Document 65wKoKK35O9oZro2ZEdymvmZg
____
____
IN THE SUPREME COURT OF THE STATE OF MONTANA
OP 16-0555
FILED
12/09/2016
T c i Srii it i
CLERK OF THE SUPREME COURT STATE OF MONTANA
ATLANTIC RICHFIELD COMPANY Petitioner,
v.
MONTANA SECOND JUDICIAL DISTRICT COURT, SILVER BOW COUNTY, THE HONORABLE KATHERINE M. BIDEGARAY Respondent,
UNITED STATES' AMICUS BRIEF
DEC 0 9 2016
(EdSrmth
i PRK OF THE SUPREME COUR'! STATE OF MONTANA
JOHN C. CRUDEN Assistant Attorney General United States Department of Justice MATTHEW R. OAKES United States Department of Justice Environment and Natural Resources Division P.O. Box 7415 Ben Franklin Station Washington, DC 20044 Telephone: (202) 514-2686 Fax: (202)514-4231
MICHAEL W. COTTER United States Attorney VICTORIA FRANCIS Assistant United States Attorney District of Montana U.S. Courthouse 2601 Second Ave. North Billings, MT 59101 Telephone: (406) 247-4633 Fax: (406) 657-6989
Attorneys for Amicus Curiae United States of America
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TABLE OF CONTENTS
Statement of the Case.....................................................................
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Statement Of Issues............................................................................................................................... 1
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Statement of Facts................................................................................................................................ 1
Standard of Review ...............................................................................................................................3
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Summary of Argument.......................................................................................................................... 3
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Argument.................................................................................................................................................. 5
I. Section 113(h) of CERCLA Prohibits the Landowners' Claim for Restoration Damages...... 6
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A. The Landowners' Restoration Damages Claim Is an Impermissible Challenge to
EPA's Ongoing Cleanup o f the Anaconda Smelter Site............................................................... 6
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B. As a Factual and Practical Matter, Implementing the Landowners' Remedy Will
Undermine EPA's Ability to Implement Its Own Remedy......................................................... 13
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C. Section 113(h) Bars the Landowners' Restoration-Damages Claim Irrespective of
CERCLA's Savings Clauses............................................................................................................18
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II. Principles o f Conflict Preemption Independently Bar the Landowners' Restoration-
Damages Remedy..................................................................................................................................19
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III. Even if Plaintiffs' Claims Were Otherwise Permissible, the Relief They Seek May Be
Barred Under CERCLA Section 122(e)(6)....................................................................................... 21
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CONCLUSION.........................................................................................................................................23
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TABLE OF AUTHORITIES
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Cases
ARCO Envtl. Remediation, L.L.C. v. D ep 't o f Health & Envtl. Quality,
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213 F.3d 1108 (9th Cir. 2 0 0 0 ).............................................................
Anacostia Riverkeeper v. Wash. Gas Light Co.,
892 F. Supp. 2d 161 (D.D.C. 2 0 1 2 )....................................................
Beck v. Atl. Richfield Co., 62 F.3d 1240 (9th Cir. 1995) ...............................................................
Broward Gardens Tenants Ass 'n v. U.S. ERA, 311 F.3d 1066 (11th Cir. 2 0 0 2 )...........................................................
Cannon v. Gates, 538 F.3d 1328 (10th Cir. 2 0 0 8 )...........................................................
Chubb Custom Ins. Co. v. Space Sys., 710 F.3d 946 (9th Cir. 2013) ...............................................................
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DiamondXRanch, L.L.C. v. Atl. Richfield Co.,
51 F. Supp. 3d 1015 (D. Nev. 2 0 1 4 )...................................................
Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963) ..............................................................................
Fort Ord Toxics Project, Inc. v. Cal. EPA, 189 F.3d 828 (9th Cir. 1 9 9 9 )................................................................
Hanford Downwinders Coal. v. Dowdle, 71 F.3d 1469 (9th Cir. 1 9 9 5 )................................................................
Hines v. Davidowitz, 312 U.S. 52 (1941) ................................................................................
McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325 (9th Cir. 1995) ..................................................................
New Mexico v. GE, 467 F.3d 1223 (10th Cir. 2 0 0 6 )............................................................
Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591 (20 1 5 )...........................................................................
PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610 (7th Cir. 1998) ................................................................
Pakootas v. Teck Cominco Metals, Ltd., 646 F.3d 1214 (9th Cir. 2011) ..............................................................
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7, 9 ,1 0 ........19 ....... 10 ...... 10 ....... 10 ........12 ..........9 ....... 19 ..... 8, 9 .......10 .......19 7, 9, 17 ...8,10
..... 20
.......18 ...... 10
fe a s t*
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Razore v. Tulalip Tribes,
66 F.3d 236 (9th Cir. 1 9 9 5 )................................................................................................ 9 ,1 0 ,1 8
Schalk v. Reilly, 900 F.2d 1091 (7th Cir. 1 9 9 0 )......................................................................................................... 8
Tohono O 'odham Nation v. City o f Glendale, 804 F.3d 1292 (9th Cir. 2 0 1 5 ).......................................................................................................20
Town o fActon v. WR. Grace Co., No. 13-12376-DPW, 2014 WL 7721850 (D. Mass. Sept. 22, 2014) .........................................9
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United States v. City & Cty. o f Denver, 100 F.3d 1509 (10th Cir. 1 9 9 6 )................................................................................................ 9, 20
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United States v. Gonzales, 520 U.S. 1 (1 9 9 7 )......................... ...................................................................................................11
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United States v. James, 478 U.S. 5 9 7 (1 9 8 6 ).......................................................................................................................11
Villegas v. United States,
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926 F. Supp. 2d 1185 (E.D. Wash. 2 0 1 3 ).................................................................................... 10
Voluntary Purchasing Groups, Inc. v. Reilly,
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889 F.2d 1380 (5th Cir. 1989) .........................................................................................................8
State Cases:
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Lampi v. Speed,
261 P.3d 1000 (Mont. 2 0 1 1 )............................................................................................................ 6
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O 'Neal v. D ep 't o f the Army,
742 A.2d 1095 (Pa. Super. Ct. 1999).............................................................................................. 8
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Sunburst Sch. Dist. No. 2 v. Texaco, Inc.,
165 P.3d 1079 (Mont. 2 0 0 7 )............................................................................................................ 6
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Constitution
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U.S. Const, art. VI, cl. 2 ........................................................................................................................ 20
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Statutes 42 U.S.C. 9601(35)(A ).........................................................................................................................23
42 U.S.C. 9 6 0 4 ................................................................................................................................... 3 ,6
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42 U.S.C. 9606(a) ............................................
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42 U.S.C. 9607(a)(1).......................................
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42 U.S.C. 9607(b)(3) ......................................
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42 U.S.C. 96 0 7 (q )............................................
42 U.S.C. 9 6 1 3 ..................................................
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42 U.S.C. 9613(b) ............................................
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42 U.S.C. 96 1 3 (h )............................................
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42 U.S.C. 9614(a) .............................................
42 U.S.C. 9621(a) .............................................
42 U.S.C. 9621(d) .............................................
42 U.S.C. 9622 ..................................................
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42 U.S.C. 9 6 52(d ).............................................
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42 U.S.C. 9659 ..................................................
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42 U.S.C. 9 6 59(h ).............................................
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Miscellaneous
132 Cong Rec. SI4929 (daily ed. Oct. 3, 1986)
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...3 8,9 passim ....... 19 ......20 . 20, 21 passim ...... 18 ......12 ...... 19
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Statement of the Case
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In an October 5, 2016, order this Court invited the United States
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Environmental Protection Agency (EPA) to file this amicus brief, addressing
whether the Comprehensive Environmental Response, Compensation, and Liability
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Act (CERCLA) bars or otherwise prevents a claim for restoration damages under
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Montana law that a group of 98 landowners has filed against the Atlantic Richfield
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Company (ARCO).
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Statement Of Issues
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Does CERCLA bar the landowners' claim for restoration damages?
Statement of Facts
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The United States relies on ARCO's November 17, 2016 brief to set out the
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primary factual and procedural background. In addition, however, we note that
though EPA has been actively responding to hazardous-substance contamination at
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the Site for more than 30 years, significant work remains. This includes cleanup of
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an additional 1,150 residential yards, revegetation of 7,000 acres of upland soils,
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and removal and closure of waste areas, stream banks, and railroad beds. Final
Residential Soils Report, August 7, 2015, available at
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https://semspub.epa.gov/src/document/08/1549208; Fifth Five-Year Review (Sept.
i 25, 2015), Table 10-1 at 10-7 https://semspub.epa.gov/src/document/08/1549381.
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EPA estimates that ARCO will complete this work by approximately 2025, though
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monitoring and maintenance work will continue indefinitely. Fifth Five-Year
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Review, Table 10-7 at 10-58.
Response actions at two of EPA's five Operable Units (OUs) directly impact
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residential yards contaminated with arsenic and lead in Anaconda, Opportunity,
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and the surrounding area; and Anaconda Regional Water, Waste, and Soils
(ARWWS OU), which addresses a variety of soil, surface water, and groundwater t
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contamination issues throughout the Site. See generally Record of Decision,
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Community Soils Operable Unit, Sept. 1996, CSOU ROD; see also Record of
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Decision, ARWWS OU, Sept. 1998 (ARWWS OU ROD).12 EPA considered
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construction of an underground Permeable Reactive Barrier (PRB), similar to the
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barrier proposed by the landowners, along Willow Creek for collecting and treating
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south and east of Opportunity. ARWWS OU ROD Am. 6.4.2.1; ARWWS OU
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ROD Am. Responsiveness Summary 3.0. EPA concluded, however, that this
approach would not necessarily achieve the human health standard in Willow
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Creek and would not eliminate exceedances of arsenic in downstream receiving
1The ARWWS OU ROD is available at http://goo.gl/DWzlpF. t
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waters. Id. 6.4.3.1 & Responsiveness Summary 3.0. EPA also determined that
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it was technically impracticable to reduce arsenic concentrations below 10 ppb in
shallow groundwater in the South Opportunity aquifer. Id. 6.4.1. EPA therefore
did not select below-ground structures to address groundwater arsenic
concentrations.
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Standard of R ev iew
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EPA adopts the Standard of Review set out in Petitioner's brief.
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Summary of Arg u m en t
In CERCLA, Congress narrowly circumscribed when and how to challenge
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remedial actions undertaken by potentially responsible parties to ensure that
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contaminated sites are cleaned up efficiently and without delay. Specifically,
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CERCLA section 113(h) bars "any challenges" to a removal or remedial action
selected under CERCLA section 104. See 42 U.S.C. 9604, 9613. The
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landowners' restoration-damages claim challenges EPA's selected response actions
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at the Site because the landowners would require different cleanup standards and
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actions for soil cleanup, and require installation of underground groundwater
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barriers, which could undermine EPA's cleanup approaches. Section 113(h)
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prohibits this claim because it would impose different response actions than those
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selected by EPA.
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Additionally, the doctrine of conflict preemption independently bars
ARCO's restoration-damages remedy. Congress delegated the President authority
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to set cleanup levels and select response actions. Implementing the landowners'
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restoration-damages remedy would undermine Congress's approach, and aspects of
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the landowners' proposed remedy conflict with EPA's response action. Because
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Congress intended to supersede these types of non-federal remedies, the doctrine
of conflict preemption bars the landowners' proposed cleanup.
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Even if these principles did not bar the landowners' claim, CERCLA section
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122(e)(6), 42 U.S.C. 9622(e)(6), requires EPA authorization of any remedial
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action at a CERCLA site by potentially responsible parties where, as here, EPA has
already initiated a remedial investigation and feasibility study. The landowners
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t* own property at the Site, and the District Court did not properly assess whether the
i landowners are potentially responsible parties under CERCLA. It is likely that
some, if not all, of the landowners are potentially responsible parties. No
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landowner has sought EPA approval to undertake any remedial action at the Site.
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EPA is unlikely to approve the landowners' approach, and no court should assume
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that the landowners' proposed remedy could be implemented. Thus, the
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landowners' proposed remedy is not a reliable basis for an award of restoration
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damages.
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Argument
Over the course of more than three decades, EPA has invested millions of
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dollars in agency resources and thousands of hours of employee time, and has
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required ARCO to spend hundreds of millions more characterizing the Site,
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developing RODs, and cleaning the Site. The remedy-selection process continues
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to respond to public concerns and new data. For example, EPA significantly
amended the RODs in 2011 and 2013 based on new information. The remedy-
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selection and implementation processes account for a wide range of technical,
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scientific, and community concerns.
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EPA's responsibility is to protect human health and the environment based
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on sound science. It is vital that cleanups proceed expeditiously once EPA selects
a remedy. Congress was concerned that consideration of the same broad interests
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that make for a robust remedy-selection process should not work to prevent EPA's
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selected remedy from moving forward.
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Congress included statutory provisions such as CERCLA's section 113(h), 42
U.S.C. 9613(h), and section 122(e), 42 U.S.C. 9622(e), to ensure that an EPA-
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resources accompanying judicial challenge and litigation-based additional cleanup
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requirements and expenses. No matter how well intentioned, any attempt to
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impose conflicting cleanup standards and response actions is prohibited by
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CERCLA.
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I. Section 113(h) of CERCLA Prohibits the Landowners' Claim for
Restoration Damages.
Under Montana law, restoration damages redress an injury to property, and
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may exceed the diminution in market value of property caused by the particular
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injury. See Lampi v. Speed, 261 P.3d 1000, 1004 f 21 (Mont. 2011); see also
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SunburstSch. Dist. No. 2 v. Texaco, Inc., 165 P.3d 1079, 1086-88 28-31, 38
(Mont. 2007). To prevent a windfall, Montana requires a plaintiff asserting a claim
for restoration damages to show that any award of such damages will actually be
used to abate the injury. Sunburst, f 40-43; Lampi, f 31. The landowners' claim
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for restoration damages poses a prohibited challenge because it would (1) impose
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more stringent cleanup levels, (2) impose additional requirements, and (3) require
approaches to groundwater remediation and soil disposal that directly conflict with
EPA's ROD.
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A. The Landowners' Restoration Damages Claim Is an Impermissible
Challenge to EPA's Ongoing Cleanup of the Anaconda Smelter Site.
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The section 113(h) bar applies to any claims that in their effect "challenge[]
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any removal or remedial action selected under section 9604 of this title" or seek
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"to review any order under section 9606(a) of this title." 42 U.S.C. 9613(h). The
Ninth Circuit has found this language to be "clear and unequivocal," and
"amounting] to a blunt withdrawal of... jurisdiction" for "any challenges" to an
ongoing CERCLA response action, including any attempt to interfere with,
strengthen, or control the cleanup or remedy. McClellan Ecological Seepage
Situation, 47 F.3d 325, 328 (9th Cir. 1995) (internal citations omitted). Congress
chose to prioritize expeditious cleanup of hazardous substances and to ensure that
litigation would not interfere with such cleanup actions.
The District Court here held that the restoration-damages claim could
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proceed to trial because a claim challenges EPA's cleanup "only if the relief sought
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alters the ROD or terminates or delays the EPA-mandated cleanup." August 30
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Slip Op. at 9 (emphasis added) (citing ARCO Envtl. Remediation, L.L. C. v. Dep't
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o fHealth & Envtl. Quality, 213 F.3d 1108, 1115 (9th Cir. 2000)). This holding is
erroneous, mischaracterizes Ninth Circuit law, and reflects an overly narrow view
of section 113(h). In the case cited by the District Court, ARCO Environmental
Remediation, the Ninth Circuit held only that a claim regarding the right to access
public information about a cleanup was not a "challenge" because that claim was w
not, in any way, related to the goals of the challenged cleanup. Id. The Ninth
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113(h). Rather, it recognized, in dicta, that termination or delay of an EPA-
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mandated cleanup was sufficient to trigger the section 113(h) bar.2See 213 F.3d at
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1115.
The District Court should have dismissed the restoration-damages claim.
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Most courts have correctly concluded that any suit that will "impact the
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implementation" of the government's selected CERCLA response action
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constitutes a "challenge" within the meaning of section 113(h). See Schalk v.
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Reilly, 900 F.2d 1091, 1094 (7th Cir. 1990). While Congress did not intend to bar
all state-law claims related to hazardous substances, see New Mexico v. Gen. Elec.
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Co., 467 F.3d 1223, 1243-44 (10th Cir. 2006) (citing cases), many courts have
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correctly found that Congress did intend to bar attempts to apply any law that even
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indirectly works to control, alter, or interfere with an EPA-selected remedy, or that
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2 Section 113(h) states that "[n]o Federal court shall have jurisdiction ... under State law ...to review any challenges to removal or remedial action ...." 42
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U.S.C. 9613(h) (emphasis added). The landowners did not argue in district court that section 113(h) is inapplicable to state courts, but state courts, like federal
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courts, lack subject matter jurisdiction to decide claims like the landowners' restoration damages claim. CERCLA section 113(b) gives "the United States
district courts" "exclusive original jurisdiction over all controversies arising under
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[CERCLA] ...." Id. 9613(b). The Ninth Circuit has explained that section 113(h)
speaks in terms of actions brought in federal courts because Congress required
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CERCLA controversies be litigated in federal courts. See Fort Ord Toxics Project,
Inc. v. Cal. EPA, 189 F.3d 828, 832 (9th Cir. 1999); see also O 'Neal v. Dep't o f the
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Army, 742 A.2d 1095, 1100-01 (Pa. Super. Ct. 1999).
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otherwise affects the goal of the remedy. See McClellan, 47 F.3d at 330. Even
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claims that purport to strengthen EPA's selected remedy are barred. Id.; see also
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United States v. City & County o fDenver, 100 F.3d 1509, 1513-14 (10th Cir.
1996) (zoning requirements barred); Town o fActon v. W.R. Grace Co., No. 13-
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groundwater cleanup standards barred).
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A "challenge" includes actions that are "related to the goals of the cleanup."
Razore v. Tulalip Tribes o f Wash., 66 F.3d 236, 239 (9th Cir. 1995). Courts have
even barred claims seeking to enforce other federal laws and state laws that attempt
to supplement EPA's CERCLA remedy. See, e.g., DiamondXRanch, LLC v. Atl.
Richfield Co., 51 F. Supp. 3d 1015, 1021 (D. Nev. 2014). The Ninth Circuit has
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made clear that the prohibition of section 113(h) applies equally to both federal and
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state actions because "Congress did not intend to preclude dilatory litigation in
federal courts but allow such litigation in state courts." Fort Ord, 189 F.3d at 832;
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see also ARCO Envtl. Remediation, LLC, 213 F.3d at 1115; McClellan, 47 F.3d at
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328; 42 U.S.C. 9613(b).
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In McClellan, the Ninth Circuit ruled that a suit seeking to impose additional
reporting requirements would "second-guess" EPA's determination and interfere
with the remedial action selected, and was accordingly barred by section 113(h).
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47 F.3d at 329-30. Similarly, in Razore, the court held that section 113(h) barred
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the plaintiffs' claims regarding EPA's cleanup of a former landfill, which
amounted to an "attempt to dictate specific remedial actions and to alter the
method and order for cleanup." 66 F.3d at 239-40; see also Pakootas v. Teck
Cominco Metals, Ltd., 646 F.3d 1214, 1220-23 (9th Cir. 2013); Hanford
Downwinders Coal., Inc. v. Dowdle, 71 F.3d 1469, 1482 (9th Cir. 1995); Beck v.
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Atl. Richfield Co., 62 F.3d 1240, 1243 (9th Cir. 1995); ARCOEnvtl. Remediation,
LLC, 213 F.3d at 1115; Villegas v. United States, 926 F. Supp. 2d 1185, 1196
(E.D. Wash. 2013) ("CERCLA's broad jurisdictional bar applies to any suit that
challenges any aspect of a CERCLA removal or remediation action, regardless of
whether the suit purports to be based on CERCLA."). Other circuits have reached
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similar holdings. The Tenth Circuit held that a state public-nuisance and
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negligence suit seeking an unrestricted award of money damages was barred by
section 113(h). New Mexico, 467 F.3d at 1249-50; see also Broward Gardens
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Tenants Ass 'n v. EPA, 311 F.3d 1066, 1073 (11th Cir. 2002); Cannon v. Gates, 538
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F.3d 1328, 1335-36 (10th Cir. 2008).
The District Court incorrectly distinguished the Tenth Circuit's decision by
drawing a distinction between common-law and statutory claims. Aug. 30 Slip Op.
L at 10. But CERCLA section 113(h) does not focus on the nature of the underlying
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cause of action. Rather, it requires courts to assess the impact of the non-federal
remedy (here, the restoration-damages claim) to determine if that remedy poses a
prohibited "challenge." See 42 U.S.C. 9613(h). New Mexico, along with
McClellan, Razore, and the other cases cited above, shows how courts have
L assessed what constitutes a prohibited challenge. While many common-law claims
! survive, the express statutory language of CERCLA makes clear that no claim
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survives if it seeks to challenge or has the effect of challenging EPA's ROD.
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These readings of the scope of section 113(h) are dictated by the broad
language used by Congress. Congress emphatically barred "any challenges to
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removal or remedial action ...in any action," 42 U.S.C. 9613(h) (emphasis
added); and the United States Supreme Court recognizes the comprehensive scope
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of the term "any." See United States v. Gonzales, 520 U.S. 1, 5 (1997) ("Read
naturally, the word `any' has an expansive meaning, that is, `one or some
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indiscriminately of whatever kind.'"); see also United States v. James, 478 U.S.
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597, 605 (1986) ("Congress' choice of the language `any damage' and `liability of
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any kind' further undercuts a narrow construction" (emphasis in original)). The
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sweeping nature of Congress's word choice supports a broad reading of the
language of section 113(h).
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Legislative history also supports a broad reading of section 113(h). The
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Chairman of the Senate Judiciary Committee explained:
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The timing of review section is intended to be comprehensive. It
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covers all lawsuits, under any authority, concerning the actions that
are performed by EPA. The section covers all issues that could be
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construed as a challenge to the response, and limits those challenges
to the opportunities specifically set forth in the section.
l 132 Cong. Rec. SI4929 (daily ed. Oct. 3, 1986). Such an intent to prohibit review
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of "all lawsuits" under "any authority," and to cover "all issues," supports the
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conclusion that section 113(h) bars the landowners' challenge to EPA's ROD.
Finally, actions challenging EPA cleanups would discourage the type of
final settlements that Congress sought to foster in enacting CERCLA. See 42
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U.S.C. 9622; see also Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d
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946, 971 (9th Cir. 2013). The main incentive for a responsible party to enter into a
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CERCLA consent decree with the United States is to fix the party's cleanup
obligations. Parties have less incentive to settle if they are subject to potentially
conflicting or additional cleanup obligations.
Importantly, Congress also provided mechanisms to challenge EPA's ROD.
Those mechanisms are listed in section 113(h). For example, if the landowners
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believe that EPA's remedy is not sufficiently protective, they may bring a citizen
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suit under 42 U.S.C. 9659. See id. 9613(h)(4). By barring litigation that
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challenges a cleanup plan, section 113(h) ensures that EPA, state agencies, and
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potentially responsible parties participating in a cleanup can develop and
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implement an adequate and fully realized cleanup plan.
B. As a Factual and Practical Matter, Implementing the Landowners'
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Remedy Will Undermine EPA's Ability to Implement Its Own Remedy.
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In the prior section, we address law surrounding the nature of a "challenge"
under section 113(h). Here, we focus on how the landowners' claim impacts
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EPA's remedy at the Site. Under Montana law, the landowners must use any
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restoration-damages award to restore the affected properties. It follows that
obtaining restoration damages under state law necessarily means implementing a IBW
cleanup action different from the one selected by EPA. The landowners' experts
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take issue with the cleanup standards selected by EPA, seeking to apply a soil
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action level of 8 ppm for arsenic rather than the 250 ppm level set by EPA. The
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landowners' experts also proposed actions that differ from those EPA has required,
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including: (1) excavating to two feet rather than EPA's chosen depth of 18 inches
within residential areas; (2) transporting the excavated soil to Missoula or Spokane
i rather than to local repositories, as required by EPA; and (3) constructing a series
i
of underground trenches and barriers for capturing and treating shallow
l
groundwater. The landowners' experts' reports are not detailed, but do indicate
i
that aspects of those plans are a dramatic departure from EPA's ROD
13
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Sierra Club v. EPA 18cv3472 NDCA
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ED 002061 00114799-00018
requirements. Given the ongoing cleanup at the Site, the landowners bear the
burden of showing consistency with section 113(h)--any missing details weigh in
favor of dismissing the landowners' claim.
The District Court, disregarding the 1150 properties that remain to be
L cleaned, appeared to rely heavily on ARCO's representation that the cleanup of the
i
landowners' residential yards will be finished by November 1, 2016, to support its
i
$.
conclusion that the landowners' supplemental restoration requirements will not
L
interfere with ongoing ROD requirements. Aug. 30 Slip Op. at 8. The District
Court's conclusion ignores the full impact of permitting the restoration claim to go
*
forward. Allowing individual property owners to divert cleanup resources from
L
the implementation of EPA's ROD is a direct conflict with EPA's cleanup process.
L
Goals of the CSOU ROD, for example, include minimization of dust transfer,
l
bioavailablity of lead, and soil ingestion. CSOU ROD Am. at 11-11. Once the
EPA remedy at the landowners' properties is complete, the completed yards are
L
either capped or backfilled with clean soil. See, e.g., CSOU ROD Am. 11-18 - II-
L
19 (setting residential-soils requirements including a "soil swap" and ensuring
L
"replacement with clean soil and a vegetative ...or other protective barrier").
Tearing up that protective cap or layer of soil directly impacts EPA's chosen
L remedy and could expose the neighborhood to an increased risk of dust transfer or
L
14
L
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Sierra Club v. EPA 18cv3472 NDCA
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ED 002061 00114799-00019
i
contaminant ingestion. Offsite disposal of excavated soil would also increase the
t
risk of dust transfer or contaminant ingestion, as well as the safety of the traveling
l
public. Even if the landowners attempt to coordinate their efforts with EPA, their
involvement would slow the implementation and timeline of EPA's ROD and
L
increase the agency's costs. The District Court's analysis wrongly assumed that
!
m
the restoration on the Site proposed by the landowners' experts could proceed
i
without risk or consequence. See Aug. 30 Slip Op. at 8. Additionally, even if EPA
L
could coordinate with the landowners, recognizing this claim could lead to more
claims affecting hundreds of thousands of additional contaminated acres.
L
The landowners' proposal to install underground reactive barriers is plainly
L
inconsistent with EPA's cleanup, and may pose even greater risks. First, it is
important to understand that water from domestic wells in the town of Opportunity l
L
is generally clean and drinkable, due to natural conditions in the deep underground
aquifer accessed by the wells, and to hydraulic controls (a drain-tile system) that
i
intercept arsenic contamination in shallow groundwater beneath the town of
L
Opportunity. ARWWS ROD Am. at 6.4.1. If conditions change, EPA can take
L
additional actions that it deems appropriate to protect human health and the
environment based on what it learns through monitoring. ARWWS ROD Am. at
I I
6.4.5.
5
L
15
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Sierra Club v. EPA 18cv3472 NDCA
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ED 002061 00114799-00020
By contrast, the landowners would build several underground permeable
L
reactive barriers. Kane Rep., Opinion 4(b), at 10. These barriers, intended to treat
L
shallow groundwater moving toward Opportunity, would be 8,000 feet long, 15
feet deep, three feet wide, and situated upgradient o f the town. Id. Shorter barriers
L would be placed upgradient of individual landowners' properties. Id. These
barriers could change the groundwater flow in unpredictable ways, which could
L
impact current hydraulic controls. The barriers proposed by the landowners'
L
experts contain elements and enzymes that supposedly strip arsenic in water but
could unintentionally contaminate groundwater and surface water. Id. In other
L words, the landowners' remedy could upset a balance that currently protects
I li
human health and the environment. Additionally, if EPA sampling detects
L
elevated contamination following landowners' installation of underwater barriers,
L
EPA will not be able to determine whether the contamination was impacted by the
landowners' project, complicating potential remedial options. If other property
L*
owners later filed similar claims and demanded construction of additional
i
structures not envisioned by the ROD the situation becomes even more complex.
L
Congress's approach, requiring one coordinated cleanup, helps ensure a protective
L
remedy, minimizes these types of risks, and avoids ad hoc addition of potentially
competing cleanup measures. The District Court took far too narrow a view of the
L
16
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Sierra Club v. EPA 18cv3472 NDCA
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ED 002061 00114799-00021
impact of the scope of a prohibited challenge--looking primarily to whether the
L
landowners "seek to alter the ROD" or "change any of the requirements that the
L
EPA has imposed upon ARCO." August 30 Slip Op. at 9.
L
CERCLA cleanups are often iterative in that EPA uses data obtained during
the remedial investigation and early monitoring to inform subsequent adjustments
t
to its cleanup plan. E.g., CSOU ROD Am. Part II 3.0 (describing how data
i
obtained through sampling implemented under the original CSOU ROD led EPA
to add lead remediation to its soil cleanup). Lawsuits that seek to impose different
or additional remedial actions while a cleanup is in progress not only would result
L in diversion of limited government resources and delay of EPA's cleanup efforts
M
contrary to Congress's intent, McClellan, 47 F.3d at 329, but also would force the
parties to litigate the details of a cleanup plan that may not be final.
Not only would the landowners set a new remedial goal for soils (8 ppm for
arsenic, compared to the 250 ppm ROD standard), they would achieve their goals
L
through different methods. As in McClellan, the landowners' experts advocate
L
remediation levels that are "directly related to the goals" and methods of the
cleanup of the Site prescribed by EPA. Section 113(h), however, does not allow
Ml
the landowners to use their state-court lawsuit to supplement EPA's selected j
response-action cleanup levels.
L
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Sierra Club v. EPA 18cv3472 NDCA
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ED 002061 00114799-00022
i
C. Section 113(h) Bars the Landowners' Restoration-Damages Claim
Irrespective of CERCLA's Savings Clauses.____________________
m
The District Court relied on CERCLA's savings clauses in holding that
L
section 113(h) did not bar the landowners' restoration-damages claim. Aug. 30
L
Slip Op. at 5-8. No savings clause, however, shields the landowners' restoration-
L
damages claim. Section 302(d) of CERCLA, which provides in part that
"[njothing in this chapter shall affect or modify in any way the obligations or
L liabilities of any person under other Federal or State law, including common law,"
42 U.S.C. 9652(d), is not in conflict with section 113(h). As the Ninth Circuit
stated in Razore, "[t]he temporary bar to citizen enforcement does not change [a
L
potentially responsible party's] `obligations or liabilities'" under other statutes. 66
F.3d at 240. Moreover, reading section 302(d) to govern the interpretation of
i
section 113(h) "would effectively write [section 113(h)] out of the Act," a result
y
that would be contrary to the court's "duty to give effect, if possible, to every
clause and word of a statute." Id. (alteration in original) (citations omitted). As
the Seventh Circuit has pointed out, while "federal environmental laws [were] not
intended to wipe out the common law of nuisance," section 302(d) "must not be
used to gut provisions of CERCLA." PMC, Inc. v. Sherwin- Williams Co., 151
F.3d 610, 618 (7th Cir. 1998).
I I* Sierra Club v. EPA 18cv3472 NDCA
18
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ED 002061 00114799-00023
i
Two other provisions of CERCLA, sections 114(a) and 310(h), also contain
B
savings provisions, but neither provision trumps the limitations Congress set out in
section 113(h). 42 U.S.C. 9614(k), 9659(h). Section 310(h) provides that the
w
statute "does not affect or otherwise impair the rights of any person under Federal,
State, or common law, except with respect to the timing o f review as provided in
i
section [113(h)] o f this title" 42 U.S.C. 9659(h) (emphasis added). The express
language of this savings clause demonstrates the primacy of section 113(h). See
L
Anacostia Riverkeeper v. Wash. Gas Light Co., 892 F. Supp. 2d 161, 171 (D.D.C.
2012). Section 114(a) likewise contains no language that would overcome the
limitations Congress set out in section 113(h). This case presents a perfect
example of how these provisions interrelate. CERCLA does not bar all of the
landowners' state-law claims - only the landowners' claim for restoration
damages.
II. Principles of Conflict Preemption Independently Bar the Landowners'
L
Restoration-Damages Remedy.
If there is a conflict between federal and state cleanup standards, federal law
prevails where it is "a physical impossibility" to comply with both the federal and
state mandates, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-
L
43 (1963), or where state law "stands as an obstacle to the accomplishment and
L
execution of the full purposes and objectives of Congress," Hines v. Davidowitz,
19
Sierra Club v. EPA 18cv3472 NDCA
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ED 002061 00114799-00024
i i
L
312 U.S. 52, 67 (1941). Where state action conflicts with a CERCLA cleanup,
L
state cleanup standards are preempted. See City & County o fDenver, 100 F.3d at
1512-14. Even if section 113(h) did not bar the landowners' restoration damages
L
claim, the doctrine of conflict preemption, grounded in the Supremacy Clause,
U.S. Const, art. VI, cl. 2, independently bars the landowners" restoration-damages
L
remedy here. See generally Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1594-95
I
(2015).
L
In conducting a preemption analysis, two bedrock principles guide the
courts: (1) the purpose of Congress; and (2) "the assumption that the historic police
powers of the States were not to be superseded by the Federal Act unless that was
the clear and manifest purpose of Congress." Nation v. City o f Glendale, 804 F.3d
L
1292, 1298 (9th Cir. 2015) (citing Wyeth v. Levine, 555 U.S. 555, 565 (2009)).
Congress, in CERCLA, established how EPA should determine the degree of
cleanup at a site, including how EPA should consider non-federal standards (such
as state standards) in selecting the final cleanup level. See 42 U.S.C. 9621(d).
L
Congress was clear that the President or his delegates were responsible for remedy
I,
selection, after considering state-law cleanup standards and a host of other factors.
L
See id. 9621(a). Allowing the landowners' restoration-damages claim to proceed
L
20
Sierra Club v. EPA 18cv3472 NDCA
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ED 002061 00114799-00025
cannot be reconciled with that congressionally mandated approach for
L
consideration of state and local requirements.
Aspects of the landowners' restoration plan also conflict with EPA's RODs
vism
or could make those remedies difficult or impossible to achieve, as discussed more
fully in argument section I-B. For example, the landowners' proposed construction
L
of a series of underground barriers could divert groundwater in several areas of
concern, which are subject to ongoing groundwater-monitoring efforts under
L
EPA's selected cleanup plan. Additionally, the same excavated soil cannot be
transported to EPA-approved onsite repositories, as provided for in the CSOU
ROD, and also be transported to Missoula or Spokane, as required in the
landowners' restoration plan.3 This is the type of uncoordinated response that
L
CERCLA section 121(d), 42 U.S.C. 9621(d), was designed to prevent.
III. Even if Plaintiffs' Claims Were Otherwise Permissible, the Relief They
L
Seek May Be Barred Under CERCLA Section 122(e)(6).
As Congress provided in section 122(e)(6) of CERCLA:
When either the President, or a potentially responsible party ... has
initiated a remedial investigation and feasibility study for a particular
facility under this chapter, no potentially responsible party may
undertake any remedial action at the facility unless such remedial
ii-
m
action has been authorized by [EPA].
f 3Even if the landowners deposit excavated soil onsite, that approach would create additional costs for EPA's cleanup.
L
21
Sierra Club v. EPA 18cv3472 NDCA
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ED 002061 00114799-00026
42 U.S.C. 9622(e)(6). The President has initiated a remedial investigation and
L
feasibility study (RI/FS) for the Anaconda Smelter Site under CERCLA, through
L
EPA securing ARCO's agreement to perform the RI/FS for the various operable
units within the Site. Consequently, no PRP may undertake any remedial action at
L the Site without EPA authorization. See id. 9622(e)(6). EPA has not authorized
the remedial action the landowners appear to seek in their restoration-damages
claim, and therefore neither ARCO nor any landowner PRP may undertake it.
L
Though the landowners seek money damages, those damages presuppose a
subsequent remedy that is unauthorized. EPA is unlikely to approve the cleanup
P
h.
proposed by the landowners because that approach is inconsistent with EPA's
i
RODs for the reasons discussed in sections I-A, I-B, and II o f this brief. Such a
tentative proposal is not a proper basis for a damages award.
CERCLA designates current owners of contaminated property as PRPs, see f
to
42 U.S.C. 9607(a)(1), unless they meet certain requirements, see id. 9607(q).
The District Court improperly concluded that the landowners need to be somehow
L
"declared PRPs" to be considered a potentially responsible party. Aug. 30 Slip Op.
at 15. That conclusion is incorrect, and is untethered to the statutory language.
to
Parties that meet the requirements set out in 42 U.S,C. 9607(a)(1) are, by
L definition, potentially responsible parties--regardless of whether they have
L 22
Sierra Club v. EPA 18cv3472 NDCA
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ED 002061 00114799-00027
b
defenses that could absolve them of liability. Most relevant here are the so-called
"third party" and "innocent landowner" defenses, by which a PRP may show that
the release of hazardous substances was caused solely by "an act or omission of a
third party," id. 9607(b)(3), or that "the disposal or placement of the hazardous
substance" occurred before the PRP acquired the property, id. 9601(35)(A).
to
However, those defenses are defenses to a PRP's liability for cleanup costs.
Section 122(e)(6) prohibits PRPs from initiating a remedial action without EPA
permission.
f.
L
The District Court failed to undertake the proper statutory analysis by
r
focusing on whether the landowners were "potentially responsible parties." The
District Court likewise failed to assess whether any of the 98 landowners qualified
L
as a protected "third party" or "innocent landowner" under the statutory
definitions. Thus, the District Court's conclusion that all 98 landowners are not
L subject to the requirements of CERCLA section 122(e)(6) is fatally flawed.
CONCLUSION
L?
For the foregoing reasons, this Court lacks jurisdiction over, and should
dismiss, the landowners' claim for restoration damages.
i-
b
L
23
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b
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Sierra Club v. EPA 18cv3472 NDCA
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ED 002061 00114799-00028
L D ecember 8,2016
i
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s.
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L in
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Sierra Club v. EPA 18cv3472 NDCA
MATTHEW R. OAKES
, Env't & Natural Res. Div.
(202) 514-2686
matthew.oakes@usdoj .gov
24 Tier 2
ED 002061 00114799-00029
L
L
CERTIFICATE OF SERVICE
I certify that, on this 8th day of December 2016, a copy of the foregoing
document was served by first-class mail to counsel of record for each of the
parties, as set forth below.
L
JONATHAN W. RAUCHWAY
L
Phone: 303.892.7216
Cell: 303.903.3298
Davis Graham & Stubbs LLP
1550 17th Street, Suite 500
Denver, CO 80202
JOHN P. DAVIS PATRICK M. SULLIVAN Poore, Roth & Robinson, PC 1341 Harrison Avenue Butte, MT 59701
MONTE D. BECK, ESQ. JUSTIN P. STALPES, ESQ. LINDSAY C. BECK, ESQ. Beck & Amsden, PLLC 1946 Stadium Drive, Suite 1 Bozeman, Montana 59715 MBeck@becklawyers.com justin@becklawyers.com lbeck@becklawyers.com
TOM L. LEWIS, ESQ.
t
J. DAVID SLOVAK, ESQ.
MARK M. KOVACICH, ESQ.
Lewis, Slovak, Kovacich & Snipes,
P.C.
725 - 3rd Avenue North
P.O. Box 2325
Great Falls, MT 59403
Tom@lsklaw.net
Dave@lsklaw.net
Mark@lsklaw.net
25
Sierra Club v. EPA 18cv3472 NDCA
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ED 002061 00114799-00030
MATTHEW R. OAKES
Sierra Club v. EPA 18cv3472 NDCA
26
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ED 002061 00114799-00031
CERTIFICATE OF COMPLIANCE
i
The foregoing brief uses a monospaced Times New Roman 14 point
typeface. According to the Microsoft Word text counting function, this brief
L
contains 4,999 words. This brief complies with the 5,000 word limit for amicus
L
briefs set by Rule 11(4) of the Montana Rules of Appellate Procedure.
MATTHEW R. OAKES
i Attorney, Env't & Natural Res. Div. (202)514-2686 matthew.oakes@usdoj .gov
L i
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Sierra Club v. EPA 18cv3472 NDCA
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ED 002061 00114799-00032