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 circle and trust a p a 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 e p a not juries on an ad hoc basis since two thousand and thirteen a has objected that respondants restoration remedy would thort more than three decades of efforts of its efforts at the anaconda site including by digging up soil that e p a wants left undisturbed in by building respondents from undertaking any remedial actions absent e p a s authorization and rd a restoration remedy is preempted because it would require atlantic richfield to effectuate the very clean up that federal law prohibits the company from doing on its own and a restoration remedy would prevent e p a from carrying out its statutory mandate to implement comprehensive clean up to this perp been trying to in my own mind and i start with the language of the statute i'm sorry i interrupted to finish no good ok i'm sorry  am trying to figure out let's assume for the sake of argument that the remedial plan that the state court orders supplements rather than contradicts the e p a plan that it was something top of i read the saving clauses to permit it the savings poses are very explicit that it's not displacing or intending to displace state or remedies for liability or for anything else so if these plans supplement plan will be a ceiling where does that leave this case ok so in terms of conflict preemption so we know that u p a would absolutely have to change federal law which it could to approve their plan so you're absolutely correct i'm sorry federal law requires a specific action level and a specific amount of dirt that can be dialogue and that no walking be built if that happens yes an e p a can change it and this court in mensing said that courts would be involved in this case so that's not correct because when you said play and maybe i misspoke the law is not a us code law it's a binding administrative order where atlanta critchfield would incur massive penalties every day if it violated it's a law in terms of administrative order that sets forth the plan now illana critchfield cannot carry out that plan without massive fines and violating law in the order it says undertaking any action without a p s approval violates the order end dependently do under federal law what state law requires and i mean by that i'm with this court and mention in bartlett said that means complying with state law duties without the government assistance and permission same kind of question maybe it goes to a bunch of your arguments i mean look if i were writing the statute i would say it all goes to the e p a it's just you know that's the sensible solution to have one party that makes all the rules in the us but i'm not writing the statute and the statute has three savings clauses in it which says 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 house or to substances and i guess you know one way into this is if if if if we imagine that this was done with a damages will but suppose the montana legislature just said you know what this plan that the e p a has put in place that requires arsenic at a certain level and we think it would be better to lower that and we don't really care that the e p a 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 th no and section one hundred and twenty one deals with this directly it's spells out like over three thousand dollars words how states can incorporate into e p a s their plans and the p a can override that state's standard and it goes then states have the remedy to sue it's one of the exceptions under one hundred and thirteen and so and i think you're right that their position under the savings clause is that not only could state laws say don't act 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 eight hundred and eighty case interpreted almost identically worded savings clause and said you can't interpret those clauses to completely what do they saved the states can do independently so let me be very clear how narrow our argument is they have for cake for claims of compensatory damages in 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 atlanta great field would violate federal law so this is a that only a challenge and not only its direct remedial action that has to be taken in violation of one hundred and twenty two dollars but it's the only claim that would meet our standard of conflict preemption state law requires because i can't find anything in the state law that requires a damages remedy to be put in trust for the bre mediation that's what the court below said i know that's what it said but i can't find any law that says that's what has to happen number one number two i can't find any state law requirement that the petitioner has prove that they're going to actually use the money they are warded for the purposes that they claim so in the very confused about the state law yeah i think that's all of a fair question and if award damages a miss the other side proves or the side claiming these damages proves that it can get e p a approval of whatever it wants to do and that it will in fact only use that award for those purposes right so i'm what's wrong with the ruling that just that basis that says you can get more if you can prove the will give you more as simple as that so you know it kind of a pig so you took this case on the assumption and we sided on page sixteen 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  remedy and that's the way this case comes up if you want to the reason for sunburst it's because of the reasons personal so if you own a property and love it so much and you don't 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 the 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 around money that would violate e p a s orders these administrative orders if we carried it out itself so what's wrong with an opinion that we're right that's what you're missing is the next step you have to be able to show that that we mediation will be approved yeah so so if if that's their burden approval at 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 that state we know they're going to trial and the whole case is about whether different remedy should be put on and we know under state law because they've conceded that they have to carry out that remedy and we know they don't have permission so you not only know two things you know again it's conceded that the remedy seeks something different and it would an action where the result will be an order to do certain things dig dirt or do physical things if they are repeat ten truly responsible party they have to show not that e approve it but what it says is unless that such remedial action which is the reaction they're seeking has been authorized by e p a and you know today that has not not only here asking you if you are right on the potentially responsible party is we should send it back and say they have to get that permission from e p a and there is no need to answer the other questions is that right or wrong that's wrong and i disagree you are the no today they don't have it and just as the case it's today whether they could have brought some separate federal lawsuit after they asked me state lawsuit but you already know today that they never asked you that's we'd send it back they do not meet that requirement if they are potentially responsible parties so dismiss the case no if that if you win in that respect i'm asking if there is a need to reach the other two questions ok i suspect there isn't but am i right yes if you rule for us under section one hundred and twenty two that they can't carry out their restoration remedy because they don't have the piece permission then that hazardous waste on a superfund site and three provisions textually equate all persons who are owners and operators under one of seven because they own land on the superfund site but they say they are not potentially responsible perhaps they were potentially responsible but they are not potentially responsible because e p a and everybody else has told them they're not responsible so no and here's why potentially responsible parties as always been understood by this court and everyone else is 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 it's unworkable because you would never know whether a court would accept a defense includ whether they were or they weren't potentially responsible parties they are land owners correct and do i understand correctly whether they're p r p s or if they're land owners they can't take any they can't make any change without approval they can't take a statutorily defined term called remedial action that's defined and one on one slash twenty four and it defines what a remedial action is so they can do ordinary things for their property they can't do the major upheaval of five hundred thousand whether they're p r p is responsible to someone else or to the e p a whether they're continuous landowners or something else that exempts them that my bottom line which is the mere fact that they want to take some action on their land that's remedial they would have to get e p a approved absolutely and p r p status it doesn't mean you point me to the provision that says that that says whether they're p r p use or not as long as they're landowners if they're going to take any remedial action on their property so one hundred and twenty two east six is the one that says p r piece have to have e p a s permission for any operators under one of seven with p r p status thank you coun authorize a plan to clean up toxic contamination at a super fun site in a way that conflicts with and in many respects physically destroys the e p a plan selected under circle squarely conflicts with circle and would jeopardize e p a s clean ups 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 argument here is narrow the statute does have savings clauses and we don't dispute that respondents can move forward with their claims for money damages under state law and nuisance and toward and other related theories that don't call into question that the e p a remedy and likewise justice kagan pointed out there are a number of mechanisms in the statute for states to adopt a or whatever federal agency is conducting the plan goes through a very particular process of getting public comment meeting with meeting with landowners meeting with the state and selects a cleanup plan is in compliance with those procedural and the substantive requirement so i think it is not necessarily in every respect but i think in the respect that matters in this case it is and i know let me let me go back is it always the ceiling i mean  come to you and say i want to do more and you can decide yes or no right yes absolutely so it's not always the ceiling i mean yes there and in fact the statute as we discussed as gardening reading their state are you reading this remedy as requiring the remediation that's awarded no matter what with or without e p a approval i think that the montana supreme court decision implies that respondents could move forward with their claim as it now exists even if they didn't have u p a approval and we think i'll bow out if they did if they could get your approval if they could show that they could get your approval i mean they're a p r p because of the statute of limitations which you know is not very compelling to me ok but putting that aside let's assume that by definition they are a p or they're not a p r p they're a continuous landowner that i'm not a p r p what about those people so i think it important distinction is that if they were found to be contiguous land on earth that would not take them out of the status of being a p r piece that would imply that they're not liable as is when you are saying is if you're a landowner you might not be liable because some justices might have a problem with the concept that someone who didn't on superfund site it's my show if i could ask about the p r p status because there are obvious consequences of labeling somebody a p r p in the way that you suggest that these sites they can be safe for decades and decades 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 who has and who has never been treated as a p r p by the government who has never been involved in settlement negotiations who under rein in law including the statute of limitations has no provision that we're talking about here only applies to remedial action and that has a defined statutory definition it's in ninety six a one a four i said some significant thing look that you can still you know make a garden absolutely you can still make a garden now as  significant things i think it does make perfect sense that you wouldn't want somebody who lives on a superfund site doing things in the earth that will interfere with the e p a remedy of of course you know there's there is on a super fun 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 tree like i completely take the point that that might have been a sensible policy decision for congress to make but i said look at these provisions the only where this p r p comes 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 lee's people seems you know a stretch so i don't think so justice kagan i p r p is using the statute a lot of different times not just in the settlement you're right that you six is under the settlement provision but if you look at it's it equates owners on the site with p r piece and so the court could leave for another day whether p r p is co tournaments coterminous with covered persons under section one hundred and seven and simply decide that owners on superfund sites are p r piece and again we think that makes perfect sense because by definition when you have a clean up plan that takes into account an entire superfund site as this one does and one land owner does something that affects the earth or affects the environment it's going to spread across on to other parts of the superfund site and the water barriers that we've discussed in this case are a good example where e p a has a considered plan to treat the water in a certain way and respondents want to dig i think it's an eight thousand dollars foot trench that would change the gradient and they 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 super fun fun site and you have large amounts of toxic chemicals you are more restricted in the kind of land it seems a very indirect way for congress to have gone about this is just to scare you to in essence hinder a landowner from doing any significant action for decades i mean i think it's 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 e p a approval of course e p a can grant approval and u p a has another case is granted approval for remedial actions on the city or two answers or one its only significant action and could grant approval absolutely it's a so it's a limited incursion to the degree that it restricts property rights that's what comes with living on a superfund site and that's what's necessary to protect them what is your answer to the question is yes if we say the  therefore there their claim fails what do we do about the government's present a sions that permission might be created for something like this well i mean the government stands ready to listen to any proposals from the land owners they have not formally presented us with any proposal so we're working off of the best available information which is the expert reports that they have introduced in the state litigate so it's still least possible that the government might approve something like this i mean based on what we know we've made very clear by 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 and might have missed it but i would just when it's the government's role here are likely to finish in this particular site so i think the government the ongoing remediation will continue and twenty five 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 taking sql aim you think that arises from the government's  position that any remediation efforts for a period of i guess forty five years is prohibited by landowners i mean it in the literal sense there's no takings claim because they haven't raised one in this case i think more more broadly of course one could raise the takings claim but i think would be a very weak claim given that in fact e p a s remedy has approved the value of the property and that you have to start from the premise that the property is is covered all arsenic and so it's improved the value of the property from its prior state but not a not to the level that non final this court is exercised review over montana 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 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 circle bars that core exercise of state authority to vindicate private property rights arcos invocation of section one hundred and thirteen h fails that's the challenge provision because it doesn't apply in federal court and even in federal court it doesn't apply to state law claims arco fares no better on section one hundred and twenty two east six the p r p 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 e p a the vast power that it seeks the ability to control for ever the removal of a shovelful of dirt from a private landowners backyard there is no basis for preemption either circle or stablish is a floor ceiling on environmental remediation and in several provisions makes clear that congress wanted to leave state law in place nor is there any in possibility that duty that arco breached was the duty not to pollute nothing in federal law required to do so just sort of are i still have a problem which is seems to me that if you go on a piece of if you own a piece of land and you know the e p a has been fixing it up that whether you're responsible financially for the cleanup that you shouldn't be able to interfere with the meaning you might have a takings claim it's just discourse which claims you might have some other claims but i don't know how you can go about instituting a plan without ops to co ship instituting a plan that interferes with what the e p a is doing your honor st 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 the land together the work has been done on only five percent ok so on ninety five percent of the land literally nothing has been done so there's no on doing there on ground water e p a made the decision to do nothing to clean the ground water an opportunity so we're not doing a remedy we're doing something that e p a where u p a has done nothing and what's the five percent they dug down eighteen inches they put in clean soil and they planted grass while we want to down  ground water i understand their position to be that if they did do something along the lines that you're proposing you would have very significant adverse impacts so the fact that they haven't done anything that's what they want you they don't want you to do anything so you can't say have having done nothing represents that there's no going to be no adverse impact from what you plan to do a couple answers on that chief justice roberts st of all they decided if you look at the actual regulatory materials and that th a makes decisions in this areas through records of decision which are official documents they say they didn't want to do the ground water remedy it was a different wall it was a different one because it was technically impractical which is a term of art and a circle of four 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 cause any environmental harm if you look to what the government sites here for that proposition if you trace it through it 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 so you're talking about the particular specifics in your case but as a general matter for example you can understand that the e p a looking at this might say ok we're going to this school to do this could this it we're going to get to that issues we're done doing this other stuff and yet someone else in your position would come in and say we're not doing anything here and so we're going to go ahead and do this when the s answer might simply be that well we haven't 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 be done but still may be inconsistent with the plan we hear mr chief justice that the issue is and we will get to that later they are done all the remedial work such as it was on our property has been over for several years they are completely done and that's another reason why there's no interference with anything they're doing trying to implement beyond your particular and i understand that so one can imagine a different case involving a conflict preemption claim with respect to the e p a remedial orders that's not this case arcos argument here which required is preempted they are not making a very different argument that in perhaps in a case like your honour's 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 geir right so if in a case e p a 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 you know the problem isn't i don't think the problem of stating is anything you would preemption or anything it's just whether someone in your position should st have to go and get the e p a s permission and you 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 that you say here they've made it and mr procedure and it was arbitrary capricious and abuse of discretion that way as the chief said as of this say we channel all this through the e p a and the court reviewing the e p a and what we don't have is ten thousand juries or or fifty states or whatever it is imposing sometimes conflicting duties and leaving it up to hundreds of different judges to decide your honor a couple answers one is e p a doesn't need this one thousand two hundred and twenty six which is what you're referring to to prevent harm a superfund site or protect the integrity of its remedy the government made that point at page seventeen 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 re and twenty two dollars east six 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 party with personally responsible party that covered friday is a potentially responsible party and you say that's not right  in the same things still who is a current party but would be potentially responsible party there could be a number of ways and you're right just didn't work with this court has as shorthand used the two linked to the two and the concepts are clearly linked all potential the responsible parties have to have at one point been covered persons but a covered person would include a residential landowner with certain exceptions just a sort of my or you ask about the continuous landowner defense if you look at that that is a carve out from the definition of owner so someone who establishes the requirements of that car about is not even an owner so under arcos view we're all owners under section one of seven  parties have to get e p a permission in order to remove toxic waste for our arsenic from their land he didn't say that it's so potentially responsible parties that used a different term did it did mr power more 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 congressman for that to happen well your honor i don't think it would necessarily need according to the cation and in fact the statute puts the onus on e p a this is section one hundred and thirteen k two 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 and eighty s it's on them to identify potentially responsible parties and send them a letter and when there are settlement negotiations and you referred to this in section one hundred and twenty two dollars they have to identify all potentially responsible parties and include them generally 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 stoppel principle i'm saying that if there is some concern about how we know who potentially responsible party is the government has tools to at least put people on notice that it thinks they're potentially responsible parties now of course it might be wrong but in this case so 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 party and they they own my and it contains hazardous substances and potentially responsible  parties people who own land whether they have any fault or not but their land does contain as it is substances it does justice ginsburg and that makes them owners under section one hundred and seven unless they are carved out from that definition by one of the defenses that we were talking about that makes them owners but one of the seven does not use the phrase potentially responsible party and i think  there's a critical kind of elephants in the mouse hole aspect to this argument section one hundred and twenty two and we reproduce all of it in the appendix to our brief it fifty a three hundred and eighty eight is all about settlement if you read it front to back it's all about settlement and the 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's not all about settlement there are a few others most of them refer back to the settlement provision but i think that explains the purpose of one twenty two 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 an e p a has notified all the p settlement negotiations and included them something they've never done here we've been excluded then they don't want these these parties who face possible liability and therefore in settlement negotiations to go off and do their own remedial you think party could be potentially responsible at one point but remediation that's not consistent with the plan because you're one of the st all that's 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 two thousand and twenty five but that's 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 e p a has a permanent easement on my client's property requiring them to store arcos arsenic and lead for ever unless we get e p a permission to remove it i go back to justice kagan's question for a nd if the e p a notified early on that they were all p r p s and you disagreed how would that be resolved well i think we would then i think it kind of depends on how it comes up here this p r p issue is coming up in an odd posture in this case because i think it's critical to point out that what we're talking about here is one measure of damages right these are trespass and nuisance claims and under montana law we have the default is diminishing of value but if we can establish that we have personal reasons for wanting to stay on our property and remove the arsenic then we can get this other measure of damages restoration damages and then it comes then our co has argued that as like a defense to two that  think are question twelve it would be odd to think that the start she creates uncertainty about who is subject who is a p r p and who isn't given who needs to get approval from the p a to do improvements on the one hand you would want certainly at the front end and if you can disagree and she said go to court that seems unusual for this statutory structure where your honor of course e p a has the ability to provide some measure of certainty at least can put people on notice that it believes they are pure peas it's actually obligated to do that under the statute and it didn't do that here right but even if they do there's disagreement that would have to be resolved somehow with satellite collateral litigation i what would you think that would be an appropriate rule if basically it were up to eight e p a to designate potentially responsible parties or at least that there were a strong presumption that if e p a designated somebody as a potentially responsible party they were one i don't they certainly don't have the power to do it unquestionably because it it's a defined term under the statute so they did send us such a letter as the litigation filing as a letter to counsel right before the certification in this case was filed and so i don't think that that's not binding because they're 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 our universe if done properly according to the statute i actually you're 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 one  six is all about absolutely that would at least allow them to identify the universe and put people on notice that the problem knowing you are a let your clients or landowners of land that is polluted and is a superfund site they know that they are good lawyer i wouldn't think it was actually a problem of their being ignorant maybe there is i don't know what it is seen so does it boil down to and you said this but i don't think you're right that on the one hand you said e p a get to some kind of permanent easement on their property to tell them what to do but isn't that an overstatement what he p a can do is it can say we don't want you physically to change this l and if you think that they are unreasonable you go to court that's their side of it and you say they're on reasonable ok that's simple and most people can do that and if you win then it's 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 can't run an  physical changes being made by forty different entities yes roger if you look at section one hundred and fourteen dollars 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  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 all of environmental harm they just said we're going to go this far and no further they didn't reject any they didn't reject our permeable wall to clean the groundwater they didn't say we can't do twenty four dollars inches much less that they say that any of those things would cause environmental harm so in one can imagine it's a moot question if it's your obligation to ask them meaning if you are a p r and that's what we conclude it would be your obligation to ask them for permission so if miss platt is right that the awar 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  funs before you interfere with the p a get their proven or before you attempt to or before you attempt to do anything get their approval what's wrong with such a rule well your honor of course our position is we're not required to away all of that then it's really a state law question this is a state no it's not a state law commission it would hold that it would it would conflict with federal law with federal rules so we might be able to get in the district court in montana bill said you were in the district court in montana the us government said we take no position on whether landowners here are pure peace their position has changed dramatically over time what i'm saying is we have 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 they are aspects of our plan they could approve and be to the extent that there's uncertainty about that that is a state law clean up our land that prevents windfalls that's the montana supreme court decision in sunburst what they're saying is well you may not get approval to clean your land so you wouldn't actually be able to do it how that uncertainty that possibility of need for e p a approval would be factored in to the damages calculation is a state law question if i could return to justice bridal suite as well as for you do that i just was hoping you might return to justice ginsburg's question and let s suppose for the purposes of the site pathetically that you're you're not a p r p but that e p a thinks that some aspects of your plan would interfere with it's interests you said that the p a has plenty of tools available to it in that scenario to address any conflicts can you be specific about what e p a could do to take care of its interests in that scenario yes your honor and i don't take one hundred and twenty two won't w don't take my word for it you can look at page seventeen of the government's invitation brief in this case where it said you don't need to take certain on this p r p issue because we have plenty of tools in order to safeguard the integrity of our remedial plan those are under section one o six administrative orders you can seek injunctions there are plenty of tools you can do that even with respect to somebody who's not a p r p absolutely if someone is going to do something that's going to release toxic substances into the into their neighbor's property or into a creek or something then they have plenty of tools to address that they don't need this this ongoing supervision and that ties into a part of justice briar's question which i didn't ask yet think the answer yet which is you were asking about will couldn't they get approval and why is arsenic on our land and we have a state law a right to get a judgment sufficient to remove it it's not that's not applying the circle health standard that's applying bread and butter montana property law my right to your answer to just discourse which is question really just turns on who has the burden under your theory e p a has the burden to initiate proceedings under the other side's argument the landowner has the burden to go to e p a st is a initiate swore you go to e p a i think you just said yeah but i think the default rule is critical right i mean we have the bundle of property rights and if we you know commit an environmental offense an e p a has a regulator can use what the what would what would that test be what would the legal standard be if if they went after us that would be a violation of circ law these are the this this is what and the government itself took the position that those tools are fully adequate here to protect the integrity 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 that's the question how did congress want this to work right and one can imagine congress writing a statute to give the p a complete control they might have used the words even ten people responsible person has to go to the e p a and buy that meant that those people who live on own property on a toxic waste center that's what they are right you're o their position is that every single private property landowner in this vast three hundred square mile superfund site has to get their permission to remove even a shovelful of dirt know i don't go but the reality is page thirty four of the blue brief arco says remedial action covers virtually any physical action with respect to hazardous waste at the site including storage execration has a list there it's virtually anything they're saying that are my clients an opportunity montana to get permission from  in washington if they want to dig out part of their backyard to put in a sandbox for their grandchildren are you saying also is going to go out you could say dig out part of their backyard e p a would say if you want to disturb arsenic infected land  dirt in a way that would not only harm your neighbors because harm people many many miles away i mean yes you want to just do things on your land but you can't overlook the fact that it's going to have harmful effects on everybody else around you and if you assume that harm that's assumed in that it in your question they have the tools to go after that what i'm talking about is when there's no showing of harm their argument is whether there's harm or not we have to get their permission and if i can i guess just listen 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 it's hard for e p a to go around and try to figure out who's creating sandboxes and so why should the onus be an e p a to figure out who's creating sandboxes what u p a is of course all over this site and if you can enforce the law here the question is whether we are should be similarly situated to just you and me and any american who violate the law the regulator or 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 that's not what that's not the scheme that congress created it went out of its way to allow state law over these traditionally state law and a three through five is the contiguous land owner a provision that says if you live on a superfund site no matter what you have to make sure you comply and not interfere with the e p a so there's provisions throughout circle that say no matter what your defenses may be you always are on the hook to not do anything to interfere with the e p a s remedy and i just gave you different sites so on p r p in terms of this is a status and not a financial liability a they're always liable for under one of six for abatement and they're always liable in a suit by atlantic richfield on the clean up and under section one hundred and thirteen g today we might not get much money but there are definitely on the hook but the real question is one of status and it's justice courses and justice cannot you were wrong on this is being a question of who has to sue in a burden e p a would have no way of knowing what they only know in this case and wrote him a letter because a lawsuit in 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 the iranians and god knows what else and how is he p a exactly supposed to know when someone is removing iranian it has a half life of four billion seven hundred million years arsenic has no half life it always is there it cannot be destroyed it doesn't 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 letter their view is you have to sue these poor innocent landowners and say you're liable under circle just so you know it's only way we can keep control of the site that's the only way we're going to know and then you know now they're on notice because otherwise you would have this metaphysical thing of who knows who's liable in terms of the taking issue and i think that justice came in you guys already answered this but this is really a question of do you have to go to e p a if he denies permission and they want to bring it taking sql aim to e p a there's also a citizen supervision that this is in two thousand and twenty five they can bring a lawsuit and say your remedy was terrible we don't like it violated circle and come up with a new one that that's what the citizens supervision is before for on the mousehole point i don't think it's a mouse hole so it has mouses elephants i guess all the way in the statute there are provision after provision in the contiguous land owner in the micro minimus or whatever that word is and the bona fide land owner that says at all times you have to make sure you don't interfere with the remedy thank you thank you counsel the case is submitted