Atlantic Richfield v. 2nd Jud. Dist , 2017 MT 324 ( 2017 )

12/29/2017
OP 16-0555
Case Number: OP 16-0555
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 324
ATLANTIC RICHFIELD COMPANY,
Petitioner,
v.
MONTANA SECOND JUDICIAL DISTRICT
COURT, SILVER BOW COUNTY, THE HON.
KATHERINE M. BIDEGARAY,
Respondent,
ORIGINAL PROCEEDING: Petition for Writ of Supervisory Control
District Court of the Second Judicial District,
In and for the County of Silver Bow,
Cause No. DV-08-173BN
Honorable Katherine M. Bidegaray, Presiding Judge
COUNSEL OF RECORD:
For Petitioner:
Jonathan W. Rauchway (argued), Shannon Wells Stevenson, James R.
Henderson, Davis Graham & Stubbs LLP, Denver, Colorado
John P. Davis, Patrick M. Sullivan, Poore, Roth & Robinson, P.C.,
Butte, Montana
For Plaintiff Gregory Christian, et al.:
Monte D. Beck, Justice P. Stalpes (argued), Beck, Amsden
& Stalpes, PLLC, Bozeman, Montana
J. David Slovak, Mark M. Kovacich, Ross Johnson, Lewis, Slovak,
Kovacich & Snipes, PC, Great Falls, Montana
For Amicus Curiae:
John C. Cruden, Matthew R. Oakes (argued), Assistant Attorneys General,
United States Department of Justice, Washington D.C.
Domenic A. Cossi (argued), Western Justice Associates, PLLC,
Bozeman, Montana
(Attorney for Amicus Curiae Montana Trial Lawyers Association)
Roger Sullivan, McGarvey, Neberling, Sullivan & Lacey,
Kalispell, Montana
(Attorneys for Montana Environmental Information Center)
Kurt G. Alme, United States Attorney, Victoria Francis, Assistant United
Stated Attorney, District of Montana, Billings, Montana
(Attorneys for Amicus Curiae United States of America)
Elizabeth A. Brennan, Brennan Law & Mediation, PLLC,
Missoula, Montana
(Attorneys for Amicus Curiae Clark Fork Coalition)
Argued: April 7, 2017
Submitted: April 11, 2017
Decided: December 29, 2017
Filed:
__________________________________________
Clerk
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OPINION AND ORDER
Justice James Jeremiah Shea delivered the Opinion and Order of the Court.
¶1 Petitioner Atlantic Richfield Company (“ARCO”) petitioned this Court for a writ of
supervisory control, seeking reversal of five orders of the Second Judicial District Court in
Silver Bow County in the matter of Christian, et al. v. Atlantic Richfield Co. Relevant to
the issue before us, the action in the District Court concerns a claim for restoration damages
brought by property owners in and around the town of Opportunity, Montana (hereafter
referred to as “Property Owners”). We accepted supervisory control of this case for the
limited purpose of considering the District Court’s August 30, 2016 Order Denying
ARCO’s Motion for Summary Judgment on Property Owners’ Claim for Restoration
Damages as Barred by CERCLA and Granting Property Owners’ Motion for Summary
Judgment on ARCO’s CERCLA Preemption Affirmative Defenses (11th–13th). We
restate the issues as follows:
Issue One: Whether the Property Owners’ claim constitutes a challenge to EPA’s
selected remedy, and thus does not comply with CERCLA’s timing of review
provision.
Issue Two: Whether the Property Owners are “Potentially Responsible Parties,”
and thus cannot proceed with their chosen restoration activities without EPA
approval.
Issue Three: Whether the Property Owners’ claim otherwise conflicts with
CERCLA, and is thus preempted.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 The Anaconda Smelter, originally constructed by the Anaconda Copper Mining
Company, processed copper ore from Butte for nearly one hundred years before shutting
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down in 1980. Also in 1980, Congress passed the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601, et
seq. Also known as “Superfund,” the purpose of CERCLA is to foster the cleanup of sites
contaminated by hazardous waste, and to protect human health and the environment. In
1983, the Environmental Protection Agency (“EPA”) designated the area impacted by the
Anaconda Smelter, now owned by ARCO, as a Superfund site. In 1984, EPA issued an
administrative order requiring ARCO to begin a remedial investigation at the Smelter Site.
In 1998, EPA selected a remedy pursuant to CERCLA that detailed ARCO’s cleanup
responsibilities moving forward.
¶3 As part of ARCO’s cleanup responsibility, EPA required ARCO to remediate
residential yards within the Smelter Site harboring levels of arsenic exceeding 250 parts
per million in soil, and to remediate all wells used for drinking water with levels of arsenic
in excess of ten parts per billion. The Property Owners, a group of ninety-eight landowners
located within the bounds of the Smelter Site, sought the opinion of outside experts to
determine what actions would be necessary to fully restore their properties to
pre-contamination levels. The experts recommended the Property Owners remove the top
two feet of soil from affected properties and install permeable walls to remove arsenic from
the groundwater. Both remedies required restoration work in excess of what the EPA
required of ARCO in its selected remedy.
¶4 The Property Owners filed this action in 2008, claiming common law trespass,
nuisance, and strict liability against ARCO, and seeking restoration damages. Any
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recovered restoration damages are to be placed in a trust account and distributed only for
the purpose of conducting restoration work.
¶5 In 2013, ARCO moved for summary judgment on the grounds that CERCLA barred
the Property Owners’ claims. The District Court did not address ARCO’s CERCLA
preemption issue because it dismissed the Property Owners’ case on the basis that their
claims were barred by the statute of limitations. The Property Owners appealed and we
affirmed in part, reversed in part, and remanded the case to the District Court for further
proceedings. Christian v. Atl. Richfield Co., 2015 MT 255, ¶ 79, 380 Mont. 495, 358 P.3d
131. On remand, the District Court denied all of ARCO’s contested motions for summary
judgment. Among the orders denied was ARCO’s Motion for Summary Judgment on the
Property Owners’ Claim for Restoration Damages as Barred by CERCLA. ARCO
petitioned this Court for a writ of supervisory control, asking us to vacate four of the
District Court’s orders denying summary judgment and one order on a motion in limine.
On October 5, 2016, we issued an order granting the writ for the limited purpose of
considering the District Court’s 2016 Order Denying ARCO’s Motion for Summary
Judgment on Property Owners’ Claim for Restoration Damages as Barred by CERCLA
and Granting Property Owners’ Motion for Summary Judgment on ARCO’s CERCLA
Preemption Affirmative Defenses (11th–13th).
¶6 The Property Owners bring several claims against ARCO: (1) injury to and loss of
use and enjoyment of real and personal property; (2) loss of the value of real property; (3)
incidental and consequential damages, including relocation expenses and loss of rental
income and/or value; (4) annoyance, inconvenience, and discomfort over the loss and
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prospective loss of property value; and (5) expenses for and cost of investigation and
restoration of real property. ARCO concedes that the Property Owners may move forward
on their first four claims, but contend that the claim for restoration damages is preempted
by CERCLA.
STANDARD OF REVIEW
¶7 We review de novo a district court’s grant or denial of summary judgment, applying
the same criteria of M. R. Civ. P. 56 as a district court. Pilgeram v. GreenPoint Mortg.
Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. Under Rule 56(c), judgment
“shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” Roe v. City of Missoula, 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200 (citation
omitted).
DISCUSSION
¶8 In Sunburst School Dist. No. 2 v. Texaco, 2007 MT 183, ¶ 34, 338 Mont. 259, 165
P.3d 1079, we held: “If a plaintiff wants to use the damaged property, instead of selling it,
restoration of the property constitutes the only remedy that affords a plaintiff full
compensation.” To recover restoration damages, a plaintiff must show (1) the injury to the
property is reasonably abatable, and (2) the plaintiff has “reasons personal” for seeking
restoration damages. Lampi v. Speed, 2011 MT 231, ¶ 29, 362 Mont. 122, 261 P.3d 1000
(citing Sunburst, ¶¶ 31–39). In Sunburst, the plaintiffs sought restoration damages from
Texaco to restore their properties to the condition the properties would have been in absent
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a benzene leak from a Texaco gasoline refinery. Sunburst, ¶ 38. Texaco argued that the
plaintiffs’ common law claim for restoration damages was preempted by Montana’s
Comprehensive Environmental Cleanup and Responsibility Act (CECRA), a state statute
similar in purpose and scope to CERCLA. Sunburst, ¶ 55. We further noted in Sunburst
that “[a] presumption exists against statutory preemption of common law claims. A statute
does not take away common law claims except to the extent that the statute expressly or by
necessary implication declares.” Sunburst, ¶ 51 (internal citations omitted). Accordingly,
we held: “[N]o conflict exists between DEQ’s supervisory role under CECRA and
restoration damages awarded under the common law. We further conclude that nothing in
CECRA precludes a common law claim by necessary implication.” Sunburst, ¶ 59.
¶9 ARCO argues that the Property Owners may not bring their state law claim for
restoration damages because the claim conflicts with various provisions of CERCLA, and
thus are preempted. Preemption is established expressly, through the unambiguous
language of Congress in statute, or impliedly through the doctrines of field preemption or
conflict preemption. Oneok, Inc. v. Learjet, Inc., ___ U.S. ___, 135 S. Ct. 1591, 1594–95
(2015). Field preemption exists if Congress intended the relevant federal law to entirely
occupy the field. California v. ARC Am. Corp., 490 U.S. 93, 100, 109 S. Ct. 1661, 1665
(1989). There is no field preemption in this case, as CERCLA expressly allows for
complementary state laws, including common law, through a series of savings clauses:
Nothing in [CERCLA] shall affect or modify in any way the obligations or
liabilities of any person under other Federal or State law, including common
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law, with respect to releases of hazardous substances or other pollutants or
contaminants. . . .
42 U.S.C. § 9652(d).
Nothing in [CERCLA] shall be construed or interpreted as preempting any
State from imposing any additional liability or requirements with respect to
the release of hazardous substances within such State.
42 U.S.C. § 9614(a).
¶10 ARCO advances three arguments regarding how it contends CERCLA bars the
Property Owners’ claim for restoration damages: (1) Property Owners’ restoration
damages claim constitutes a direct challenge to EPA’s selected remedy and CERCLA’s
timing of review provision, 42 U.S.C. § 9613(h) (“CERCLA § 113(h)”), prevents this
Court from hearing challenges to an EPA remedy; (2) the Property Owners are “potentially
responsible parties” under CERCLA, and as such may not perform any restoration
activities without EPA approval; and (3) the Property Owners’ claim otherwise conflicts
with CERCLA and is barred under the doctrine of conflict preemption. We address each
of these arguments in turn.
¶11 Issue One: Whether the Property Owners’ claim constitutes a challenge to EPA’s
selected remedy, and thus does not comply with CERCLA’s timing of review
provision.
¶12 ARCO cites CERCLA’s “timing of review” provision, § 113(h), for the proposition
that CERCLA expressly preempts the Property Owners’ claim by denying Montana courts
jurisdiction over any challenges to a CERCLA cleanup. Section 113(h) reads, in relevant
part:
No Federal court shall have jurisdiction under Federal law other than under
section 1332 of title 28 (relating to diversity of citizenship jurisdiction) or
under State law which is applicable or relevant and appropriate under section
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§ 9621 of this title (relating to cleanup standards) to review any challenges
to removal or remedial action selected under section of § 9604 of this title,
or to review any order issued under section § 9606(a) of this title. . . .
At the outset, it bears noting that this statute begins: “No Federal court shall have
jurisdiction under Federal law . . . .” (Emphasis added). Conspicuously absent is any
reference to state court jurisdiction over state law claims. It is well-established that “[i]n
the construction of a statute, the office of the judge is simply to ascertain and declare what
is in terms or in substance contained therein, not to insert what has been omitted or to omit
what has been inserted.” Section 1-2-101, MCA.
¶13 ARCO relies on a Ninth Circuit Court of Appeals case in which the Ninth Circuit
read § 113(h) together with § 113(b) to conclude that Montana state courts lack jurisdiction
over any claims that “constitute ‘a challenge to a CERCLA cleanup.’” ARCO Envtl.
Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d 1108, 1115 (9th Cir.
2000). The Ninth Circuit concluded that because § 113(b) grants federal courts “exclusive
original jurisdiction over all controversies arising under [CERCLA],” it interpreted
§ 113(h)’s reference to “challenges to removal or remedial action” to be a “controversy
arising under [CERCLA],” and thus exclusively within the jurisdiction of the federal
courts. ARCO Envtl. Remediation, 213 F.3d at 1115.
¶14 Irrespective of this jurisdictional question, however, ARCO acknowledges that its
argument for conflict preemption under § 113(h) turns on whether the Property Owners’
claim for restoration damages “challenges” the CERCLA cleanup. We have not previously
addressed what constitutes a “challenge” within the context of § 113(h). In ARCO
Environmental Remediation the Ninth Circuit defined a “challenge” as a claim that “is
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related to the goals of the cleanup.” ARCO Envtl. Remediation, 213 F.3d at 1115. More
specifically, the Ninth Circuit further held that a “challenge” was any action in which a
party seeks “to dictate specific remedial actions; to postpone the cleanup; to impose
additional reporting requirements on the cleanup; or to . . . alter the method and order of
cleanup.” ARCO Envtl. Remediation, 213 F.3d at 1115 (internal citations omitted).
Another definition comes from the Southern District of Indiana. In Taylor Farm Ltd. Liab.
Co. v. Viacom, Inc., 234 F. Supp. 2d 950, 974–75 (S.D. Ind. 2002), the Indiana District
Court rejected the defendant’s proposed definition of a challenge as being anything more
comprehensive than the EPA-selected remedy. The Court held:
[T]he only sense in which Taylor’s lawsuit can be said to “challenge”
Viacom’s settlement agreement with the EPA is that, if Taylor is successful,
Viacom will be required to spend more money to clean up the land for
Taylor’s benefit than the EPA required Viacom to spend for the public’s
benefit.
Taylor Farm, 234 F. Supp. 2d at 976. Yet another interpretation comes from Samples v.
Conoco, Inc., 165 F. Supp. 2d 1303, 1315–16 (N.D. Fla 2001), in which the Florida District
Court concluded the plaintiffs’ claim was not a “challenge” under § 113(h), because:
[It] is not an action designed to review or contest the remedy selected by the
EPA prior to implementation; it is not an action designed to obtain a court
order directing the EPA to select a different remedy; it is not an action
designed to delay, enjoin, or prevent the implementation of a remedy selected
by the EPA; and it is not a citizen suit brought pursuant to 42 U.S.C. § 9659.
Still other interpretations come from the Third Circuit in Boarhead Corp. v. Erickson, 923
F.2d 1011, 1019, 1024 (3rd Cir. 1991) (holding a claim is a challenge only if it “would
interfere” with or “delay[] the prompt cleanup” of hazardous sites); and the District of New
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Mexico in Reynolds v. Lujan, 785 F. Supp. 152, 154 (D.N.M. 1992) (holding a claim is a
challenge if it would require the court to “alter the [EPA’s] ongoing response activities.”).
¶15 Synthesizing the various interpretations of what constitutes a “challenge” in light of
the nature of the Property Owners’ claim and CERCLA’s savings clauses evinces that,
fundamentally, a § 113(h) challenge must actively interfere with EPA’s work, as when the
relief sought would stop, delay, or change the work EPA is doing. At a minimum, a
“challenge” must be more than merely requiring ARCO to spend more money to clean up
the land for the Property Owners’ benefit, as the court in Taylor Farm noted. In this case,
the restoration damages Property Owners seek are to be placed in a trust account and used
to further restore affected properties beyond the levels required by the EPA, and the
restoration work would be completed by the Property Owners themselves. To the extent
that EPA’s work is ongoing, the Property Owners are not seeking to interfere with that
work, nor are they seeking to stop, delay, or change the work EPA is doing. The Property
Owners’ claim is exactly the sort contemplated in CERCLA’s savings clauses, and does
not present a “challenge” to EPA’s selected remedy. Absent a “challenge” to removal or
remedial action selected in the CERCLA cleanup process, §§ 113(h) and (b) do not deprive
Montana courts of jurisdiction to entertain state-law restoration claims.
¶16 Despite ARCO’s efforts to overcomplicate this matter and recast what is, at its
essence, a common law claim for damages into a challenge to EPA’s cleanup, the
fundamental issue before us is one of timing. Specifically, when can private landowners
bring a state common law claim for restoration damages for the purpose of cleaning up
their own private property? The Dissent maintains that any such claim, if it relates to the
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goals of the cleanup, must wait until the EPA has completed its work and moved on because
CERCLA “protects the execution of a CERCLA plan during its pendency from lawsuits
that might interfere with the expeditious cleanup effort.” Dissent, ¶ 48, quoting McClellan
Ecological Seepage Situation v. Perry, 47 F.3d 325, 329 (9th Cir. 1995) (hereinafter
referred to as MESS) (emphasis in original). Even by the Dissent’s analysis, though, the
Property Owners’ claim does not constitute a challenge to EPA’s plan. The Dissent cites
a litany of cases from other jurisdictions in ostensible support of the contention that the
Property Owners’ damage claim constitutes a challenge to EPA’s remediation plan.
Dissent, ¶ 44. These cases are inapposite to the Property Owners’ claim presently before
us. None of the cases cited by the Dissent, nor any of the cases cited by ARCO or the
United States, involve a claim by private property owners, against another private party,
seeking money damages for the purpose of restoring their own private property. The
Property Owners are not asking the Court “to dictate specific remedial actions.” The
Property Owners are not asking the Court to “impose additional reporting requirements on
the cleanup.” The Property Owners are not asking the Court to “terminate the Remedial
Investigation/Feasibility Study (RI/FS) and alter the method and order of cleanup.”
Nothing in the Property Owners’ claim for restoration damages “stands as an obstacle to
the accomplishment of congressional objectives as encompassed in CERCLA,” unless
Congress’s objective was to condemn, in perpetuity, the private property of an individual
property owner because that property happened to have been contaminated by a third party.
¶17 Put simply, the Property Owners are not asking the Court to interfere with the EPA’s
plan. The Property Owners are not seeking to enjoin any of EPA’s activities, or requesting
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that EPA be required to alter, delay, or expedite its plan in any fashion whatsoever. The
Property Owners are simply asking to be allowed to present their own plan to restore their
own private property to a jury of twelve Montanans who will then assess the merits of that
plan. If the jury awards restoration damages, those damages will be placed in a trust for
the express purpose of effectuating the Property Owners’ restoration plan. Indeed, any
restoration will be performed by the Property Owners themselves and will not seek to force
the EPA to do, or refrain from doing, anything at the Site.
¶18 The Dissent contends that § 113(h) requires rejecting claims that challenge EPA’s
ongoing remedial action. Dissent, ¶ 43. What, if any, actual remedial action remains
ongoing is, at least, unclear. Even assuming there is something that would constitute
ongoing remedial action, however, this still does not morph the Property Owners’ claim
for restoration damages—for purposes of funding an eventual restoration according to the
Property Owners’ plan—into a challenge to EPA’s cleanup. As Justice Baker notes in her
concurrence, the United States’ counsel acknowledged during oral argument that some
aspects of the Property Owners’ restoration plan would not constitute a “challenge” within
the meaning of the law. Concurrence, ¶ 32. As to other aspects of the Property Owners’
restoration plan, even the federal government has to pull up stakes at some point and leave
these private property owners alone to attend to their own private property. If the Property
Owners must wait for that eventuality to conclude their restoration plan, the history of this
case amply demonstrates that they have the patience for it.
¶19 Whether or not the Property Owners succeed on their claim for restoration damages
will not affect, alter, or delay EPA’s work in any fashion. Likewise, EPA’s work, whether
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ongoing or not, has no bearing on the success or failure of the Property Owners’ claim for
restoration damages on the merits. In Sunburst, we noted “that CECRA’s focus on cost
effectiveness and limits on health-based standards differ from the factors to be considered
in assessing damages under the common law.” Sunburst, ¶ 59. The same reasoning applies
here: CERCLA’s regulatory standards do not apply to the common law claim at issue. The
District Court has already recognized this fact when it granted the Property Owners’ motion
in limine to preclude ARCO from presenting evidence regarding its compliance with EPA
requirements, and correctly noted that allowing such evidence at trial “pose[d] the clear
risk for ARCO to ‘cloak itself’ in the authority of the federal government.” See Sunburst,
¶¶ 107, 121 (discussing Texaco’s efforts to cloak itself in the authority of the State of
Montana in order to create confusion). That being noted, nothing in our holding here
should be construed as precluding ARCO from contesting the Property Owners’ restoration
damages claim on its own merits, just as it may contest the Property Owners’ other claims.
¶20 The Property Owners’ claim for restoration damages in this case arises solely under
state common law, and does not implicate federal law or cleanup standards. The Property
Owners are not seeking to compel EPA to do, or refrain from doing, any action. Therefore,
the Property Owners’ claim does not implicate § 113(h), nor does it implicate § 113(b).
United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1455 (6th Cir. 1991) (“Clearly
preserved [by § 113(h)], are challenges to the selection or adequacy of remedies based on
state nuisance law . . . independent of federal response action.”).
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¶21 Issue Two: Whether the Property Owners are “Potentially Responsible Parties,”
and thus cannot proceed with their chosen restoration activities without EPA
approval.
¶22 ARCO argues that under 42 U.S.C. § 9622(e)(6) (“CERCLA § 122(e)(6)”), the
Property Owners are “Potentially Responsible Parties” (“PRP”), and are thus prohibited
from conducting any remedial action that is inconsistent with EPA’s selected remedy
without EPA’s consent. There are several categories of PRPs. For purposes of our
analysis, however, the only relevant category is a class consisting of all current owners of
property at a CERCLA facility. 42 U.S.C. § 9607(a)(1).
¶23 Designation as a PRP may occur in one of three ways: (1) if the party has entered
into a voluntary settlement with the EPA; (2) upon a judicial determination that the party
is a responsible party; or (3) if the party is currently a defendant in a CERCLA lawsuit and
has been found not to be entitled to statutory defenses. Taylor Farm, 234 F. Supp. 2d at
966–71 (citing Pneumo Abex Corp. v. High Point, Thomasville and Denton R. Co.,
142 F.3d 769, 773, n.2 (4th Cir. 1998) and New Castle County v. Halliburton NUS Corp.,
111 F.3d 1116, 1120, n.2 (3d Cir. 1997)). The statutory defenses relevant to the Property
Owners are the “innocent landowner” defense and the “contiguous landowner” defense.
42 U.S.C. § 9607(b)(3), (q).
¶24 ARCO argues that a PRP is a strictly defined category, subject to liability even if
the PRP did not cause or contribute to the contamination. Chubb Custom Ins. Co. v. Space
Sys./Loral, Inc., 710 F.3d 946, 956–57 (9th Cir. 2013). ARCO also contends that even if
the Property Owners were able to avail themselves of a defense to liability for cleanup
costs, they would still meet the broader definition of PRP, and be bound by § 122(e)(6).
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Essentially, ARCO asks us to treat the Property Owners as PRPs under § 122(e)(6), even
though they have never been treated as PRPs for any purpose—by either EPA or ARCO—
during the entire thirty-plus years since the Property Owners’ property was designated as
being within the Superfund site. As the Property Owners correctly point out, the statute of
limitations for such a claim (at most six years from the date cleanup work was initiated)
has long passed. Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112,
128 (2d Cir. 2010). Put simply, the PRP horse left the barn decades ago.
¶25 The Property Owners have never entered into a voluntary settlement with the EPA.
There has never been a judicial determination that the Property Owners are responsible
parties. The Property Owners are not currently, nor have they ever been, defendants in a
CERCLA lawsuit in which they were found not to be entitled to statutory defenses. The
EPA has not included the Property Owners as a defendant in the legal proceedings in this
matter, nor have they been party to any settlement agreements regarding cleanup
proceedings. Despite the EPA never engaging the Property Owners as PRPs, ARCO now
asks us to treat the Property Owners as PRPs—for the first time in these proceedings—
solely for the purpose of using § 122(e)(6) to bar their claim for restoration damages. We
decline to do so.
¶26 Issue Three: Whether the Property Owners’ claim otherwise conflicts with
CERCLA, and is thus preempted.
¶27 ARCO’s final argument is that other conflicts exist between CERCLA and the
Property Owners’ claim for restoration damages. ARCO proffers three lines of reasoning
for this argument. First, ARCO argues that the EPA has sole authority to select
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environmental remedies at Superfund sites, which would preclude alternative standards
and remedies. To adopt this reasoning would be to ignore CERCLA’s savings clauses. As
stated above, CERCLA’s savings clauses expressly contemplate the applicability of state
law remedies. 42 U.S.C. §§ 9614(a), 9652(d). Second, ARCO contends there is an
“unambiguous congressional intent to foreclose any state law remedy that challenges or
obstructs EPA’s remedy at a Superfund site.” This argument fails for the same reason that
§ 113(h) does not apply: the Property Owners’ claim does not prevent the EPA from
accomplishing its goals at the ARCO Site. Lastly, ARCO again characterizes the Property
Owners’ claim as a challenge to EPA’s selected remedy, and argues that the claim cannot
proceed until EPA’s remedy is fully performed. Yet CERCLA’s savings clauses operate
to preserve the Property Owners’ ability to pursue this claim. 42 U.S.C. § 9652(d)
(“Nothing in [CERCLA] shall affect or modify in any way the obligations or liabilities of
any person under other Federal or State law, including common law, with respect to
releases of hazardous substances or other pollutants or contaminants.” (emphasis added)).
CERCLA does not expressly or impliedly preempt the Property Owners’ claim for
restoration damages in this matter.
CONCLUSION
¶28 We conclude that the District Court did not err by Denying ARCO’s Motion for
Summary Judgment on Property Owners’ Claim for Restoration Damages as Barred by
CERCLA and Granting Property Owners’ Motion for Summary Judgment on ARCO’s
CERCLA Preemption Affirmative Defenses (11th–13th). To be clear, ARCO is not
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precluded from contesting the merits of the Property Owners’ restoration plans. However,
that is an issue of fact to be resolved at trial.
¶29 THEREFORE, IT IS ORDERED:
¶30 The District Court’s order Denying ARCO’s Motion for Summary Judgment on
Property Owners’ Claim for Restoration Damages as Barred by CERCLA and Granting
Property Owners’ Motion for Summary Judgment on ARCO’s CERCLA Preemption
Affirmative Defenses (11th–13th) is AFFIRMED. This matter is remanded to the District
Court for further proceedings consistent with this Opinion.
DATED this 29th day of December, 2017.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ JAMES MANLEY
Sitting for Chief Justice Mike McGrath
/S/ JOHN KUTZMAN
Sitting for Justice Jim Rice
/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
Justice Beth Baker, specially concurring.
¶31 I understand the Court’s decision today to be a narrow one: CERCLA does not, as
a matter of law, preempt all common-law claims for restoration damages to the property of
a private individual. I agree with that conclusion and with the decision not to treat the
Property Owners as PRPs. I thus concur with the Court’s ruling that the District Court did
not err in denying ARCO’s motion for summary judgment on the restoration damages
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claims. I appreciate the Dissent’s thorough analysis of CERCLA § 113(h), but do not agree
that it applies to foreclose the Property Owners’ claims.
¶32 It became clear during oral argument in this case that the parties dispute whether
aspects of the Property Owners’ proposed restoration plan would conflict with actions
ARCO has taken in the Superfund cleanup effort. ARCO’s counsel characterized the
dispute as one of jurisdiction, which empowers the trial court to determine underlying facts.
Here, the trial court determined, for conflict preemption purposes, that the Property
Owners’ claims did not stand as an obstacle to the CERCLA cleanup underway or impede
EPA’s requirements on the site. Amicus curiae the United States argues that the purpose
of CERCLA is to assure that EPA coordinates the cleanup between multiple stakeholders,
so that the selected plan may move forward without obstruction, delay, or the diversion of
resources that would accompany multiple individual plans and proposals. The government
stresses that state-court lawsuits cannot, under § 113(h), supplement EPA’s selected
response-action cleanup levels if such a proposed plan challenges or conflicts with EPA’s
proposed remedy. The government recognizes, though, that CERCLA does not bar all
state-law claims by affected landowners, and its counsel acknowledged during oral
argument that some aspects of the Property Owners’ plan would not be a “challenge”
within the meaning of the law. The Property Owners’ counsel protested during argument
that it was the first time they had heard that some aspects of their plan would “undo” what
already has been done, and that in nine years of litigation no evidence had been presented
to the District Court that the Property Owners’ plan conflicted with EPA’s remedy.
19
¶33 The large-scale environmental remediation projects made possible by CERCLA are
intended, and are essential, to clean up severe widespread contamination resulting from
decades of historic mining practices that left expansive deposits of toxic tailings and
particulate fallout in floodplains, ranchlands, and soils. The massive cleanup efforts in
which ARCO, EPA, and the State of Montana have engaged for more than thirty years have
gone far to remediate the Superfund site. But CERLCA draws a distinction between
remedial action and damages for injury to, destruction of, or loss of natural resources. 42
U.S.C. § 9607(a)(4)(A), (C). Outside of the remediation process, States may pursue
recovery of damages on behalf of the public as trustee of the state’s natural resources to
“restore, replace, or acquire the equivalent of such natural resources by the State.” 42
U.S.C. § 9607(f)(1) (emphasis added). “CERCLA sets a floor, not a ceiling.” New Mexico
v. Gen. Elec. Co., 467 F.3d 1223, 1246 (10th Cir. 2006). And CERCLA does not cover
damages to “purely private property.” Ohio v. U.S. Dep’t of the Interior, 880 F.2d 432,
460 (D.C. Cir. 1989). It does not force local residents simply to live with the impacts if
they can prove, through their nuisance and trespass actions, that state law entitles them to
damages for the restoration of their own land. As the Court observes, consistent with our
parallel conclusion in Sunburst, CERCLA’s “focus on cost effectiveness and limits on
health-based standards differ from the factors to be considered in assessing damages under
the common law.” Opinion, ¶ 19 (quoting Sunburst, ¶ 59). The dynamic between
individual restoration and CERCLA’s coordinated large-scale response does not give rise
to preemption as a matter of law. “Tension between federal and state law is not enough to
establish conflict preemption. We find preemption only in those situations where conflicts
20
will necessarily arise. A hypothetical conflict is not a sufficient basis for preemption.”
Incalza v. Fendi N. Am., Inc., 479 F.3d 1005, 1010 (9th Cir. 2007) (internal citations and
quotations omitted).
¶34 In our limited Order accepting supervisory control in this case, we did not agree to
review the District Court’s orders in limine. But the Court observes that ARCO is not
precluded at trial from contesting the merits of the Property Owners’ restoration plans.
Opinion, ¶¶ 19, 28. A claim for restoration damages requires the Property Owners to prove
two separate elements: (1) temporary injury and (2) reasons personal for the restoration.
Lampi, ¶ 29 (quoting Sunburst, ¶¶ 31-39). An injury is temporary “if the tortfeasor could
restore the destroyed property to substantially the condition in which it existed before the
injury. An injury that would cease to exist once remediation or restoration has been
completed qualifies as temporary.” Lampi, ¶ 32 (internal citations omitted). For temporary
injury, the ability to repair the injury “must be more than a theoretical possibility.”
Sunburst, ¶ 31 (citing Burk Ranches v. State, 242 Mont. 300, 306, 790 P.2d 443, 447
(1990)).
¶35 The “reasons personal” element requires the Property Owners “to establish that the
award actually will be used for restoration.” Lampi, ¶ 31. The “personal reasons” analysis
is required only when the restoration costs “exceed disproportionately” the diminution in
value of the property. McEwen v. MCR, LLC, 2012 MT 319, ¶ 30, 368 Mont. 38, 291 P.3d
1253; Sunburst, ¶ 38. Finally, an “injured party is to be made as nearly whole as possible—
but not to realize a profit. Compensatory damages are designed to compensate the injured
21
party for actual loss or injury—no more, no less.” Sunburst, ¶ 40 (quoting Burk Ranches,
242 Mont. at 307, 790 P.2d at 447).
¶36 “[T]hese issues normally present factual questions for the jury to resolve.” Lampi,
¶ 48. The Court acknowledges the District Court’s concern about allowing ARCO to
“‘cloak itself’ in the authority of the federal government.” Opinion, ¶ 19. I write
separately to add that if ARCO contends that the Property Owners’ proposed remedy
conflicts with or requires modification of measures ARCO already has taken to clean up
the site, ARCO must be able to address those conflicts in seeking to rebut the Property
Owners’ claim on the essential elements of proof under our standards for a restoration
damages claim. What ARCO may not do at trial is point to the EPA’s selected remedy and
say, “We’ve done everything the government required; that’s all we need to do.” What
ARCO may do is offer evidence to support its claim that the Property Owners’ proposed
restoration plan is not feasible and thus does not qualify as a temporary injury. And the
Property Owners should have the opportunity to prove their claim that ARCO’s cleanup
efforts to date have not returned their properties to substantially the same condition in
which they were before the injury, but that the injury will cease to exist if their proposed
restoration plan is implemented. The Property Owners’ proposals should be considered by
the jury in the context of determining whether ARCO is liable for their alleged injuries and
whether those injuries are compensable by an award of restoration damages. Evidence on
the issue of temporary injury may well overlap with the evidence required to show,
pursuant to our holding in Atlantic Richfield Co., ¶ 77, whether the continuing tort doctrine
tolled the period of limitations for the Property Owners’ claims. It makes sense to allow
22
the parties to develop the evidence for the jury’s consideration of these issues and a record
that may be reviewed, if necessary, on appeal from any final judgment.
/S/ BETH BAKER
Justice Laurie McKinnon, dissenting.
¶37 Property Owners seek monetary damages for state law claims of nuisance, trespass,
and strict liability. ARCO does not contest that litigation of these state law claims may
proceed during the pendency of the CERCLA cleanup process and, accordingly, that issue
is not before the Court. ARCO does contend that Property Owners’ claim for restoration
damages proposes a different cleanup plan than that chosen by the EPA, thus constituting
a challenge which is preempted by CERCLA. In my view, Property Owners’ restoration
plan, which includes digging an 8,000-foot trench for a groundwater wall and removing
650,000 tons of soil over a period of years, would conflict with the ongoing EPA
investigation and CERCLA cleanup.1 The Court’s conclusion that, during the pendency of
a CERCLA cleanup effort, a jury may determine restoration damages and place the amount
of money so determined in a trust for future restoration efforts, Opinion, ¶ 17, is not only
1 To recover restoration damages under Montana law, the plaintiff must present evidence and
convince the fact-finder that he will actually conduct the restoration upon which the restoration
claim is based. Lampi, ¶ 31 (“The reasons personal rule requires plaintiff to establish that the
award actually will be used for restoration . . . .”); Sunburst, ¶ 43; McEwen, ¶ 50. It is the actual
performance of Property Owners’ restoration plan—a prerequisite to their damage award—that
impermissibly challenges the EPA’s remedy. For purposes of brevity, I do not address other
provisions of CERCLA which ARCO asserts would bar Property Owners from completing their
restoration plan.
23
inconsistent with CERCLA and federal precedent, but has no authority in Montana law.2
Property Owners may not “achieve indirectly through the threat of monetary damages . . .
what [they] cannot obtain directly through mandatory injunctive relief incompatible with
the ongoing CERCLA-mandated remediation.” New Mexico, 467 F.3d at 1250. Moreover,
“[d]amages must be proven by substantial evidence which is not the product of mere guess
or speculation.” Sebena v. Am. Auto. Ass’n, 280 Mont. 305, 309, 930 P.2d 51, 53 (1996).
“[W]here no costs have been incurred, and no costs are reasonably certain to be incurred
in the future, the plaintiff has not stated a claim for damages,” and summary judgment
should be granted. Town of Superior v. Asarco, Inc., 874 F. Supp. 2d 937, 949 (D. Mont.
2004). See also B.M. v. State, 215 Mont. 175, 179, 698 P.2d 399, 401 (1985) (“Where
plaintiff presents evidence of damages which are purely speculative, summary judgment is
appropriate.”). Here, there is no genuine issue of material fact that Property Owners’ claim
for restoration damages is a challenge to the EPA’s remedial action and prohibited by
CERCLA as a matter of law.
¶38 CERCLA is a “comprehensive statute that grants the President broad power to
command government agencies and private parties to clean up hazardous waste sites.” Key
Tronic Corp. v. United States, 511 U.S. 809, 814, 114 S. Ct. 1960, 1964 (1994).3
2
The Court errs when it applies the Sunburst analysis to the instant proceedings. In Sunburst,
there was no question that Montana state courts had subject-matter jurisdiction over CERCLA and
common law claims. Here, however, CERCLA-related activities are the exclusive, original
jurisdiction of the federal courts and a challenge in state court to the chosen EPA remedy implicates
the Supremacy Clause of the United States Constitution.
3
CERCLA vests authority in the President, who, in turn, has delegated most of his functions and
authority to the EPA. See 42 U.S.C. §§ 9606(c), 9615; 40 C.F.R. § 300.100.
24
“CERCLA is best known as setting forth a comprehensive mechanism to cleanup
hazardous waste sites under a restoration-based approach.” New Mexico, 467 F.3d at 1244
(citation omitted; emphasis added). CERCLA was intended to “promote the timely cleanup
of hazardous waste sites, ensure that polluters were held responsible for the cleanup efforts,
and encourage settlement through specified contribution protection.” Chubb, 710 F.3d at
956. “One of the core purposes of CERCLA is to foster settlement through its system of
incentives and without unnecessarily further complicating already complicated litigation.”
Cal. Dep’t of Toxic Substances Control v. City of Chico, 297 F. Supp. 2d 1227, 1235 (E.D.
Cal. 2004). See also In re Cuyahoga Equip. Corp., 980 F.2d 110, 119 (2d Cir. 1992)
(“Congress sought through CERCLA . . . to encourage settlements that would reduce the
inefficient expenditure of public funds on lengthy litigation.”); City of Emeryville v.
Robinson, 621 F.3d 1251, 1264 (9th Cir. 2010) (noting that CERCLA was designed to
ensure, inter alia, “that settlements are encouraged through specified contribution
protection”); 42 U.S.C. § 9622. Under CERCLA § 113(f)(2), “[a] person who has resolved
its liability to the United States or a State in an administrative or judicially approved
settlement shall not be liable for claims for contribution regarding matters addressed in the
settlement.” 42 U.S.C. § 9613(f)(2).
¶39 There are two types of cleanup actions under CERCLA: remedial actions and
removal actions. Remedial actions generally are “long-term or permanent containment or
disposal programs” while removal actions are “typically short-term cleanup
arrangements.” Schaefer v. Town of Victor, 457 F.3d 188, 195 (2d Cir. 2006) (citation and
quotation omitted). CERCLA defines “remedial action” as:
25
[T]hose actions consistent with permanent remedy taken instead of or in
addition to removal actions in the event of a release or threatened release of
a hazardous substance into the environment, to prevent or minimize the
release of hazardous substances so that they do not migrate to cause
substantial danger to present or future public health or welfare or the
environment. The term includes, but is not limited to, such actions at the
location of the release as storage, confinement, perimeter protection using
dikes, trenches, or ditches, clay cover, neutralization, cleanup of released
hazardous substances and associated contaminated materials, recycling or
reuse, diversion, destruction, segregation of reactive wastes, dredging or
excavations, repair or replacement of leaking containers, collection of
leachate and runoff, onsite treatment or incineration, provision of alternative
water supplies, and any monitoring reasonably required to assure that such
actions protect the public health and welfare and the environment. The term
includes the costs of permanent relocation of residents and businesses and
community facilities where the President determines that, alone or in
combination with other measures, such relocation is more cost-effective than
and environmentally preferable to the transportation, storage, treatment,
destruction, or secure disposition offsite of hazardous substances, or may
otherwise be necessary to protect public health or welfare; the term includes
offsite transport and offsite storage, treatment, destruction, or secure
disposition of hazardous substances and associated contaminated materials.
42 U.S.C. § 9601(24) (emphasis added).
¶40 CERCLA defines “remove” or “removal” as:
[T]he cleanup or removal of released hazardous substances from the
environment, such actions as may be necessary . . . to monitor, assess, and
evaluate the release or threat of release of hazardous substances, the disposal
of removed material, or the taking of such other actions as may be necessary
to prevent, minimize, or mitigate damage to the public health or welfare or
to the environment, which may otherwise result from a release or threat of
release. The term includes, in addition, without being limited to, security
fencing or other measures to limit access, provision of alternative water
supplies, temporary evacuation and housing of threatened individuals not
otherwise provided for . . . .
42 U.S.C. § 9601(23).
¶41 CERCLA-related activities may qualify as removal or remedial actions in at least
three ways. Hanford Downwinders Coal. v. Dowdle, 71 F.3d 1469, 1474 (9th Cir. 1995).
26
First, the action may be specifically designated as removal or remedial activity. Hanford
Downwinders, 71 F.3d at 1474. Second, cleanup activity explicitly classified in CERCLA
as a “response” is, by definition, a removal or remedial action. See 42 U.S.C. § 9601(25)
(defining “response” as a “removal” or “remedial action”). Finally, “even if action taken
at a CERCLA site is not referred to in the statute as a removal or remedial action or a
response action, the Timing of Review provision will still apply if the action satisfies
CERCLA’s definition of ‘removal’ or ‘remedial.’” Hanford Downwinders, 71 F.3d at
1474.
¶42 CERCLA provides that “the United States district courts shall have exclusive
original jurisdiction over all controversies arising under [CERCLA].” 42 U.S.C. § 9613(b).
Section 113(h) of CERCLA, titled “Timing of review,” provides an exception to federal
jurisdiction during the pendency of a CERCLA removal or remedial action: “No Federal
court shall have jurisdiction under Federal law . . . or under State law . . . to review any
challenges to removal or remedial action . . . .” 42 U.S.C. § 9613(h). Section 113(h) clearly
and unequivocally precludes contemporaneous challenges to CERCLA cleanups,
regardless of whether the challenge is made pursuant to federal or state law. Section 113(h)
amounts to a “blunt withdrawal of federal jurisdiction” and precludes any challenge to
CERCLA cleanups. N. Shore Gas Co. v. EPA, 930 F.2d 1239, 1244 (7th Cir. 1991); accord
Broward Gardens Tenants Ass’n v. EPA, 311 F.3d 1066, 1075 (11th Cir. 2002). “Section
113 withholds federal jurisdiction to review any . . . claims, including those made in citizen
suits and under non-CERCLA statutes, that are found to constitute ‘challenges’ to ongoing
CERCLA cleanup actions.” MESS, 47 F.3d at 329. Read in conjunction, § 113(b) and (h)
27
divest state courts of jurisdiction to review any state law claim which amounts to a
challenge of a CERCLA removal or remedial action. Fort Ord Toxics Project v. Cal. EPA,
189 F.3d 828, 832 (9th Cir. 1999). In Fort Ord Toxics Project, the Ninth Circuit observed
that “by granting district courts exclusive jurisdiction over all controversies arising under
CERCLA, Congress used language more expansive than would be necessary if it intended
to limit exclusive jurisdiction solely to those claims created by CERCLA.” Fort Ord, 189
F.3d at 832 (internal quotations and citations omitted).
¶43 The Ninth Circuit explained, “Congress concluded that the need for [swift execution
of CERCLA cleanup plans] was paramount, and that peripheral disputes, including those
over what measures actually are necessary to clean-up the site and remove the hazard, may
not be brought while the cleanup is in progress.” MESS, 47 F.3d at 329 (internal quotations
and citations omitted). Accordingly, § 113(h) “protects the execution of a CERCLA plan
during its pendency from lawsuits that might interfere with the expeditious cleanup effort.
This result furthers the policy underlying CERCLA by allowing a quick response to serious
hazards.” MESS, 47 F.3d at 329 (emphasis in original). The court explained in MESS:
We recognize that the application of Section 113(h) may in some cases delay
judicial review for years, if not permanently, and may result in irreparable
harm to other important interests. Whatever its likelihood, such a possibility
is for legislators, and not judges, to address. We must presume that Congress
has already balanced all concerns and concluded that the interest in removing
the hazard of toxic waste from Superfund sites clearly outweighs the risk of
irreparable harm.
MESS, 47 F.3d at 329 (internal quotations, citations, and footnote omitted). In MESS, the
court was careful to explain that it was not deciding “whether or to what extent the district
court can entertain MESS’s various claims after implementation of the CERCLA cleanup
28
at McClellan is complete.” MESS, 47 F.3d at 329, n.6. Accordingly, § 113(h) bars any
claim that challenges an ongoing CERCLA cleanup effort. Further, the language of
§ 113(h) does not distinguish between federal and state claims or constitutional and
statutory claims; instead, it delays judicial review of any challenges to unfinished remedial
EPA efforts. See Broward Gardens, 311 F.3d at 1075.
¶44 The Ninth Circuit has provided clear guidance concerning what constitutes a
“challenge” to a CERCLA cleanup effort. In Razore v. Tulalip Tribes, the court explained
that “[a]n action constitutes a challenge if it is related to the goals of the cleanup.” 66 F.3d
236, 239 (9th Cir. 1995) (emphasis added). Challenges to CERCLA cleanups were found
where the plaintiff seeks to dictate specific remedial actions, Hanford Downwinders, 71
F.3d at 1482; to postpone cleanup, Fort Ord, 189 F.3d at 831; to impose additional
reporting requirements on the cleanup, MESS, 47 F.3d at 330; and to terminate the
Remedial Investigation/Feasibility Study (RI/FS) and alter the method and order of
cleanup, Razore, 66 F.3d at 239. Consistent with the Ninth Circuit, the Tenth Circuit has
held that a state claim is preempted by CERCLA if the “claim, or any portion thereof,
stands as an obstacle to the accomplishment of congressional objectives as encompassed
in CERCLA.” New Mexico, 467 F.3d at 1244. The Eleventh Circuit similarly explained
that “[t]o determine whether a suit interferes with, and thus challenges, a cleanup, courts
look to see if the relief requested will impact the remedial action selected.” Broward
Gardens, 311 F.3d at 1072. The Eighth Circuit held that a suit challenges a remedial action
within the meaning of § 113(h) if it interferes with the implementation of a CERCLA
remedy. Costner v. URS Consultants, Inc., 153 F.3d 667, 675 (8th Cir. 1998).
29
¶45 The Ninth Circuit has also distinguished when a claim does not constitute a
challenge to a CERCLA cleanup effort. In Beck v. Atlantic Richfield Co., 62 F.3d 1240,
1243 (9th Cir. 1995), the court held that a state law claim by water users seeking financial
compensation for lost crops and profits resulting from the EPA’s diversion of water was
not a challenge to the CERCLA cleanup plan; however, the water users’ claim for
injunctive relief to prevent ARCO from diverting the water was a challenge to the EPA
cleanup. In ARCO Environmental Remediation, 213 F.3d at 1113, a state law claim for
access to public records and meetings did not relate to the goals of the EPA’s cleanup and
therefore did not constitute a challenge divesting the court of jurisdiction to entertain the
claim. The lawsuit did not alter cleanup requirements or environmental standards and did
not seek to delay or terminate the cleanup. Instead, the lawsuit involved the public’s right
to information about the cleanup. ARCO Envtl. Remediation, 213 F.3d at 1115.
¶46 CERCLA does not completely occupy the field of environmental regulation.
Congress expressly declared that it had no intent for CERCLA to do so by enacting two
savings clauses within CERCLA upon which Property Owners rely. The first savings
clause, 42 U.S.C. § 9614(a), provides: “Nothing in this Act shall be construed or
interpreted as preempting any State from imposing any additional liability or requirements
with respect to the release of hazardous substances within such State.” The second, 42
U.S.C. § 9652(d) provides: “Nothing in this Act shall affect or modify in any way the
obligations or liabilities of any person under other Federal or State law, including common
law, with respect to releases of hazardous substances or other pollutants or contaminants.”
Furthermore, Congress recognized the role of state law in hazardous waste cleanup when
30
it addressed the overlap of CERCLA and state law in 42 U.S.C. § 9614(b), which provides,
in relevant part, that “[a]ny person who receives compensation for removal costs or
damages or claims pursuant to any other Federal or State law shall be precluded from
receiving compensation for the same removal costs or damages or claims as provided in
this Act.” Congress clearly expressed “its intent that CERCLA should work in conjunction
with other federal and state hazardous waste laws in order to solve this country’s hazardous
waste cleanup problem.” United States v. Colorado, 990 F.2d 1565, 1575 (10th Cir. 1993);
accord Manor Care, Inc. v. Yaskin, 950 F.2d 122, 125-26 (3d Cir. 1991). The Ninth Circuit
also explained that “Congress did not want § 113(h) to serve as a shield against litigation
that is unrelated to disputes over environmental standards.” Fort Ord, 189 F.3d at 831.4
¶47 While a principle purpose of CERCLA’s savings clauses is to reinforce the right to
demand hazardous waste cleanup apart from CERCLA, a savings clause “is not intended
to allow specific provisions of the statute that contains it to be nullified.” PMC, Inc. v.
Sherwin-Williams Co., 151 F.3d 610, 618 (7th Cir. 1998). See also Wyoming v. United
States, 279 F.3d 1214, 1234 (10th Cir. 2002) (quoting Geier v. Am. Honda Motor Co., 529
U.S. 861, 864, 120 S. Ct. 1913, 1916 (2000), for the proposition that “[t]he Supreme Court
has ‘repeatedly declined to give broad effect to savings clauses where doing so would upset
the careful regulatory scheme established by federal law’”). “CERCLA’s savings clause
must not be used to gut provisions of CERCLA.” PMC, 151 F.3d at 618. Moreover,
4
For examples of state courts dismissing state law claims under § 113(h) of CERCLA, see O’Neal
v. Department of the Army, 742 A.2d 1095, 1100 (Pa. Super. Ct. 1999), and Aztec Minerals Corp.
v. Romer, 940 P.2d 1025, 1032-33 (Colo. Ct. App. 1996).
31
CERCLA does not establish a “new font of law on which private parties could base claims
for personal and property injuries.” Artesian Water Co. v. Gov’t of New Castle Cnty., 659
F. Supp. 1269, 1286 (D. Del. 1987), aff’d, 851 F.2d 643 (3d Cir. 1988) (internal quotations
and citations omitted). The purpose of a savings clause “is merely to nix an inference that
the statute in which it appears is intended to be the exclusive remedy for harms caused by
the violation of the statute.” PMC, 151 F.3d at 618. Thus, CERCLA’s savings clause was
enacted because Congress did not want to “wipe out people’s rights inadvertently, with the
possible consequence of making the intended beneficiaries of the legislation worse off than
before it was enacted. The passage of federal environmental laws was not intended to wipe
out the common law of nuisance.” PMC, 151 F.3d at 618.
¶48 Any state law claim raised pursuant to CERCLA’s savings clause which challenges
the remediation efforts of the EPA must wait until after the response actions are completed
because CERCLA “protects the execution of a CERCLA plan during its pendency from
lawsuits that might interfere with the expeditious cleanup effort.” New Mexico, 467 F.3d
at 1249 (quoting MESS, 47 F.3d at 329) (emphasis in original). When the EPA selects a
remedy, no challenge to the cleanup may occur prior to completion of the remedy. This is
true even if the claim is made pursuant to state law and attempts to invoke the state court’s
jurisdiction through CERCLA’s savings clause. Federal courts have exclusive and original
jurisdiction over any CERCLA-related activity. As explained in Fort Ord, 189 F.3d at
831, Congress made federal subject-matter jurisdiction broad, enacting a bar to jurisdiction
through the provisions of § 113(h) during the pendency of a CERCLA cleanup effort. See
also Cannon v. Gates, 538 F.3d 1328, 1336 (10th Cir. 2008). Accordingly, if the state
32
claims call “into question the EPA’s remedial response plan, it is related to the goals of the
cleanup, and thus constitutes a ‘challenge’ to the cleanup under [§ 113(h)].” New Mexico,
467 F.3d at 1249.
¶49 Neither a federal court considering CERCLA-related activity nor a state court
considering a state claim pursuant to CERCLA’s savings clause has subject-matter
jurisdiction to consider the claim when the claim constitutes a challenge to CERCLA’s
cleanup effort. It makes little difference that the claim originated in state court when the
relief sought constitutes a challenge. In New Mexico, 467 F.3d at 1252, the Tenth Circuit
dismissed state claims of public nuisance and negligence for lack of subject-matter
jurisdiction under § 113(h). In Cannon, 538 F.3d at 1334-36, the Tenth Circuit affirmed
the trial court’s dismissal of landowners’ claims under the Solid Waste Disposal Act, 42
U.S.C. §§ 6901-81, concluding that § 113(h) stripped subject-matter jurisdiction from the
trial court to consider the claims. In Broward Gardens, 311 F.3d at 1076, the Eleventh
Circuit affirmed the trial court’s dismissal of landowners’ claims because the court lacked
subject-matter jurisdiction over the case because of § 113(h). In Hanford Downwinders,
71 F.3d at 1484, the Ninth Circuit affirmed the district court’s dismissal of claims for lack
of subject-matter jurisdiction and for failure to state a claim because of § 113(h). Given
the substantial weight of authority which establishes the matter as being one of
subject-matter jurisdiction, I am at a loss to understand how this Court can suggest, without
any authority, that we “simply” allow “a jury of twelve Montanans” to “assess the merits
of [the Property Owners’ restoration] plan” and then instruct any resulting damages “be
placed in a trust for the express purpose of effectuating the Property Owners’ restoration
33
plan.” Opinion, ¶ 17. Most respectfully, the Property Owners should not be permitted to
proceed to a jury trial when the District Court clearly lacks subject-matter jurisdiction over
the controversy. Indeed, any order denying ARCO’s motion would be reviewable as an
interlocutory order pursuant to M. R. App. P. 6(3)(c).
¶50 Property Owners seek monetary damages for: (1) “Injury to and loss of use and
enjoyment of real and personal property”; (2) “Loss of the value of real property . . . ”;
(3) “Incidental and consequential damages, including relocation expenses and loss of rental
income and/or value”; (4) “Annoyance, inconvenience, and discomfort over the loss and
prospective loss of property value . . . ”; and (5) “Expenses for and cost of investigation
and restoration of real property” pursuant to Property Owners’ restoration plan. ARCO
does not dispute that Property Owners may proceed on the first four types of damages,
which are being made pursuant to nuisance, trespass and strict liability.5 ARCO does
dispute that Property Owners may proceed on the fifth type of damage, contending that the
District Court lacks subject-matter jurisdiction because of the ongoing CERCLA cleanup
effort and the provisions of § 113(h). Accordingly, pursuant to the aforementioned
authority, the District Court’s grant of summary judgment to Property Owners on their
claim for restoration damages must be reversed if Property Owners’ restoration plan
constitutes a challenge to the CERCLA cleanup effort at the Smelter Site. If Property
Owners’ proposed restoration plan “relate[s] to the goals of the cleanup,” Razore, 66 F.3d
5
Given the requirement that damages not be speculative, remote or conjectural, Sebena, 280 Mont.
at 309, 930 P.2d at 53, it is difficult to comprehend how damages can be calculated prior to
completion of CERCLA remedial efforts for those areas of compensation ARCO does not contest.
See New Mexico, 467 F.3d at 1250. That issue, however, is not before the Court.
34
at 239, it constitutes a challenge to the CERCLA cleanup effort and the District Court is
divested of jurisdiction.
¶51 Property Owners assert claims based on contamination to properties located within
the legally defined boundaries of a federal Superfund site. The EPA issued its first
administrative order to ARCO in 1984, which required ARCO to perform a site-wide
RI/FS. Following completion of the study in 1987, the EPA divided the Smelter Site into
five major sections called Operable Units, each relating to different cleanup remedies.
Property Owners seek to restore land contained within several of these sections. The EPA
continues its cleanup efforts in the designated area consistent with its selected remedies.
The EPA estimates that active remediation of the Smelter Site will not be completed until
2025. ARCO filed affidavits and reports from its expert, Richard E. Bartlett, supporting
its position that cleanup is ongoing and that as recently as 2016 residential soils and pasture
were being cleaned to remove arsenic. ARCO also filed an Administrative Order on
Consent, entered pursuant to CERCLA, that set forth how the cleanup effort was to
proceed. As a result of monitoring and reexamination, the EPA has made amendments to
its cleanup plan, primarily to incorporate the federal drinking water standard for arsenic
from 18 ppb to 10 ppb. The EPA also added the action level for lead in 2013. The EPA
asserts that it continues to monitor, modify, and reexamine remedies since the remedial
plan was first implemented, which may result in additional amendments. Once the EPA
remedy is completed on the Property Owners’ land, the soil will be capped or backfilled
with clean soil, vegetation, or other protective barrier. ARCO and the EPA maintain that
tearing up the protective cap or layer of soil could increase dust transfer, bioavailability of
35
lead, and soil ingestion—all of which were concerns addressed by the EPA when it initially
designed the cleanup plan. ARCO has filed affidavits and expert reports in support of its
position. ARCO, the State, and local governments are currently negotiating a final
site-wide consent decree that will encompass all remaining remedies and cleanup work to
be conducted at the Smelter Site.
¶52 Property Owners propose a different cleanup or restoration plan. Property Owners
do not dispute that their properties are located within the boundaries of the Superfund site.
Nor do Property Owners dispute that they seek “full restoration” of their property, which
is different from that selected by the EPA. Although Property Owners and this Court
conclude, without any analysis, that Property Owners are not seeking to “stop, delay, or
change the work EPA is doing,” Opinion, ¶ 15, the Property Owners’ plan is plainly
contrary to the EPA’s remediation plan. See, e.g., New Mexico, 467 F.3d at 1249-50;
MESS, 47 F.3d at 329. Property Owners’ experts, Richard Plaus and John Kane, advocate
a lower level of arsenic in the soil than that proposed by the EPA. Property Owners propose
excavating the soil to a deeper level and suggest the excavated soil be transported to
Spokane, rather than local depositories. Property Owners also propose that a series of
underground trenches and barriers be constructed to capture and treat shallow groundwater.
The reactive barriers proposed by Property Owners would be 8,000 feet long, 15 feet deep,
3 feet wide, and situated upgradient of the town. The barriers would contain enzymes
designed to remove arsenic in the water, which the EPA maintains could unintentionally
contaminate both ground and surface water.
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¶53 A district court must determine whether the complaint states facts that, if true, would
vest the court with subject-matter jurisdiction. Meagher v. Butte-Silver Bow City-County,
2007 MT 129, ¶ 13, 337 Mont. 339, 160 P.3d 552. Summary judgment should be granted
“‘if the pleadings, depositions, answers to interrogatories, and admissions on file,’ together
with any affidavits demonstrate that no genuine issue exists as to any material fact and that
the party moving for summary judgment is entitled to judgment as a matter of law.” Stipe
v. First Interstate Bank-Polson, 2008 MT 239, ¶ 10, 344 Mont. 435, 188 P.3d 1063
(quoting M. R. Civ. P. 56(c)). A defending party may be entitled to summary judgment on
a certain type or category of damages. See Corporate Air v. Edwards Jet Ctr. Mont., Inc.,
2008 MT 283, ¶ 54, 345 Mont. 336, 190 P.3d 1111. Here, at the risk of stating the obvious,
Property Owners request in their Third Amended Complaint “full restoration” of their
properties while a restoration-based remedial plan selected by the EPA is being
implemented. In addition, the affidavits and reports of each party’s expert witnesses
establish as a matter of law that Property Owners’ claim for restoration damages challenges
the EPA’s selected remedial action and that the cleanup is still ongoing. Indeed, the
undisputed evidence shows the EPA rejected the soil and groundwater remedies proposed
by Property Owners during the course of the EPA’s regulatory deliberations at the Smelter
Site. In my opinion, the District Court erred, as a matter of law, in concluding that Property
Owners’ claim for restoration damages did not constitute a challenge to the remedial action
plan chosen by the EPA.
¶54 I dissent from the Court’s conclusion that Property Owners’ claim for restoration
damages is not barred pursuant to the provisions of § 113(h). The issue before this Court
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is one of subject-matter jurisdiction which, if lacking, bars Property Owners from
proceeding to trial on their claim for restoration damages. I would reverse because there
is no genuine dispute of fact that Property Owners’ restoration claim conflicts with the
ongoing EPA investigation and CERCLA cleanup.6 The District Court, as a matter of
federal law, lacks subject-matter jurisdiction to consider Property Owners’ claim for
restoration damages.
/S/ LAURIE McKINNON
6 The question of whether Property Owners’ claim for restoration damages constitutes a challenge
to CERCLA cleanup efforts is pivotal to resolution of many issues in this case. For example, in
New Mexico, 467 F.3d at 1250, the Tenth Circuit, having found that CERCLA’s cleanup efforts
were ongoing, determined that damages for common law public nuisance and negligence must be
addressed at the conclusion of the EPA-ordered remediation. “Only then will we know the
effectiveness of the cleanup and the precise extent of residual damage.” New Mexico, 467 F.3d at
1250. Accordingly, I would not address ARCO’s contention, at this juncture, that Property Owners
are PRPs under 42 U.S.C. § 9622(e)(6) (CERCLA § 122(e)(6)) and therefore precluded from
proceeding with their chosen remedy.
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