What the Supreme Court Case Being Argued Tuesday Could Mean for Superfund Site Cleanups Across the Country

The Supreme Court is scheduled to hear oral arguments Tuesday for a case that will determine whether a group of owners of polluted land have the right to use state law to sue the company that owns the smelter site responsible for the pollution for damages beyond the penalties and cleanup costs the federal government ordered.

The case focuses on the Anaconda Smelter site in southwestern Montana, which refined copper ore between 1884 and 1980. A few years before the site ceased operation, it was purchased by the Atlantic Richfield Co., an oil supplier. In 1983, the Environmental Protection Agency (EPA) designated the Anaconda Smelter a superfund site—meaning that the high levels of hazardous contamination of arsenic, lead, copper, cadmium, and zinc made it a high priority for cleanup.

Under the superfund designation, the EPA would provide funding to the Atlantic Richfield Co. to assist in removing the toxic pollutants from the area. Atlantic Richfield spent the next three decades—and about $400 million—working to clean up the site, according to court records. The superfund site covers about 300 square miles and is also home to more than 9,000 people.

Most of the cleanup has been completed, EPA records show, but according to SCOTUSblog, "outside experts" have said more work needs to be done—work that the company alleged could make conditions worse by contaminating groundwater after digging up arsenic in the soil.

In 2008, 98 Montanans who owned land around the site of the smelter—within the superfund site—sued Atlantic Richfield, claiming that the company should compensate them for the health hazard the smelter created and pay to remove all the arsenic and lead on their land—beyond what the EPA had ordered. They believed that because Atlantic Richfield had been the last entity to own the smelter, it is responsible for all of the pollution caused during the smelter's years of operation.

Anaconda Smelter
Calcine being moved from the roasting furnaces at the Anaconda Copper Mining Co. in Anaconda, Montana. Russell Lee/Getty

The landowners demanded $60 million from the company in restoration damages. In 2013, Atlantic Richfield argued that the Comprehensive Environmental Response, Compensation and Liability Act of 1980 exempted it from paying damages like the ones sought by the landowners. Atlantic Richfield's attorneys argued that a section of CERCLA meant that state courts did not have the power to review claims that would interfere with the EPA's prescription for cleaning up the site.

Atlantic Richfield also pointed to the EPA's determination that the company, as the owner of the smelter and the land around it, was the "potentially responsible party" in causing the pollution. The company went on to argue that the landowners were also "potentially responsible parties" for the pollution and, as such, they, like Atlantic Richfield "must seek EPA approval...before engaging in remedial action."

Montana's Supreme Court did not concur with Atlantic Richfield's view that CERCLA prevented the landowners from demanding restoration damages and upheld the lower courts' rulings in the landowners' favor. The company, however, appealed their case to the Supreme Court, which agreed to hear it.

Atlantic Richfield's position is that if the case were to be decided in favor of its disgruntled neighbors, the decision would affect how cleanups are conducted across the country and who gets to decide what's good enough, setting an unclear set of standards for cleanups across the country.

"The state court's holding throws remediation efforts at Anaconda and other massive sites into chaos and opens the door for thousands of private individuals to select and impose their own remedies at CERCLA sites at a potential cost of many millions of dollars per site," the company's lawyers told the Supreme Court last year, according to E&E News.

"It's a really long struggle," said Serge Myers, 74, who helped start the landowners' lawsuit, told The Washington Post. "We only have one lifetime, and the corporations have forever. We just want our yard to be clean and healthy for our kids."

Michael Abendhoff, director of media affairs for Atlantic Richfield, told Newsweek in an email that the company "appreciates the opportunity to be heard and looks forward to the Court's decision."

The Supreme Court will hear oral arguments for the case at 11 a.m. EST on Tuesday.

This story has been updated to include a statement from the Atlantic Richfield Co.