Amicus Curiae Brief — Atlantic Richfield Company, Petitioner v. Gregory A. Christian, et al.
Supreme Court briefMay 31, 2018
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No. 17-1498
IN THE
Supreme Court of the United States
————
ATLANTIC RICHFIELD COMPANY,
Petitioner,
v.
GREGORY A. CHRISTIAN, ET AL.,
Respondents.
————
On Petition for Writ of Certiorari
to the Supreme Court of Montana
————
BRIEF OF AMICI CURIAE CHAMBER OF COMMERCE
OF THE UNITED STATES OF AMERICA, NATIONAL
ASSOCIATION OF MANUFACTURERS, AMERICAN
FUEL & PETROCHEMICAL MANUFACTURERS, NATIONAL MINING ASSOCIATION, AMERICAN PETROLEUM INSTITUTE, AND SUPERFUND SETTLEMENTS
PROJECT SUPPORTING PETITIONER
STEVEN P. LEHOTSKY
MICHAEL B. SCHON
U.S. CHAMBER LITIGATION
CENTER
1615 H St., NW
Washington, D.C. 20062
(202) 659-6000
————
Counsel for Amicus Curiae Chamber of
Commerce of the United States of
America
(additional counsel listed on inside
cover)
AARON M. STREETT
Counsel of Record
J. MARK LITTLE
BAKER BOTTS L.L.P.
910 Louisiana St.
Houston, TX 77002
(713) 229-1234
aaron.streett@bakerbotts.com
MARTHA S. THOMSEN
BAKER BOTTS L.L.P.
The Warner
1299 Pennsylvania Ave., NW
Washington, D.C. 20004-2400
(202) 639-7700
Counsel for Amici Curiae Chamber of
Commerce of the United States of America,
National Association of Manufacturers,
American Fuel & Petrochemical Manufacturers, National Mining Association,
American Petroleum Institute, and Superfund Settlements Project
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
STACY R. LINDEN
MATTHEW A. HAYNIE
AMERICAN PETROLEUM INSTITUTE
1220 L St. NW
Washington, D.C. 20005
(202) 828-8000
Counsel for Amicus Curiae American
Petroleum Institute
PETER C. TOLSDORF
LELAND P. FROST
MANUFACTURERS’ CENTER FOR LEGAL
ACTION
733 10 Street, N.W., Suite 700
Washington, D.C. 20001
(202) 637-3000
Counsel for Amicus Curiae the National
Association of Manufacturers
i
QUESTIONS PRESENTED
1. Whether a common-law claim for restoration seeking
cleanup remedies that conflict with EPA-ordered remedies is a “challenge” to EPA’s cleanup jurisdictionally
barred by § 113 of CERCLA.
2. Whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA’s approval
under CERCLA § 122(e)(6) before engaging in remedial
action, even if EPA has never ordered the landowner to
pay for a cleanup.
3. Whether CERCLA preempts state common-law
claims for restoration that seek cleanup remedies that
conflict with EPA-ordered remedies.
ii
TABLE OF CONTENTS
Questions Presented ..................................................
Interest of Amici Curiae ...........................................
Summary of Argument ..............................................
Argument ....................................................................
I. The Montana Supreme Court’s Decision
Frustrates CERCLA’s Goals And Imperils Superfund Cleanups ..................................
A. CERCLA seeks to promote effective and expeditious cleanups by
mandating a regimented remedyselection procedure and prohibiting
challenges to EPA’s remedial decisions .........................................................
B. The Montana Supreme Court’s decision conflicts with CERCLA’s prohibition against challenging EPA’s
remedial decisions ..................................
C. The decision below frustrates the
achievement of CERCLA’s goals ........
II. CERCLA’S Robust Public Outreach
Mechanisms Provide The Proper Means
For Influencing EPA’s Superfund Decisions .................................................................
Conclusion ...................................................................
Page
i
1
3
6
6
6
11
15
22
26
iii
TABLE OF AUTHORITIES
Page
CASES
Broward Gardens Tenants Ass’n v. EPA,
311 F.3d 1066 (11th Cir. 2002) .............................. 10
Burlington N. & Santa Fe Ry. Co. v.
United States,
556 U.S. 599 (2009) ................................................... 6
Clinton Cty. Comm’rs v. EPA,
116 F.3d 1018 (3d Cir. 1997).................................... 9
Gen. Elec. Co. v. Jackson,
610 F.3d 110 (D.C. Cir. 2010) ................................ 21
Key Tronic Corp. v. United States,
511 U.S. 809 (1994) ............................................... 3, 4
McClellan Ecological Seepage Situation
v. Perry,
47 F.3d 325 (9th Cir. 1995) ................................ 9, 10
Razore v. Tulalip Tribes of Wash.,
66 F.3d 236 (9th Cir. 1995) .................................... 10
United States v. Cannons Eng’g Corp.,
899 F.2d 79 (1st Cir. 1990) .................................... 19
United States v. P.H. Glatfelter Co.,
768 F.3d 662 (7th Cir. 2014) .................................... 9
STATUTES
42 U.S.C. § 9604 ...................................................... 7, 21
42 U.S.C. § 9606 ............................................................ 9
42 U.S.C. § 9607 ...................................................... 4, 90
42 U.S.C. § 9613 .................... 4, 9, 10, 11, 15, 18, 19, 20
42 U.S.C. § 9617 .......................................................... 22
42 U.S.C. § 9621 ............................................................ 7
iv
TABLE OF AUTHORITIES—Continued
Page
REGULATORY AUTHORITIES
40 C.F.R. Part 300, Subpart I ................................... 23
40 C.F.R. § 300.420 ....................................................... 6
40 C.F.R. § 300.425 ..................................................... 23
40 C.F.R. § 300.430 ............................... 7, 12, 13, 23, 24
40 C.F.R. § 300.435 ..................................................... 24
National Oil and Hazardous Substances
Pollution Contingency Plan Preamble,
55 Fed. Reg. 8666 (Mar. 8, 1990) .......................... 21
OTHER AUTHORITIES
131 Cong. Rec. 24725 (1985) ...................................... 19
H.R. Rep. No. 99-253 (1985), reprinted in
1986 U.S.C.C.A.N. 2835......................................... 19
EPA and Montana Department of
Environmental Quality, Record of
Decision Amendment, Anaconda
Regional Water, Waste, and Soils
Operable Unit (Sept. 2011) ....................... 11, 12, 25
EPA, Community Advisory Groups:
Partners in Decisions at Hazardous
Waste Sites, Case Studies (Winter
1996) ........................................................................ 25
EPA, Grasse River Superfund Site
Cleanup Decision Announced (April
2013). ....................................................................... 16
EPA, Grasse River Superfund Site
Community Involvement Plan for
Remedial Design and Remedial Action
(Aug. 2014) ........................................................ 24, 25
v
TABLE OF AUTHORITIES—Continued
Page
EPA, Guidance on EPA Oversight of
Remedial Designs and Remedial
Actions Performed by Potentially
Responsible Parties (Interim Final),
(April 1990) ............................................................... 7
EPA, Record of Decision, Portland
Harbor Superfund Site, Portland,
Oregon (Jan. 2017) ........................................... 15, 16
EPA, Summary of Technical
Impracticability Waivers at National
Priorities List Sites (Aug. 2012) ............... 12, 17, 18
EPA, Superfund Program Proposed Plan,
BF Goodrich Superfund Site, Calvert
City, Marshall County, Kentucky (Nov.
30, 2017) .................................................................... 9
Gelber, U.S. Department of Justice,
Memorandum Defining “Matters
Addressed” in CERCLA Settlements
(Mar. 4, 1997) .......................................................... 18
Woolford, Office of Superfund
Remediation and Technology
Innovation, Clarification of the
Consultation Process for Evaluating
the Technical Impracticability of
Groundwater Restoration at CERCLA
Sites, OLEM Directive 9200.3-117
(Dec. 28, 2016) ........................................................ 13
IN THE
Supreme Court of the United States
————
NO. 17-1498
————
ATLANTIC RICHFIELD COMPANY,
Petitioner,
v.
GREGORY A. CHRISTIAN, et al.,
Respondents.
————
On Petition for a Writ of Certiorari
to the Supreme Court of Montana
————
BRIEF OF AMICI CURIAE CHAMBER OF
COMMERCE OF THE UNITED STATES OF
AMERICA, NATIONAL ASSOCIATION OF
MANUFACTURERS, AMERICAN FUEL &
PETROCHEMICAL MANUFACTURERS,
NATIONAL MINING ASSOCIATION, AMERICAN
PETROLEUM INSTITUTE, AND SUPERFUND
SETTLEMENTS PROJECT SUPPORTING
PETITIONER
————
INTEREST OF AMICI CURIAE1
Amici are six national trade associations. Their
members include many businesses that are involved in
Pursuant to Rule 37.2(a), amici provided timely notice of their
intention to file this brief to counsel for all parties. Petitioner’s
counsel of record and respondents’ counsel of record consented to
the filing of this brief. In accordance with this Court’s Rule 37.6, no
counsel for any party has authored this brief in whole or in part, and
no person or entity, other than amici, their members, or their
counsel, have made a monetary contribution to the preparation or
submission of this brief.
1
2
the cleanup of Superfund sites across the country and,
accordingly, have a direct interest in the outcome of this
case. Amici all have strong interests in reversing the
decision below and preserving the U.S. Environmental
Protection Agency’s (EPA) authority under the
Comprehensive
Environmental
Response,
Compensation, and Liability Act (CERCLA) to
comprehensively, efficiently, and with finality address
remediation issues at Superfund sites.
The Chamber of Commerce of the United States (the
Chamber) is the world’s largest business federation. It
represents 300,000 members and indirectly represents
the interests of more than three million companies and
professional organizations of every size, in every industry
sector, and from every region of the country. A vital
function of the Chamber is to represent the interests of
its members in matters before this Court. The Chamber
regularly files amicus curiae briefs in cases such as this
one that raise issues of concern to the Nation’s business
community.
The National Association of Manufacturers (NAM) is
the largest manufacturing association in the United
States, representing small and large manufacturers in
every industrial sector and in all 50 states.
Manufacturing employs more than 12 million men and
women, contributes $2.25 trillion to the U.S. economy
annually, has the largest economic impact of any major
sector, and accounts for more than three-quarters of all
private-sector research and development in the nation.
The NAM is the voice of the manufacturing community
and the leading advocate for a policy agenda that helps
manufacturers compete in the global economy and create
jobs across the United States.
The National Mining Association (NMA) is a national
trade association whose members include the producers
of most of America’s coal, metals, and industrial and
3
agricultural minerals; the manufacturers of mining and
mineral-processing machinery, equipment, and supplies;
and engineering and consulting firms, financial
institutions, and other firms serving the mining industry.
NMA often participates in litigation raising issues of
concern to the mining community.
American Fuel & Petrochemical Manufacturers
(AFPM) is a national trade association whose members
comprise virtually all refining and petrochemical
manufacturing capacity in the United States. AFPM’s
members supply consumers with a wide variety of
products that are used daily in homes and businesses.
Among its other missions, AFPM engages in legal
advocacy on issues important to its members.
The American Petroleum Institute (API) is a national
trade association representing more than 625 companies
involved in all aspects of the oil-and-natural-gas industry.
API frequently advocates for the interests of its
members by participating as an amicus curiae in cases
that are important to the oil-and-natural-gas community.
The Superfund Settlements Project (SSP) is an
association of major companies from many different
sectors of American industry. It was organized in 1986 in
order to help improve the effectiveness of the Superfund
program by encouraging settlements, streamlining the
settlement process, and reducing transaction costs for all
concerned. SSP provides constructive input to EPA,
other federal agencies, and Congress on critical policy
issues affecting the cleanup of contaminated sites and
engages in legal advocacy in the CERCLA arena.
SUMMARY OF ARGUMENT
“As its name implies, CERCLA is a comprehensive
statute that grants the President broad power to
command government agencies and private parties to
clean up hazardous waste sites.” Key Tronic Corp. v.
4
United States, 511 U.S. 809, 814 (1994). CERCLA aims
to place a premium on efficient cleanup, which often can
be achieved only through settlement with private parties.
The statute delegates decision making about the type and
degree of cleanup to EPA, with significant opportunity
for public input, while limiting any party’s ability to
challenge those decisions. See 42 U.S.C. § 9613(h).
Meanwhile, any “responsible parties” can be held jointly
and severally liable for cleanup costs, regardless of their
degree of responsibility. Id. § 9607. For some sites, those
costs can stretch into the billions of dollars.
For all of its imperfections, this system provides a
silver lining for those facing liability—relative certainty.
CERCLA cleanups and settlements can set fixed
liabilities, which ensures a stable environment for
businesses, shareholders, insurers, creditors, and others
to make decisions about future investments. Indeed, the
statute creates heavy incentives for early settlement
among potentially responsible parties and EPA.2 Those
incentives would be meaningless without a degree of
certainty regarding the ultimate financial exposure (i.e.,
cleanup costs) and a relatively “hard target” for parties
negotiating among themselves to fund the cleanup.
In the decision below, the Montana Supreme Court
created a new CERCLA regime in which EPA’s
generally binding remediation decisions are viewed as
mere suggestions, with any jury having the power to
order other remediation efforts—even ones that EPA
specifically considered and rejected. That approach
destroys the stability CERCLA promises to the business
community and imperils EPA’s ability to achieve
CERCLA’s central purpose—the prompt cleanup, based
For example, § 9613(f)(2) shields those who resolve liability to the
United States or a state from contribution claims by others. And
§ 9607(c)(3) exposes uncooperative parties to treble damages.
2
5
on sound science, of the Nation’s thousands of
contaminated Superfund sites.
The result will be chaos in Montana’s many Superfund
sites, with EPA pursuing one remediation course and
various ad hoc private lawsuits mandating different,
potentially dangerous or conflicting remediation work.
Worse yet, the business community—which bears the
remediation costs—now faces unlimited liability, for the
decision below stripped EPA of the power to enter into
settlements to fix remediation obligations. Under the
decision below, businesses have a reduced incentive to
cooperate with EPA by entering into settlements, thus
further prolonging what Congress intended to be an
efficient and definitive cleanup process. All of that flies
in the face of CERCLA’s core aim of promoting
expeditious and effective remediation of Superfund sites
for the protection of human health and the environment.
Beyond the clear errors in statutory interpretation,
the decision below cannot be defended on public-policy
grounds. CERCLA and its accompanying regulations
offer myriad opportunities for public involvement in the
Superfund process.
Those avenues ensure that
interested parties can make their voices heard. But EPA
has the final say under CERCLA—or at least it did until
now. The Montana Supreme Court has created a
blueprint for making precisely the type of challenge
Congress, in CERCLA, sought to prevent: any interested
party who fails to obtain its desired remediation plan
from EPA is now free to pursue its preferred plan in
collateral litigation. That renders CERCLA’s robust
public-participation provisions redundant and frustrates
its most central goals.
This Court’s review is needed to ensure the proper
functioning of CERCLA, end the Superfund chaos that
now reigns in Montana, and prevent the spread of this
disruptive regime to other jurisdictions.
6
ARGUMENT
I. THE MONTANA SUPREME COURT’S DECISION
FRUSTRATES CERCLA’S GOALS AND IMPERILS
SUPERFUND CLEANUPS
One of CERCLA’s primary goals is to promote
“timely cleanup of hazardous waste sites.” Burlington N.
& Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602
(2009). Two important and necessary tools to achieve
that goal are EPA’s exclusive decision-making authority
and CERCLA’s emphasis on settlements as a means to
effectuate cleanup. By interfering with EPA’s powers
under CERCLA, the Montana Supreme Court’s decision
frustrates EPA’s efforts to achieve that primary goal
and, indeed, undermines the entire statutory and
regulatory program of Superfund cleanups.
A. CERCLA seeks to promote effective and
expeditious cleanups by mandating a
regimented remedy-selection procedure and
prohibiting challenges to EPA’s remedial
decisions
CERCLA (1) mandates that EPA follow a regimented
remedy-selection process and (2) bars any collateral
challenges to EPA’s remedial decisions pursuant to that
process. It is through the combination of those two
features that CERCLA acts as a powerful force for the
effective and expeditious cleanup of Superfund sites.
1. CERCLA and its accompanying regulations
establish a strict path for EPA to follow when selecting a
remedy to clean up a Superfund site. Required steps
include: (1) conducting a remedial preliminary
assessment, 40 C.F.R. § 300.420(b); (2) undertaking a
remedial site inspection, id. § 300.420(c); (3) conducting a
remedial investigation that collects “data necessary to
adequately characterize the site for purposes of
developing
and
evaluating
effective
remedial
7
alternatives,” id. § 300.430(d); (4) drafting a feasibility
study that evaluates and provides a detailed analysis of
“appropriate remedial alternatives,” id. § 300.430(e); (5)
presenting to the public a proposed plan detailing the
preferred remedial alternative, id. § 300.430(f)(2); (6)
soliciting comment from the public on the proposed plan,
id. § 300.430(f)(3); (7) reassessing EPA’s “initial
determination” regarding its preferred alternative and
factoring in any new information and community
comments before making a final remedy-selection
decision, id. § 300.430(f)(4); and (8) documenting EPA’s
final remedy-selection decision through the issuance of a
record of decision, id. § 300.430(f)(5).3
The following depiction that EPA recently provided in
connection with a different Superfund site visually
illustrates the myriad steps involved in this detailed,
orderly process from site selection to completion of
remediation:
Once selected, the remedial action will be conducted either by EPA
or by a responsible party with substantial EPA oversight. 42 U.S.C.
§ 9604(a)(1); see also EPA, Guidance on EPA Oversight of Remedial
Designs and Remedial Actions Performed by Potentially
Responsible Parties (Interim Final), EPA/540/G-90/001, OSWER
9355.5-01(April 1990), https://semspub.epa.gov/work/11/174047.pdf.
For any remedy where hazardous substances remain on site above
levels that permit unrestricted use and unlimited exposure, EPA, in
addition, must conduct a review of the remedy no less often than
every five years after initiation of the remedial action to assure that
the remedy remains protective of human health and the environment
and, if does not, initiate action to make it so. 42 U.S.C. § 9621(c); see
also 40 C.F.R. § 300.430(f)(4)(ii).
3
8
9
EPA, Superfund Program Proposed Plan, BF Goodrich
Superfund Site, Calvert City, Marshall County,
Kentucky, at 2 (Nov. 30, 2017).4
2. Navigating through this comprehensive process
can, and does, take years or even decades. Recognizing
the need to prevent collateral attacks from shortcircuiting EPA’s deliberate progression through these
steps, “Congress enacted [42 U.S.C.] § 9613(h) to prevent
judicial interference, however well-intentioned, from
hindering EPA’s efforts to promptly remediate sites that
present significant danger to public health and the
environment.” Clinton Cty. Comm’rs v. EPA, 116 F.3d
1018, 1023 (3d Cir. 1997); see also McClellan Ecological
Seepage Situation v. Perry, 47 F.3d 325, 329 (9th Cir.
1995) (Section 9613(h) “protects the execution of a
CERCLA plan during its pendency from lawsuits that
might interfere with the expeditious cleanup effort.”)
(emphasis omitted). That provision bars “any challenges
to * * * remedial action” outside of certain defined
circumstances not implicated here.5 42 U.S.C. § 9613(h);
see also Pet. 24 (explaining that § 9613(b)’s grant of
https://semspub.epa.gov/work/04/11095220.pdf.
For instance, if EPA initiates suit to recover response costs or
enforce a cleanup order, CERCLA permits the defendant potentially
responsible parties to challenge the cleanup plan as “arbitrary and
capricious or otherwise not in accordance with law.” 42 U.S.C.
§§ 9613 (j)(2), (h)(1), (h)(2); see, e.g., United States v. P.H. Glatfelter
Co., 768 F.3d 662, 668 (7th Cir. 2014). It should be noted, however,
that allowable suits challenging remedy selection before
implementation are infrequent. For EPA to bring a suit to enforce a
cleanup order, for instance, it must first issue a unilateral
administrative order under CERCLA Section 106 and the potentially
responsible party must refuse to comply. Since such refusal risks
daily penalties and treble damages, 42 U.S.C. §§ 9606(b)(1),
9607(c)(3), suits by EPA to enforce these orders are typically
unnecessary.
4
5
10
exclusive jurisdiction to federal courts over “all
controversies arising under” CERCLA “[e]xcept as
provided in subsections (a) and (h)” deprives state courts
of jurisdiction over challenges barred under § 9613(h) as
well); Pet. App. 67a n.2 (U.S. amicus brief) (“[S]tate
courts, like federal courts, lack subject matter
jurisdiction to decide claims like the landowners’
restoration damages claim.”).
Courts have taken a commonsense approach to
determining when a lawsuit constitutes a “challenge” that
would interfere with EPA’s implementation of its
selected remedial plan. The term “challenge” naturally
encompasses lawsuits directly seeking a change or
alteration in EPA’s cleanup plan, but it also includes
other suits that are “related to the goals of a cleanup.”
Razore v. Tulalip Tribes of Wash., 66 F.3d 236, 239 (9th
Cir. 1995). Accordingly, courts have barred suits that
seek to impose additional reporting and permitting
requirements on an ongoing CERCLA cleanup because,
even though such requirements might not directly
change the substance of the work, “such relief would
constitute the kind of interference with the cleanup plan
that Congress sought to avoid or delay by the enactment
of Section [9613(h)].” McClellan Ecological Seepage
Situation, 47. F.3d at 330. The same goes for claims for
injunctive relief that seek to implement “stricter
standards in the remedial plan.” Broward Gardens
Tenants Ass’n v. EPA, 311 F.3d 1066, 1070, 1073 (11th
Cir. 2002). The guiding principle in these decisions is
that if EPA could have ordered certain measures, but
“chose not to do so,” Section 9613(h) bars any challenge
to that choice. See id. at 1073 (“Asserting that a remedial
plan is inadequate because it fails to include a measure
that [EPA] could have included is challenging the plan
for section [9613(h)] purposes.”).
11
B. The Montana Supreme Court’s decision
conflicts with CERCLA’s prohibition against
challenging EPA’s remedial decisions
In the decision below, the Montana Supreme Court
opened a gaping hole in Section 9613(h)’s prohibition
against “challenge[s]” to EPA’s remedy-selection
decisions. Contrary to uniform federal law, it held that a
private lawsuit does not constitute a “challenge” to
EPA’s remedy selection unless it would “stop, delay, or
change the work EPA is doing.” Pet. App. 11a-12a.
Using that logic, the court permitted local landowners to
proceed with their lawsuit that sought “restoration work
in excess of what the EPA required * * * in its selected
remedy.” Id. at 4a (emphasis added). In other words,
the court found no problem with EPA’s proceeding with
its ARCO-funded remedial plan in parallel to the
landowners’ forcing ARCO to fund their different
preferred remediation plan, provided that “a jury of
twelve Montanans” agree with them. Id. at 13a.
The court was unmoved by the fact that EPA had
considered—and rejected—the restoration work the
landowners were pursuing in their lawsuit. For example,
the landowners sought to “remove the top two feet of soil
from affected properties” and “install permeable walls to
remove arsenic from the groundwater.” Id. at 4a, 72a.
But EPA had already “considered construction of an
underground Permeable Reactive Barrier (PRB), similar
to the barrier proposed by the landowners” and
concluded “that this approach would not necessarily
achieve the human health standard in Willow Creek and
would not eliminate exceedances of arsenic in
downstream receiving waters.” Id. at 63a (United States’
amicus brief below); see also EPA and Montana
Department of Environmental Quality, Record of
Decision Amendment, Anaconda Regional Water, Waste,
12
and Soils Operable Unit, § 6.4.2 (Sept. 2011).6
Additionally, the remedial work the landowners seek
would require “[t]earing up” the protective layer of soil
EPA chose to put in place as part of its selected remedy,
which “could expose the neighborhood to an increased
risk of dust transfer or contaminant ingestion.” Pet.
App. 73a (U.S. amicus brief).7
EPA followed CERCLA’s rigorous decisional
procedures. EPA conducted extensive studies of the
arsenic issue and ultimately concluded that “it was
technically
impracticable
to
reduce
arsenic
concentrations below 10 ppb” in groundwater in one of
the relevant areas of the site and “therefore did not
select below-ground structures to address groundwater
arsenic concentrations.” Id. at 63a (U.S. amicus brief);
Record of Decision Amendment § 6.4.4; see also EPA,
Summary of Technical Impracticability Waivers at
National Priorities List Sites, at A-80 (Aug. 2012).8 EPA
thus issued a technical impracticability waiver related to
groundwater restoration for a portion of the site.
The
technical-impracticability-waiver
process
demands a careful, regimented analysis. “EPA expects
to return usable groundwaters to their beneficial uses
wherever practicable, within a timeframe that is
reasonable given the circumstances of the site.” 40
C.F.R. § 300.430(a)(1)(iii)(F) (emphasis added). But the
governing regulation permits waiving that requirement
https://semspub.epa.gov/work/08/1211311.pdf.
Importantly, those impacts would be from the Superfund site, and
EPA and ARCO would then be required to address those impacts
under CERCLA.
See, e.g., 40 C.F.R. § 300.430(a)(iii)(A) (In
developing remedial plans “EPA expects to use treatment to address
the principal threats posed by a site, wherever practicable.”)
(emphasis added).
8
https://semspub.epa.gov/work/HQ/175391.pdf.
6
7
13
when it “is technically impracticable from an engineering
perspective.” Id. § 300.430(f)(1)(ii)(C)(3).
EPA has
expounded on these directives in multiple guidance
documents addressing the technical-impracticabilitywaiver process for groundwater at Superfund sites,
culminating in a 2016 guidance document designed to
compile and clarify all “existing relevant Superfund
policy and guidance” on the subject. Woolford, Office of
Superfund Remediation and Technology Innovation,
Clarification of the Consultation Process for Evaluating
the Technical Impracticability of Groundwater
Restoration at CERCLA Sites, OLEM Directive 9200.3117, at 1 (Dec. 28, 2016).9 It includes a flowchart to
illustrate the intricate workings of the technicalimpracticability-waiver process:
9
https://semspub.epa.gov/work/HQ/198193.pdf.
14
Id. at Attachment 1.
As a result of that thorough, mandatory decisional
process, EPA concluded that a technical impracticability
waiver was warranted for groundwater at a portion of the
site. Yet the Montana Supreme Court has empowered a
15
“jury of twelve Montanans” to overrule EPA on this
point (and any other Superfund remedial decision),
thereby circumventing Section 9613(h)’s bar and opening
the door to all manner of challenges to EPA’s remedial
decisions at Superfund sites. Pet. App. 13a.
C. The decision below frustrates the achievement
of CERCLA’s goals
This weakening of Section 9613(h)’s prohibition on
challenging EPA’s remedial decisions threatens the core
goals of CERCLA. Effective and expeditious cleanup is
impossible if third parties are allowed to second-guess
every EPA remedial decision before a jury. Avoiding the
chaos that would result from such challenges is the entire
point of Section 9613(h)’s bar. Yet for the many
Superfund sites in Montana and perhaps for others
across the country, that chaos will become the norm.
1. The Court need not guess at how the Montana
Supreme Court’s overhaul of CERCLA will play out.
The history of other Superfund projects is fertile ground
for posing counterfactuals regarding what would have
occurred had this new legal regime been in place at other
Superfund sites.
Consider the Portland Harbor Superfund Site in
Oregon and the Grasse River Superfund Site in New
York.
At Portland Harbor, EPA developed and
evaluated nine separate remedial alternatives for
cleaning up contaminated sediments at the bottom of the
harbor. EPA, Record of Decision, Portland Harbor
Superfund Site, Portland, Oregon § 10 (Jan. 2017).10 In
conducting that analysis, EPA concluded that dredging
could be counterproductive in some areas because
disturbing contaminated sediment would risk additional
“potential releases to the environment.” Id. § 10.2.8. For
10
https://semspub.epa.gov/work/10/100036257.pdf.
16
that and other reasons, EPA chose to dredge only a
portion of the site. Id. §§ 10.2.6, 14.
Similarly, at Grasse River, EPA specifically
considered whether it could “return[] the lower Grasse
River to its previous pristine conditions” by dredging all
river sediment areas containing a threshold level of
polychlorinated biphenyls (PCBs). EPA, Grasse River
Superfund Site Cleanup Decision Announced, at 2 (April
2013).11 EPA instead selected a cleanup plan that would
dredge only some areas of contamination, based on the
following three conclusions: (1) dredging all areas of
contamination would not “return the lower Grasse River
to pristine conditions”; (2) the short-term impacts of such
a path forward would be “severe” and require off-site
disposal of 1.5 million cubic yards of dredged sediment,
which carries its own set of risks; and (3) a complete
dredge of the river would take “nearly three times as
long as the selected remedy to achieve PCB interim
target levels in fish.” Ibid.
EPA’s final decisions were given their binding effect
under CERCLA in those instances. But under the
Montana Supreme Court’s decision, those remedial
choices would be reduced to mere suggestions.
Interested parties would be free to hold jury trials over
whether the entire sites should be dredged as
“restoration work in excess of what EPA required.” Pet.
App. 4a. While that remedy would directly contradict
EPA’s remedial decisions and risk further contamination,
it would pass muster under the decision below because it
would not “stop, delay, or change the work EPA is
doing.” Id. at 11a.
The UGI Columbia Gas Plant Superfund Site in
Pennsylvania offers another disturbing window into the
https://www.epa.gov/sites/production/files/2017-03/documents/facts
heet_alcoa_4-2013.pdf.
11
17
future under the Montana Supreme Court’s vision of
CERCLA.
There, EPA issued a technicalimpracticability waiver after finding that complete
restoration of the groundwater at that site was
inappropriate. Summary of Technical Impracticability
Waivers at National Priorities List Sites, at A-45.
Specifically, EPA determined that the remaining
contamination at the site was related to dense nonaqueous phase liquid (DNAPL), which could be removed
only by first mobilizing it and then extracting it. Ibid.
EPA determined that while mobilizing the DNAPL was
possible, there existed no known technologies capable of
extracting it from the complicated fractured bedrock
geologic system.
Ibid.
Moreover, mobilizing the
DNAPL was a risky endeavor because any attempt to do
so “may cause ecological and human health risks, which
currently do not exist in the vicinity of the site and
Susquehanna River.” Ibid. EPA thus made a decision,
based on site-specific conditions, available technology,
and risk considerations, that complete removal of
DNAPL was not warranted. Ibid. But under the
Montana Supreme Court’s approach, private litigants
would be free to convince a jury of their peers that
attempting DNAPL removal—“restoration work in
excess of what the EPA required,” Pet. App. 4a—was in
fact warranted despite the risks and seemingly
insurmountable technical challenges.
The final example in this series is more than
theoretical because it is in Montana and thus governed by
the Montana Supreme Court’s decision. At the Silver
Bow Creek/Butte Area Site, EPA issued a technicalimpracticability waiver because it concluded that the
remedy could not reduce concentrations of arsenic,
cadmium, lead, copper, and sulfate to levels normally
required in a Superfund cleanup. Summary of Technical
18
Impracticability Waivers at National Priorities List
Sites, at A-73. Specifically, EPA reasoned:
A [technical-impracticability waiver] is
required because * * * the extremely large
horizontal and vertical extent of the
contamination problem—the sheer size of
the source, calculated to be 27 billion cubic
yards—would leave an open pit about 62
times larger than the current Berkeley Pit,
would eliminate the historic city of Butte,
and would have untold environmental
consequences.
Ibid.
EPA further considered, and rejected, all
“potentially applicable remediation technologies” to
address the groundwater contamination at that site,
concluding that such an attempt would be ineffective at
best and could “reverse the currently observable trends
of improving bedrock quality” at worst. Ibid. Yet under
the Montana Supreme Court’s ruling, any interested
party remains free to file a lawsuit for restoration
damages to conduct the remedial actions EPA rejected—
despite EPA’s determinations that such remediation
would be infeasible, could do more harm than good, and
would wipe an entire city off the map.
2. Permitting circumvention of Section 9613(h)’s bar
undermines CERCLA in less obvious, but no less
important, ways as well. In order to promote expeditious
remediation of Superfund sites, CERCLA authorizes
EPA to negotiate settlements with responsible parties to
fund or perform investigation and cleanup efforts. 42
U.S.C. § 9613(f)(2); see generally Gelber, U.S.
Department of Justice, Memorandum Defining “Matters
19
Addressed” in CERCLA Settlements, at 4 n.3 (Mar. 14,
1997).12
With that settlement authority, EPA wields the power
to fix a responsible party’s otherwise open-ended liability
at a definite sum in return for cooperation during the
cleanup efforts. 42 U.S.C. § 9613(f)(2). That ability to
bring certainty to a responsible party’s remediation
obligations is a crucial tool for negotiating quick cleanup
of Superfund sites because, as the Government explained
below, “the main incentive for a responsible party to
enter into a CERCLA consent decree with the United
States is to fix the party’s cleanup obligations.” Pet. App.
71a. Indeed, § 9613(f)(2) was added to CERCLA as part
of the 1986 Superfund Amendments and Reauthorization
Act in an effort to induce responsible parties to settle
their liability with the agency overseeing the cleanup so
the settling party would have a “measure of finality.”
United States v. Cannons Eng’g Corp., 899 F.2d 79, 92
(1st Cir. 1990). Incentivizing settlement was intended by
Congress to “encourage quicker, more equitable
settlements, decrease litigation and thus facilitate
cleanups.” H.R. Rep. No. 99-253, at *6 (1985), reprinted
in 1986 U.S.C.C.A.N. 2835, 2840-41; see also 131 Cong.
Rec. 24725, 24730 (1985) (statement of Sen. Domenici)
(“The goal of CERCLA is to achieve effective and
expedited cleanup of as many uncontrolled hazardous
waste facilities as possible. One important component of
the realistic strategy must be the encouragement of
voluntary cleanup actions or funding without having the
President relying on the panoply of administrative and
judicial tools available.”).
These settlements have downstream predictability
effects as well. An EPA settlement with one responsible
https://www.epa.gov/sites/production/files/2013-09/documents/defin
-cersett-mem.pdf.
12
20
party gives the other potentially responsible parties an
idea of what kind of settlement EPA will accept for them.
Additionally, EPA’s reaching settlements with all of the
largest potentially responsible parties often sets the
practical upper limit on all potentially responsible third
parties’ total combined liability. That is because at many
sites EPA focuses its enforcement efforts on a subset of
responsible parties and leaves it to those parties who
settle to bring contribution claims against the nonsettling potentially responsible parties to recover a
portion of the monies paid in settlement. 42 U.S.C.
§ 9613(f)(3)(B).
The settlement mechanism thus can
sometimes set the practical outer bounds of liability for
the non-settling potentially responsible parties too.
The Montana Supreme Court’s decision removes that
incentive for cooperation and the ability of potentially
responsible parties to fix their liability because it strips
EPA of the power to bring certainty and finality to a
potentially responsible party’s remediation obligations.
Instead, private litigants can file lawsuits seeking
additional “restoration work in excess of what the EPA
required” in any settlement agreement. Pet. App. 4a.
Permitting such lawsuits prevents responsible parties
from ever obtaining the final resolution of their liability
that CERCLA empowered EPA to provide.
The
Montana Supreme Court’s decision thus frustrates
21
EPA’s ability to bring parties to the bargaining table and
achieve CERCLA’s goal of a prompt cleanup.13
3. Allowing private lawsuits also distorts the holistic
lens through which Congress required EPA to assess
remediation. Interested parties may want to challenge
cleanup plans because they believe their preferred
approach would be better for them, regardless of the
negative externalities it may inflict on the rest of the
site. But CERCLA charges EPA to identify the solution
that is best for “the public health” and “environment” as
a whole. 42 U.S.C. § 9604(a)(1); National Oil and
Hazardous Substances Pollution Contingency Plan
Preamble, 55 Fed. Reg. 8666, 8695 (Mar. 8, 1990)
(CERCLA remedial actions should “comprehensively
address all threats at a site.”). Allowing a jury to
evaluate third parties’ preferred remedy addresses only
a fraction of the relevant question and, worse, can lead to
a result that is detrimental to the larger community.
CERCLA allows interested parties to make their
individualized interests known through the public-input
process but assigns EPA the task of selecting the optimal
measures for the entire affected population. The decision
below departed from this design by permitting third
parties to elevate their narrow self-interest above that of
the broader public.
In absence of settlement, to obtain cleanup EPA must either
conduct the cleanup itself and then pursue potentially responsible
parties for reimbursement, or try to force the potentially responsible
parties to perform the cleanup through administrative order and/or
court action. See Gen. Elec. Co. v. Jackson, 610 F.3d 110, 114 (D.C.
Cir. 2010) (summarizing EPA’s four options for conducting cleanup
at a Superfund site).
These routes typically take longer,
jeopardizing EPA’s ability to obtain prompt cleanup and straining
Government resources by requiring the Government to pay or
litigate in the first instance.
13
22
II. CERCLA’S
ROBUST
PUBLIC
OUTREACH
MECHANISMS PROVIDE THE PROPER MEANS FOR
INFLUENCING EPA’S SUPERFUND DECISIONS
Reversing the Montana Supreme Court’s decision and
restoring the congressional vision of CERCLA would not
thwart public involvement in EPA’s remedy-selection
process. Far from it. While court challenges to EPA’s
selected remedy would be prohibited, CERCLA provides
many other avenues for interested parties to make their
voices heard. Reversal of the decision below would thus
ensure that—in Montana and elsewhere—interested
parties’ concerns will be channeled into the statutory
mechanisms Congress designed for precisely that
purpose.
A. CERCLA establishes a robust public-participation
framework. Before adopting a remediation plan, EPA
must “[p]ublish a notice and brief analysis of the
proposed plan and make such plan available to the
public.” 42 U.S.C. § 9617(a). EPA then must “[p]rovide a
reasonable opportunity for submission of written and oral
comments and an opportunity for a public meeting at or
near the facility at issue regarding the proposed plan.”
Ibid. Reflecting the importance of this notice-andcomment process, EPA’s “final plan shall be accompanied
by a discussion of any significant changes (and the
reasons for such changes) in the proposed plan and a
response to each of the significant comments, criticisms,
and new data submitted.”
Id. § 9617(b).
Similar
obligations apply after adoption of a final remediation
plan. If EPA’s later actions “differ[] in any significant
respects from the final plan,” then it “shall publish an
explanation of the significant differences and the reasons
such changes were made.”
Id. § 9617(c).
By
implementing a notice-and-comment process and
imposing on EPA a continuing obligation to explain its
rejection of any significant comments, these statutory
23
mandates ensure that the interested parties have a voice
in the remedy-selection process.
CERCLA’s regulations add more public-participation
mandates on top of those statutory requirements,
ensuring that EPA consults with interested parties at
nearly every step in the Superfund process. Before
placing a site on the National Priorities List, EPA must
publish notice in the Federal Register, solicit comments,
and “make available a response to each significant
comment and any significant new data submitted during
the comment period.” 40 C.F.R. § 300.425(d)(5). Then,
before commencing the remedial investigation, EPA
must (1) conduct “interviews with local officials,
community residents, public interest groups, or other
interested or affected parties, as appropriate, to solicit
their
concerns
and
information
needs,”
id.
§ 300.430(c)(2)(i), and (2) prepare a “formal community
relations plan” to “ensure the public appropriate
opportunities for involvement in a wide variety of siterelated decisions, including site analysis and
characterization, alternatives analysis, and selection of
remedy,” id. § 300.430(c)(2)(ii).
Additionally, EPA
maintains an administrative record for each site so that
any person has easy access to relevant studies, data and
information. See generally 40 C.F.R. Part 300, Subpart
I.
The regulations continue to impose publicparticipation obligations after EPA has made an initial
determination regarding the preferred remedy. At that
point, it must “[p]rovide a reasonable opportunity * * *
for submission of written and oral comments on the
proposed plan and the supporting analysis” and hold a
“public meeting * * * at or near the site at issue.” Id. §
300.430(f)(3)(i). Following the comment period on the
proposed plan, EPA must “reassess its initial
determination[,] * * * factoring in any new information or
24
points of view expressed by the * * * community during
the public comment period.”
Id. § 300.430(f)(4)(i).
Indeed, the regulations specifically contemplate that
“comments may prompt [EPA] to modify aspects of the
preferred alternative or decide that another alternative
provides a more appropriate balance.” Ibid. Taking all
of this into account, EPA then must document and justify
its final remedy selection in a publicly available record of
decision. Id. § 300.430(f)(3), (5). Before carrying out the
final plan, EPA must determine whether it is necessary
to revise its community-relations plan to “describe
further public involvement activities.” Id. § 300.435(c)(1).
In sum, there is no shortage of public involvement in
EPA’s Superfund identification and remediation process.
Preventing interested parties from challenging EPA’s
remediation decisions through private lawsuits would
enforce the statutory design, while leaving ample means
of public expression. Indeed, interested parties would
continue to actively participate through the host of
carefully calibrated mechanisms provided by CERCLA
and its regulations, just as Congress intended.
B. Examples of a few EPA community-relations
plans provide a real-world glimpse into the functioning of
CERCLA’s public-participation mechanisms.
At the Grasse River Superfund Site, EPA engaged the
public with fact sheets, flyers, public notices, door-todoor solicitations, school outreach, mail, email, websites,
and social media. EPA, Grasse River Superfund Site
Community Involvement Plan for Remedial Design and
Remedial Action, at 19-23 (Aug. 2014).14 That was in
addition to EPA’s coordination efforts with state and
tribal authorities. Ibid. This aggressive public-outreach
strategy paid dividends, as the Community Advisory
https://www.epa.gov/sites/production/files/2017-03/documents/gras
se-river-cip.pdf.
14
25
Panel “played a valuable role in representing community
viewpoints * * * [and] helped guide and inform the EPA’s
decision-making process at the site.” Id. at 23.
Community involvement at the Colorado School of
Mines Research Institute Superfund Site likewise proved
effective. The public there had a demonstrably direct
impact on the remedial alternatives considered: “By
going to the community up front, EPA was able to screen
out remedial alternatives that the community simply
would not accept prior to spending EPA resources on
analysis of their feasibility.” EPA, Community Advisory
Groups: Partners in Decisions at Hazardous Waste Sites,
Case Studies, at 40 (Winter 1996).15
The record similarly reflects the public-participation
process for the Anaconda Smelter Superfund Site at
issue here. As the Government’s amicus brief below
detailed, EPA has ensured that “[t]he remedy-selection
process continues to respond to public concerns and new
data. For example, EPA significantly amended the
[records of decision] in 2011 and 2013 based on new
information.” Pet. App. 65a. On the September 2011
Record of Decision Amendment alone, EPA received and
responded to comments from Anaconda-Deer Lodge
County, the Clark Fork River Technical Assistance
Committee, the Clark Fork Coalition, the Arrowhead
Foundation, and others. Record of Decision Amendment,
Anaconda Regional Water, Waste, and Soils Operable
Unit, Responsiveness Summary & Appendix A.
C. Respondents were well aware of CERCLA’s
public-participation framework. Indeed, Respondent
Penny Ryan submitted a number of comments to EPA
objecting to various aspects of its remediation plan. Id.
at Responsive Summary § 6.0.C. EPA considered and
responded to her comments. Ibid. Then it rendered its
15
https://semspub.epa.gov/work/HQ/174150.pdf.
26
own expert decision on how to move forward with the
cleanup. The court below erred by allowing collateral
attacks on the outcome of this process.
*
*
*
CERCLA’s text, structure, and purpose cannot
countenance interference through private lawsuits by
interested third parties. Yet that option now bears the
imprimatur of the Montana Supreme Court. Without
this Court’s intervention, that decision will imperil the
remediation efforts at the many Superfund sites in
Montana and potentially others across the country.
CONCLUSION
The petition for a writ of certiorari should be granted.
27
Respectfully submitted.
STEVEN P. LEHOTSKY
MICHAEL B. SCHON
U.S. CHAMBER LITIGATION
CENTER
1615 H St., NW
Washington, D.C. 20062
(202) 659-6000
Counsel for Amicus Curiae
Chamber of Commerce of
the United States of
America
AARON M. STREETT
Counsel of Record
J. MARK LITTLE
BAKER BOTTS L.L.P.
910 Louisiana St.
Houston, TX 77002
(713) 229-1234
aaron.streett@bakerbotts.com
MARTHA S. THOMSEN
BAKER BOTTS L.L.P.
The Warner
1299 Pennsylvania Ave.,
STACY R. LINDEN
NW
MATTHEW A. HAYNIE
Washington, D.C. 20004AMERICAN PETROLEUM
2400
INSTITUTE
(202) 639-7700
1220 L St. NW
Washington, D.C. 20005
Counsel for Amici Curiae
(202) 828-8000
Chamber of Commerce of
United States of
Counsel for Amicus Curiae the
America,
National
American Petroleum
Association
of
Institute
Manufacturers, American
Fuel & Petrochemical
PETER C. TOLSDORF
Manufacturers, National
LELAND P. FROST
Mining Association,
MANUFACTURERS’
American Petroleum
CENTER FOR LEGAL
Institute, and Superfund
ACTION
Settlements Project
733 10 STREET, N.W.,
SUITE 700
WASHINGTON, D.C. 20001
(202) 637-3000
Counsel for Amicus Curiae
the National Association
of Manufacturers
May 2018
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.