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Supreme Court Rules that Landowners at a CERCLA Site Cannot Require Additional Cleanup under State Law without Advance EPA Approval

Summary

Private landowners at a federal Superfund site cannot use state law claims to require additional remediation without advance EPA approval, based on a limitation in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Overruling the Montana Supreme Court on this issue, the United States Supreme Court held that the landowners at a CERCLA site are potentially responsible parties (PRPs) and, as such, may not “undertake any remedial action” at the site without EPA approval pursuant to CERCLA Section 122(e)(6). Atlantic Richfield Co. v. Christian, --- S.Ct. ----, 2020 WL 1906542 (April 20, 2020); 42 U.S.C. §9622(e)(6). The Court described Section 122(e)(6) as “one of several tools in the Act that ensure the careful development of a single EPA-led cleanup effort rather than tens of thousands of competing individual ones.” The Court further observed that CERCLA provides methods for considering state law in the course of selecting a CERCLA remedy, and that “saving clauses” that use sweeping language to avoid preemption of liability or requirements under state law must be construed consistent with the rest of CERCLA to avoid erasing the Act. Thus, while stating that Section 113 of CERCLA “permits federal courts and state courts alike to entertain state law claims, including challenges to cleanups,” the Court applied CERCLA’s limit that prevents PRPs from conducting remediation not approved by EPA.

Background – State Court Suit for Restoration Damages

Alleging impacts from former copper smelting operations in Montana that EPA had designated as a Superfund site and had studied and remediated for decades, a group of 98 property owners filed several state law tort claims against the current owner of the smelter. Most of the common law tort claims (such as diminution of value) were not at issue on appeal, but defendants challenged the claim for “restoration damages” as seeking supplemental remediation that, among other things, is barred by CERCLA Section 122. For example, as “restoration damages” the landowners sought both groundwater capture and supplemental soil excavation, even though under EPA’s CERCLA remedy selection such activities were unnecessary to protect human health and the environment.

On appeal to the Montana Supreme Court, the landowners achieved a temporary victory, with that court holding that the landowners are not “PRPs” and thus not subject to the CERCLA Section 122 bar on a PRP’s ability to conduct its own remedial action without regard to EPA approval. The United States Supreme Court vacated this element of the Montana holding.

EPA Approval Required for Remedial Actions at Superfund Sites

The United States Supreme Court determined that the residents owning property at the CERCLA site are PRPs who need EPA approval under Section 122 of CERCLA before conducting further remediation of their properties. The Court concluded that landowners are PRPs because “pollutants have ‘come to be located’” on their properties and explained that “[i]nterpreting ’potentially responsible parties’ to include owners of polluted property reflects the Act’s objective to develop, as its name suggests, a ‘Comprehensive Environmental Response.’” The Court’s majority rejected landowners’ arguments and Justice Gorsuch’s dissent, under which the breadth of the term PRP would depend on the enforcement status for each landowner, such as whether a landowner has received a notice letter from EPA or whether a statute of limitations has run. The Court likewise rejected arguments that the property owners may qualify for CERCLA’s contiguous landowner defense, because they could not satisfy the elements of that defense. For instance, the landowners would have “had reason to know” that their property could have been contaminated when they acquired the property, and could not show that they provided the required cooperation with EPA given their current demands for additional remediation. 

Preliminary Jurisdictional Rulings

Before reaching the PRP interpretation issue, the Court addressed two jurisdictional issues. First, it affirmed its own jurisdiction to hear the appeal. Second, the Supreme Court evaluated whether Section 113 of CERCLA precludes Montana state courts from considering the state law issues in this case. The Court determined that because the property owners’ claims arose under Montana law, not CERCLA, the Montana state courts could exercise jurisdiction. The court emphasized a presumption of concurrent jurisdiction by federal and state courts to entertain state law claims, and declined to construe provisions of Section 113 as clearly barring the jurisdiction of state courts to consider claims arising under state law, even if such claims were “challenges to cleanups.” The majority’s analysis on this point, however, was not without controversy. In dissent, Justice Alito argued that reaching the state court jurisdiction issue was unnecessary to resolve the case and that “the better course is not to decide this perplexing question at this juncture.” The significance of the Court’s interpretation of Section 113 will likely be a matter of continuing legal debate if state law claims in state courts are used to challenge CERCLA remedies.

Procedural Posture of the Remaining Case

The Court remanded the case to the Montana Supreme Court in light of the landowners’ PRP status.

Given the basis of the decision, the Court did not reach the question of conflict preemption that had been raised in the briefs.

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 114

TRENDING LEGAL ANALYSIS


About this Author

Steven M. Jawetz Remediation & Natural Resource Damages Attorney Beveridge & Diamond Washington, DC
Principal

Steve's practice focuses on remediation and natural resource damages (NRD) matters under the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund) and similar state statutes imposing liability for hazardous substance releases. 

He also regularly addresses PCB cleanup issues under the Toxic Substances Control Act.

Steve represents clients at a number of nationally significant contaminated sediment sites in rivers, lakes, and estuaries across the country. He also represents clients at numerous sites involving hazardous substances in soil and...

202-789-6045
Pamela D. Marks Environmental Litigation Attorney Beveridge & Diamond Baltimore, MD
Principal

Pam helps her clients tackle water, waste, and historic contamination regulatory issues and litigation.

Pam offers her clients the experience and judgment from decades of environmental counseling and litigation. She currently co-leads the firm-wide Environmental Practice Group, and formerly has managed Beveridge & Diamond's Baltimore office and led the firm’s Contaminated Properties practice.

Pam focuses her practice on solid and hazardous waste management, contaminated property remediation, water discharges, chemicals regulation, and project development. She counsels clients on environmental regulatory compliance, permitting, and risk management. She also has experience litigating permitting and compliance issues as well as common law claims. She also offers experience with the overlay of bankruptcy and environmental liabilities.

Regarding contaminated properties, Pam represents clients on hazardous substance and petroleum remediation issues arising under state law, CERCLA, RCRA, and FUSRAP. She assists real estate buyers and sellers with environmental due diligence, negotiating environmental liability contractual provisions, and identifying and implementing brownfields risk management strategies. For example, she has helped her clients to assess when and how to pursue state voluntary cleanup programs, and the circumstances under which a purchaser may avail itself of a CERCLA defense for innocent landowners.

Pam's clients have included governmental entities and businesses in the chemical, power generation, manufacturing, land development, biosolids, solid waste treatment, petroleum, retail, and beverage industries, as well as individuals and non-profit organizations.

Before joining B&D, Pam served as a Maryland Assistant Attorney General representing the Maryland Department of the Environment, where in 1997 she received the Attorney General's Exceptional Service Award. She also served as a law clerk for the Honorable Joseph H. Young of the United States District Court for the District of Maryland.

Pam is a former Chair of the Maryland State Bar Association Environmental Law Section Council and former President of the Women's Law Center of Maryland. She has also served on other nonprofit boards.

410-230-1315
Lindsey K. Selba Environmental Litigation Attorney Beveridge & Diamond Baltimore, MD
Associate

Lindsey Selba is a responsive and thoughtful team player who maintains a general environmental, litigation, and regulatory practice in addition to a pro bono practice.

Her work at the firm has focused primarily on Clean Air Act (CAA) and Clean Water Act (CWA) citizen suit litigation. In one matter, she successfully represented a client against citizen complaints of regulatory deviations and nuisance. Lindsey collaborated with technical personnel to demonstrate substantial compliance and developed a factual record to support a motion for summary...

410-230-1325
Augustus E. Winkes Environmental Attorney Beveridge & Diamond Seattle, WA
Associate

 

Augustus E. Winkes focuses his practice on contaminated site cleanup and litigation under CERCLA and state Superfund statutes. He is the deputy for the firm’s CERCLA, Brownfields, and Subsurface Contamination practice group.

He also advises clients on regulatory compliance and defends enforcement actions under federal and state hazardous waste, water quality, air quality, and climate change laws, and he has experience in natural resource management matters.

Mr. Winkes also serves on the Stakeholder and Tribal Advisory Group tasked with providing...

206-315-4813