News & Events > Blog > The Battle Continues Between Residential Landowners and Industrial Polluters
The Battle Continues Between Residential Landowners and Industrial Polluters
By: MICK HARRIS
In April, the U.S. Supreme Court published their opinion in Atlantic Richfieldv. Christian, further tangling the rules of engagement in the fight between residential property owners and industrial polluters.
Atlantic Richfield centers on the Anaconda Smelter, a copper ore smelter in Montana. The Atlantic Richfield Company (ARCO) owned the smelter, whose operations produced pollution significant enough to qualify it as a federal “Superfund” site in 1983. Since the smelter ceased operations in 1980, the Environmental Protection Agency (EPA) has spent close to $50 million dollars cleaning up the site. As a result, class-action litigation commenced between residential property owners and ARCO with the case ending up before the Montana Supreme Court.
The plaintiffs argued that the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) required ARCO to fund clean-up efforts on residential properties and the Montana Supreme Court agreed. In response, ARCO appealed, claiming that state courts lacked jurisdiction over the case, as a portion of the claims challenged a CERCLA remedy and CERCLA was a federal law. ARCO also argued that residential landowners themselves should qualify as potentially responsible parties (or PRPs) and, as such, require approval from the EPA before pursuing remedial actions.
To understand how a residential landowner could be considered a PRP, it is important to understand that CERCLA defines an entity as a PRP if:
Hazardous wastes are present at a facility
There is a release (or a possibility of a release) of these hazardous substances
Response costs have been or will be incurred, and
The defendant is a liable party.
If these elements are met, then an entity may be considered a PRP and could be on the line for the cost of cleanup and other costs resulting from pollution and contamination. PRPs must also receive EPA approval for plans related to remediation efforts.
After considering the arguments, the Supreme Court held on a 7-2 vote that (1) Montana courts had jurisdiction to hear the claims; and (2) landowners were indeed PRPs because the pollution was on their property and this met the definition of “hazardous waste present at a facility.” In other words, the residential properties were, themselves, "facilities" under CERCLA. This ruling appears to be based largely on the Court’s inclination to maintain CERCLA’s comprehensive, strict-liability scheme, but it is likely to muddy the waters further regarding how courts interpret CERCLA while complicating the interplay between state and federal courts as they consider efforts to address polluted Superfund sites. If you have any questions regarding this topic, please reach out to your contact at Tonkon Torp.