Only time will tell whether the concerns currently being expressed by the unsettled areas under the Atlantic Richfield opinion will amount to the tip of the iceberg or a tempest in a teapot when it comes to future CERCLA litigation and common law claims brought in state courts.Notes 2020 WL 1906542, Sup. Ct. (2020) 42 U.S.C. § 9601 et seq. 42 U.S.C. § 9622(e)(6). 2020 WL 1906542, *3 at 10.Id., *5 at 11.Id., *5 at 12.Id., *3 at 10.Id., *6 at 13.Id., *7 at 13, citing 42 U.S.C. § 9613(b).Id., *7 at 13.Id., *7 at 14.Id., *8 at 13.Id., *9 at 14.Id., *9 at 15, citing 42 U.S.C. § 9601(9)(B).Id., *9 at 15 and *11 at 16.Id., *13 at 18.Id., *14 at 19.Id., *17 at 21.Id., *19 at 22.Id., *20 at 23.Id., *11 at 16.

If you have any questions about CERCLA’s interaction with state claims or any other CERCLA issues, please contact any of the authors of this client alert.1 No. 17–1498, slip op., 590 U.S. ___ (2020).2Id. at 9 (emphasis added).3Id. at 11–12.4 42 U.S.C. § 9622(e)(6) (emphasis added).5 42 U.S.C. § 9607(a)(1).6 42 U.S.C. § 9601(9)(B).

However, the Supreme Court accepted Atlantic Richfield's argument that the plaintiffs—as owners of land where hazardous substances had come to be located—were PRPs under CERCLA, and thus were prohibited from implementing their restoration plan without EPA approval. 42 U.S.C. § 9622(e)(6). The Supreme Court remanded to the Montana Supreme Court for further proceedings.

Richfield Co. v. Christian, No. 17-1498, 2020 WL 1906542 (U.S. Apr. 20, 2020) (“Slip Opinion”).2 42 U.S.C. § 9613.3 Though Atlantic Richfield argued on appeal that CERCLA preempts and prohibits common-law torts like the plaintiffs’, the Court abstained from addressing the preemption argument and limited its analysis to the issue of whether a common-law claim for restoration damages is an impermissible challenge to an EPA cleanup plan, as prohibited in Section 113(h) of the Act.4 42 U.S.C. § 9622(e)(6).5 EPA Superfund Record of Decision: Anaconda Co. Smelter (Sept. 30, 1996), available athttps://semspub.epa.gov/work/08/1164438.pdf.6Atl.

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.”

Instead, according to the Montana Supreme Court, the landowners are “simply asking to be allowed to present their own plan to restore their own private property to a jury of twelve Montanans who will then assess the merits of that plan.”The United States Supreme Court grants review to address CERCLA’s scopeAtlantic Richfield sought and obtained certiorari from the United States Supreme Court. The Court agreed to address three issues:Whether a common-law claim for restoration seeking cleanup remedies that conflict with EPA remedies is a jurisdictionally barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of CERCLA;Whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; andWhether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.Taken together, these three issues affect the core of CERCLA’s operations. CERCLA makes polluters and a range of other actors (current landowners, legacy owners, waste generators, among others), liable for cleanup and subject to EPA’s enforcement and cleanup authority.

Although the federal government agreed with ARCO that the Montana Supreme Court decision was “erroneous” for multiple reasons, the government requested that ARCO’s petition should be denied due to the “interlocutory posture” of the case. Nonetheless, the U.S. Supreme Court granted the petition.The questions presented in the petition are whether:A common-law claim for restoration seeking clean-up remedies that conflict with remedies the EPA ordered is a jurisdictionally barred “challenge” to the EPA’s clean-up under 42 U.S.C. § 9613 of CERCLAA landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanupCERCLA preempts state common-law claims for restoration that seek clean-up remedies that conflict with EPA-ordered remedies. We will continue to watch this case, which according to the Petitioner involves “one of the most consequential decisions interpreting CERCLA in years.”

ARCO next argued that because landowners are “potentially responsible parties” (PRPs) under CERCLA, the plaintiffs were barred from undertaking any remedial action—a requirement of pursuing restoration damages—without EPA authorization, which they lacked. 42 U.S.C. § 9622(e)(6). In response, and despite the fact that 42 U.S.C. § 9607 seemingly broadly states that all landowners are PRPs, the court held that the land owners were not PRPs because they had never been treated as such nor had there been any judicial or agency finding that they were PRPs since the property was designated a Superfund site over three decades prior.

[ii] See e.g., 40 C.F.R. § 25.5(a)-(f) (nonadjudicatory public hearings, whether mandatory or discretionary, meet certain minimum requirements including notice provided no less than 30 days before the hearing, a location and time that facilitates public attendance, adequate time for scheduled and unscheduled testimony, and a record available for public review). [iii] See e.g., 42 U.S.C. § 7413(g) (Clean Air Act); 42 U.S.C. § 9622(i) (CERCLA); 28 C.F.R. § 50.7 (DOJ policy for public notice and comment of proposed consent decrees in actions to enjoin discharges of pollutants). [iv] Courtney R. McVean and Justin R. Pidot, Environmental Settlements and Administrative Law, 39 Harv. Envtl. L. Rev. 191, 239 (2015), http://harvardelr.com/wp-content/uploads/2015/04/McVean-and-Pidot.pdf