Montana Court Rules CERCLA Does Not Preempt Claims For Restoration Damages
A group of private landowners ended of 2017 with a Montana Supreme Court ruling, in Atlantic Richfield Company v. Montana Second Judicial District Court, that they could proceed with their state law claims for restoration damages against the owner of a site contaminated by a former copper smelter. No. 16-0555, 2017 WL 6629410 (Mont. December 29, 2017). In a split decision, the Court found that the landowners’ claims for restoration damages were not preempted by the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) because the claims did not constitute a challenge to the U.S. Environmental Protection Agency’s established cleanup plan for the Site.
The case involves an area contaminated by the Anaconda Smelter, now owned by the Atlantic Richfield Company (“ARCO”), which was designated as a Superfund site by EPA in 1983. EPA selected a cleanup plan for the Site in 1998 that detailed ARCO’s cleanup responsibilities, including the remediation of residential yards and drinking water wells that exhibited elevated levels of arsenic. A group of 98 landowners who owned property within the designated Site hired experts to determine what actions would be necessary to fully restore their properties to pre-contamination levels. The experts recommended that the landowners remove the top two feet of soil from their properties and install permeable walls to remove arsenic from the groundwater. These remedies are in excess of what EPA required of ARCO in the cleanup plan for the Site.
