Marketing Trends

Big Changes May be Coming for Remediation Proposals

Author: Troy Krause on June 26, 2019krauseth@cdmsmith.com

This edition of Marketing Trends takes an early look at the potential impacts of a Supreme Court case that will likely have an immense impact on remediation sites under EPA control. Depending on the Supreme Court’s decision, different skill sets will become increasingly important to highlight in proposals when pursuing state and/or federal remediation work.

Case background

The site in question was designated a Superfund site in 1983; [1] and the potentially responsible party’s (PRP’s) ongoing cleanup effort under EPA’s Superfund Law, CERCLA, requires cleanup when arsenic exceeds the “acceptable” level of 250 ppm. [2] However, landowners from two nearby towns sued the PRP to get them to further remediate the property to pre-smelter arsenic levels of 8 ppm. [3] In 2017, the Montana Supreme Court ruled that the case could proceed, despite arguments from the PRP that it interferes with an ongoing cleanup and violates the Constitution’s so-called Supremacy Clause, which says that federal laws preempt state laws when the two conflict. On June 10, 2019, the Supreme Court agreed to hear the PRP’s bid to avoid a lawsuit by the landowners.

Potential Outcomes

There are a couple of ways this could shake out:

1. If the Supreme Court preempts inconsistent state claims—that is, if they say that people can’t sue under state law to compel companies to remediate sites beyond what is required by EPA/CERCLA—then property owners will be “heavily incentivized to participate in EPA’s remedy selection” [4] because they would lose their ability to seek separate relief under state law.
2. If the Court holds that “restoration remedies” like the one sought under Montana state law are separate from CERCLA claims, then those affected by environmental impacts of CERCLA sites may have a new avenue to seek relief from PRPs outside of and during the remedy phase of CERCLA. [5]

Marketer Takeaways

This case may have different impacts on how to best represent your remediation qualifications, depending on how the Court decides to rule. If remediation stakeholders are decisively denied recourse through state law, then stakeholder outreach could become increasingly important as a component of completing successful remediation.

If the remediation lawsuit under Montana state law is found to be separate and distinct from the actions taken under CERCLA, there could be an uptick in state lawsuits and subsequent remediation by potentially responsible parties.