IS CERCLA STANDING IN THE WAY OF A NEW SANDBOX
In Atlantic Richfield Company v Christian, 140 S. Ct. 1335 (2020), the U.S. Supreme Court touched upon the ramifications of being a Potentially Responsible Party (“PRP”) under the Comprehensive Environmental Response, Compensation and Liability Act, U.S.C.A. § 9601 et. seq. (“CERCLA”). Atlantic Richfield involved the Anaconda Copper Mining Company. Anaconda previously operated three copper smelters in Montana. Emissions from its smelters resulted in elevated levels of arsenic and lead being deposited over a widespread area some 300 square miles in size. Atlantic Richfield had purchased Anaconda in 1977. A few years later, the area around the smelters was designated a Superfund Site. Since that time, Atlantic Richfield has been working to remediate the Site.
A group of landowners brought suit against Atlantic Richfield in state court. Those landowners sought to recover restoration damages from Atlantic Richfield in order to clean up their property in conformance with their own cleanup plan. By design, the landowners’ plan was intended to achieve a degree of cleanup that exceeded what Atlantic Richfield and the EPA had agreed upon. While Atlantic Richfield’s plan would have allowed up to 250 ppm of arsenic to remain in the soil after cleanup, the landowners plan set the arsenic limit at 15 ppm. The landowners plan included excavation of contaminated soil down to two feet below grade; the EPA approved plan only required one foot of excavation.
Atlantic Richfield defended the action by claiming any award of restoration damages was improper because the landowners’ cleanup plan exceeded what was required under the EPA approved plan. In doing so, it claimed the landowners were PRPs. If the landowners were PRPs, their restoration plan would need EPA approval pursuant to Section 122(e) (6) of CERCLA, which governs inconsistent response actions.
The Montana Supreme Court held that the landowners were not PRPs and thus, no EPA approval of their restoration plan was needed. The U.S. Supreme Court disagreed. CERCLA imposes liability on status. The court noted that if a person owns property where hazardous substances are located, that person is a PRP regardless of whether they actually played a role in causing the contamination. Because there was no disputing that contaminants were located on the landowners’ property, the court considered them PRPs.
The statute of limitations had run against the landowners. Because they were no longer subject to a lawsuit for recovery of cleanup costs, the landowners claimed they could not be considered PRPs. The court stated the landowners could not simply escape their status as PRPs because they were no longer subject to suit. Even if a person is not subject to suit, they are still a PRP under CERCLA.
The landowners claimed if they were PRPs, the government would have an easement over their property requiring them to obtain EPA approval for ordinary improvements like installing a sandbox for their grandchildren. While acknowledging CERCLA’s broad definition of remedial action, the court noted its reach is limited. It called out to the grandchildren of Montana to rest easy. Remedial action does not include planting gardens, installing sprinklers or sandboxes.
Lastly, the landowners claimed it was unfair to treat them as PRPs because they never received notice of those settlement negotiations between Atlantic Richfield and the EPA. Once again, the court did not believe the landowners could simply escape their status as PRPs because they were not provided notice of settlement negotiations. EPA has a policy of not suing innocent landowners which the court suggested explained why the EPA did not include them in settlement negotiations. Even if the landowners should have received notice, the Court held that lack of notice was not determinative of their status as PRPs. In the end, the court held that EPA approval of the landowners’ cleanup plan was required.