Atlantic Richfield Co. v. Christian Viewed Through a Tribal Lens

Connie Sue Martin*

On April 20, 2020 the United States Supreme Court issued its decision in Atlantic Richfield Co. v. Christian (ARCO),^[1] a case involving landowners who sought to use Montana state law claims to compel Atlantic Richfield to perform a more extensive cleanup than EPA required under CERCLA. Many commentators have written about the case, but little has been said about what ARCO means for CERCLA sites where Indian tribes have interests. Pro tip: neither ARCO nor CERCLA preclude tribes from forcing a more extensive cleanup than EPA has deemed sufficient.

But first, some background. 

The Anaconda Smelter, originally constructed by the Anaconda Copper Mining Company and then purchased by Atlantic Richfield in 1977, processed copper ore for nearly 100 years before shutting down in 1980. Since September 1983, when the 300 square mile site was placed on the Superfund National Priorities List (NPL), EPA has managed an extensive cleanup of this area: remediation of more than 800 residential and commercial properties; removing 10 million cubic yards of mine tailings; capping in place more than 500 million cubic yards of waste over 5,000 acres; and reclaiming more than 12,500 acres of land.^[2] 

Two communities, Anaconda and Opportunity, lie within the site footprint. Residents of Opportunity contended that the remedy approved by EPA is inadequate because it does not require remediation of their residential yards unless a yard has concentrations of arsenic greater than 250 parts per million (ppm). Background levels are 15 ppm. When concentrations required that a yard be excavated, only the top one foot of soils must be excavated.^[3] 

In 2008, 98 landowners sued ARCO in Montana state court. Asserting statutory and common law claims, the landowners seek to compel costs of removal of all soils with arsenic concentrations in excess of 15 ppm, to a depth of two feet, and the installation of a capture and treat shallow groundwater system. EPA had rejected these measures as too costly and unnecessary for protecting human health and the environment.

The trial court granted summary judgment to the land­owners on the issue of whether CERCLA barred their restoration damages claim. The Montana Supreme Court affirmed. On appeal, the United States Supreme Court considered two issues:  whether CERCLA strips the Montana state courts of jurisdiction over the landowners’ claim for restoration damages and, if not, whether CERCLA requires the land­owners to seek EPA approval for their restoration plan.

On the first issue, the Supreme Court held that while CERCLA § 113 deprives state courts of jurisdiction to hear CERCLA cases,^[4] it does not bar state courts from exercising jurisdiction over claims brought under other sources of law, and does not bar the landowners’ state law claims in Montana state courts. Section 113 is intended to insulate cleanup plans from collateral attack by providing federal district courts with “exclusive original jurisdiction over all contro­versies arising under” CERCLA, and then stripping such courts of jurisdiction “to review any challenges to removal or remedial action,” except in five limited circumstances.^[5] Common law claims for money damages such as nuisance and trespass, untethered to restoration, are not preempted by CERCLA.^[6] 

On the second issue, the Supreme Court held that CERCLA § 122(e)(6) requires the land­owners to seek EPA approval for their restoration plan, because they are potentially responsible parties (PRPs).^[7] The landowners, who are current owners of land where a hazardous substance has come to be located, are PRPs under CERCLA § 107(a)(1).^[8] “[E]ven parties not responsible for contamination may fall within the broad definitions of PRPs in §§ 107(a)(1)–(4).”^[9]  That includes “innocent’ . . . landowner[s] whose land has been contaminated by another,” who would be shielded from liability by the Act’s “innocent land­owner” or “third party” defenses under CERCLA § 107(b)(3).^[10]  

Once EPA or a PRP commences a remedial investigation and feasibility study to assess the contamination and evaluate cleanup options, “no potentially responsible party may undertake any remedial ac­tion” at the site without EPA approval.^[11] For the ARCO plaintiffs seeking modified remedial action, EPA approval remains unlikely, because the agency already rejected the remedy they continue to seek.

It is not unusual for landowners impacted by the release of hazardous substances at a Superfund site to assert that EPA’s remedy does not go far enough. ARCO tells us that there are only limited options available to those landowners once EPA has selected the remedy. Unless the impacted landowner is an Indian tribe.

EPA’s approval of a remedy that a tribe does not believe is sufficiently protective does not prevent further remedial action by that tribe. An Indian tribe is not barred from performing a remedy at a Superfund site without the approval of the EPA because an Indian tribe is not a “person” under CERCLA and therefore cannot be a PRP.

Under the plain language of CERCLA, liability is imposed on categories of “persons.”^[12]  A “person” is “an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body.” An Indian tribe is not a “person.”  “Indian tribe” is separately defined as “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village but not including any Alaska Native regional or village corporation, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”^[13]

Because an Indian tribe is not a “person” under CERCLA, it cannot be a PRP.^[14] For that reason, a tribe is not subject to the limitations of CERCLA § 122(e)(6) and would not require the permission of EPA to perform any remedial action at a Superfund site where remedial activities are already under way – even a remedial action that is more comprehensive than the one that EPA selected. Cost recovery would then be available to the tribe, so long as the costs were not inconsistent with the national contingency plan.^[15]

*Connie Sue Martin is an environmental attorney in Schwabe Williamson & Wyatt’s Seattle office and leads the firm’s Native American and Alaska Native practice.  She helps Indian tribes, ports, companies of all sizes and individuals address environmental contamination and restore injured natural resources. On November 17, 2020, she will present ARCO v. Christian issues at the Tribal Natural Resource Damages Assessments day-long law seminar. Check out https://www.lawseminars.com/seminars/2020/20TNRDAWA.php for further details.

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[1] Atlantic Richfield Co. v. Christian, 590 U.S. ___, 140 S. Ct. 1335, 206 L.Ed.2d 516 (2020) [ARCO v. Christian].

[2] See ARCO v. Christian 140 S. Ct. 1335, 1342–1343, 1347 206 L.Ed.2d 516, 526–527, 530 (2020).

[3] ARCO v. Christian, 140 S. Ct. 1335, 1347–1348, 206 L.Ed.2d 516, 531–532 (2020).

[4] 42 U.S.C. § 9613(b).

[5] 42 U.S.C. § 9613(h).

[6] 140 S. Ct. 1335, 1349, 206 L.Ed.2d 516, 533 (2020).

[7] 42 U.S.C. § 9622(e)(6).

[8] 42 U.S.C. § 9607(a)(1).

[9] ARCO v. Christian, 140 S. Ct. 1335, 1352, 206 L.Ed.2d 516, 537 (2020), quoting United States v. Atlantic Research Corp., 551 U. S. 128, 136, 127 S. Ct. 2331, 168 L. Ed. 2d 28 (2007).

[10] 42 U.S.C. § 9607(b)(3).

[11] 42 U.S.C. § 9622(e)(6).

[12] 42 U.S.C. § 9601(21).

[13] 42 U.S.C. § 9601(36).

[14] Pakootas v. Teck Cominco Metals, Ltd., 632 F. Supp. 2d 1029, 1032 (E.D. Wash. 2009).

[15] 42 U.S.C. § 9607(a).