The homeowners of Opportunity may end up as responsible as Atlantic Richfield Company for the arsenic in their yards, according to a Superfund lawyer.
The U.S. Supreme Court took the unusual step of wading into a legal fight before all the dust had settled in the lower courts when it heard arguments last week about whether landowners near the former Anaconda smelter could ask Arco to clean more arsenic out of their yards than the amount required by the Environmental Protection Agency.
During the hour of arguments, the justices asked several questions related to whether the homeowners are “potentially responsible parties” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, or CERCLA.
The answer to that question would determine whether 98 homeowners could demand more of the arsenic be removed from their yards under state law or whether they have to accept federal limits for the Upper Clark Fork River Superfund site.
The problem is that Congress didn’t define “potentially responsible party” when it passed CERCLA, and the law uses different words interchangeably. The only time it really addresses the term is in the chapter that talks about settlements.
Arco wants all landowners within a Superfund site to be potentially responsible, mainly so the company won’t have to pay for more cleanup.
Homeowners argue that the EPA didn’t consider them to be responsible parties for decades after the Superfund process started in 1983. The question never rose until residents pushed to get more cleanup.
Los Angeles environmental attorney Noah Perch-Ahern, who has experience in CERCLA litigation, contacted the Missoula Current about the Supreme Court hearing. He said the landowners have a strong argument.
“This is an argument that I found to be one of the strongest the landowners made,” Perch-Ahern said. “(The law says) the EPA has a requirement to identify potentially responsible parties and then send notice letters out. Here, they never sent notice letters out to the landowners. And it’s been conceded that no one thinks these landowners have responsibility to clean up contamination.”
However, Perch-Ahern still anticipates that the justices will decide the landowners are potentially responsible and send it back to the state court. He says the homeowners could still appeal to the EPA to grant a deeper cleaning.
“There is a decent shot that this case is remanded,” Perch-Ahern said. “They’d say the landowners are potentially responsible parties and they meet EPA’s authorization. The Montana court should decide whether there’s a remedy that could include a requirement for EPA authorization in order to invoke that remedy.”
Once they decide on the definition of responsible party, the justices probably won’t stray further into the messy questions that accompany the case, because they get into issues of states’ rights and property rights.
“The Supreme Court instinctively wants to find the narrowest path toward resolution without getting into those stickier issues. They’re signaling they may try to avoid those federalism issues,” Perch-Ahern said. “Those will become unsettled issues.”
When Arco bought the former Anaconda Company in 1977, it inherited all the mining company’s assets and burdens, including the Anaconda smelter and all the arsenic-contaminated soil surrounding it. Arco then closed the smelter in 1979.
After designating the area as a Superfund site, the EPA developed a plan to have Atlantic Richfield pay to remove and replace any regions of soil that contained more than 250 parts per million of arsenic. Some homeowners didn’t have yards that hot, but they didn’t feel any safer. They wanted Arco to replace the soil in their yards if their arsenic concentration was greater than 25 ppm, based on the recommendation of health experts.
Montana courts are still in the process of deciding whether 25 ppm is an appropriate limit, after the Montana Supreme Court ruled the landowners have a right to require more cleanup under the state constitution.
The Supreme Court rarely takes a case when it’s still in the courts. Often the justices will choose to jump in only when some issue causes appellate courts to disagree, Perch-Ahern said.
“It’s not the way that law is normally made,” Perch-Ahern said. “One could argue they shouldn’t have taken this case. When the Supreme Court weighs in before all the other courts have had a chance to look into all the implications, you can rest assure that there will be ramifications beyond this case. I think there will be unforeseen circumstances no matter which way they rule.”
Other parts of CERCLA allow states to demand cleanup to a higher level, but if the landowners are potentially responsible parties, they are limited to the EPA limits.
The justices voiced concern about allowing the landowners to dig more because of the chance arsenic could be released into the air. But that was never an EPA concern. Only the Arco attorneys raised that issue in their most recent briefs, making it a bigger deal than it was.
That overblown claim could be what caused the Supreme Court to take the case, Perch-Ahern said.
“I think what happened is Arco wrote a very compelling brief that made it look like there was the chance for supreme chaos if the Supreme Court didn’t intervene. It got the court’s attention,” Perch-Ahern said. “I was very surprised. This is highly unusual.”
Contact reporter Laura Lundquist at email@example.com.