September 22, 2020
Law360 and Reuters recently covered a significant win for McGuireWoods client Asarco LLC in the 9th U.S. Circuit Court of Appeals, which affirmed a trial court victory finding Atlantic Richfield Company liable under CERCLA for a portion of the funds Asarco spent to cleanup arsenic groundwater pollution at the East Helena, Montana, Superfund site.
On Sept. 14, 2020, the appeals court affirmed that BP subsidiary Atlantic Richfield must repay Asarco for the portion of the cleanup costs at the East Helena site. Asarco sued Atlantic Richfield under CERCLA, seeking partial repayment for some of the $111.4 million Asarco paid under a settlement with the Environmental Protection Agency and the state of Montana.
McGuireWoods partner Gregory Evans led the Asarco trial team in the U.S. District Court of Montana and successfully argued the case before the 9th Circuit. Partner Benjamin Hatch and associates Gilbert Dickey and Alicia O’Brien assisted with the briefs. Prior to trial, Evans also argued in the 9th Circuit and successfully reversed the U.S. District Court’s dismissal of the case on summary judgment.
While the 9th Circuit affirmed the lower court’s ruling that Atlantic Richfield owes Asarco a quarter of the costs associated with the arsenic cleanup, it said the repayment should be tied to the amount actually spent on remediation. Asarco said about $70 million has been spent so far but anticipated the entire trust will be used to remediate pollution, Law360 reported. Evans said Atlantic Richfield should not be allowed to “shave a few dollars” off its liability. The case will go back to the U.S. District Court for a determination regarding total cleanup costs.
Atlantic Richfield has argued that the $61 million already spent at the site is enough, and that it should have to pay the 25 percent of that figure. Asarco disagrees and plans to prove the necessity of further cleanup in the next round of this litigation. Atlantic Richfield “doesn't have to drink the water in that community; children and families do," Evans told Law360. "Asarco paid to clean that water up. [Atlantic Richfield] would like for that cleanup to stop. But that's not where this is going to end up."