Superfund PRPs to Closely Monitor Atlantic Richfield Co. v. Gregory A. Christian, et al., Set for Oral Argument December 3, 2019

Atlantic Richfield Co. v. Gregory A. Christian, et al. (Case No. 17-498) is set for oral argument before the Supreme Court on December 3, 2019, and the outcome could have broad implications for private parties seeking to recoup costs from PRPs for cleanup activities that are beyond the scope of EPA’s chosen remedy under CERCLA.

The case involves the Anaconda Smelter Superfund Site in Butte, Montana.  Contamination from the Anaconda Smelter reached more than 300 square miles, including residential communities.  A group of landowners located within the site boundaries sued Atlantic Richfield Co. (“ARCO”) in Montana state court for common law trespass, nuisance, and strict liability, seeking restoration damages to restore their property to pre-contamination condition.  Such damages are a common-law remedy available in Montana when damages for lost market value are inadequate to fully compensate a property owner.  ARCO now owns the Anaconda Smelter that emitted arsenic and other substances which were deposited on the property owners’ land.  ARCO contends the state tort claims are barred by CERCLA because the landowners seek damages to fund cleanup activities beyond those ordered by EPA.  Particularly noteworthy here is that the landowners’ state law claims contemplated restoration work that would in part undo EPA’s cleanup activities.  Nonetheless, the Montana Supreme Court held the state law claims were not barred by CERCLA, and ARCO appealed to the U.S. Supreme Court.

The Supreme Court invited the United States Government to submit an amicus brief, which the U.S. filed in August.  And earlier this month, the Court granted the motion of the Solicitor General for leave to participate in oral argument as amicus curiae.  In its amicus brief, the U.S. presented three questions: (1) whether Respondents’ claims for restoration damages present a jurisdictionally barred “challenge” to an EPA response action within the meaning of Section 113(h) of CERCLA; (2) whether the landowners, by dint of location within the Superfund site are PRPs who are prohibited by Section 122(e)(6) from undertaking remedial action without EPA authorization; and (3) whether CERCLA preempts Respondents’ claims for restoration damages.

If upheld, the decision by the Montana Supreme Court threatens to upend longstanding interpretation regarding the extent to which CERCLA defines the rights of parties to recover costs incurred conducting cleanup activities.  ARCO argued in its Writ of Certiorari that the likely outcome of the Montana Court’s holding would be “chaos”; ARCO forewarns that the decision would disincentivize PRPs to cooperate with EPA in cleanups going forward.  Several amicus briefs have been filed in support of ARCO’s position.  The Supreme Court’s decision, which is expected June 2020, is sure to be closely watched by Superfund PRPs.