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Type: Law Bulletins
Date: 06/13/2019

Exclusive or Inclusive? Supreme Court to Decide the Applicable Remedies to Those Effected by the Anaconda Smelter Superfund Site

The Supreme Court of the United States has granted certiorari in Atlantic Richfield Co. v. Gregory A. Christian et al. 17-1498 to address whether state statutes requiring remediation in addition to or inconsistent with what is required by the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) are preempted, whether landowners not named as potentially responsible parties are preempted from pursuing potentially responsible parties after the EPA has selected a remedy, and whether state law remedies that are additional to and inconsistent with EPA’s selected remedy are preserved under CERLCA’s savings clauses.

The petitioner for certiorari, Atlantic Richfield Company, is remediating the former Anaconda Smelter Superfund Site, one of the world’s largest copper smelters for over 100 years. The Respondents are a class of plaintiffs who brought suit under Montana state law for “restoration claims” for lead and arsenic contamination to their property. The Montana Supreme Court held that the Plaintiffs could pursue their restoration claims which would require remediation above and beyond EPA’s selected remedy. Atl. Richfield Co. v. Montana Second Judicial Dist. Court, 408 P.3d 515, 517, cert. granted sub nom. Atl. Richfield Co. v. Christian (U.S. June 10, 2019).

A number of parties have filed amicus briefs in support of the petitioner’s position, with the Treasure State Resources Association of Montana, Montana Mining Association, Montana Petroleum Association, The Montana Chamber of Commerce, Chamber of Commerce of The United States of America, National Association of Manufacturers, American Fuel & Petrochemical Manufacturers, National Mining Association, American Petroleum Institute, and Superfund Settlements Project, and The Washington Legal Foundation filing Amicus briefs in support of petitioner. The United States has filed an amicus brief asserting that the review by the Supreme Court is premature.

Regardless of the result, this case will have a profound impact on sites under EPA control. Through this case, the Supreme Court will have an opportunity to provide clarity as to how U.S. EPA’s remedies are challenged, whether state law remedies play a role in shaping post-remedy selection remediation at Superfund and EPA sites, and whether state law remediation claims survive remedy selection by the EPA. If the Court preempts inconsistent state claims, property owners will be incentivized to participate heavily in EPA’s remedy selection because they may be barred from seeking separate relief. If the Court holds that the “restoration remedies” are separate and distinct from the CERCLA claims, then this case may open a new avenue for parties effected by environmental impacts to seek relief from potentially responsible parties outside of and during the remedy phase of a CERCLA action.

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