data/Version_XML/Atlantic.xml

<text>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> We'll hear argument next in Case 17-1498, Atlantic Richfield versus Christian. Ms. Blatt.</u>
<p id="ORAL ARGUMENT OF LISA S. BLATT ON BEHALF OF THE PETITIONER">
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Thank you, Mr. Chief Justice, and may it please the Court: This case involves whether the hundreds of thousands of landowners on Superfund sites can bring state lawsuits to implement their own piecemeal hazardous waste cleanups. The answer should be no. CERCLA entrusts EPA to protect human health and the environment by developing a remedial plan that protects the whole community. Respondents are profoundly wrong that removing waste is always better than leaving it in place. Superfund sites contain extremely hazardous substances, lead, mercury, plutonium, to name a few. Excavation, transportation, and disposal of these substances is risky not only to neighbors but the millions of people who live next door to Superfund sites. Whether these risks are worth any benefits should be evaluated by EPA, not juries on an ad hoc basis. Since 2013, EPA has objected that Respondents' restoration remedy would thwart more than three decades of efforts... of its efforts at the Anaconda site, including by digging up soil that EPA wants left undisturbed and by building miles of underground trenches that would affect an entire community's groundwater. This Court should reverse for three reasons. First, Section 113 bars Respondents' challenge to EPA's remedy. Second, Section 122 bars Respondents from undertaking any remedial actions absent EPA's authorization. And, third, a restoration remedy is preempted because it would require Atlantic Richfield to effectuate the very cleanup that federal law prohibits the company from doing on its own, and a restoration remedy would prevent EPA from carrying out its statutory mandate to implement comprehensive cleanups.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Ms. Blatt, I've been trying to unpackage this case in my own mind, and I start with the language of the statute. I'm sorry. I interrupted you. Finish.</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> No, we're good.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Okay.</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I'm sorry.</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> No.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I am trying to figure out... <w>let</w><w>'s</w> assume for the sake of argument that the remedial plan that the state court orders supplements, rather than contradicts, the EPA plan, that it was something in top of. I read the savings clauses to permit that. It... the savings clauses are very explicit that <w>it</w><w>'s</w> not displacing or intending to displace state law remedies for liability or for anything else. So, if these plans supplement, why would this part of Montana law be preempted?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> So, in terms of preemption, so <w>it</w><w>'s</w> quite emphatic to understand that Section 122(e)(6) and the over 20 administrative orders impose both a floor and a ceiling on the type of cleanup...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> If I disagree that <w>it</w><w>'s</w> a ceiling...</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Well...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... if I think <w>it</w><w>'s</w> just a flaw... a floor...</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Sure.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... and that the EPA has the power to decide whether any plan can supplement its own...</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Of course.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... where does that leave this argument?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> So you...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> If... if... if... if I believe...</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Sure.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... that <w>it</w><w>'s</w> a... <w>it</w><w>'s</w> a floor only, not a ceiling...</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Uh-huh.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... that the EPA has the right to establish when a plan will be a ceiling, where does that leave this case?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Okay. So, in terms of conflict preemption, so we know that EPA would absolutely have to change federal law, which it could, to approve their plan. So <w>you</w><w>'re</w> absolutely correct. The EP...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I'm sorry.</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> EP... federal law requires a specific action level and a specific amount of dirt that can be dug and that no wall could be built. If that happens, EPA...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> At the moment?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Yes. And EPA can change it. And this Court in Mensing said that courts do not withhold preemption based on the speculation that federal government may change the law. And the law would have to be...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> But it <w>is</w><w>n't</w> the law, Ms. Blatt. It's... <w>it</w><w>'s</w> the EPA Superfund plan for this site. The specific things that you mention are not in the law. They are in the EPA's plan. And if the EPA said we permit what the landowners... the... the further cleanup the landowners want, we permit it or we permit what they want with certain modifications, if EPA says yes, then <w>there</w><w>'s</w> no preemption that I could see that would be involved in this case.</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> So <w>that</w><w>'s</w> not correct because, when you said plan... and maybe I misspoke... the law is not a U.S. code law. It's a binding administrative order where Atlantic Richfield would incur massive penalties every day if it violated. It's a law in terms of an administrative order that sets forth the plan. Now Atlantic Richfield cannot carry out that plan without massive fines and violating law. In the order, it says undertaking any action without EPA's approval violates the order. And under ordinary...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> But suppose the EPA approves. The EPA says what you want to do is okay with us, or at least, as was suggested in the briefing, part of what the landowners want is okay with EPA.</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> So all of the pillars of their plan violate EPA's order. And your supposition that EPA could approve it is just not the test under preemption. The test under preemption is whether a party today could independently do under federal law what state law requires. And I mean by that, and what this Court in Mensing and Bartlett said, that means complying with state law duties without the government's assistance and permission.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Well, Ms. Blatt, same kind of question, and maybe it goes to a bunch of your arguments. I mean, look, if I were writing this statute, I would say it all goes to the EPA. It's just... you know, <w>that</w><w>'s</w> the sensible solution to have one party that makes all the rules in this. But I'm not writing the statute. And the statute has three savings clauses in it, which... which suggests that the states have a significant role in this. And, in particular, one that says that the states get to impose additional liability or requirements with respect to the release of hazardous substances. And I guess, you know, one way into this is if I... if... if... if we imagine that this was done not with a damages rule, but suppose the Montana legislature just said, you know what, this plan that the EPA has put in place, it requires arsenic at a certain level, and we think it would be better to lower that, and we <w>do</w><w>n't</w> really care that the EPA thinks that that would not be a good idea for health purposes, as well as for economic purposes; we think that that arsenic level should be lowered. Do you think that the state gets to do that?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> No, and Section 121 deals with this directly. It spells out in like over <w>3,000</w> words how states can incorporate into EPA's, their plans, and EPA can override that state standard. And it goes... then states have the remedy to sue. It's one of the exceptions under 113. And so... and I think <w>you</w><w>'re</w> right that their position under the savings clause is that not only could state law say <w>do</w><w>n't</w> enact EPA's remedy because we hate it and do a different remedy, but state courts could order independent warring cleanups, you know, case by case, block by block, house by house. And this Court, in the Abilene Cotton case and in the AT&amp;T case, interpreted almost an identically worded savings clause and said you <w>can</w><w>'t</w> interpret those clauses to completely destroy other parts of the Act. And this would utterly destroy EPA's whole design under CERCLA.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> So... so what... what do they save then? I mean, the savings is all over this statute. They have to save something. What do they save that... that states can do independently?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> So let... let me be very clear how narrow our argument is. They have four... four claims of compensatory damages and punitive damages. So typical state law claims for nuisance and whatever else they want to claim for damages is fine. The objection here is that the actual remedy orders Atlantic Richfield to pay Respondents to carry out their contrary plan and that Respondents under state law must actually implement the very plan that Atlantic Richfield would violate federal law. So this is a... not only a challenge and not only its direct remedial action that has to be taken in violation of 122, but <w>it</w><w>'s</w> the only claim that would meet our standard of conflict preemption because it requires Atlantic Richfield to effectuate a violation of federal law, either whether they hire their own employees or whether they hire the plaintiff's employees and put a different hard hat or give them a different...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Ms. Blatt...</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> ... shovel.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... if... if I have questions about what state law requires, because I... I <w>can</w><w>'t</w> find anything in the state law that requires a damages remedy to be put in trust for the remediation, <w>that</w><w>'s</w> what the court below said. I know <w>that</w><w>'s</w> what it said. But I <w>can</w><w>'t</w> find any law that says <w>that</w><w>'s</w> what has to happen...</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Uh-huh.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... number one. Number two, I <w>can</w><w>'t</w> find any state law requirement that the Petitioner has to prove that <w>they</w><w>'re</w> going to actually use the money <w>they</w><w>'re</w> awarded for the purposes that they claim. So I'm very confused about the state law question.</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Yeah. And I think <w>that</w><w>'s</w> all a fair question. And...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> If it is a fair question...</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Yeah, I was going to answer it.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... why is it preempted, meaning why <w>would</w><w>n't</w> I just remand this case and say you <w>can</w><w>'t</w> make... you <w>can</w><w>'t</w> award damages unless the other side proves or the side claiming these damages proves that it can get EPA approval of whatever it wants to do, and that it will, in fact, only use that award for those purposes?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Right. So...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> What's wrong with a ruling <w>that</w><w>'s</w> just that basic that says you can get more if you can prove the EPA will give you more, as simple as that?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> So you know...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> What's wrong with that...</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Sure.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... kind of opinion?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> So you took this case on the assumption... and we cite it on page 16 of our reply brief... all the places where the Respondent concedes, and the Montana Supreme Court expressly said, that this money has to be used to carry out the remedy. And <w>that</w><w>'s</w> the way this case comes up. If you want to know the reason for Sunburst, <w>it</w><w>'s</w> because of the reason is personal. So, if you own a property and love it so much and you <w>do</w><w>n't</w> have any damages, the whole point of the restoration remedy to avoid the windfall is you have to spend the money. So I'm quite confident that I'm accurately stating Montana law and that Respondents never argued to the contrary. And in our reply brief, again, we cite all the concessions, including, I think, the opinion below in three places says the money has to go to a trustee and that money has to be spent on the cleanup. And I'm agreeing with you that key to the preemption argument is that under state law, they will be forced to carry out a remedy that would violate EPA's orders, these administrative orders, if we carried it out itself.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> So what's wrong with an opinion that we write that says what <w>you</w><w>'re</w> missing is the next step. You have to be able to show that that remediation will be approved.</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Yeah. So...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> So, if... if <w>that</w><w>'s</w> their burden, why do we need to go any further?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> So I... two responses. So, right now, they <w>do</w><w>n't</w> have federal permission. And under Section 122, you have to take federal...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I <w>did</w><w>n't</w> say...</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> We're talking about...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... they have to show that they will get EPA approval.</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> And all I'm saying is you know today. Let me just make one other point as a practical matter. This is not a case in its infancy. It was cooked. It was about to go to trial. It was three weeks away from jury selection when the court got stayed. We know <w>they</w><w>'re</w> going to trial and the whole case is about whether a different remedy should be put on. And we know under state law, because they've conceded it, that they have to carry out that remedy. And we know they <w>do</w><w>n't</w> have EPA's permission. So you not only know two things. You know, again, <w>it</w><w>'s</w> conceded that the remedy seeks something different, and it would require a change in federal law. And you know they never got EPA's permission. And I guess this is assuming we're not even getting...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> The answer... the answer, I think, is this right, to the question, which is a question I had, too, is that in order to bring an action where the result will be an order to do certain things, dig dirt or do physical things, if they are a potentially responsible party, they have to show not that EPA might approve it, but what it says is unless such remedial action, which is the reaction <w>they</w><w>'re</w> seeking, has been authorized by EPA.</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> And you know today that...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> It has not.</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> ... not only has it not been, they never ask EPA.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> And, therefore, what we should do if you are right on the potentially responsible party is we should send it back and say they have to get that permission from EPA. And there is no need to answer the other questions. Is that right or wrong?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> That's wrong and I disagree. You already know today they <w>do</w><w>n't</w> have it. And just as the case sits today, whether they could have brought some separate federal lawsuit after they asked EPA... excuse me, state lawsuit, but you already know today that they never asked for it.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Yeah. That's why I say we'd send it back, they do not meet that requirement if they are potentially responsible parties, so dismiss the case. Now, if that... if you win in that respect, I'm asking if there is a need to reach the other two questions.</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Okay.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> I suspect there <w>is</w><w>n't</w>, but am I right?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Yes. If you rule for us under Section 122 that they <w>can</w><w>'t</w> carry out their restoration remedy because they <w>do</w><w>n't</w> have EPA's permission, then <w>that</w><w>'s</w> sufficient to resolve the case.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Fine. Now they say they are not potentially responsible parties, but you say they are. Why?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Because in three... because they are landowners with... with hazardous waste on a Superfund site. And three provisions textually equate all persons who are owners and operators under 107 because they own land on a Superfund site.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> But they say they are not potentially responsible. Perhaps they were potentially responsible, but they are not potentially responsible because EPA and everybody else has told them <w>they</w><w>'re</w> not responsible.</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> So no, and here is why: Potentially responsible parties has always been understood by this Court and everyone else as a status, not whether you could be liable. And their rule that says could you be liable at any given point in time is not only unheard of, <w>it</w><w>'s</w> unworkable, because you would never know whether a court would accept a defense, including...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Whether they were or they <w>were</w><w>n't</w> potentially responsible parties, they are landowners, correct? And do I understand correctly, whether <w>they</w><w>'re</w> PRPs or not, if <w>they</w><w>'re</w> landowners, they <w>can</w><w>'t</w> take any... they <w>can</w><w>'t</w> make any change without EPA approval?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> They <w>can</w><w>'t</w> take a statutorily defined term called remedial action <w>that</w><w>'s</w> defined in 101/24, and it defines what a remedial action is. So they can do ordinary things to their property. They <w>can</w><w>'t</w> do the major upheaval of <w>500,000</w> tons and...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Whether the PRP is responsible to someone else or to the EPA, whether <w>they</w><w>'re</w> continuous landowners or something else that exempts them, that... <w>that</w><w>'s</w> my bottom line, which is the mere fact that they want to take some action on their land <w>that</w><w>'s</w> remedial, they would have to get EPA approval?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Absolutely. And PRP status, it <w>does</w><w>n't</w>...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Can you point me to the provision that says that, that says whether <w>they</w><w>'re</w> PRPs or not, as long as <w>they</w><w>'re</w> landowners, if <w>they</w><w>'re</w> going to take any remedial action on their property?</u>
<u loc="MS. BLATT"><w>[MS. BLATT]</w> So 122(e)(6) is the one that says PRPs have to have EPA's permission for any remedial action. And then the 107, 122(a), 6 122(e)(1) and 105(h)(4)... (h)... excuse me, (h)(4)(A) is the one that defines or equates owners and operators under 107 with PRP status.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. Mr. Michel.</u>
</p>
<p id="ORAL ARGUMENT OF CHRISTOPHER G. MICHEL, FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING PETITIONER">
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> Thank you, Mr. Chief Justice, and may it please the Court: The United States is here because the narrow aspect of Respondents' suit that is before this Court, namely the request for a distinctive state law remedy under which a jury may authorize a plan to clean up toxic contamination at a Superfund site in a way that conflicts with and in many respects physically destroys the EPA plan selected under CERCLA, squarely conflicts with CERCLA and would jeopardize EPA's cleanups at this Superfund site and other Superfund sites across the nation. Now, to go to some of the questions that have... have been raised already, this is a narrow... our argument here is narrow. The... the statute does have savings clauses, and we <w>do</w><w>n't</w> dispute that Respondents can move forward with their claims for money damages under state law and nuisance and tort and other related theories that <w>do</w><w>n't</w> call into question the EPA remedy. And, likewise, as Justice Kagan pointed out, there are a number of mechanisms in the statute for states to adopt what are called ARARs, Applicable and/or Relevant and Appropriate Standards, that could be implemented as part of... of the EPA cleanup plan. And I think that goes to a broader point, which is that CERCLA really lays out a two-step process. At the first step, EPA, or whatever federal agency is conducting the plan, goes through a very reticulated process of getting public comment, meeting with... meeting with landowners, meeting with the state, and selects a cleanup plan in... in compliance with those procedural and the substantive requirement that they protect human health. Then, at the second stage, CERCLA says go and carry out the cleanup plan and CERCLA erects a number of protections...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Sorry, are you agreeing with Ms. Blatt that your plan is both the floor and the ceiling?</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> So I think it... not necessarily in every respect, but I think in the respect that matters in this case, it is. And 12 I...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> No, no, no, let me... let me go back. Is it always the ceiling?</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> I mean, an EPA...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> An owner can come to you and say I want to do more, and you can decide yes or no, right?</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> Yes, absolutely.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> So <w>it</w><w>'s</w> not always the ceiling.</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> I mean... yes. And, in fact, the statute...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> All right.</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> ... as we discussed, as... as Ms. Blatt discussed at length...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> So are you reading their state... are you reading this remedy as requiring the remediation <w>that</w><w>'s</w> awarded no matter what? With or without EPA approval?</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> I... I think the Montana Supreme Court decision implies that Respondents could move forward with their claim as it now exists even if they <w>did</w><w>n't</w> have EPA approval. And we think that is...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> How about if they did, if they could get your approval, if they could show that they could get your approval?</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> I mean, if they could get our approval under 122(e)(6), then we <w>would</w><w>n't</w> have a problem with... with the suit, but I think that...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> All right. How about if <w>they</w><w>'re</w> not a PRP? Let's assume <w>they</w><w>'re</w> a contiguous... <w>there</w><w>'s</w> a whole set of arguments in these briefs by some of them, putting aside whether <w>they</w><w>'re</w> a PRP because of... of the statute of limitations, which, you know, is not very compelling to me, okay? But putting that aside, <w>let</w><w>'s</w> assume that by definition they are a PRP. Or <w>they</w><w>'re</w> not a PRP; <w>they</w><w>'re</w> a continuous landowner. They are not a PRP. What about those people?</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> So I think an important distinction is that if they were found to be a contiguous landowner, that would not take them out of the status of being a PRP. That would imply that <w>they</w><w>'re</w> not liable, as... as you pointed out...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> All right. So what <w>you</w><w>'re</w> saying is if <w>you</w><w>'re</w> a landowner, you might not be liable because some justices might have a problem with the concept that someone who <w>did</w><w>n't</w> pollute and <w>does</w><w>n't</w> encourage the polluting would be financially liable.</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> And <w>that</w><w>'s</w> an instinct that EPA shares as we quote in our brief. EPA has had a policy since 1991 of not imposing liability on residential landowners on Superfund sites. But...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> So, Mr. Michel, if I could ask about the PRP status, because there are obvious consequences of labeling somebody a PRP in the way that you suggest, that these sites... and they can be sites for decades and decade and... and deprive people of doing some significant things that they want to do to their land. And the question, I guess, is why do you... why do we think the statute requires those consequences as to a person whom has... who has never been treated as a PRP by the government, who has never been involved in settlement negotiations, who, under reigning law, including the statute of limitations, has no liability exposure? I mean, it would seem a big deal to take a person like that and say <w>you</w><w>'ve</w> lost some significant property rights. Why?</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> So I think two responses. First, I do want to make clear that 122(e)(6), the PRP provision that we're talking about here, only applies to remedial action. And that has a defined statutory definition. It's in 20 9601(a)(4).</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> But I said some significant things.</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> So... so...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> So, you know, look, that you can still, you know, make a garden.</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> Absolutely, you can still make a garden. Now, as to significant things, I think it does make perfect sense that you <w>would</w><w>n't</w> want somebody who lives on a Superfund site doing things in the earth that will interfere with the EPA remedy. Of course, you know, <w>there</w><w>'s</w>... there is, on a Superfund site, a sort of butterfly flaps its wings problem where, if you dig up two feet of soil on your land, you can kick up arsenic into the air, or if you dig a trench on your land...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> So I guess I... I... I completely take the point that that might have been a sensible policy decision for Congress to make, but, as I look at these provisions, the only... the... the... where this PRP comes from is... is... is in a section that deals with settlement negotiations. And these people were not ever involved in settlement negotiations. Nobody for a moment considered that they should be involved in settlement negotiations. So to apply that section to these people seems, you know, a stretch.</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> So I... I <w>do</w><w>n't</w> think so, Justice Kagan. I... PRP is used in the statute a lot of different times, not just in the settlement. You're right that (e)(6) is under the settlement provision, but if you look at (e)(1), <w>it</w><w>'s</w>... it... it equates owners on the site with PRPs. And so the Court could leave for another day whether PRP is coterminous with covered persons under Section 107 and simply decide that owners on Superfund sites are PRPs. And, again, we think that makes perfect sense because, by definition, when you have a cleanup plan that takes into account an entire Superfund site, as this one does, and one landowner does something that affects the earth or affects the environment, <w>it</w><w>'s</w> going to spread across onto other parts of the Superfund site. And the water barriers that we've discussed in this case are a good example, where EPA has a considered plan to treat the water in a certain way, and Respondents want to dig... I think <w>it</w><w>'s</w> an <w>8,000</w>-foot trench that would change the gradient and would physically change the land in a way that could endanger the whole Superfund site off of their own property. So it is true that when you live on a Superfund site and you have large amounts of toxic chemicals, you are more restricted in the kind of land use that you...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But it seems a very indirect way for Congress to have gone about this, as Justice Kagan says, to, in essence, hinder a landowner from doing any significant action for decades.</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> I mean, I think on... <w>it</w><w>'s</w> not that strange to see that an owner of a Superfund site, somebody who lives on a contaminated property, is hindered from taking remedial action, which is a fairly significant action, without EPA approval. Of course, EPA can grant approval, and EPA has in other cases granted approval for remedial actions on Superfund sites.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> So your two answers are, one, <w>it</w><w>'s</w> only significant action and, two, EPA could grant approval?</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> Absolutely. It's a... so <w>it</w><w>'s</w> a limited incursion to the degree that it restricts property rights. That's what comes with living on... on a Superfund site, and <w>that</w><w>'s</w> what's necessary to protect...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> Then... then what is your answer to the question Ms. Blatt was asked? If we say the landowners are PRPs and they have to get EPA permission for any restoration that they want to do, if the Court said that, then I <w>do</w><w>n't</w> see that the further questions in this case need to be answered. And I <w>do</w><w>n't</w> see any reason to get into preemption.</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> I agree with you, Justice Ginsburg. You could resolve the case by... by saying that Respondents are PRPs who need EPA authorization... authorization and <w>do</w><w>n't</w> have it and, therefore, their... their claim fails.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> What do we do about the government's prior representations that permission might be granted for something like this?</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> Well, I mean, the government stands ready to listen to EPA... to any proposals from the landowners. They have not formally presented us with any proposals, so we're working off of the best available information, which is the expert reports that they have introduced in the state litigation.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> So <w>it</w><w>'s</w> still at least possible that the government might approve something like this?</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> I mean, based on what we know, we've made very clear, we're now in the Supreme Court litigating this case, that we would not approve what we understand their plan to be, but we're not saying never. Of course, they could present something and we would listen to it.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> And I might... might have missed it, but just when is the government's role here likely to finish in this particular site?</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> So I think the government... the ongoing remediation will continue through 2025, is the latest... is the latest projection. It may be that, you know, there are continuing operations beyond that, but the active site remediation we expect to continue through about 20 2025.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Is there... is there a takings claim, do you think, that arises from the government's position that any remediation efforts for a period of, I guess, 45 years is prohibited by landowners?</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> I mean, in the literal sense, <w>there</w><w>'s</w> no takings claim because they <w>have</w><w>n't</w> raised one in this case. I think more... more broadly... of course, one could raise a takings claim, but I think it would be a very weak claim given that, in fact, EPA's remedy has improved the value of the property and that you have to start from the premise that the property is... is covered with arsenic.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Well, <w>it</w><w>'s</w>... <w>it</w><w>'s</w>... <w>it</w><w>'s</w> improved the value of the property from its prior state but not... not to a level that state law would allow.</u>
<u loc="MR. MICHEL"><w>[MR. MICHEL]</w> Well, I... I do think that <w>that</w><w>'s</w> an important point, Justice Gorsuch, is that the EPA plan fully complies with the state environmental laws. Those are the ARARs that I mentioned earlier. This is a separate private plan that a jury would have to approve.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. Mr. Palmore.</u>
</p>
<p id="ORAL ARGUMENT OF JOSEPH R. PALMORE ON BEHALF OF THE RESPONDENTS">
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Thank you, Mr. Chief Justice, and may it please the Court: This Court lacks jurisdiction, but, if it finds it has jurisdiction, it should affirm. Briefly on jurisdiction: The decision below affirming denial of summary judgment on one damages theory and remanding for trial is non-final. This Court has exercised review over Montana's supervisory writ decisions only where reversal by this Court would end the case entirely. That critical condition is absent here. On the merits: This Court held and explained in CTS versus Waldburger...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> If we... I'm sorry, go ahead.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> ... that CERCLA does not establish a comprehensive remedial framework; instead, it leaves untouched state judgments about causes of action and the scope of liability for property damage. Montana, like many other states, has made the judgment that one who puts toxic materials on another person's property is liable for trespass and nuisance and that a measure of recovery is the cost of removal. Nothing in CERCLA bars that core exercise of state authority to vindicate private property rights. ARCO's invocation of Section 113(h) fails... <w>that</w><w>'s</w> the challenge provision... because it <w>does</w><w>n't</w> apply in federal court and even in federal court, it <w>does</w><w>n't</w> apply to state law claims. ARCO fares no better on Section 122(e)(6), the PRP provision, because the landowners here are not potentially responsible for anything because they face no possible liability. And that provision certainly cannot be read to give EPA the vast power that it seeks, the ability to control forever the removal of a shovelful of dirt from a private landowner's backyard. There's no basis for preemption either. CERCLA establishes a floor, not a ceiling, on environmental remediation, and in several provisions makes clear that Congress wanted to leave state law in place. Nor is there any impossibility. The duty that ARCO breached was the duty not to pollute. Nothing in federal law required it to do so. Justice Sotomayor?</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I... I still have a problem, which is it seems to me that if you go on a piece of... if you own a piece of land and you know the EPA has been fixing it up, that whether <w>you</w><w>'re</w> responsible financially for the cleanup, that you <w>should</w><w>n't</w> be able to interfere with the EPA's efforts, meaning you might have a takings claim, as Justice Gorsuch claims, you might have some other claims, but I <w>do</w><w>n't</w> know how you can go about instituting a plan without conflict preemption, instituting a plan that interferes with what the EPA is doing.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Your Honor, first of all, and this is critical, there is no interference here. The vast majority of my clients have had zero work done on their land. And if you put all their land together, the work has been done on only percent, okay? So, on 95 percent of the land, literally nothing has been done. So <w>there</w><w>'s</w> no undoing there. On groundwater, EPA made the decision to do nothing to clean the groundwater in Opportunity, so we're not undoing a remedy. We're doing something that EPA... where EPA has done nothing. And what's the 5 percent? They dug down 18 inches, they put in clean soil, and they planted grass. All we want to do...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, on the ground... on the groundwater, I understand their position to be that if they did do something along the lines that <w>you</w><w>'re</w> proposing, it would have very significant adverse impacts. So the fact that they <w>have</w><w>n't</w> done anything, <w>that</w><w>'s</w> what they want you... they <w>do</w><w>n't</w> want you to do anything. So you <w>can</w><w>'t</w> say having... having done nothing represents that <w>there</w><w>'s</w> no... there would be no adverse impact from what you plan to do.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> A couple answers on that, Chief Justice Roberts. First of all, they decided, and if you look at the actual regulatory materials, and that... the EPA makes decisions in this area through records of decision, which are official documents, they say they <w>did</w><w>n't</w> want to do the groundwater remedy, it was a different wall, it was a different one, because it was technically impracticable, which is a term of art under CERCLA for too expensive. In the regulatory materials, there is absolutely no finding that that wall, much less the one that we've proposed which is different, would call any environmental harm. If you look to what the government cites here for that proposition, if you trace it through, <w>it</w><w>'s</w> citing its own amicus brief in the Montana Supreme Court. If you look at the Montana Supreme Court amicus brief, the government cites literally nothing.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> So <w>you</w><w>'re</w> talking about the particular specifics in your case. But, as a general matter, for example, you can understand that the EPA looking at this might say, okay, we're going to do this, we're going to do this, we're going to do this, and we're going to get to that as soon as we're done doing this other stuff. And yet someone else in your position would come in and say: Well, <w>you</w><w>'re</w> not doing anything here, and so we're going to go ahead and do this, when the EPA's answer might simply be that well, we <w>have</w><w>n't</w> gotten to it yet, but we want to be the ones to decide what to do, rather than the particular landowners there, because we have a broader perspective affecting the whole site, rather than individual sites where the people may reasonably want something to be done but still may be inconsistent with EPA's plan.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Well, here, Mr. Chief Justice, the issue <w>is</w><w>n't</w> we'll get to that later. They're done. All the remedial work such as it was on our property has been over for several years. They are completely done. And <w>that</w><w>'s</w> another reason why <w>there</w><w>'s</w> no interference with anything <w>they</w><w>'re</w> doing. They're finished.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> I'm trying to move beyond your particular...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> And I understand that. So one can imagine a different case involving a conflict preemption claim with respect to the EPA remedial orders. That's not this case. ARCO's argument here, which... which Ms. Blatt articulated, is that CERCLA itself establishes a floor and a ceiling, such that any state law remedy that goes beyond even one inch beyond what CERC... what a remedial order required is preempted. They are not making a very different argument that in... perhaps in a case like Your Honor is referring to could be made, which there could be an argument made that there is obstacle preemption with respect to an actual remedial order. That case might look a lot like Geier, right? So if in a... in a case EPA had evaluated various remedies and it had rejected a remedy because it said that remedy will cause environmental harm, so we choose not to adopt it...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> No, the problem <w>is</w><w>n't</w>... I <w>do</w><w>n't</w> think the problem we're stating is anything to do with preemption or anything. It's just whether someone in your position should first have to go and get the EPA's permission. And <w>you</w><w>'re</w> talking about a shovel of dirt or something. Suppose they did do something like that. Isn't there a remedy? It's called the Administrative Procedures Act. And you say here they've made an administrative procedure, and it was arbitrary, capricious, and abuse of discretion. That way, as the Chief said, as others say, we channel all this through the EPA and the courts reviewing the EPA. And what we <w>do</w><w>n't</w> have is <w>10,000</w> juries or... or 50 states or whatever it is imposing sometimes conflicting duties and leaving it up to hundreds of different judges to decide.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Your Honor, a couple answers. One is EPA <w>does</w><w>n't</w> need this 122(e)(6), which is what <w>you</w><w>'re</w> referring to, to prevent harm at a Superfund site or protect the integrity of its remedy. The government made that point at page 17 of its invitation brief. It said we have plenty of tools. We can get administrative orders. We can get injunctions. There's no problem here. We can use those tools to protect the integrity of our... of our remedy. 122(e)(6) applies only to potentially responsible parties. What is a potentially responsible party? It is not defined in the statute. So, under normal rules of statutory construction, this Court looks to what does that mean. Is someone potentially responsible if they face no prospect of liability? No, <w>they</w><w>'re</w> not potentially responsible.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> I... I...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> It's been said they are covered parties. And who is a covered party that is not a potentially responsible party? The... the... we are told that this Court has equated the term "covered party" with personally responsible party, that a covered party is a potentially responsible party. And you say <w>that</w><w>'s</w> not right, <w>they</w><w>'re</w> not one and the same thing. So who is a covered party but would not be a potentially responsible party?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> There could be a number of ways. And <w>you</w><w>'re</w> right, Justice Ginsburg, that this Court has, as shorthand, used the two, linked the two. And the concepts are clearly linked. All potentially responsible parties have to at one point been covered persons. But a covered person would include a residential landowner with certain exceptions. Justice Sotomayor, you asked about the contiguous landowner defense. If you look at that, that is a carveout from the definition of owner, so someone who establishes the requirements that that carveout is not even an owner, so, under ARCO's view, where all owners under Section 107 are potentially responsible parties, those who satisfy that defense and the bona fide purchaser defense <w>are</w><w>n't</w> even owners. But, more importantly, Congress could have said in 122(e)(6) all 107 covered parties have to get EPA permission in order to remove toxic waste for... or arsenic from their land. It <w>did</w><w>n't</w> say that. It said potentially responsible parties. It used a different term.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Well, it did... it did, Mr. Palmore, but, under your theory, how would you decide whether somebody is a potentially responsible party? It sounds like you would need a court adjudication to do that. And that seems unlikely that Congress meant for that to happen.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Well, Your Honor, I <w>do</w><w>n't</w> think it would necessarily need a court adjudication. And, in fact, the statute puts the onus on EPA. This is Section 113(k)(2)(D) to notify, identify and notify all potentially responsible parties as early as it can before taking any removal action. So, here, we're talking about in the 1980s. It's on them to identify potentially responsible parties and send them a letter. And when <w>there</w><w>'s</w> settlement negotiations and you referred to this in Section 122, they have to identify all potentially responsible parties and include them. They never...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> So <w>you</w><w>'re</w> saying that even in the absence of the statute of limitations issue, these would not be potentially responsible parties because the government is subject to a kind of estoppel principle?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> I'm saying that if there is some concern about how will we know who a potentially responsible party is, the government has tools to at least put people on notice that it thinks they are potentially responsible parties. Now, of course, it might be wrong. But, in... in this case, though, we never got any of those kinds of notices. In the district court in this case, the government's brief said we take no position on whether these landowners are potentially responsible parties.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> They are... they... they own land that contains hazardous substances. I thought that potentially responsible parties are people who own land, whether they have any fault or not, but their land does contain hazardous substances.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> It does, Justice Ginsburg. And that makes them owners under Section 107, unless they are carved out from that definition by one of the defenses that we were talking about. That makes them owners, but does not use the phrase "potentially responsible party." And I think <w>there</w><w>'s</w> a... <w>there</w><w>'s</w> a critical kind of elephants in a mouse hole aspect to this argument. Section 122... and we reproduce all of it in the appendix to our brief at 50a through 80a... is all about settlement. If you read it front to back, <w>it</w><w>'s</w> all about settlement.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> I understood...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> And if that...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> ... Ms. Blatt, as I... because I made that point to her, and I thought that she said to me that there are other places in the statute which use the term "potentially responsible parties," so that <w>it</w><w>'s</w> not all about settlement.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> There are a few others, most of them refer back to the settlement provision, but I think that explains the purpose of 122(e)(6) and also explains why it should be read according to its ordinary plain terms, which "potentially responsible" means... "potentially responsible" means like someone who could be liable, which is that when there are settlement negotiations and EPA has notified all the PRPs of the settlement negotiations and included them... something they've never done here, we've been excluded... then they <w>do</w><w>n't</w> want these... these parties who face possible liability and, therefore, are in settlement negotiations to go off and do their own remedial plan.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> But you think a party could be potentially responsible at one point but then at a later point cease to be potentially responsible?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Absolutely, Your Honor, I do think that. That's...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> And what sense...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> ... <w>that</w><w>'s</w> inherent in the...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> ... would... what sense would that make with respect to a rule limiting the ability of that party to engage in remediation? It's not consistent with the EPA plan.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Because, Your Honor, first of all, <w>that</w><w>'s</w> the way statute of limitations work. Right? Parties get repose when the statute has passed. And I think you have to understand the implications of the contrary position, which is... you asked... someone asked the question, when will this plan be over? It's already over on our land. The plan overall is targeted to be completed in 2025. But <w>it</w><w>'s</w> never over because all of the arsenic and other contaminants will not be removed. There is a five-year review process where more remedial action could be taken. ARCO could be required to do it. And that will go on literally forever. So the argument on the other side is that EPA has a permanent easement on my client's property requiring them to store ARCO's arsenic and lead forever unless we get EPA permission to remove it.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Can I go back to Justice Kagan's question for a second? If EPA notified landowners early on that they were all PRPs, and you disagreed, how would that be resolved?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Well, I think we... we would then... I think it kind of depends on how it comes up here. This PRP issue is coming up in an odd posture in this case because I think <w>it</w><w>'s</w> critical to point out that what we're talking about here is, one, a measure of damages. Right? These are trespass and nuisance claims. And under Montana law, we have... the default is diminution of value. But, if we can establish that we have personal reasons for wanting to stay on our property and... and remove the arsenic, then we can get this other measure of damages, restoration damages. And then it comes in, ARCO has argued that as like a defense to... to that.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> I think her question went to it would be odd to think that the statute creates uncertainty about who is subject... who is a PRP and who <w>is</w><w>n't</w>, given who needs to get approval from EPA to do improvements on the land. You would want certainty at the front end. And if you can disagree and she said go to court, that seems unusual for this statutory structure. Do you want to respond to that?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Well, Your Honor, of course, EPA has the ability to provide some measure of certainty. At least it can put people on notice that it believes they are PRPs. It's actually obligated to do that under the statute. And it <w>did</w><w>n't</w> do that here.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Right. But even if they do, <w>there</w><w>'s</w> disagreement, that would have to be resolved somehow with satellite collateral litigation, I think, or else we'd be back in the same spot decades later.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Perhaps, Your Honor. But I think that the assumption behind those kinds of questions is that EPA critically needs 122(e)(6) in order to effectuate its goals...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Would... would you...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> ... on a CERCLA run...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> ... think it would be a...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> ... site, and <w>that</w><w>'s</w> not correct.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> ... would you think it would be an appropriate rule if basically it were up to EPA to designate potentially responsible parties or at least that there were a strong presumption that, if EPA designated somebody as a potentially responsible party, they were one?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> I... I... I <w>do</w><w>n't</w>... they certainly <w>do</w><w>n't</w> have the... the power to do it unquestionably, because <w>it</w><w>'s</w>... <w>it</w><w>'s</w> a defined term under the statute. So they did send us such a letter as a litigation filing, as a letter to counsel, right before the cert petition in this case was filed. And so I <w>do</w><w>n't</w> think that... <w>that</w><w>'s</w> not binding because <w>they</w><w>'re</w> wrong. We're not potentially responsible parties. And it also came decades after they were supposed to do that. And they've never treated us as potentially responsible parties. But at least that would define a universe, if done properly, according to the statute...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Yeah, I...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> ... of people...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> ... actually... <w>you</w><w>'re</w> quite right. I was not clear enough in my question. I actually meant as... that they would designate somebody as part of putting together the settlement negotiations that 136 is all about.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Absolutely. That would at least allow them to identify the universe and put people on notice that EPA...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> The problem, knowing your land... your clients are landowners of land that is polluted, and <w>it</w><w>'s</w> a Superfund site. Now they know that.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Yes.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> You're a good lawyer. I <w>would</w><w>n't</w> think there was actually a problem of their being ignorant. Maybe there is. I <w>do</w><w>n't</w> know what it is. I <w>have</w><w>n't</w> seen it. So does it boil down to... and you said this, but I <w>do</w><w>n't</w> think <w>you</w><w>'re</w> right... that... that, on the one hand, you said EPA gets some kind of permanent easement on their property to tell them what to do. But <w>is</w><w>n't</w> that an overstatement? What EPA can do is they can say we <w>do</w><w>n't</w> want you physically to change this land. And if you think that they are unreasonable, you go to court. That's their side of it. And you say <w>they</w><w>'re</w> unreasonable. Okay? That's simple. And most people can do that. And if you win, then <w>it</w><w>'s</w> really about the same thing. You can go and say, look, we under our Montana statute believe that we should not just get money, but we should get money that is earmarked and must be used to make physical changes in the property. That's the problem. And if you can do that, it may be easier to get. But the problem is that there could be many states that have that, and you <w>can</w><w>'t</w> run it in a central way. Have I stated correctly what the issue is?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Perhaps, Your Honor. First of all, a couple answers. One is Congress wanted to allow state law to... to proceed...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> They did for damages. There is no doubt.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> And for what...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> But is there...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> ... and...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> ... any indication they wanted physical changes to be made by 40 different entities?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Yes, Your Honor. If you look at Section 114(b), which is a no double recovery provision, Congress contemplated that there would be state law recovery for removal, and the only limit it put on it was that there be no double recovery. Congress knew that there could be state law... state law recovery for removal and it allowed it to continue. And also I think that the... the... the...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> But what, Mr. Palmore, of the argument that what the state court might order conflicts with what EEOC... that what the EPA, for... one example was given here. You want more arsenic removed. EPA said that that would involve danger. There would be additional hazards. The... the problem with not having EPA as the overall supervisor means that there... that there can be clashes between what state law says is okay and what EPA says should be the proper treatment. So...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Justice Ginsburg, of course, if EPA thinks that a remedy is going to cause harm, as it said in its invitation, we believe it has ample tools to stop it. Second of all, there is simply in this case... that might be an issue in another case. In this case, there is no such finding in any of the regulatory documents of... of environmental harm. They just said we're going to go this far and no further. They <w>did</w><w>n't</w> reject any... they <w>did</w><w>n't</w> reject our permeable wall to clean the groundwater. They <w>did</w><w>n't</w> say we <w>can</w><w>'t</w> do 24 inches, much less did they say that any of those things would cause environmental harm. So in a... in... one can imagine...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Maybe it was a moot question if <w>it</w><w>'s</w> your obligation to ask them, meaning, if you are a PRP and <w>that</w><w>'s</w> what we conclude, it would be your obligation to ask them for permission. So, if Ms. Blatt is right that the award here, assuming you were to get one, were conditioned on you being a PRP and any action you took had to be approved by the EPA, what damage does this do to you?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> That would be a question...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> You... you would have administrative remedies to challenge their denial of any activity you wanted to take. That would be litigated by a court. But at least there would be clarity. Landowners on super site funds, before you interfere with the EPA, get their approval or before you attempt to or before you attempt to do anything, get their approval. What's wrong with such a ruling?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Well, Your Honor, of course, our position is we're not required to get approval because we're not PRPs. If we lose on that and if you conclude we... we also are not contiguous landowners, which carves us out...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I <w>do</w><w>n't</w> have to decide that.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> ... of the definition of owner...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> That... the Court...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Well, their argument is all owners are PRPs.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Whether...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> If we're not owners...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... whether...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> ... we're not a PRP.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... just assume...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> If you...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... that we rule that <w>you</w><w>'re</w>...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> ... assume away all of that, then <w>it</w><w>'s</w> really a state law question. This is a state law question.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> No, <w>it</w><w>'s</w> not a state law question.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> It... it...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> We would hold that it would... it would conflict with federal law, with federal rules, if you go ahead with that... with remediation without EPA approval. You are a PRP. And conflict preemption stops you from taking any actions that are not approved by the EPA, period, end of case.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> The reason that would be a remand question, Justice Sotomayor, is because we <w>have</w><w>n't</w> asked the EPA for that permission because we've... we <w>do</w><w>n't</w> believe we are PRPs. And, in fact, EPA itself took no position on whether we are PRPs in this very case. So we might be able to get in the district court in Montana...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I thought their whole brief said you were...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> In the district court in Montana, the U.S. Government said we take no position on whether landowners here are PRPs. Their position has changed dramatically over time. What I'm saying is we never had any reason to seek their permission. If you were to hold that we need their permission, then we... A, we might get it, they've said before that there are aspects of our plan they could approve; and, B, to the extent that <w>there</w><w>'s</w> uncertainty about that, that is a state law question because, again, all we're talking about here is whether...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> No, <w>it</w><w>'s</w> not a state law question.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> It's embedded... <w>it</w><w>'s</w> a federal question...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> We have said <w>there</w><w>'s</w> a conflict, <w>it</w><w>'s</w> a federal question...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> It's a federal question embedded in a state law question because the state law question is: Do we intend to use this money to clean up our land? And that prevents windfalls. That's the Montana Supreme Court's decision in Sunburst. What <w>they</w><w>'re</w> saying is, well, you may not get EPA approval to clean your land, so you <w>would</w><w>n't</w> actually be able to do it. How that uncertainty, that possibility of need for EPA approval would be factored into the damages calculation is a state law question.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Can...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> If I could return to Justice Breyer's question.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Well, okay, before you do that, I just was hoping you might return to Justice Ginsburg's question. And let... <w>let</w><w>'s</w> suppose for the purposes of this hypothetical that <w>you</w><w>'re</w>... <w>you</w><w>'re</w> not a PRP but that EPA thinks that some aspects of your plan would interfere with its interests. You said that the EPA has plenty of tools available to it in that scenario to address any conflicts. Can you be specific about what EPA could do to take care of its interests in that scenario?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Yes, Your Honor. And I... I... you <w>do</w><w>n't</w> have to take my...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Because 122 <w>won</w><w>'t</w> work, right?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> You <w>do</w><w>n't</w> have to take my word for it. You can look at page 17 of the government's invitation brief in this case, where it said you <w>do</w><w>n't</w> need to take cert on this PRP issue because we have plenty of tools in order to safeguard the integrity of our remedial plan. Those are under Section 106. It can seek administrative orders. It can seek injunctions. There are plenty of tools it can...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Can it do that even with respect to somebody <w>who</w><w>'s</w> not a PRP?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Absolutely. If... if someone is going to do something <w>that</w><w>'s</w> going to release toxic substances into the... onto their neighbors' property or into a creek or something, then they have plenty of tools to address that. They <w>do</w><w>n't</w> need this... this ongoing supervision. And that ties into a part of Justice Breyer's question, which I <w>did</w><w>n't</w> ask yet. I think... answer yet, which is you were asking about well, <w>could</w><w>n't</w> they get approval and why is this... why might this be a taking. It depends on what the default rule is, right? Where does the property right lie? Does it lie with... lie with EPA? Or does it lie with the landowners? Under Montana law, we have a right, a wrongdoer has put arsenic on our land, and we have a state law right to get a judgment sufficient to remove it. It's not... <w>that</w><w>'s</w> not applying the CERCLA health standard. That's applying bread-and-butter Montana property law.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Am I right that your answer to Justice Gorsuch's question really just turns on who has the burden? Under your theory, EPA has the burden to initiate proceedings; under the other side's argument, the landowner has the burden to go to EPA first? Is that an accurate way of looking at it?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> That is, Your Honor. So they... the presumption is we are private property owners, that we have control of our own property, and we can remove arsenic on our own property if we want to. Nothing in their 17 122(e)(6) argument...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> The question is whether CERCLA displaces that presumption.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Whether CERCLA displaces that forever...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Right.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Right? A thousand years from now, under their view, we would... if we wanted to remove a shovelful...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But either...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> ... of dirt...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... way... sorry to interrupt. Either way, EPA would have the say. It's just whether EPA initiates or you go to EPA. I think you just said that.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Yeah, but I think the default rule is critical, right? I mean, we have the bundle of property rights...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Yeah.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> ... and if we, you know, commit an environmental offense, then EPA as a regulator can use its power...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> What would the...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> ... to go after us.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> ... government have to show? What's the... what would... what would the test be? What would the legal standard be?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> If... if they went after us, it would be a violation of... of CERCLA. These are the... this is what... and the government itself took the position that those tools are fully adequate here to protect the integrity of the remedy.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> These things are likely to be pretty complicated. And if we... one way, <w>it</w><w>'s</w> central, everyone goes to EPA, and <w>there</w><w>'s</w> a central review in court. The other way, you want EPA to go to any place where a landowner has a law in... in his favor that lets him do some things, and EPA is going to have to prove that this particular thing in each of these cases is a CERCLA violation, which is already a standard <w>that</w><w>'s</w>... it might not, it might just be an interference with their plan. It might just be raising the cost of their plan. It might be who knows. I'm not an expert in this. But <w>that</w><w>'s</w>... <w>that</w><w>'s</w> the question: How did Congress want this to work?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Right. And one can imagine Congress writing a statute to give EPA complete control, but it <w>did</w><w>n't</w>... it <w>did</w><w>n't</w> do that.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> And it might have used the words potentially responsible person has to go to EPA and, by that, meant that those people who live or own property on a toxic waste center. That's what they argue.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Right, Your Honor, their position is that every single private property landowner...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Yeah.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> ... in this vast 300-square-mile Superfund site has to get their permission to remove even a shovelful of dirt from their own backyard.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> No, I <w>do</w><w>n't</w> know that they...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, but <w>that</w><w>'s</w> the reason, though...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> That is page 34 of the Blue Brief. ARCO says remedial action covers virtually any physical action with respect to hazardous waste at the site, including storage, excavation. It has a list there. It's virtually anything. They're saying that our... my clients in Opportunity, Montana, have to get permission from EPA in Washington if they want to dig out part of their backyard to put in a sandbox for their grandchildren and...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> And are you saying also <w>it</w><w>'s</w> an...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, you can say dig out... you can say dig out part of their backyard. EPA would say if you want to disturb arsenic-infected land, dirt in a way that would not only harm your neighbors but could harm people many... many miles away. I mean, yes, you want to just do things...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> And if...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> ... on your land, but you <w>can</w><w>'t</w> overlook the fact that that is going to have harmful effects on everybody else around you.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> And if you assume that harm <w>that</w><w>'s</w> assumed, embedded, in your question, they have the tools to go after that. What I'm talking about is when <w>there</w><w>'s</w> no showing of harm. Their argument is whether <w>there</w><w>'s</w> harm or not, we have to get their permission. And if I can...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> I guess the...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Just...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> ... question, though, is... and, you know, you might say, look, this is a policy matter and Congress decided it. But I guess the question is it... <w>it</w><w>'s</w> hard for EPA to go around and try to figure out <w>who</w><w>'s</w> creating sandboxes. And so why should the onus be on EPA to figure out <w>who</w><w>'s</w> creating sandboxes?</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Well, EPA is, of course, all over this site, and it can enforce the law here. The question is whether we are... should be similarly situated to just you and me and any American who, if we violate the law, the regulator, the law enforcement, can come after us, or whether we have this kind of superintending presence of agency authority over us and our private property for the rest of our lives. And <w>that</w><w>'s</w> not what... <w>that</w><w>'s</w> not the scheme that Congress created. It went out of its way to allow state law over these traditionally state law subjects to continue.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But your... your... your parade of horribles can still come true with EPA being aggressive in getting to all those places. So really the question that...</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> If... if they want to come out... <w>you</w><w>'re</w> right.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... the question Justice Breyer asked is does it make sense to have you go to EPA first so that they can maintain control? "Comprehensive" is the word in the statute after all.</u>
<u loc="MR. PALMORE"><w>[MR. PALMORE]</w> Your Honor, <w>there</w><w>'s</w> no evidence that Congress intended this obscure corner of Section 122 about settlements to give EPA that kind of vast control forever over private property.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. Three minutes, Ms. Blatt.</u>
</p>
<p id="REBUTTAL ARGUMENT OF LISA S. BLATT ON BEHALF OF THE PETITIONER">
<u loc="MS. BLATT"><w>[MS. BLATT]</w> Thank you, Mr. Chief Justice. Justice Sotomayor, I answered one of your questions incorrectly on a cite, and I... I need to correct it. Section 107(q)(1)(A) 3 through 5 is the contiguous landowner provision that says if you live on a Superfund site, no matter what, you have to make sure you comply and not interfere with EPA. So <w>there</w><w>'s</w> provisions throughout CERCLA that say no matter what your defenses may be, you always are on the hook to not do anything to interfere with EPA's remedy. And I just gave you different cites. So, on PRPs, in terms of this is a status and not a financial liability, EPA, <w>they</w><w>'re</w> always liable under 106 for abatement. And <w>they</w><w>'re</w> always liable in a suit by Atlantic Richfield when the cleanup ends under Section 113(g)(2)(A). We might not get much money, but <w>they</w><w>'re</w>... <w>they</w><w>'re</w> definitely on the hook. But the real question is one of status. And <w>it</w><w>'s</w>... Justice Gorsuch and Justice Kavanaugh, you were wrong on this as being a question of who has to sue and a burden. EPA would have no way of knowing what... they only know in this case and wrote them a letter because <w>there</w><w>'s</w> a lawsuit and a Supreme Court case in the state of Montana, but there are hundreds of thousands of people who live on... live on Superfund sites with uranium and God knows what else, and how is EPA exactly supposed to know when someone is removing uranium? It has a half-life of 4.7 billion years. Arsenic has no half-life. It always is there. It cannot be destroyed. It <w>does</w><w>n't</w> evaporate. So, yeah, they have some restrictions before they move hazardous waste. The other thing is in terms of who you'd have to sue, I would freak out if I got a... a... a letter. Their view is you have to sue these poor innocent landowners and say <w>you</w><w>'re</w> liable under CERCLA. Just so you know, <w>that</w><w>'s</w> the only way we can keep control of the site. That's the only way we're going to know and then, you know, now <w>they</w><w>'re</w> on notice because, otherwise, you would have this metaphysical thing of who knows <w>who</w><w>'s</w> liable? In terms of the taking issue, and I think that Justice... I mean, you guys already answered this, but this is really a question of do you have to go to EPA. If EPA denies permission and they want to bring a takings claim, go sue EPA. There's also a citizen suit provision that in 2025, they can bring a lawsuit and say: EPA, your remedy was terrible, we <w>do</w><w>n't</w> like it, it violated CERCLA, come up with a new one. That... <w>that</w><w>'s</w> what the citizen suit provision is before... for. On the mouse hole point, I <w>do</w><w>n't</w> think <w>it</w><w>'s</w> a mouse hole. So it has mouses or elephants, I guess, all the way in the statute. There are provision after provision in the contiguous landowner, in the demicrominimus... or whatever that word is... in the bona fide landowner that says at all times you have to make sure you <w>do</w><w>n't</w> interfere with EPA's remedy. Thank you.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. The case is submitted.</u>
</p>
</text>