This week the U.S. Supreme Court continued its plain language approach to interpreting CERCLA, allowing property owners’ state law claims for restoration of their properties to proceed in Montana even though resolution of the claims may require additional work than the U.S. EPA-determined remedy. See Atlantic Richfield Co. v. Christian, et al, No. 17-1498 (Slip Op. April 22, 2020).The decision creates uncertainty for parties responsible for cleaning up sites under CERCLA where there are pending or potential state court claims that could force additional remedial action. The decision, however, does not place the remedy completely within the discretion of a state court. As current property owners, the plaintiffs were themselves potentially responsible parties (“PRPs”) and would have to seek U.S. EPA’s approval for any remedial plan under Section 122(e)(6) of CERCLA, giving U.S. EPA some ability to make a state-court awarded remedy consistent with its approved remedy.
Atlantic Richfield argued that Section 113(h) of CERCLA stripped the state court of jurisdiction of the restoration claim because it amounted to a challenge to a removal or remedial action. The Court first noted that the claims arose under Montana state common law, not CERCLA, such that federal courts did not have exclusive jurisdiction under the arising under provision of Section 113(b). Op. at 9-10. The Court then disagreed with Atlantic Richfield’s argument that Section 113(h) stripped state courts of jurisdiction over state claims, primarily because there was no textual basis to apply the jurisdictional bar, given the express reference in Section 113(h) to only “Federal court” in Section 113(h). Op. at 10-11. Section 113(h) states that “[n]o Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 (relating to diversity of citizenship jurisdiction) . . . to review any challenges to removal or remedial action.” 42 U.S.C. 9613(h). Congress would have had to do more to strip the jurisdiction of state courts over state claims.
The Court then turned to the Montana Supreme Court’s opinion that the property owners were not PRPs under CERCLA and therefore did not need U.S. EPA approval to take remedial action under Section 122(e)(6). Here, the Court relied on its prior ruling in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161 (2004) that there were four classes of PRPs under CERCLA, one of which is the current owner of the “facility,” i.e., any site or area where hazardous substances have been deposited or come to be located. Op. at 14. The plaintiffs are current property owners where hazardous substances have come to be located. The Court rejected the plaintiffs’ and Justice Gorsuch’s argument in dissent that they ceased to be PRPs because the statute of limitations had run. Op. at 14-16. Requiring the plaintiffs to seek approval from U.S. EPA for any remedial action is consistent with the statutory language and the purpose of CERCLA and allows for the U.S. EPA to confirm that any remedial action does not result in additional harm and should provide some comfort to companies, like Atlantic Richfield that they will not be required to take inconsistent action: “That approval process, if pursued, could ameliorate any conflict between the landowners’ restoration plan and EPA’s Superfund cleanup, just as Congress envisioned.” Op. at 22.