Superfund Suits in Montana Get Supreme Court’s OK

This slag pile of mining waste in Anaconda, Mont., was photographed on Dec. 15, 2016. (AP Photo/Matt Volz)

WASHINGTON (CN) — While advancing cleanup claims by a group of people who live on a Superfund site, the Supreme Court ruled Monday that the U.S. Environmental Protection Agency must approve of any restoration plans.

The case comes from a group of landowners in Montana whose properties are contaminated by arsenic and lead spewed from a massive copper smelter once owned by the Anaconda Copper Mining Company. 

All that remains of the once-mighty mining company is a 585-foot-tall smelter stack that towers over the town of Anaconda. The stack is one of the largest free-standing brick structures in the world, a reminder of the environmental carnage from the copper boom of decades past.

Chief Justice John Roberts wrote for the majority Monday that CERCLA, short for the Comprehensive Environmental Response, Compensation and Liability Act, does not give landowners freedom to dig up arsenic-infected soil and redirect lead-contaminated groundwater without notifying federal regulators.

“We doubt Congress provided such a fragile remedy for such a serious problem,” Roberts wrote. “And we suspect most other landowners would not be too pleased if Congress required EPA to sue each and every one of them just to ensure an orderly cleanup of toxic waste in their neighborhood.”

The justices backed the finding by the Montana Supreme Court that state courts hold jurisdiction to hear federal claims. Where the state court erred, however, was in holding that the landowners were not potentially responsible parties under CERCLA and therefore did not need EPA approval to take remedial action.  

The Atlantic Richfield Company acquired the Anaconda company in 1977 and now is responsible for the contentious cleanup of a 300-square-mile area around the smelter that the EPA designated one of the nation’s first and largest Superfund sites.

The high court rejected the claim that its interpretation of CERCLA locks landowners into seeking EPA permission for such mundane activities as digging a garden, installing a sprinkler or building a sandbox for their children.

“The grandchildren of Montana can rest easy: The act does nothing of the sort,” Roberts wrote. 

CERCLA prohibits legal challenges to the agency’s remediation plans and prohibits entities that might be responsible for cleaning up a site from doing so without the agency’s approval. 

In Montana state court, however, a group of landowners who live on the Anaconda site brought a $58 million suit to do work beyond what the EPA had required of Atlantic Richfield, including replacing more dirt and digging long trenches to filter groundwater.

Justice Neil Gorsuch, joined by Justice Clarence Thomas, dissented in part, arguing that the landowners had exceed CERCLA’s six-year limit on recovering remedial costs. 

Roberts rejected the “evocative claim” from his benchmates that the act “endorses ‘paternalistic central planning’ and turns a cold shoulder to ‘state law efforts to restore state lands.’”

“Such a charge fails to appreciate that cleanup plans generally must comply with ‘legally applicable or relevant and appropriate’ standards of state environmental law,” the chief justice wrote. 

Justice Samuel Alito penned his own partial dissent, arguing the high court should not have ruled with “no basis for such confidence” that state courts hold jurisdiction to entertain challenges to EPA approved plans. 

Warning of high legal stakes as the Anaconda cleanup progresses, Alito wrote: “The question whether CERCLA allows state courts to entertain suits like the one in this case depends on the interpretation of devilishly difficult statutory provisions.”

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Prior coverage:
Justices Urged to Allow More Cleanup at Superfund Site
Arco Agrees to Pay $28 Million to Clean Up Montana Mining Town
Toxic Cleanup Fight Hits Montana High Court
Feds Fight to Keep Montana Superfund Settlement Talks Secret
ARCO Tells Montanans to Butt Out of Cleanup

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