supervisory control of the case. ARCO argued that the Landowners’ claim constituted a “challenge” to the EPA’s remedy. “Challenges” to a CERCLA cleanup are barred from federal court jurisdiction by § 113(h) of CERCLA. Regardless of whether § 113(h) actually bars states from hearing such claims, the court held that the Landowners’ claim does not challenge the cleanup because it did not “seek[] to compel EPA to do, or refrain from doing, any action.” Atlantic Richfield Co. v. Mont. Second Judicial Dist. Court, 408 P.3d 515, 522 (Mont. 2017). Instead, the restoration damages would be a concurrent state law remedy to EPA’s remedy. ARCO also unsuccessfully argued that the Landowners were “potentially responsible parties” under CERCLA and that CERCLA would preempt Landowners’ claim. Ultimately, the Montana Supreme Court affirmed the district court’s decision to deny ARCO’s motion for summary judgment. Id. at 523.
The Supreme Court granted certiorari on June 10, 2019. Three main issues remain in the case: (1) whether this state law claim “challenges” the EPA’s remedy such that CERCLA bars the claim under § 113(h); (2) whether the Landowners are “potentially responsible parties” that would need EPA approval before conducting remediation activities; and (3) whether CERCLA preempts the Landowners’ attempt to restore land when that attempt conflicts with EPA’s prescribed remedy.
ARCO turns to § 113(b) in CERCLA to argue that all “controversies arising under” CERCLA, which are under exclusive federal jurisdiction, includes all § 113(h) “challenges” to an EPA remedy. Brief for Petitioner at 21, Atlantic Richfield Co. v. Christian, No. 17-1498 (U.S. filed Aug. 21, 2019). Here, the Landowners’ claim challenges EPA’s cleanup because the claim questions and contradicts remediation efforts already undertaken by the agency; therefore, this challenge would be under exclusive federal jurisdiction. Id. at 21–22. ARCO also argues that the Landowners are “potentially responsible parties” because they own land impacted by the hazardous waste. Id. at 22–23. Such parties must have EPA approval before taking any remedial action at a Superfund site. Id. Finally, ARCO argues that CERCLA preempts state law restoration damages because it is impossible to comply with both the state and federal remedy, and the restoration work would interfere with EPA’s cleanup efforts accomplished through carefully assigned statutory roles and responsibilities. Id. at 24–25.
The Landowners argue that § 113(h) only restricts federal jurisdiction over challenges to EPA orders, so state court claims are not barred. Response Brief for Gregory A. Christian, et al. at 15, Atlantic Richfield Co. v. Christian, No. 17-1498 (U.S. filed Oct. 15, 2019). Furthermore, the respondents argue that this claim does not “challenge” any EPA order—the Landowners do not raise CERCLA claims, nor do they require “proof EPA erred.” Id. at 15–16. The Landowners also argue that “potentially responsible parties” only describes property owners who face possible CERCLA liability. Id. at 16. Here, the Landowners cannot be at risk for liability because the statute of limitations has run. Id. Finally, the Landowners argue that CERCLA does not preempt their claim because ARCO can concurrently comply with restoration damages and CERCLA obligations, and the restoration would not be an obstacle to CERCLA’s aim, but rather an added obligation as a result of decades of pollution. Id. at 17.