Petitioners Brief — Atlantic Richfield Company, Petitioner v. Gregory A. Christian, et al.
Supreme Court briefAug 21, 2019
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No. 17-1498
In the Supreme Court of the United States
ATLANTIC RICHFIELD COMPANY, PETITIONER,
v.
GREGORY A. CHRISTIAN, ET AL., RESPONDENTS.
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF MONTANA
BRIEF FOR PETITIONER
ROBERT J. KATERBERG
ELISABETH S. THEODORE
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
JONATHAN W. RAUCHWAY
SHANNON W. STEVENSON
DAVIS GRAHAM & STUBBS
LLP
1550 17th St., Suite 500
Denver, CO 80202
LISA S. BLATT
Counsel of Record
JOHN S. WILLIAMS
SARAH M. HARRIS
CHARLES L. MCCLOUD
MENG JIA YANG
THOMAS S. CHAPMAN
WILLIAMS & CONNOLLY LLP
725 Twelfth St., NW
Washington, DC 20005
(202) 434-5000
lblatt@wc.com
QUESTIONS PRESENTED
In a divided decision that conflicts with decisions of
federal courts of appeals nationwide, the Supreme Court
of Montana held that landowners can pursue common-law
claims for “restoration” requiring environmental cleanups at Superfund sites that directly conflict with EPA-ordered cleanups at these sites. The Montana court reached
that result for one of the largest, oldest, and most expensive Superfund sites in the country, the Anaconda Smelter
site. The court ignored EPA’s views that the Superfund
statute—the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”)—barred
the restoration claims and that respondents’ preferred
remedies would hurt the environment. The state court’s
holding throws remediation efforts at Anaconda and other
massive sites into chaos and opens the door for thousands
of private individuals to select and impose their own remedies at CERCLA sites at a potential cost of many millions of dollars per site.
The questions presented are:
1. Whether a common-law claim for restoration seeking cleanup remedies that conflict with EPA-ordered
remedies is a “challenge” to EPA’s cleanup jurisdictionally barred by § 113 of CERCLA.
2. Whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA’s approval under CERCLA § 122(e)(6) before engaging in remedial action, even if EPA has never ordered the landowner to pay for a cleanup.
3. Whether CERCLA preempts state common-law
claims for restoration that seek cleanup remedies that
conflict with EPA-ordered remedies.
(i)
PARTIES TO THE PROCEEDING
AND CORPORATE DISCLOSURE STATEMENT
Petitioner, who was petitioner below and defendant in
the trial court, is Atlantic Richfield Company. Atlantic
Richfield is a wholly owned subsidiary of BP America Inc.,
which is a wholly owned subsidiary of BP America Limited. BP America Limited is a wholly owned subsidiary of
BP Holdings North America Limited. BP Holdings
North America Limited is a wholly owned subsidiary of
BP p.l.c., which is a publicly held company. Neither Atlantic Richfield Company nor any of its direct or indirect
parent companies other than BP p.l.c. is publicly held.
Respondents, who were counter-petitioners below and
plaintiffs in the trial court, are Gregory A. Christian;
Michelle D. Christian; Duane N. Colwell; Shirley A. Colwell; Franklin J. Cooney; Vicki Cooney; Shirley Coward;
Jack E. Datres; Viola Duffy; Bruce Duxbury; Joyce
Duxbury; Bill Field; Chris Field; Andrew Gress; Charles
Gustafson; Heather Hamilton; Rick Hamilton; Michael
Hendrickson; Patrice Hoolahan; Shaun Hoolahan; Ed
Jones; Ruth Jones; Barbara Kelsey; Brenda Krattiger;
Doug Krattiger; Julie Latray; Leonard Mann; Valerie
Mann; Kristy McKay; Russ McKay; Mildred Meyer; Judy
Minnehan; Ted Minnehan; Diane Morse; Richard Morse;
Karen Mulcahy; Patrick Mulcahy; Nancy Myers; Serge
Myers; Jane Newell; John Newell; George Niland; Laurie
Niland; David Ostrom; Judy Peters; Tammy Peters; Robert Phillips; Toni Phillips; Gary Raasakka; Malissa Raasakka; Alex Reid; Sheila Reid; Kent Reisenauer; Peter
Reisenauer; Sue Reisenauer; Kathryn Rusinski; Emily
Russ; Scott Russ; Carl Ryan; Penny Ryan; Diane Salle;
Rich Salle; Dale Schafer; Michael Sevalstad; Jim Shafford; Rosemarie Silzly; Anthony Solan; Kevin Sorum; Don
Sparks; Vickie Spehar; Zane Spehar; Cara Svendsen;
(ii)
iii
James Svendsen, Jr.; Doug Violette; Carol Walrod;
Charles Walrod; Ken Yates; Sharon Yates; David Zimmer; and Toni Zimmer.
Respondent Montana Second Judicial District Court,
Silver Bow County, the Honorable Katherine M. Bidegaray, was the nominal respondent below.
TABLE OF CONTENTS
Page
Opinions Below ................................................................................ 1
Jurisdiction ...................................................................................... 1
Statutory and Constitutional Provisions Involved ..................... 2
Statement of the Case .................................................................... 3
A. The Anaconda Copper Smelter ....................................... 7
B. CERCLA ............................................................................ 9
C. Cleanup of the Anaconda Smelter Site ........................ 11
D. Proceedings Below .......................................................... 16
Summary of Argument ................................................................ 21
Argument ....................................................................................... 25
I. Section 113 Bars Respondents’ Restoration
Remedy ............................................................................. 25
A. The Montana Courts Lacked Jurisdiction over
Respondents’ Claim for Restoration Damages ... 26
B. The Montana Supreme Court’s Interpretation
of “Challenge” Is Flawed ....................................... 31
II. Section 122(e)(6) Bars Respondents’ Restoration
Remedy ............................................................................. 32
A. Respondents Are “Potentially Responsible
Parties” ..................................................................... 32
B. The Montana Supreme Court’s Interpretation
of § 122(e)(6) Is Flawed .......................................... 35
III. CERCLA Preempts a Restoration Remedy ............... 40
A. Atlantic Richfield’s CERCLA Cleanup
Obligations Directly Conflict with Its Alleged
State-Law Duty ....................................................... 41
B. A Restoration Remedy Conflicts with
CERCLA’s Purposes and Objectives ................... 47
C. CERCLA’s Savings Clauses Do Not Apply ........ 51
Conclusion ...................................................................................... 57
Appendix ........................................................................................ 1a
(iv)
v
TABLE OF AUTHORITIES
Cases:
Ali v. Federal Bureau of Prisons,
552 U.S. 214 (2008) ............................................................ 28
American Electric Power Co. v. Connecticut,
564 U.S. 410 (2011) ............................................................ 49
ARCO Environmental Remediation, L.L.C. v.
Department of Health & Environmental
Quality of Montana,
213 F.3d 1108 (9th Cir. 2000) ..................................... 28, 30
Arizona v. United States, 567 U.S. 387 (2012) ................... 48
AT&T Co. v. Central Office Telephone, Inc.,
524 U.S. 214 (1998) ............................................................ 53
Boarhead Corp. v. Erickson,
923 F.2d 1011 (3d Cir. 1991) ...................................... 28, 32
Broward Gardens Tenants Association v. EPA,
311 F.3d 1066 (11th Cir. 2002) ......................................... 28
Burlington Northern & Santa Fe Railway Co. v.
United States,
556 U.S. 599 (2009) .......................................... 28, 32, 33, 48
Carson Harbor Village, Ltd. v. Unocal Corp.,
270 F.3d 863 (9th Cir. 2001) ............................................. 37
Chicago & North Western Transportation Co. v. Kalo
Brick & Tile Co.,
450 U.S. 311 (1981) ............................................................ 53
Christian v. Atlantic Richfield Co.,
358 P.3d 131 (Mont. 2015) .................................... 19, 29, 55
Cipollone v. Liggett Group, Inc.,
505 U.S. 504 (1992) ............................................................ 43
Clinton County Commissioners v. EPA,
116 F.3d 1018 (3d Cir. 1997) (en banc) ........................... 26
Cooper Industries, Inc. v. Aviall Services, Inc.,
543 U.S. 157 (2004) ............................................................ 33
Crosby v. National Foreign Trade Council,
530 U.S. 363 (2000) ...................................................... 47, 48
El Paso Natural Gas Co. v. United States,
750 F.3d 863 (D.C. Cir. 2014) .......................................... 28
vi
Page(s)
Cases—continued:
English v. General Electric Co.,
496 U.S. 72 (1990) .............................................................. 47
Fort Ord Toxics Project, Inc. v. California EPA,
189 F.3d 828 (9th Cir. 1999) ....................................... 27, 30
Geier v. American Honda Motor Co.,
529 U.S. 861 (2000) ................................................ 47, 52, 53
Hines v. Davidowitz, 312 U.S. 52 (1941) ............................. 47
Maryland v. Louisiana, 451 U.S. 725 (1981) ..................... 41
McClellan Ecological Seepage Situation v. Perry,
47 F.3d 325 (9th Cir. 1995) ............................................... 31
Merck Sharp & Dohme Corp. v. Albrecht,
139 S. Ct. 1668 (2019) ....................................................... 43
Morales v. Trans World Airlines, Inc.,
504 U.S. 374 (1992) ............................................................ 53
Mutual Pharmaceutical Co. v. Bartlett,
570 U.S. 472 (2013) .......................................... 41, 42, 43, 46
New Mexico v. General Electric Co.,
467 F.3d 1223 (10th Cir. 2006) ......................................... 28
PLIVA, Inc. v. Mensing,
564 U.S. 604 (2011) ......................................... 42, 45, 46, 47
Schalk v. Reilly, 900 F.2d 1091 (7th Cir. 1990) .................. 28
Sunburst School District No. 2 v. Texaco, Inc.,
165 P.3d 1079 (Mont. 2007) .................................. 17, 43, 44
Texas & Pacific Railway Co. v. Abilene Cotton Oil
Co., 204 U.S. 426 (1907) .................................................... 53
United States v. Atlantic Research Corp.,
551 U.S. 128 (2007) ...................................................... 32, 36
United States v. Bestfoods, 524 U.S. 51 (1998)............. 28, 36
United States v. Gonzales, 520 U.S. 1 (1997) ..................... 28
United States v. Locke, 529 U.S. 89 (2000) ......................... 52
Virginia Uranium, Inc. v. Warren,
139 S. Ct. 1894 (2019) ....................................................... 48
Wyeth v. Levine, 555 U.S. 555 (2009) ............................ 41, 42
vii
Page(s)
Constitution, statutes, regulations, and rule:
U.S. Const., art. VI .................................................................. 3
15 U.S.C. § 1397(k) (1988) ..................................................... 52
28 U.S.C.
§ 1257(a) ............................................................................... 1
§ 1331 .................................................................................. 27
§ 1332 .................................................................................. 26
42 U.S.C.
§ 9601(9) ............................................................................. 33
§ 9601(20)(A)(ii) ................................................................. 33
§ 9601(24) ........................................................................... 34
§ 9604(a) ............................................................................. 13
§ 9604(a)(1) ........................................................................... 9
§ 9605(a)(8) ........................................................................... 9
§ 9606 .................................................................................. 46
§ 9606(a) ................................................................... 9, 13, 45
§ 9606(b)(1) ........................................................................ 45
§ 9607(a) ............................................................................. 32
§ 9607(a)(1) ......................................................................... 33
§ 9607(a)(4)(A) ................................................................... 54
§ 9607(b) ....................................................................... 37, 39
§ 9607(d)(1) ........................................................................ 39
§ 9613 .............................................................................. 2, 25
§ 9613(a) ............................................................................. 27
§ 9613(b) .................................................................... passim
§ 9613(g)(2)(B) ................................................................... 38
§ 9613(h) ............................................................. 2, 10, 26, 27
§ 9613(k)(2)(B) ................................................................... 37
§ 9613(k)(2)(D) ................................................................... 37
§ 9614(a) ....................................................................... 51, 54
§ 9617(a) ............................................................................. 10
§ 9617(b) ............................................................................. 10
§ 9621 .............................................................................. 9, 48
§ 9621(c).............................................................................. 15
§ 9621(d)(1) ............................................................ 10, 45, 51
§ 9621(d)(2)(A)(ii) .............................................................. 55
viii
Page(s)
Constitution, statutes, regulations, and rule—
continued:
42 U.S.C. (continued)
§ 9621(d)(4) ........................................................................ 55
§ 9622(a) ........................................................... 10, 33, 37, 50
§ 9622(e)(1) ......................................................................... 37
§ 9622(e)(1)(A) ................................................................... 33
§ 9622(e)(6) ................................................................ passim
§ 9622(g)(1)(B) ................................................................... 36
§ 9652(d) ................................................................. 52, 54, 55
§ 9658(a) ............................................................................. 54
§ 9659(h) ............................................................................. 52
Interstate Commerce Act of 1887, Pub. L. No. 49-104,
24 Stat. 379, § 22................................................................ 53
40 C.F.R.
§ 300.425 ............................................................................... 9
§ 300.430(c)(2) .................................................................... 10
§ 300.430(d) .......................................................................... 9
§ 300.430(e) .......................................................................... 9
§ 300.430(e)(9)(iii) .............................................................. 51
§ 300.430(f) ........................................................................... 9
§ 300.430(f)(2) .................................................................... 10
§ 300.430(f)(3) .................................................................... 10
§ 300.430(f)(3)(i)(F) ........................................................... 10
§ 300.430(f)(4) ...................................................................... 9
§ 300.430(f)(4)(ii) ............................................................... 15
§ 300.430(f)(5) ...................................................................... 9
§ 300.435(b)(1) ................................................................... 44
48 Fed. Reg. 40,658 (1983) .................................................... 11
Mont. R. App. P. 14(3) ........................................................... 19
Other authorities:
132 Cong. Rec. 28,430 (1986)
(statement of Sen. Mitchell) ........................................... 34
ix
Page(s)
Other authorities—continued:
Anaconda Smelter Superfund Site,
Anaconda Regional Water, Waste and Soils
Record of Decision (1998) ............................... 12, 14, 18
Community Soils Record of Decision (1996) ..... 13, 14, 15
Community Soils Amended Record of Decision
(2013) ............................................................................. 14
Fifth Five-Year Review (2015) ................................. 12, 15
Black’s Law Dictionary (5th ed. 1979) ............................... 28
Lydia Chavez, When ARCO Left Town, N.Y. Times
(July 25, 1982) .................................................................. 8, 9
EPA, Policy Towards Owners of Residential Property
at Superfund Sites (1991),
https://bit.ly/2TEmQ1E ............................................. 34, 35
EPA, Superfund Priority “Anaconda” (July 2018) ............ 15
Anne B. Fisher, The Decade’s Worst Mergers,
Fortune (Apr. 30, 1984) .................................................. 8, 9
Thomas C. Hayes, ARCO Sets Charge of $785 Million,
N.Y. Times (Aug. 28, 1984) ................................................ 8
Barbara LaBoe, New Map Plots Butte Underground,
Mont. Standard (June 7, 2004) .......................................... 8
Brian Leech, Boom, Bust, and the Berkeley Pit,
37 J. Soc’y Indus. Archaeology 153 (2011) ...................... 8
Random House Dictionary of the English Language
(1967) .................................................................................. 54
Restatement (Second) of Torts § 929 cmt. b
(Am. Law Inst. 1979) ....................................................... 43
In the Supreme Court of the United States
No. 17-1498
ATLANTIC RICHFIELD COMPANY, PETITIONER,
v.
GREGORY A. CHRISTIAN, ET AL., RESPONDENTS.
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF MONTANA
BRIEF FOR THE PETITIONER
OPINIONS BELOW
The opinion of the Supreme Court of Montana is reported at 408 P.3d 515 (Mont. 2017) and reproduced at
Pet. App. 1a-40a. The unreported opinion of the trial
court is reproduced at Pet. App. 41a-55a.
JURISDICTION
The Supreme Court of Montana issued its opinion and
entered judgment on December 29, 2017. On February
20, 2018, Justice Kennedy extended the time to file a petition for a writ of certiorari until April 30, 2018. The petition was filed on April 27, 2018, and granted on June 10,
2019. This Court has jurisdiction under 28 U.S.C.
§ 1257(a).
(1)
2
STATUTORY AND CONSTITUTIONAL PROVISIONS
INVOLVED
Section 113 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended (“CERCLA”), 42 U.S.C. § 9613, provides in relevant part:
(b) Except as provided in subsections (a) and (h) of this
section, the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter, without regard to the citizenship of the parties or the amount in controversy.
* * *
(h) 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 9621 of this title (relating to
cleanup standards) to review any challenges to removal or remedial action selected under section 9604
of this title, or to review any order issued under section 9606(a) of this title, in any action except [in five
enumerated exceptions].
Section 122(e)(6) of CERCLA, 42 U.S.C. § 9622(e)(6),
provides:
When either the President, or a potentially responsible party pursuant to an administrative order or consent decree under this chapter, 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 action has been authorized by
the President.
3
Article VI of the United States Constitution provides
in relevant part:
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof . . . shall be
the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
STATEMENT OF THE CASE
Congress enacted the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980
(“CERCLA”) to place the federal government in charge
of remediating hazardous waste sites across America
from start to finish. The Environmental Protection
Agency (“EPA”) designates and prioritizes sites for remediation. After initiating a cleanup, EPA seeks public input, dictates what remedial action must happen to protect
human health and the environment, controls the remediation work, and recovers costs of the cleanup from liable
parties.
As a strict-liability statute, CERCLA sweeps broadly,
covering not only the polluters (if they still exist), but also
a multitude of other actors, from current landowners to
legacy owners of defunct companies. In return, CERCLA
offers all these actors a measure of certainty. The remediation process is often staggeringly expensive, time-consuming, and complex. But EPA’s comprehensive control
over the cleanup at least assures parties whom EPA requires to pay for the cleanup that they are securing a
global resolution of their responsibility for cleanup from
the federal government and are buying into just one comprehensive remediation effort. EPA’s primacy likewise
4
ensures that EPA’s community-wide remediation plan reflects input from all stakeholders, not just those paying
for the cleanup. Those assurances are among the reasons
actors covered by CERCLA—so-called “potentially responsible parties”—cooperate with EPA.
CERCLA delivers on those assurances, protecting
EPA, its private-sector partners, and the surrounding
community by prohibiting interference with EPA’s selected remedy. Section 113 insulates EPA’s choice of remedial plans from challenge: state courts lack jurisdiction
to entertain any suits second-guessing these plans, and
federal courts generally cannot hear suits challenging
EPA’s remedy, either. Section 122(e)(6), in turn, ensures
that only EPA’s remedy gets implemented. Once EPA’s
investigation begins, no potentially responsible party may
implement any remedial action without EPA’s permission. The Supremacy Clause provides the ultimate backstop. If nothing else, private parties cannot be subjected
to state-law duties that directly conflict with their CERCLA obligations, including their duty to follow EPA’s remedial plans.
Atlantic Richfield Company has for decades taken
CERCLA at its word. In 1977, Atlantic Richfield bought
the Anaconda Company, the operator of a massive copper
smelter in Deer Lodge County, Montana. By 1980, CERCLA was law, the smelter was closed, and Atlantic Richfield found itself responsible for a century’s worth of pollution scattered throughout a sprawling 300-square-mile
area. As the site became one of the Nation’s first and largest “Superfund” sites, Atlantic Richfield began working
with EPA to clean up the region. Over the past 36 years,
countless toxicologists, engineers, and other experts have
studied the smelter site. EPA has painstakingly developed remediation plans—spanning thousands of pages—
5
to protect the community’s health and stabilize the site.
Those plans are binding on Atlantic Richfield, which has
spent some $450 million working hand-in-hand with EPA
to accomplish EPA’s vision. And this pact worked, or so
Atlantic Richfield thought: EPA-led remediation has
vastly reduced pollution across the Anaconda Smelter
site.
Then, respondents—a small group of landowners
within the Anaconda Smelter site—insisted upon a very
different remediation plan. Respondents have known the
details of EPA’s plans all along. EPA submitted its plans
to community scrutiny before they took effect. Respondents have had dozens of occasions to shape EPA’s plans.
But in 2008, with EPA’s cleanup of the site in full swing,
respondents sued in Montana state court, alleging that
EPA’s remediation was not good enough. They asserted
state-law claims against Atlantic Richfield, including trespass, nuisance, and strict liability, based on alleged property damage, not on any adverse health effects. Respondents requested traditional tort relief, including money
damages for loss of use and diminished value of their
property. Had respondents stopped there, this case
would not be here, because all agree that CERCLA poses
no impediment to such relief.
But respondents instead focused their suit on an unusual demand for relief in the form of “restoration” damages that would require Atlantic Richfield to pay for, and
respondents to perform, “work in excess of what the EPA
required of [Atlantic Richfield] in its selected remedy.”
Pet. App. 4a. Respondents allege that Atlantic Richfield
has a state-law duty to return their property to its unblemished, pre-1884 condition, as if the Anaconda Smelter
never existed. Respondents demand up to $58 million
from Atlantic Richfield to effectuate a remedial plan that
6
would dig up soil that EPA wants undisturbed and would
create giant underground trenches that EPA has already
rejected because they risk contaminating more groundwater.
The Montana Supreme Court gave respondents everything they demanded—but at CERCLA’s expense.
EPA warned that respondents’ competing remedial plan
risked unleashing environmental havoc. But the Montana
Supreme Court deemed EPA’s views irrelevant in the
face of whatever remedial plan a “jury of twelve Montanans” would see fit to approve. Pet. App. 13a. In the court’s
view, the multiple barriers CERCLA erects to shield
EPA’s carefully chosen remedial plans from interference
are about as protective as cotton candy. According to the
court, § 113 applies only to lawsuits directed at physically
impeding ongoing EPA work, no matter how much the
suit would throw EPA’s plan into chaos. Section 122(e)(6)
is also no bar to property owners who want to bring in
their own bulldozers and uproot EPA’s work mid-cleanup,
either because EPA did not sue or settle with the property
owners, or because a cleanup is more than six years in, or
perhaps some combination of both. And the Supremacy
Clause is toothless even if state law directly conflicts with
CERCLA-imposed federal obligations, because CERCLA’s savings clauses make state law supreme.
If this is what the statute means, Congress inexplicably abandoned EPA, affected communities, and private
actors foolish enough to cooperate with EPA to the mercy
of thousands of potential plaintiffs. At any time, any landowner on any Superfund site could decide to shred EPA’s
plans and impose different, and potentially detrimental,
multimillion-dollar cleanups. The entire community
would be hostage to the whims of a small minority of dis-
7
satisfied landowners, who could dictate a disastrous remedy without any real check beyond the approval of a statecourt jury ill-equipped to consider broader environmental
consequences. Then EPA might have to intervene again
and clean up the cleanup, in a vicious cycle of warring remedies and ever-spiraling costs that would leave CERCLA
a comprehensive mess.
A. The Anaconda Copper Smelter
Deer Lodge Valley lies in the shadow of the Continental Divide in southwest Montana, midway between Yellowstone and Glacier National Parks. The valley exemplifies Montana’s natural bounty. The Clark Fork River
drains the valley; its waters flow into the Columbia River
and onward to the Pacific. Deer Lodge County is mostly
forest and farmland, crisscrossed with creeks and
streams. A handful of towns dot the landscape, including
Anaconda, the county seat, and Opportunity, where most
respondents live. J.A. 384.
But the county’s most prominent feature is the colossal brick smokestack on Smelter Hill, 30 feet taller than
the Washington Monument. The industry it once sustained is long gone, but the stack remains as a memorial
to an era when much of the world’s copper flowed through
Deer Lodge County.
Between 1884 and 1902, the Anaconda Copper Mining
Company built three giant copper smelters here, culminating in the titanic Washoe Smelter, whose 585-foot
stack still towers over the county. J.A. 257-64. These
smelters served the mines of nearby Butte, called “the
richest hill on earth,” and once the world’s leading source
of copper. J.A. 250-52. The Anaconda Smelter refined the
tens of millions of pounds of copper ore mined in Butte
8
each year to feed the world’s newly insatiable demand for
telephone wires and power lines. J.A. 250-51.
At its height, Anaconda was the nation’s fourth-largest
company and dominated Montana’s economy. Over more
than 60 years, Anaconda employed approximately 75% of
Montana’s workforce. J.A. 311. Many lived in the company towns of Anaconda and Opportunity. J.A. 253-57,
284-95. By the mid-20th century, ores from the world over
made their way into the Washoe Smelter. J.A. 304-05.
Miners dug an estimated ten thousand miles of mines beneath the city of Butte. See Barbara LaBoe, New Map
Plots Butte Underground, Mont. Standard (June 7, 2004).
Open-pit mining would eventually create a vast hole in the
heart of Butte measuring 1.5 miles across and 1,800 feet
deep called the Berkeley Pit. Brian Leech, Boom, Bust,
and the Berkeley Pit, 37 J. Soc’y Indus. Archaeology 153,
153 (2011).
By the 1970s, however, Anaconda was an ailing relic,
felled by the worldwide energy crisis, falling copper
prices, and the nationalization of the company’s mines in
Chile and Mexico. J.A. 305. In 1977, Atlantic Richfield
acquired Anaconda for $700 million as part of an industrywide drive to diversify holdings. J.A. 305; Thomas C.
Hayes, ARCO Sets Charge of $785 Million, N.Y. Times
(Aug. 28, 1984). Anaconda initially seemed a promising
bet based on its still-significant mine holdings. Many believed that copper prices had bottomed out and would rise
again. Anne B. Fisher, The Decade’s Worst Mergers, Fortune (Apr. 30, 1984), at 262.
That purchase quickly became the proverbial albatross. The copper market kept plummeting. J.A. 305.
Bringing the smelter into compliance with federal and
state clean-air standards would cost an estimated $400
million. Lydia Chavez, When ARCO Left Town, N.Y.
9
Times (July 25, 1982). In 1980, the company gave employees about a year’s worth of pay as severance and closed
the Anaconda Smelter. Id. By 1984, Fortune dubbed the
deal one of “The Decade’s Worst Mergers.” Fisher, supra, at 262. And that was before the extent of Atlantic
Richfield’s liability for Anaconda’s environmental toll became clear.
B. CERCLA
Anaconda’s demise coincided with CERCLA’s beginning. In 1980, soon after the smelter’s fires went out for
the last time, J.A. 314, President Carter signed CERCLA
into law. CERCLA established a nationally uniform and
centralized program that would accomplish timely cleanups of hazardous waste sites, with EPA in charge.
1. CERCLA puts EPA in the driver’s seat for making
remediation decisions and overseeing cleanups. EPA designates on the National Priorities List sites that pose the
greatest risk to public health. 42 U.S.C. § 9605(a)(8); 40
C.F.R. § 300.425. EPA then initiates a remedial investigation to determine the nature and extent of contamination, and conducts a feasibility study to evaluate remedial
goals and potential cleanup options.
40 C.F.R.
§ 300.430(d), (e). Next, EPA selects an appropriate remedial plan using congressionally mandated criteria. 42
U.S.C. § 9621; 40 C.F.R. § 300.430(f). EPA documents its
plan in a formal “Record of Decision.” 40 C.F.R.
§ 300.430(f)(4), (5).
EPA has several options in carrying out this plan. It
may remediate the site itself, 42 U.S.C. § 9604(a)(1), or
compel responsible private parties to undertake remediation, id. § 9606(a). But CERCLA’s preferred route is for
EPA to enter into voluntary cleanup agreements with pri-
10
vate parties “in order to expedite effective remedial actions and minimize litigation,” id. § 9622(a). To secure
compliance, EPA incorporates its Records of Decision
into administrative orders with the force of law. See, e.g.,
J.A. 117-47. Whatever the approach, EPA gets to decide
when a site “attain[s] a degree of cleanup of hazardous
substances, pollutants, and contaminants released into
the environment and of control of further release at a minimum which assures protection of human health and the
environment.” 42 U.S.C. § 9621(d)(1).
EPA also gives stakeholders multiple opportunities to
influence EPA’s decision-making. When the process begins, EPA solicits input from interested parties in the
community. 40 C.F.R. § 300.430(c)(2). Once EPA proposes a remedy, EPA publishes its proposed plan and receives public comments. 42 U.S.C. § 9617(a); 40 C.F.R.
§ 300.430(f)(2), (3). The final Record of Decision discusses
“significant changes” from EPA’s proposal and responds
to significant comments and new data. 42 U.S.C.
§ 9617(b); 40 C.F.R. § 300.430(f)(3)(i)(F).
2. CERCLA erects a fortress around the remediation
process. First, § 113(b) vests federal courts with “exclusive original jurisdiction over all controversies arising under [CERCLA].” 42 U.S.C. § 9613(b). Section 113(h) then
limits federal courts’ jurisdiction “to review any challenges to removal or remedial action” to narrow circumstances that all agree do not apply in this case. Id.
§ 9613(h). Subsections 113(b) and (h) together prevent
lawsuits from disrupting EPA’s cleanups.
Second, § 122(e)(6) precludes potentially responsible
parties (“PRPs”) from “undertak[ing] any remedial action” at a site where EPA has started investigating absent
EPA’s authorization. Id. § 9622(e)(6). This provision pre-
11
vents landowners and anyone else at the site from undertaking unapproved cleanup activity that could interfere
with EPA’s chosen remedy.
C. Cleanup of the Anaconda Smelter Site
In 1983, EPA added the Anaconda Smelter site—encompassing the smelter and a surrounding 300-squaremile area—to the initial National Priorities List. 48 Fed.
Reg. 40,658, 40,670.1 EPA-led remediation of the Anaconda Smelter site continues to this day, and has proceeded cooperatively with Atlantic Richfield and input
from state and local authorities. So far, Atlantic Richfield
has spent approximately $450 million implementing
EPA’s orders at the site, remediating hundreds of residential yards and thousands of acres of land. J.A. 379.
1. Cleaning up a century’s worth of industrial waste
from a New York City-sized area has posed a Herculean
challenge. The site encompasses five towns and thousands of homes and people. The communities comprise
properties with an array of interrelated land uses—residential, commercial, recreational, cropland, pastures, and
rangeland. J.A. 381. The site contains mountains, forests,
wetlands, a river with five major tributaries, two separate
Other remnants of Anaconda’s Montana operations are separate Superfund sites. The Clark Fork Basin Superfund complex includes
four sites: the Anaconda Smelter site, the Silver Bow Creek/Butte
Area site (which contains the city of Butte and the Berkeley Pit), the
Milltown Reservoir/Clark Fork River site, and the Montana Pole site.
J.A. 102.
1
12
aquifer systems, and plentiful wildlife. J.A. 381, 384; Water, Waste and Soils Record of Decision (“ROD”) §§ 5.1,
5.2.2 (1998).2
The area also contained what Anaconda left behind:
230 million cubic yards of tailings, 30 million cubic yards
of furnace slag, and 500,000 cubic yards of flue dust—
much of it containing arsenic, lead, and other heavy metals. The contamination affected surface water and
groundwater over much of the site. And the smokestacks
had deposited arsenic and lead in the soil over an estimated 20,000 acres. J.A. 381-82.
2. In 1982, even before EPA formally added the Anaconda Smelter site to the National Priorities List, Atlantic
Richfield conducted a study of heavy-metal contamination. J.A. 334-35. Atlantic Richfield and EPA also addressed urgent issues at the site, including dismantling
the smelter and relocating 37 families who lived next to
Smelter Hill. Fifth Five-Year Review §§ 6.0, 6.1 (2015),
available at EPA Anaconda Webpage, supra note 2.
That study and those actions laid the foundation for
decades of cooperation between Atlantic Richfield, EPA,
state and local governments, and the residents in Deer
Lodge County. J.A. 201-04. The administrative record
contains tens of thousands of documents, six formal Records of Decision, and over twenty-five administrative orders to Atlantic Richfield, all entered with Atlantic Richfield’s support. J.A. 339-40. The record contains only one
instance of alleged noncompliance by the company—an
Key EPA documents pertaining to the Anaconda Smelter site, including
all
Records
of
Decision,
are
available
at
https://bit.ly/2MfDhke (“EPA Anaconda Webpage”).
2
13
incident where Atlantic Richfield started remedial work
prematurely. J.A. 194, 205.
3. The Anaconda Smelter cleanup exemplifies CERCLA’s EPA-led approach to remediation. After adding
the site to the National Priorities List, EPA divided it into
five “operable units,” addressing different geographic areas or environmental issues. J.A. 335. This case concerns
two of these units. The first, Community Soils, deals with
soil in residential yards. J.A. 68-72, 373-76. The second,
Anaconda Regional Water, Waste and Soils, includes pasture land, surface water, and groundwater throughout the
site. J.A. 107-13.
EPA issued a Record of Decision prescribing the work
for each operable unit. EPA prepared each one in consultation with the Montana Department of Environmental
Quality, which co-signed each plan. EPA worked with Atlantic Richfield to develop work plans to implement each
Record of Decision, then incorporated the Records of Decision and work plans into formal administrative orders
that Atlantic Richfield must follow. See, e.g., J.A. 117-47;
see also 42 U.S.C. §§ 9604(a), 9606(a).
Under the 1996 Community Soils Record of Decision,
which EPA incorporated in a formal administrative order
in 2002, EPA recognized that Deer Lodge Valley soil naturally contains some arsenic. J.A. 72-73. That Record of
Decision provides that a residential yard is eligible for
cleanup if surface soil arsenic levels exceed 250 parts per
million, i.e., 0.025% by weight. J.A. 94. EPA determined
after performing a complex toxicological analysis that this
standard would protect residents’ health. Community
Soils ROD § 6 & tbl.5 (1996). The Agency for Toxic Sub-
14
stances and Disease Registry later concurred that exposure to soil arsenic at this level is not detrimental to human health. Mont. S. Ct. Rec. at Suppl-App-0133, -0163.3
EPA further ordered Atlantic Richfield to clean up
residential yards affected by arsenic by excavating up to
eighteen inches of soil, moving the soil to an on-site repository, and laying down clean soil and vegetation in its
place. J.A. 94-96; Community Soils Am. ROD § 6.1 (2013).
On pasture land, EPA set a cleanup threshold of 1,000
parts per million arsenic. Water, Waste and Soils ROD
§ 9.4.2 (1998); Expert Report of David J. Folkes 10 (June
19, 2013), Dist. Ct. Dkt. 308, Ex. R. For pasture land
meeting that threshold, EPA opted against requiring soil
removal, instead ordering Atlantic Richfield to leave the
soil in place and restore protective vegetation so the soil
did not disperse to areas where it might cause greater
harm. Water, Waste and Soils ROD §§ 7.1, 7.2.1, 8.2.1
(1998).
EPA’s 1998 Record of Decision for its Water, Waste
and Soils Operable Unit, as incorporated in a formal administrative order in 2000 and as amended in 2011, includes EPA’s comprehensive program to ensure that
landowners have safe drinking water. J.A. 173-74, 211-17,
337-38. That program provides for monitoring domestic
wells and requires Atlantic Richfield to replace or treat
any well showing arsenic levels above federal and state
drinking-water standards. J.A. 173-74, 215-16, 337-38.
As EPA’s process unfolded, EPA has consistently engaged with the public. Since the early 1980s, EPA has
held many community meetings. Community Soils ROD,
RS-3 (1996); J.A. 318-20. Before finalizing each Record of
EPA later added a separate action threshold for lead, set at 400
parts per million. Community Soils Am. ROD § 6.1 (2013).
3
15
Decision, EPA published summaries in the local paper,
held formal public meetings, and responded to area citizens’ comments. See, e.g., Community Soils ROD, RS-3 to
4 (1996).
4. Atlantic Richfield, EPA, and the community have
accomplished much over 36 years. Hundreds of acres of
land have been remediated and are now covered with lush
vegetation. Fifth Five-Year Review §§ 8.2.2.1, 8.2.3.1,
8.2.4.1. Wetlands and wildlife habitats have been revitalized. Id. § 10.2.8. Atlantic Richfield moved hundreds of
thousands of cubic yards of arsenic- and cadmium-laden
flue dust to a secure, on-site repository. Id. § 7.2.1. Hundreds of residential yards have been tested and cleaned
up. J.A. 337. The immediate vicinity of the smelter stack
is now a state park.
By 2025, EPA expects to complete the bulk of the remediation. Monitoring and maintenance work will follow,
but EPA expects to begin the process of removing portions of the site from the National Priorities List. EPA,
Superfund Priority “Anaconda” (July 2018), available at
EPA Anaconda Webpage, supra note 2. Even after delisting, the site will remain indefinitely subject to enforceable
“institutional controls” to ensure that EPA’s remedies remain undisturbed and that hazardous substances remain
contained. J.A. 100; Fifth Five-Year Review § 11. EPA
must review the remedy every five years “to assure that
human health and the environment are being protected by
the remedial action being implemented.” 42 U.S.C.
§ 9621(c); 40 C.F.R. § 300.430(f)(4)(ii). Atlantic Richfield
remains responsible for any future remedial work EPA
requires. Fifth Five-Year Review § 11.
16
D. Proceedings Below
1. Respondents are a small minority of landowners in
the towns of Opportunity and Crackerville who own properties within the Anaconda Smelter site. Mont. S. Ct. Rec.
at App-0058. In 2008, they sued Atlantic Richfield in Montana state court. Their complaint pleaded various common-law torts, including negligence, nuisance, trespass,
and strict liability, all based on their allegations that emissions and waste from the Anaconda smelters had contaminated soil and groundwater on respondents’ property.
The roster of plaintiffs has evolved—many original complainants sold their properties or voluntarily dismissed
their claims. E.g., Mot. to Dismiss Without Prejudice
(Sept. 26, 2018), Dist. Ct. Dkt. 646. Respondents make up
about 10% of Opportunity and Crackerville residents.
J.A. 297. All respondents bought their properties long after the smelter began operating; the vast majority did so
after EPA declared the area a Superfund site. Most of the
tracts include single-family residences, though the vast
majority of respondents’ land consists of large pasture areas, not residential yards. See Folkes Rep. tbls. 2 & 3,
Dist. Ct. Dkt. 308, Ex. R. Some respondents rent their
land out, run small businesses, or leave the land vacant.
Br. Supp. Mot. Summ. J. re: Restoration Damages (Sept.
12, 2013) App. B1-B6, Dist. Ct. Dkt. 304.
Respondents’ complaint seeks five forms of relief.
Four requests seek compensation for how contamination
allegedly limits their use of their land, has decreased the
value of their land, has imposed incidental expenses, and
is causing “[a]nnoyance, inconvenience, and discomfort.”
J.A. 54. Atlantic Richfield has never contended that CERCLA precludes those forms of relief. Respondents accordingly have stated that if the Court reverses they will
17
proceed to trial to attempt to recover these traditional
damages. Br. Opp’n Pet. Cert. (“Opp.”) 17.
This case involves the fifth requested remedy:
“[e]xpenses for and cost of investigation and restoration
of real property.” J.A. 54. Respondents contend that
Montana law obligates defendants to turn back the clock
and restore the land to its pre-contamination state—that
is, to remove every particle wrongfully deposited on the
property. See Sunburst Sch. Dist. No. 2 v. Texaco, Inc.,
165 P.3d 1079, 1086-88 (Mont. 2007); Opp. 8. The defendant can discharge this duty by paying money damages to
the landowner. Sunburst, 165 P.3d at 1088-90. To recover
such damages, the plaintiff must prove “that an award of
restoration damages actually will be used to repair the
damaged property.” Id.; see Opp. 8. Respondents’ principal goal is to obtain restoration damages to conduct a
very different cleanup than the one EPA developed. See
Pls.’ Br. Opp’n Mot. Summ. J. re: CERCLA 4 & n.2 (June
7, 2013), Dist. Ct. Dkt. 239.
2. Respondents have estimated that their cleanup
would cost $50 to $58 million—seven times the total value
of all of respondents’ properties. J.A. 402-03; Dist. Ct.
Dkt. 304, at 14. Their remedial plan diverges from EPA’s
plan in several important respects:
First, respondents claim entitlement to have soil on
any type of land restored to a condition of no more than
15 parts per million arsenic. Opp. 8; J.A. 350-51, 365-66.
That standard conflicts with EPA’s 250-parts-per-million
threshold for residential yard soil removal and EPA’s
even higher trigger of 1,000 parts per million of arsenic
for pasture land. Applying respondents’ standard for arsenic would require removing soil from all of respondents’
land. See J.A. 397-98.
18
Second, respondents contend that state law requires
Atlantic Richfield to replace a full two feet of soil on each
property. J.A. 239, 386. EPA, however, ordered the company to excavate no more than eighteen inches of soil, finished off with a protective vegetative layer. Respondents
would tear that protective vegetation up and haul out two
feet of earth. Doing so would bring to the surface arsenic
that is now deeply buried and, in EPA’s view, potentially
scatter arsenic-laden dust across Opportunity, Crackerville, and beyond. Pet. App. 72a-73a; see J.A. 90. Respondents would also dig up pastureland soil that EPA
does not want disturbed at all because of the risk of
spreading contaminated soil to more densely populated
areas. Water, Waste and Soils ROD § 9.4.1 (1998).
Third, respondents’ remedy requires constructing
more than three miles of underground trenches (or “passive reactive barriers”) near Opportunity and Crackerville to filter groundwater near their land. J.A. 239-40,
399-404. Respondents would fill the trenches with “zero
valent iron” and perhaps a “biopolymer slurry,” along
with an unspecified “enzyme,” to break down arsenic in
the groundwater. J.A. 239-40. EPA, however, determined that the aquifer under Opportunity is not contaminated, and that removing arsenic from groundwater in
other areas near respondents’ lands would be technically
infeasible. J.A. 157-58. EPA instead ordered Atlantic
Richfield to monitor respondents’ wells. J.A. 161, 173-74.
Only two of respondents’ wells have tested above the
drinking-water standard. Atlantic Richfield replaced
them. They now meet the standard. J.A. 338. As EPA
noted below, changing the natural flow of groundwater in
the area could spread groundwater contamination and
jeopardize human health, the environment, and other aspects of the cleanup. Pet. App. 73a-74a.
19
EPA opposes respondents’ cleanup plans. In April
2018, EPA informed respondents’ trial counsel that
“CERCLA identifies current owners of property within
Superfund sites as potentially responsible parties.” App.
1a. EPA further warned that CERCLA “prohibits potentially responsible parties from performing response actions at Superfund sites where the remedial action is already underway unless such actions have been authorized
by EPA.” App. 2a. In fact, EPA vetoed Atlantic Richfield’s attempt to accommodate respondents after they
sued. Atlantic Richfield offered to apply EPA’s residential-yards remedy to respondents’ pasture land as well.
Folkes Rep. 10, Dist. Ct. Dkt. 308, Ex. R. But EPA rejected this departure from its remedial plan. See Mont. S.
Ct. Rec. at Suppl-App-0182.
3. Before the state trial court, Atlantic Richfield
moved for summary judgment on respondents’ claims for
restoration relief. The United States tried to file an amicus brief contending that state courts lack jurisdiction
over respondents’ restoration remedy. U.S. Mot. Leave
to File Amicus Br. ¶ 1, Dist. Ct. Dkt. 428. But the state
trial court did not let the government file a brief. The trial
court first granted summary judgment to Atlantic Richfield on statute of limitations grounds, Mem. & Order,
Dist. Ct. Dkt. 466, but the Montana Supreme Court reversed, Christian v. Atl. Richfield Co., 358 P.3d 131
(Mont. 2015). On remand, the trial court held that CERCLA permitted respondents’ restoration remedy. Dist.
Ct. Dkt. 442; Pet. App. 42a-55a.
Atlantic Richfield sought a writ of supervisory control,
see Mont. R. App. P. 14(3), which the Montana Supreme
Court granted. Pet. App. 3a. The court acknowledged
that Atlantic Richfield “concedes that [respondents] may
move forward on their first four claims.” Pet. App. 6a.
20
But the court held that respondents’ claim for restoration
relief must proceed too, and rejected all three of Atlantic
Richfield’s arguments, which the United States had echoed as an amicus. First, the court held, the restoration
remedy is not a “challenge” barred by § 113(h), even
though respondents demanded a cleanup different from
EPA’s. The court reasoned that respondents’ cleanup
would not physically “stop, delay, or change the work
EPA is doing” assuming respondents did the work themselves. Pet. App. 11a, 13a. The court stated that respondents were “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.” Pet. App. 13a.
Second, the court held that § 122(e)(6)’s prohibition on
unauthorized remedial actions by PRPs did not bar relief,
even though EPA strenuously opposed respondents’ remedy. Pet. App. 15a-17a. The court concluded that respondents are not PRPs subject to § 122(e)(6) because
“they have never been treated as PRPs” by courts or
EPA. Pet. App. 16a. In the court’s view, the statute of
limitations had expired, and “the PRP horse left the barn
decades ago.” Pet. App. 16a.
Third, the court held, CERCLA did not preempt respondents’ claims. Pet. App. 17a-18a. The court found
that savings clauses in CERCLA § 114(a) and § 302(d) let
respondents bring even state-law claims that conflict with
Atlantic Richfield’s CERCLA obligations. Pet. App. 17a18a.
Justice McKinnon dissented, explaining that respondents’ claim for restoration damages constituted a challenge barred under § 113. She observed that respondents’
restoration plan “would conflict with the ongoing EPA investigation and CERCLA cleanup.” Pet. App. 23a-24a.
21
She noted that “the undisputed evidence shows the EPA
rejected the soil and groundwater remedies proposed by
[respondents].” Pet. App. 39a. Justice McKinnon declared herself “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 [respondents’] plan.’” Pet. App. 35a (quoting Pet. App. 13a).
SUMMARY OF ARGUMENT
I. CERCLA § 113 deprives state courts of jurisdiction
to hear controversies challenging EPA’s remedial plans.
Respondents seek a state-court order to restore their land
to pre-smelter conditions. This suit directly challenges
the remedial plan EPA has imposed for the Anaconda
Smelter site. This challenge falls within the heartland of
claims barred by § 113.
A. Two provisions of § 113 work together to prevent
suits that would allow state courts and juries to secondguess EPA’s remedial plans. First, § 113(b) vests federal
courts with “exclusive original jurisdiction over all controversies arising under [CERCLA].” Second, § 113(h) identifies a subset of controversies arising under CERCLA
that even federal courts may not entertain. That provision withdraws from federal courts (with a handful of exceptions not relevant here) the authority that they would
otherwise have under § 113(b) to entertain “any challenges” to EPA’s chosen CERCLA remedy.
Respondents’ suit for a restoration remedy is a “challenge” to EPA’s remedial plan. A “challenge” means an
effort to call into question EPA’s chosen remedy. Respondents seek to implement a very different type of
cleanup than what EPA ordered, and would uproot EPAled cleanup efforts. The fact that respondents’ claim for
22
restoration damages is a “challenge” under § 113(h) confirms that it is a “controversy arising under [CERCLA]”
that § 113(b) prohibits state courts from hearing. Section
113(h)’s reference to “Federal court[s]” reflects that
“challenges” are a subset of the claims that § 113(b) reserves exclusively to federal-court jurisdiction. Respondents’ contrary reading of § 113 would create an implausible loophole in the statutory scheme by allowing private
parties to upend EPA’s remediation plans through the
simple expedient of challenging those plans in state court.
B. The Montana Supreme Court found jurisdiction
based on the untenable theory that respondents’ claim for
restoration damages is not a “challenge.” Respondents
purportedly would wait until EPA leaves to undo EPA’s
efforts themselves, so in the court’s view they do not seek
to “stop, delay, or change the work EPA is doing.” Pet.
App. 11a. But the meaning of a “challenge” to EPA remedial action cannot turn upon who wields the shovels, or
whether they wait ten seconds or ten years to wreck
EPA’s remediation efforts.
II. CERCLA § 122(e)(6) independently bars respondents’ restoration remedy. That provision prohibits any
“potentially responsible party,” or PRP, from taking “remedial action” at a Superfund site without EPA’s approval, once a remedial investigation has begun. Respondents do not dispute that EPA and Atlantic Richfield
long ago initiated a remedial investigation, or that their
proposed restoration is a remedial action. Respondents
instead contest their status as PRPs. But respondents are
classic PRPs under CERCLA.
A. The term “potentially responsible party” refers to
the four categories of “covered persons” who are subject
to liability under CERCLA § 107(a). Respondents
squarely fall within the “owner” PRP category. They own
23
land where hazardous substances have come to rest. Multiple CERCLA provisions treat such “owners” of affected
land as PRPs. A contrary reading exempting landowners
like respondents from § 122(e)(6)’s coverage would leave
EPA powerless to defend the integrity of its single, unified cleanup. Landowners could launch hundreds of contradictory cleanups undoing EPA’s work. Unsurprisingly, EPA has long considered landowners like respondents to be PRPs.
B. The Montana Supreme Court held, at respondents’
urging, that parties cannot be treated as PRPs so long as
no court has held them liable for a cleanup (or at least rejected defenses to CERCLA liability) and EPA has not
settled with them. The court further held that once EPA
is six years into its cleanup and the limitations period for
certain types of claims has run, the time for PRP designation has passed and the “PRP horse [has] left the barn.”
Pet. App. 16a. At that point, landowners like respondents
(plus any other party covered by CERCLA) can experiment with whatever cleanup they want, no matter how
much it destroys EPA’s efforts or endangers the environment. But the statutory text refers to “potentially responsible parties” because CERCLA covers any party
who is potentially liable under § 107—not just parties who
are actually liable.
The Montana Supreme Court’s interpretation would
unleash a stampede of practical problems. EPA would be
forced to choose between giving landowners at a Superfund site license to tear up EPA’s work six years into a
multi-year cleanup, or to delay starting cleanup efforts
until EPA has sued or settled with every potentially responsible party at the site. This result would destroy a
central feature of CERCLA, which permits EPA to act
24
quickly to clean up toxic waste sites and to determine ultimate liability later. That interpretation would also force
every landowner at a site to shoulder the burden of defending and settling CERCLA litigation. And it would
recklessly cede unsupervised control over hazardous sites
to individual community members—even if the rest of the
community supports EPA’s plan.
III. The Supremacy Clause presents the third insuperable bar to respondents’ restoration plan.
A. Impossibility preemption applies when a party cannot unilaterally comply with its obligations under state
and federal law. That is the case here. Respondents allege that Montana law imposes on Atlantic Richfield the
duty to restore their land to its pristine, pre-smelter condition—or to pay damages so respondents can do so.
CERCLA forbids Atlantic Richfield to carry out that
state-law obligation. Section 122(e)(6) and EPA regulations bar Atlantic Richfield—an undisputed PRP—from
undertaking unauthorized remedial action. Further, Atlantic Richfield is subject to EPA orders, with the force of
law, commanding it to carry out EPA’s cleanup plans as
directed. To comply with its state-law duties, Atlantic
Richfield would have to defy those orders. The specific
restoration remedy respondents demand underscores
how starkly those duties conflict. Plaintiffs’ restoration
remedy requires plowing underground trenches EPA
does not want plowed and digging up thousands of tons of
soil EPA does not want excavated. It is irrelevant that
Atlantic Richfield would be paying tens of millions of dollars to respondents to implement this plan, rather than
wielding shovels itself. In every civil preemption case, defendants could pay damages to avoid following a conflicting state-law duty, yet impossibility preemption exists
nonetheless.
25
B. Respondents’ restoration remedy would also cripple CERCLA’s comprehensive remedial scheme, presenting a quintessential case for obstacle preemption. CERCLA commits to EPA the exclusive authority to decide
how best to clean up a Superfund site, after balancing
competing interests within the community. But respondents would put their personal preferences first, checked
only by a jury with no mandate to consider the wishes or
safety of the broader community as a whole. Allowing respondents’ restoration remedy would also destroy EPA’s
ability to secure full cooperation from PRPs like Atlantic
Richfield at Superfund sites. PRPs in Atlantic Richfield’s
shoes would have little incentive to proactively cooperate
with EPA if an endless stream of landowners could jump
into the middle of EPA’s cleanup and demand millions
more to do completely different work.
C. CERCLA’s savings clauses do not preserve all
state-law claims in the hazardous-waste field. These
clauses rule out field preemption, but do not save state
laws that actually conflict with federal law. The savings
clauses here preserve state liability rules that govern
compensation for injury to persons or property, but not
state laws that purport to require cleanups that differ
from CERCLA’s. CERCLA leaves respondents free to
seek damages for diminution in the value of their property
or other forms of traditional relief. But they cannot seek
restoration damages at Superfund sites premised on alternative remedial plans that EPA has not ordered.
ARGUMENT
I.
Section 113 Bars Respondents’ Restoration Remedy
CERCLA § 113, 42 U.S.C. § 9613, mandates that only
federal courts can entertain litigation relating to a CERCLA cleanup, and only under narrow circumstances. The
Montana Supreme Court blessed respondents’ claim for
26
restoration damages on the theory that parties can contest EPA’s remedial plans for Superfund sites if litigation
would not “stop, delay, or change the work EPA is doing.”
Pet. App. 11a. But § 113 bars challenges like respondents’
in any court.
A. The Montana Courts Lacked Jurisdiction over Respondents’ Claim for Restoration Damages
1. Section 113 “prevent[s] judicial interference, however well-intentioned, from hindering EPA’s efforts to
properly remediate sites.” Clinton Cnty. Comm’rs v.
EPA, 116 F.3d 1018, 1023 (3d Cir. 1997) (en banc). Two
mutually reinforcing statutory restrictions on CERCLArelated litigation accomplish Congress’s design. The first
is § 113(b), which states: “Except as provided in [§§ 113(a)
and (h)], the United States district courts shall have exclusive original jurisdiction over all controversies arising
under [CERCLA], without regard to the citizenship of the
parties or the amount in controversy.” 42 U.S.C. § 9613(b)
(emphasis added). The second provision is § 113(h), which
§ 113(b) cross-references. Section 113(h) provides that
“[n]o Federal court shall have jurisdiction under Federal
law . . . to review any challenges to removal or remedial
action selected under [§ 104] . . . or to review any order
issued under [§ 106(a)].” Id. § 9613(h).
Section 113(h) creates narrow exceptions to that withdrawal of jurisdiction over challenges, but none is at issue
here. First, federal courts retain jurisdiction over actions
“under [28 U.S.C. § 1332] (relating to diversity of citizenship jurisdiction)” or under state environmental standards that EPA has incorporated into its remedial plan under § 121(d)(2). Id. Second, § 113(h) specifies five contexts in which challenges to EPA’s removal or remedial
action can proceed, including in post-cleanup citizen suits
alleging that the action violated CERCLA.
27
2. Section 113(b)’s grant of exclusive jurisdiction to
the federal courts over “controversies arising under”
CERCLA deprived the Montana courts of jurisdiction
over respondents’ restoration-damages claim. This Court
need not resolve whether the phrase “arising under,” in
isolation, sweeps as broadly as Article III or incorporates
the narrower statutory test for “civil actions arising under” federal law pursuant to 28 U.S.C. § 1331. Either way,
respondents’ restoration-damages claim falls within the
core of controversies that § 113(b) forbids state courts to
hear.
Congress’ choice in § 113(b) to grant federal courts
“exclusive jurisdiction over ‘all controversies arising under’ CERCLA” was deliberate. “Congress used language
more expansive than would be necessary if it intended to
limit exclusive jurisdiction [under § 113(b)] solely to those
claims created by CERCLA.” Fort Ord Toxics Project,
Inc. v. Cal. EPA, 189 F.3d 828, 832 (9th Cir. 1999) (citation
and internal quotation marks omitted). And § 113(b) provides a critical textual clue to the scope of such “controversies”: federal courts have jurisdiction over all of them,
“[e]xcept as provided in subsections [113](a) and [113](h).”
42 U.S.C. § 9613(b). In other words, those subsections describe particular types of “controversies arising under
[CERCLA]” that fall outside federal district courts’ jurisdiction. Section 113(a) vests jurisdiction over challenges
to CERCLA regulations only in the D.C. Circuit. Id. §
9613(a). Section 113(h), in turn, identifies a subcategory
of claims that no federal courts can hear, i.e., prohibited
challenges to EPA remedial action. Id. § 9613(h).
Section 113(h) accordingly withdraws federal-court jurisdiction over the subset of controversies “arising under”
CERCLA that also constitute “challenges” to EPA’s chosen CERCLA remedy. The upshot is that “challenges” to
28
EPA’s removal or remedial actions cannot be heard in
state court either, because Section 113 identifies these
challenges as a subset of “controversies arising under”
CERCLA, and state courts lack jurisdiction over that
whole category of disputes.
Because CERCLA does not define the term “challenges,” this Court “give[s] the [term] its ordinary meaning.” Burlington N. & Santa Fe Ry. Co. v. United States,
556 U.S. 599, 610-11 (2009); accord United States v.
Bestfoods, 524 U.S. 51, 66 (1998). That ordinary meaning
is readily apparent: to “challenge” is “[t]o object or except
to; . . . to call or put in question; to put into dispute; to render doubtful.” Challenge, Black’s Law Dictionary 209
(5th ed. 1979). And the phrase “any challenges” covers
the waterfront of challenges. “Read naturally, the word
‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’” Ali v. Fed. Bureau of
Prisons, 552 U.S. 214, 219 (2008) (quoting United States
v. Gonzales, 520 U.S. 1, 5 (1997)).4 Thus, regardless of the
full scope of the “controversies” that § 113(b) bars state
courts from hearing, such “controversies” include any
The Ninth Circuit, for example, has explained that “[a]n action constitutes a challenge to a CERCLA cleanup if it is related to the goals
of the cleanup.” ARCO Envtl. Remediation, L.L.C. v. Dep’t of Health
& Envtl. Quality of Mont., 213 F.3d 1108, 1115 (9th Cir. 2000) (internal quotation marks omitted). Other courts similarly hold that a challenge under § 113(h) encompasses any suit that “calls into question”
or “impacts” EPA’s ordered cleanup, or that contests “what measures
actually are necessary to clean-up the site.” See, e.g., Boarhead Corp.
v. Erickson, 923 F.2d 1011, 1019 (3d Cir. 1991); Schalk v. Reilly, 900
F.2d 1091, 1097 (7th Cir. 1990); New Mexico v. Gen. Elec. Co., 467
F.3d 1223, 1249 (10th Cir. 2006); Broward Gardens Tenants Ass’n v.
EPA, 311 F.3d 1066, 1073 (11th Cir. 2002); El Paso Nat. Gas Co. v.
United States, 750 F.3d 863, 880 (D.C. Cir. 2014).
4
29
claim that “call[s] . . . into question” or “put[s] into dispute” EPA’s remedial action.
It is difficult to conceive of a claim that more clearly
qualifies as a “challenge[]” to EPA’s remedy than respondents’ restoration-damages claim. As the Montana
Supreme Court observed, respondents “clearly believe
that the EPA-approved residential action level is inappropriate.” Christian v. Atl. Richfield Co., 358 P.3d 131, 156
(Mont. 2015).
EPA has explained that “aspects of [respondents’]
plans are a dramatic departure” from what EPA required.
Pet. App. 72a. Respondents would apply a soil-action level
of 15 parts per million for arsenic, not EPA’s level of 250
parts per million. In other words, they call EPA’s judgment about appropriate soil action levels into question.
Respondents would “excavat[e] to two feet [of topsoil] rather than EPA’s chosen depth of 18 inches within residential areas,” Pet. App. 72a, and would do the same on pasture land that EPA wants undisturbed. Those actions call
into doubt EPA’s judgment about the appropriate soils
remedy, as well as EPA’s judgment that respondents’
plan could spread arsenic-laden soil to the winds.
Respondents also would “construct[] a series of underground trenches and barriers for capturing and treating
shallow groundwater,” which EPA believes “could unintentionally contaminate groundwater and surface water”
and “upset a balance that currently protects human health
and the environment.” Pet. App. 72a, 74a. In short, respondents’ restoration claim for Atlantic Richfield to fund
a remedial plan different from what EPA has ordered is a
“challenge” to EPA’s remediation plan. It is thus, by definition, a “controvers[y] arising under” CERCLA. 42
U.S.C. § 9613(b). So § 113 unquestionably bars that claim.
30
3. Respondents argue that § 113(h)’s reference to
“Federal” courts means that § 113 is no impediment to
their state-court suit. Opp. 26. But that argument ignores
the interrelationship between § 113(h) and § 113(b). The
combined effect of those provisions is to “deprive the . . .
state court[s] of jurisdiction” over any claim that “constitutes a challenge to a CERCLA cleanup.” ARCO Envtl.
Remediation, L.L.C. v. Dep’t of Health & Envtl. Quality
of Mont., 213 F.3d 1108, 1115 (9th Cir. 2000); accord Fort
Ord, 189 F.3d at 832. The only permissible “challenges”
to CERCLA remediation plans are those filed in federal
court. There is no such thing as a “challenge” that would
not also qualify as a “controvers[y] arising under” CERCLA that § 113(b) would bar state courts from entertaining. So there is nothing “[c]onspicuous[],” Pet. App. 9a,
about § 113(h)’s reference to federal courts. Congress addressed the jurisdictional bar to “federal courts” because
under § 113(b) “only federal courts . . . have jurisdiction to
adjudicate a ‘challenge’ to a CERCLA cleanup in the first
place.” Fort Ord, 189 F.3d at 832.
This interpretation of § 113(b) and § 113(h) also reflects common sense. Section 113 protects Superfund
cleanups from unauthorized litigation over EPA’s remedial authority. Respondents do not dispute that federal
courts cannot hear “challenges” to EPA’s remedy absent
an express statutory exception. Under respondents’ position, however, plaintiffs could defy the comprehensive,
EPA-led process Congress prescribed simply by filing a
“challenge” in state court. The Montana Supreme Court
agreed, concluding that respondents can “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.” Pet. App. 13a. But the whole point of § 113 is
that challenges to “the merits of [a] plan,” id., for conducting an ongoing CERCLA remediation cannot be heard in
31
any forum except under limited circumstances, because
such challenges would interfere with EPA’s ability to address urgent environmental hazards. It would be perverse to permit litigants to file in state courts exactly the
same claims that federal courts cannot hear. Respondents’ reading of § 113(h) would blow a Montana-sized hole
in the statutory scheme.
B. The Montana Supreme Court’s Interpretation of
“Challenge” Is Flawed
1. The Montana Supreme Court held that respondents’ restoration claim is not a “challenge[]” under
§ 113(h) because it does not seek to “stop, delay, or change
the work EPA is doing,” and instead allows respondents
to upend EPA-ordered remediation themselves. Pet.
App. 11a (emphasis added). But the ordinary meaning of
“any challenges” does not change depending on who is implementing the remedy. See McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 328 (9th Cir. 1995).
And “any challenges” sweeps broadly for good reason: it
would have been pointless for Congress to enact the jurisdictional bar in § 113(h) if litigants could circumvent it by
cleverly targeting private parties whom EPA requires to
carry out its remedy, rather than EPA itself.
2. The Montana Supreme Court also suggested that
respondents’ suit could not be a “challenge” under
§ 113(h) as long as respondents waited to implement their
restoration plan until after EPA “pull[ed] up stakes.” Pet.
App. 14a. Even if respondents so wait, that delay would
not make respondents’ suit any less of a “challenge[].”
Section 113 prohibits “any” unauthorized challenges to a
CERCLA remediation effort. It makes no difference
whether the end result of such a challenge is to undo
EPA’s plan today or five years from now—§ 113 forbids it
either way. As the four-decade history of the Anaconda
32
cleanup shows, Superfund remediation plans are breathtakingly complex and evolving processes. This Court
should decline to thwart “Congress’s overall goal that
CERCLA free EPA to conduct forthwith cleanup-related
activities at a hazardous site” without interfering litigation. Boarhead Corp. v. Erickson, 923 F.2d 1011, 1019 (3d
Cir. 1991).
II. Section 122(e)(6) Bars Respondents’ Restoration Remedy
Section 122(e)(6), entitled “Inconsistent Response Action,” independently bars respondents’ restoration remedy. Under this provision, once EPA or any “potentially
responsible party” acting under EPA’s direction has “initiated a remedial investigation and feasibility study for a
particular facility [under CERCLA], no potentially responsible party may undertake any remedial action at the
facility” without EPA’s authorization.
42 U.S.C.
§ 9622(e)(6). The court below held that respondents were
not PRPs because respondents had never been sued or
entered into settlements accepting CERCLA liability,
and it was too late now. Pet. App. 16a-17a. But owners of
land containing hazardous substances are classic PRPs.
Any other conclusion would unleash chaos by permitting
everyone covered under CERCLA, including landowners,
to implement competing remedial plans without so much
as a heads-up to EPA or the rest of the community.
A. Respondents Are “Potentially Responsible Parties”
Although CERCLA does not define “potentially responsible parties,” this Court has recognized that the
term signifies the “[c]overed persons” that § 107 identifies
for possible responsibility for addressing contamination.
42 U.S.C. § 9607(a); see Burlington, 556 U.S. at 608-09
(describing “four broad classes of PRPs” corresponding
to the four types of “covered persons” under § 107);
United States v. Atl. Research Corp., 551 U.S. 128, 131-32,
33
134 n.2 (2007) (similar); Cooper Indus., Inc. v. Aviall
Servs., Inc., 543 U.S. 157, 161 (2004) (similar).
A paradigmatic category of “[c]overed persons,” i.e.,
PRPs, is any current “owner . . . [of] a facility.” 42 U.S.C.
§ 9607(a)(1); Burlington, 556 U.S. at 609 (explaining that
parties undisputedly “qualif[ied] as PRPs . . . because
they owned the land [at issue] at the time of the contamination and continue to own it now”). An owner of a “facility” includes an owner of “any site or area where a hazardous substance has been deposited, stored, disposed of,
or placed, or otherwise come to be located.” 42 U.S.C.
§ 9601(9). CERCLA repeatedly treats owners as PRPs.
For instance, CERCLA authorizes EPA to enter into
agreements with the “owner or operator of the facility”
and “any other potentially responsible person.” Id.
§ 9622(a) (emphasis added). CERCLA likewise requires
EPA to give notice of settlement negotiations to “potentially responsible parties (including owners and operators and other persons referred to in [section 107(a)]).”
Id. § 9622(e)(1)(A) (emphasis added). Owners of land
within Superfund sites are unambiguously PRPs.
Under these provisions, Atlantic Richfield is a PRP
because the company owns much of the land within the
Anaconda Smelter site. Or, in the words of CERCLA, the
company is an “owner” of a “site or area where a hazardous substance has . . . come to be located.” 42 U.S.C.
§§ 9607(a)(1), 9601(9), 9601(20)(A)(ii). But respondents,
too, own land within the Anaconda Smelter site where
hazardous substances came to be located; that is why they
brought this lawsuit. See Pet. App. 4a. Respondents thus
fall within the owner category of PRPs every bit as much
as Atlantic Richfield does.
Excluding respondents from the definition of PRPs
would create a huge statutory void. Again, § 122(e)(6)
34
bars any PRP from “undertak[ing] any remedial action at
the facility” without EPA’s sign-off once a remedial investigation and feasibility study begin.
42 U.S.C.
§ 9622(e)(6). “[R]emedial action” covers virtually any
physical action with respect to hazardous waste at the site,
including storage, excavation, recycling, diversion, destruction, onsite treatment or incineration, and offsite
transport and storage. Id. § 9601(24). Section 122(e)(6)
thus “avoid[s] situations in which the PRP begins work at
a site that prejudges or may be inconsistent with what the
final remedy should be or exacerbates the problem.” 132
Cong. Rec. 28,430 (1986) (statement of Sen. Mitchell).
Landowners are the PRPs most likely to go off and
pursue their own visions of remediation. Were they exempt from the PRP definition, any landowners on Superfund sites could rev their bulldozers, start digging
trenches, and remove soil on their own, without consulting
EPA or even letting their neighbors know that hazardous
substances could migrate their way in the process. Rather than channeling efforts to one, EPA-led cleanup, respondents’ position would permit warring, simultaneous
cleanups at every Superfund site. Hundreds or thousands
of landowners on larger Superfund sites could each go
their own way and defy EPA’s remediation plans no matter how much the broader community supported EPA’s
vision. The end result effectively creates a heckler’s veto
over EPA’s community-wide remedial plan.
For nearly 30 years, EPA has interpreted the term
“potentially responsible parties” to encompass residential
landowners like respondents whether or not they ever
face liability under CERCLA. EPA, Policy Towards
Owners of Residential Property at Superfund Sites, 1, 34 (1991), https://bit.ly/2TEmQ1E. EPA has explained
35
that there may be “several hundred . . . residential properties located on a Superfund site,” and that CERCLA
§ 107 covers such property owners, making them PRPs.
Id. at 1-4 & n.1. EPA has long decided, as an exercise of
its enforcement discretion, to decline to compel these residential landowner PRPs to engage in cleanup or pay
costs—but only “if the owner’s activities are consistent
with [EPA’s] policy” and do not interfere with EPA’s
cleanup. Id. at 3-5.
EPA considered respondents’ PRP status self-evident
below, Pet. App. 79a-80a, and reiterated its view to respondents in April 2018. EPA told respondents that “current owners of property within Superfund sites [are] potentially responsible parties” based on EPA’s longstanding interpretation, and that, as PRPs, respondents’ “proposed cleanup activities need to be reviewed and authorized by EPA.” App. 1a, 3a.
If respondents are PRPs, their unauthorized restoration remedy undisputedly constitutes the kind of unauthorized “remedial action” that § 122(e)(6) bars. Indeed,
Montana law requires plaintiffs seeking restoration damages to actually remediate their property. Pet. App. 5a,
13a; Opp. 8. Accordingly, as PRPs, respondents cannot
invoke state law to compel unauthorized remedial action.
B. The Montana Supreme Court’s Interpretation of
§ 122(e)(6) Is Flawed
The Montana Supreme Court dismissed § 122(e)(6),
accepting respondents’ view that only parties affirmatively designated as PRPs qualify as PRPs. Such designation, the court believed, occurs only upon a voluntary
settlement with EPA, “a judicial determination that the
party is a responsible party,” or when the party becomes
a “defendant in a CERCLA lawsuit” deemed ineligible for
statutory defenses. Pet. App. 15a-16a; Opp. 31-33. And if
36
such designation does not happen within CERCLA’s limitations period of six years after a cleanup begins, the
“PRP horse [has] left the barn.” Pet. App. 16a; Opp. 31.
At that point, landowners and other PRPs (even culpable
ones) that elude suits or settlements for six years can
roam free and try out whatever remedial actions they like.
1. That interpretation puts the cart before the horse.
Under CERCLA’s plain text, parties are PRPs long before any suits or settlements resolve ultimate responsibility for a cleanup, not vice versa. A PRP is anyone who fits
within § 107(a)’s broad definitions of “covered persons”—
full stop. Supra Section II.A. The statutory text does the
“designation.” CERCLA does not contain some phantom
additional designation provision requiring the outside
world to recognize someone as a responsible party before
EPA can treat that party as a PRP.
Respondents’ and the Montana Supreme Court’s interpretation makes a muddle of CERCLA by conflating
qualification for PRP status with actual liability as a responsible party. “PRP” starts with a “P” because CERCLA covers “everyone who is potentially responsible for
hazardous-waste contamination,” not just parties actually
deemed liable for cleanup costs or remediation. See
Bestfoods, 524 U.S. at 56 n.1 (emphasis added). That is
the very essence of the term that the Montana Supreme
Court, at respondents’ urging, read out of the statute.
“[E]ven parties not responsible for contamination may fall
within the broad definitions of PRPs in [section 107(a)].”
Atl. Research, 551 U.S. at 136. Likewise, even the “‘innocent’ . . . landowner whose land has been contaminated by
another” counts as a PRP. Id. (citation omitted); see also
42 U.S.C. § 9622(g)(1)(B) (authorizing “[d]e minimis settlements” with EPA for landowners who are “potentially
37
responsible part[ies],” did not contribute to contamination, and had no basis for knowing about it).
But if parties must have entered into voluntary settlements or have been subjected to judicial determinations
of liability to qualify, the distinction between potentially
and actually responsible parties would evaporate. Similarly, a defendant that a court has deemed ineligible for
CERCLA-based defenses is well on the road to liability.
Those defenses are available only to persons who are “otherwise liable” as covered persons under § 107, underscoring that PRP status endures even if parties can claim defenses to liability. Id. § 9607(b); see, e.g., Carson Harbor
Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 882 (9th Cir.
2001).
Respondents’ interpretation would also warp the overall statutory design. As § 122(e)(6) illustrates, EPA must
be able to regulate all PRPs to maintain its control over
Superfund sites, even if many PRPs never face actual liability. Supra Section II.A. Additionally, CERCLA refers
to PRPs in instances unrelated to ultimate liability for
contamination or cleanup costs. CERCLA confers procedural benefits on PRPs to ensure that all PRPs have a
voice in the cleanup EPA selects, even if they never bear
its costs. For instance, all PRPs can participate in developing the administrative record underlying EPA’s selection of a remedy. 42 U.S.C. § 9613(k)(2)(B). EPA must
also notify all PRPs before selecting a response action, id.
§ 9613(k)(2)(D), before embarking on a period of settlement negotiation, id. § 9622(e)(1), and after deciding not
to use CERCLA-specified settlement procedures, id.
§ 9622(a). PRP status, in sum, cuts broadly to ensure that
all parties at the site work towards EPA’s remedial plan.
2. CERCLA is likewise devoid of any deadline to designate PRPs after which “the PRP horse [has] left the
38
barn.” Pet. App. 16a. The Montana Supreme Court held
that CERCLA’s six-year limitations period for filing suit
to recover costs of remedial actions, which runs from the
beginning of construction of the remedial action, 42 U.S.C.
§ 9613(g)(2)(B), sets off a six-year race to designate PRPs
for any purpose. Pet. App. 16a. That is not what that narrow provision says. Moreover, § 122(e)(6) already spells
out a time period during which PRPs are barred from acting unilaterally, i.e., as soon as EPA’s remedial investigation begins. It defies credulity to think that Congress secretly hid a six-year deadline for EPA to recognize PRPs
within a statute-of-limitations provision about the timing
of lawsuits to recover remedial costs.
Respondents’ and the Montana Supreme Court’s position would also create a veritable Augean stable of practical problems that would destroy EPA’s authority to direct
cleanups. By their logic, a would-be PRP that has avoided
liability six years into EPA’s cleanup is free to ignore
§ 122(e)(6) and scuttle EPA’s plans. But as this lawsuit
illustrates, EPA can ill afford to roll the dice and hope that
any actors who escape suits or settlements six years into
EPA’s cleanup will resist the temptation to go their own
way.
EPA would be equally hamstrung with respect to any
PRP on any Superfund site—a multitude of actors, from
past and current owners and facility operators to parties
that transported hazardous substances. Any of them
could also reach the six-year mark without facing a qualifying suit or settlement and launch their own personal
cleanup plan, no matter how much the rest of the community disagreed—and no matter how high the risk of exposing their neighbors to hazardous substance. EPA’s binding plans would become mere suggestions, preventing
39
EPA from protecting the community as a whole from environmental threats.
But avoiding that outcome would require EPA to delay starting its cleanup until after it sued and settled with
all PRPs. CERCLA’s whole point is to empower EPA to
act fast to remedy environmental crises and litigate ultimate liability later, subject to broad enforcement discretion. The Montana Supreme Court’s view would strip
EPA of that discretion and require EPA to squander
enormous resources negotiating settlements or bringing
actions against hundreds or even thousands of PRPs
whom EPA would otherwise never target, lest six years
pass without the requisite designation. That result would
also impose immense burdens on every landowner at
every Superfund site—all of whom would likely have to
hire counsel and negotiate settlements with EPA, even if
they fully support EPA’s remedial approach. The remedial flexibility and cooperative enforcement Congress envisioned would disappear.
Respondents further suggest that parties could “invoke CERCLA exemptions from liability” to avoid PRP
status. Opp. 31. That limitation is not one the Montana
Supreme Court embraced. See Pet. App. 16a-17a. Regardless, those exemptions only undermine respondents’
position, since the statutory text treats these provisions
as defenses to liability, not exemptions from statutory
coverage. Further, this limitation might not limit much.
CERCLA contains many defenses to liability, including
where the release of hazardous substances was caused by
“an act of God” or “an act of war.” 42 U.S.C. § 9607(b).
CERCLA also shields from liability “actions taken or
omitted in the course of rendering care, assistance, or advice in accordance with the National Contingency Plan …
or at the direction of an onscene coordinator.” Id.
40
§ 9607(d)(1). Respondents’ position would permit anyone
who could invoke these defenses to do whatever they want
with Superfund sites. And it is anyone’s guess how or
when a party seeking to avoid PRP classification could
“invoke” one of those defenses outside a judicial proceeding.
Congress could not have intended to allow rogue landowners, operators, and transporters to turn EPA-ordered
cleanups into virtual demolition derbies where PRPs’ bulldozers rush to dig up holes that EPA tractors just filled.
Nor would PRPs in Atlantic Richfield’s shoes have much
incentive to proactively approach EPA and collaborate
with its efforts, if any landowner or other covered person
could undo years of work and stick the cooperating party
with the bill without even having to check with EPA first.
III. CERCLA Preempts a Restoration Remedy
CERCLA doubly preempts respondents’ state-law
restoration remedy. First, federal law compels Atlantic
Richfield to clean up the Anaconda site in strict accordance with EPA’s remedial plan. Federal law thus makes
it impossible for Atlantic Richfield to unilaterally comply
with its alleged duty, under Montana law, to see respondents’ land restored to its pre-smelter state. Second, respondents’ restoration remedy poses monumental obstacles to CERCLA’s implementation, by wresting control of
a cleanup away from EPA and its comprehensive efforts
and allowing individual landowners to literally tear up
EPA’s remediation.
Respondents and the Montana Supreme Court believed that CERCLA’s savings clauses salvage even state
laws that conflict with federal law, but that is not how this
Court has read similar savings clauses. While CERCLA’s
savings clauses leave respondents free to pursue their
41
other state tort remedies, these clauses are not an escape
hatch for state laws to supplant competing federal obligations.
A. Atlantic Richfield’s CERCLA Cleanup Obligations Directly Conflict with Its Alleged State-Law Duty
“When federal law forbids an action that state law requires,” then “the state law is ‘without effect’” because
federal law preempts it. Mut. Pharm. Co. v. Bartlett, 570
U.S. 472, 486 (2013) (quoting Maryland v. Louisiana, 451
U.S. 725, 746 (1981)). That is the case here: federal law
forbids Atlantic Richfield to deviate from EPA’s cleanup
plan at the Anaconda Smelter site. But Montana law
erects a conflicting duty. Respondents’ restoration remedy rests on Atlantic Richfield’s alleged state-law duty to
restore respondents’ land to pristine, pre-smelter condition. The only way for Atlantic Richfield to avoid paying
tens of millions of dollars for respondents’ competing
cleanup would be for Atlantic Richfield to have already
done that cleanup—a move that CERCLA prohibits.
1. This Court’s recent impossibility-preemption cases
establish that if defendants need a federal agency’s approval and assistance to comply with a state-law obligation, then federal law preempts that state obligation. Defendants cannot serve two conflicting masters, and when
federal law leaves no room for a defendant to unilaterally
fulfill state-law duties, federal law prevails.
In the first of these decisions, Wyeth v. Levine, 555
U.S. 555 (2009), a brand-name drug manufacturer argued
that its inability under federal law to change its drug labeling without FDA’s approval left the manufacturer
powerless to fulfill its state-law duty to strengthen the
warning on the drug’s label. Id. at 559-60, 568. This Court
disagreed, explaining that FDA regulations sometimes let
brand-name manufacturers change drug labels first and
42
seek FDA approval later. Id. at 568, 571. Absent “clear
evidence” that FDA would have rejected the plaintiff’s
proposed warning change, the manufacturer could have
independently complied with both state and federal law.
Id. at 571. So that state-law duty was not preempted.
PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011), then
held that a generic drug manufacturer could not simultaneously satisfy its federal-law obligations regarding drug
labeling and its state-law obligation to change an allegedly
inadequate warning label. Unlike brand-name counterparts, federal law prohibits generic manufacturers from
altering FDA-approved warning labels, which generics
copy from the brand. Id. at 614. So federal law prohibited
what state tort law required. Further, the Court rejected
the notion that the manufacturer could have avoided the
conflict by asking FDA for permission to change the label.
“[W]hen a party cannot satisfy its state duties without the
Federal Government’s special permission and assistance,
which is dependent on the exercise of judgment by a federal agency,” the Court held, “that party cannot independently satisfy those state duties for pre-emption purposes.” Id. at 623-24.
Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472
(2013) also involved a generic drug manufacturer’s alleged
breach of its state-law duty to adequately warn of the
drug’s hazards. Id. at 475. As in Mensing, the Court concluded that the generic manufacturer could not simultaneously maintain its required label (under federal law)
and change its label (under state law). Id. at 486-87. The
Court likewise rejected the argument that the defendant
could have complied with state law by paying damages. A
party who must choose between violating federal law, and
paying damages under state law, is still stuck between two
logically incompatible obligations. Id. at 490-91.
43
Finally, Merck Sharp & Dohme Corp. v. Albrecht, 139
S. Ct. 1668 (2019), recently confirmed that the key question for impossibility preemption remains “whether federal law,” including agency actions with the force of law,
“prohibited” the defendant from taking actions “that
would satisfy state law.” Id. at 1678.
2. Here too federal law forbids a defendant from fulfilling its alleged state-law obligations. The state-law duties at issue concern the duty of “restoration” that Montana law imposes through the specific remedy of restoration damages. “[C]ommon-law damages actions . . . are
premised on the existence of a legal duty.” Cipollone v.
Liggett Grp., Inc., 505 U.S. 504, 522 (1992) (plurality op.);
accord Bartlett, 570 U.S. at 482 n.1. Under Montana law,
anyone who causes an injury to land that “is used for a
purpose personal to the owner,” like a residence, may face
unique remedial obligations. Sunburst Sch. Dist. No. 2 v.
Texaco, Inc., 165 P.3d 1079, 1087 (Mont. 2007) (quoting
Restatement (Second) of Torts § 929 cmt. b (Am. Law
Inst. 1979)). If that damage is reversible, Montana law
requires the responsible party to restore the property to
“the condition [it] would have been [in] absent [the] contamination.” Id. at 1086-87. To satisfy respondents’ demand, Atlantic Richfield would have had to restore their
property to pre-1884 conditions, or pay for respondents to
perform that restoration themselves. See id.
Although this restoration remedy involves paying
money to the injured property owner, it is no ordinary
money-damages award. Funds must be used to clean up
the land to its pre-contamination condition. See id. at
1089. Montana’s restoration remedy thus resembles injunctive relief or specific performance, by requiring the
defendant to bring about a particular future result. The
defendant’s damages correspond to the estimated cost of
44
fulfilling a specific restoration plan that property owners
are required to execute once a state-court jury signs off.
See id. at 1089-90. Here, respondents demand up to $58
million—seven times the combined value of all their property—to discharge Atlantic Richfield’s alleged state-law
obligation “to restore their properties to pre-smelter conditions.” Opp. 8.
3. CERCLA prohibits Atlantic Richfield from unilaterally fulfilling that state-law remedial obligation. CERCLA compels Atlantic Richfield to follow EPA’s remedial
plans for the Anaconda Smelter site to the letter. Once
the remedial investigation and feasibility study for the
site began in 1988, § 122(e)(6) prohibited Atlantic Richfield—as an undisputed potentially responsible party—
from “undertak[ing] any remedial action at the facility unless such remedial action has been authorized” by EPA.
42 U.S.C. § 9622(e)(6). Further, binding EPA regulations
require everything Atlantic Richfield does at the site to be
“in conformance with the remedy [EPA] selected and set
forth” in its Records of Decision.
40 C.F.R.
§ 300.435(b)(1).
EPA’s Records of Decision—which contain hundreds
of pages of remedial plans—also became federal law when
EPA incorporated them into a series of administrative orders that it issued using its delegated authority under
CERCLA § 104(b) and § 106(a). See, e.g., J.A. 121.
EPA’s administrative orders compel Atlantic Richfield to
follow the remedies EPA selected. See, e.g., J.A. 123, 12526, 127-28. For example, the order requiring implementation of the Community Soils Record of Decision provides that “[u]ndertaking any on-Site physical activity
without prior approval of EPA is a violation of this Order.”
See J.A. 127. Violations trigger stiff civil penalties and
possible Department of Justice enforcement action. See
45
42 U.S.C. § 9606(a), (b)(1); J.A. 146. In short, federal law
spells out what remediation Atlantic Richfield can do
across the Superfund site—no more, and no less.
Atlantic Richfield thus cannot “independently do under federal law what state law requires of it.” Mensing,
564 U.S. at 620. State law, through the restoration remedy, holds Atlantic Richfield responsible for not having
cleaned up the Anaconda site to what respondents contend is a pristine, pre-smelter condition. Federal law instead demands that Atlantic Richfield clean up the Anaconda site to a condition EPA determines will “assure[]
protection of human health and the environment.” 42
U.S.C. § 9621(d)(1). Atlantic Richfield can go no further
without EPA’s consent. Indeed, when Atlantic Richfield
offered to conduct remediation on respondents’ pasture
lands beyond what EPA’s plan required, EPA blocked the
proposal. Mont. S. Ct. Rec. at Suppl-App-0182. Federal
law thus prohibits Atlantic Richfield from independently
taking the remedial actions that would have allowed the
company to avoid state-law restoration damages.
Respondents’ particular remedial plan vividly illustrates that it is impossible for Atlantic Richfield to simultaneously discharge its obligations to EPA and avoid being on the hook for state-law restoration damages. Take
groundwater remediation. EPA determined that removing arsenic from groundwater at the site, rather than replacing or treating individual wells, would be technically
unachievable—so EPA declined to authorize such action
in the remedial plan that binds Atlantic Richfield. J.A.
150-58.
To avoid state-law restoration damages, however, Atlantic Richfield would have had to disregard EPA’s decision and install three miles’ worth of underground
trenches. Not only that, Atlantic Richfield would have to
46
ignore EPA’s judgment that such trenches could wreak
environmental havoc by unpredictably altering the
groundwater flow, introducing new chemicals into the aquifer, and risking contamination of uncontaminated
groundwater. Pet. App. 73a-74a. Atlantic Richfield cannot unilaterally install underground barriers when EPA
wants this groundwater undisturbed and unadulterated.
And had Atlantic Richfield tried to prevent state-law liability for remedial damages by flouting EPA’s prescriptions for groundwater remediation, the company would
have walked straight into the buzz saw of harsh federal
sanctions for defying EPA’s orders. See 42 U.S.C. § 9606.
4. This conflict is inescapable. It is no answer that “a
different cleanup might be something that the EPA could
authorize.” Opp. 11 (quoting Tr. of Oral Argument at
42:34-37). Again, “when a party cannot satisfy its state
duties without the Federal Government’s special permission and assistance, which is dependent on the exercise of
judgment by a federal agency,” federal law preempts the
state-law mandate. Mensing, 564 U.S. at 623-24.
It also makes no difference for impossibility-preemption purposes that Atlantic Richfield would not wield the
shovels itself, but would instead pay respondents damages. See Opp. 36. As Bartlett acknowledged, preemption
does not depend on whether the defendant itself performs
the federally prohibited act or pays someone else damages for failing to perform that act. 570 U.S. at 490-91. If
the generic drug manufacturers in Mensing and Bartlett
could have avoided the conflict between their federal-law
duty to keep the same label and their state-law duty to
change it by paying tort damages, those cases would have
found no preemption. See Mensing, 564 U.S. at 611-12;
Bartlett, 570 U.S. at 490-91. Impossibility preemption it-
47
self would be impossible in civil cases, because one can always theoretically obey one sovereign and pay the sanction dictated by the other. But this Court has squarely
rejected “an approach to pre-emption that renders conflict pre-emption all but meaningless.” Mensing, 564 U.S.
at 621.
B. A Restoration Remedy Conflicts with CERCLA’s Purposes and Objectives
State law also “actually conflicts with federal law . . .
where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of
Congress.’” English v. Gen. Elec. Co., 496 U.S. 72, 79
(1990) (quoting Hines v. Davidowitz, 312 U.S. 52, 67
(1941)). That type of preemption plainly applies to respondents’ restoration remedy, which would undermine
CERCLA’s comprehensive federal scheme and would
eject EPA from the driver’s seat in managing cleanups.
1. This Court has repeatedly found state law
preempted when it interferes with an overlapping federal
scheme. For instance, Geier v. American Honda Motor
Co., 529 U.S. 861 (2000), held that federal law preempted
an alleged state tort-law duty to equip cars with airbags
where a federal safety standard instead provided for a
gradual phase-in for airbags. Id. at 874-75, 879. Because
the Department of Transportation determined that the
latter approach would be safest in the long run, requiring
airbags in every car would have “stood as an obstacle to
the gradual passive restraint phase-in that the federal
regulation deliberately imposed.” Id. at 881.
Likewise, Crosby v. National Foreign Trade Council,
530 U.S. 363 (2000), held that federal laws sanctioning
Burma preempted Massachusetts’ Burma sanctions.
Congress had delegated to the President the power to decide what level of sanctions to impose, and Massachusetts’
48
law impaired the President’s leverage in calibrating the
appropriate degree of pressure. Id. at 376-80.
More recently, Arizona v. United States, 567 U.S. 387
(2012), held that federal immigration law preempted provisions of an Arizona immigration statute, including a section authorizing state officers to arrest removable aliens.
Id. at 407, 410. Because federal law vests federal officials
with discretion to decide when such arrests are appropriate, Arizona’s provision “violate[d] the principle that the
removal process is entrusted to the discretion of the Federal Government.” Id. at 409. In all of these cases, state
laws were preempted where they deprived federal agencies of flexibility to administer comprehensive federal
laws.
By contrast, Virginia Uranium, Inc. v. Warren, 139
S. Ct. 1894 (2019), held that the Atomic Energy Act did
not preempt a Virginia law banning uranium mining. The
petitioner had failed to identify any provision of federal
law that would be thwarted, and argued only that the state
statute threatened the abstract “balance” struck under
the act. See id. at 1907-08 (opinion of Gorsuch, J.). The
Court further noted the federal and state law did not regulate the same activity. Id. at 1908; see id. at 1915-16
(Ginsburg, J., concurring in the judgment).
2. Allowing respondents’ restoration remedy would
deprive EPA of the comprehensive control of cleanup
sites that CERCLA requires. CERCLA commits to EPA
decisions about how best “to promote the timely cleanup
of hazardous waste sites.” Burlington, 556 U.S. at 602 (internal quotation marks omitted). Specifically, CERCLA
requires EPA to choose and implement the most effective
means of cleaning up hazardous waste sites after balancing over a half-dozen statutory considerations and the interests of all affected parties. See 42 U.S.C. § 9621(a)-(d).
49
CERCLA further protects EPA’s primacy over cleanup
efforts by prohibiting both judicial challenges to ongoing
cleanups, via § 113(h), and practical challenges in the form
of conflicting cleanup activities, via § 122(e)(6).
Respondents’ restoration remedy would impermissibly usurp EPA’s role in making conclusive judgments
about how to remediate a site and protect affected communities from residual risks. A handful of private property owners would receive the cleanup they personally
prefer—but at inordinate expense, and subject only to the
review of a state-court jury. Addressing environmental
threats requires “informed assessment of competing interests,” which is why Congress has “entrust[ed] such
complex balancing to EPA in the first instance.” Am.
Elec. Power Co. v. Connecticut, 564 U.S. 410, 427 (2011).
“The expert agency is surely better equipped to do the
job” than individual juries on a case-by-case basis, acting
only on the record the parties present. See id. at 428; Br.
Wash. Legal Found. Supp. Cert. at 5, 8-9. Respondents
brandish state law that pursues one narrow aim: restoring individual landowners’ properties to a pristine, precontamination state. But allowing respondents to pursue
that single aim would compromise EPA’s ability to accommodate the full panoply of considerations that CERCLA
requires EPA to balance in crafting its remedy.
Respondents’ private restoration remedy, by definition, ignores the interests of neighbors and anyone else in
the community who might perversely face a heightened
risk of exposure to hazardous substances if respondents’
plans became reality. This case illustrates the risks of
that approach: respondents’ proposed underground
trenches would potentially adversely affect everyone’s
groundwater in Opportunity, not just respondents’. Pet.
App. 73a-74a. And respondents’ soil excavation free-for-
50
all could expose everyone in the community to previously
contained arsenic.
3. Allowing private landowners like respondents to
pursue a restoration remedy would also subvert CERCLA’s objective of securing voluntary cooperation from
parties at Superfund sites. CERCLA recognizes that
agreements between EPA and PRPs “expedite effective
remedial actions and minimize litigation,” 42 U.S.C.
§ 9622(a), and thus encourages EPA to make agreements
with private parties to conduct cleanup activities “[w]henever practicable and in the public interest.” Id.
Allowing every landowner at a Superfund site to unilaterally dictate their own cleanup terms would destroy
this collaborative process. Parties in Atlantic Richfield’s
position will not willingly devote years and millions of dollars to working with EPA to craft cleanup plans that do
not fix the company’s obligations. See Br. Chamber of
Commerce et al. Supp. Cert. 18-21. True, a settlement
with EPA could not resolve all of Atlantic Richfield’s
state-law liability, Opp. 38, but liability for cleanup costs
is by far the largest and most unpredictable component of
a PRP’s financial exposure at a Superfund site. The opportunity to buy peace in this area alone is a highly attractive incentive to cooperate with EPA early and often. Respondents’ restoration remedy would deprive EPA of its
most valuable bargaining chip in most CERCLA cases.
4. The Montana Supreme Court and respondents dismiss any obstacle-preemption problem by contending
that respondents merely seek to remediate their properties beyond EPA’s floor. Opp. 35; Pet. App. 11a. But, as
noted, CERCLA sets both a floor and ceiling for remediation by forbidding PRPs from doing anything else—no
matter how well-intentioned—without EPA’s consent. 42
U.S.C. § 9622(e)(6).
51
Regardless, EPA remedies are not evaluated on a single dimension, from “less cleanup” to “more cleanup.”
EPA selects a remedy by weighing many factors, including short-term and long-term effectiveness, compliance
with state law, cost, implementability, and community acceptance. 40 C.F.R. § 300.430(e)(9)(iii). One step forward
along one dimension may be two steps back along another.
For example, EPA decided that, on balance, no pasture
land should be disturbed, because the risk of spreading
arsenic to more densely-populated areas was too high.
Respondents second-guess that determination and demand that pasture lands with more than 15 parts per million arsenic should be dug up. And the next litigants could
just as easily decide that pasture land meeting a different
threshold should be dug up, or that they should try different technological options to attenuate any residual arsenic. Only EPA is in a position to evaluate whether a particular cleanup decision will lead to greater “protection of
human health and the environment.”
42 U.S.C.
§ 9621(d)(1). Respondents’ restoration remedy would instead replace EPA’s community-focused balancing of interests with blinkered piecemeal proposals that could
jeopardize the community’s health.
C. CERCLA’s Savings Clauses Do Not Apply
CERCLA’s savings clauses do not prevent CERCLA
from preempting respondents’ restoration remedy. Section 114(a) states: “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). Section 302(d) provides in
relevant part: “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
52
law, with respect to releases of hazardous substances or
other pollutants or contaminants.” Id. § 9652(d); see also
id. § 9659(h). These provisions are the type of cookie-cutter savings clause that this Court has held does not defeat
conflict-preemption principles. Read in context, these
clauses do not preserve respondents’ restoration remedy.
1. Generally-worded savings clauses are scattered
throughout the U.S. Code. See, e.g., Geier, 529 U.S. at
867-68. Such savings clauses indicate that Congress did
not mean for the statute to occupy the field and extinguish
every possible state-law claim on the same subject. See
id. But such savings clauses do not override impossibility
or obstacle preemption principles. Id. at 871-74.
Geier, for instance, involved a savings clause providing
that “[c]ompliance with” any Federal motor vehicle safety
standard “does not exempt any person from any liability
under common law.” Id. at 868 (quoting 15 U.S.C.
§ 1397(k) (1988)). On its face, that language could be read
to authorize plaintiffs to sue manufacturers who complied
with a federal-law duty but violated a conflicting state
common-law duty. But the Court considered such a reading illogical. If an interpretation of a savings clause
“reads into a particular federal law toleration of a conflict
that [conflict-preemption] principles would otherwise forbid, it permits that law to defeat its own objectives.”
Geier, 529 U.S. at 872. Following this reasoning, the
Court has “decline[d] to give broad effect to saving
clauses where doing so would upset the careful regulatory
scheme established by federal law.” United States v.
Locke, 529 U.S. 89, 106 (2000).
Even broader savings clauses do not shield state laws
that conflict with federal law. For example, section 22 of
the Interstate Commerce Act of 1887 declared:
“[N]othing in this act contained shall in any way abridge
53
or alter the remedies now existing at common law or by
statute, but the provisions of this act are in addition to
such remedies.” Pub. L. No. 49-104, 24 Stat. 379, § 22. At
first blush, that provision would seemingly foreclose
preemption of any state remedies. The Court nonetheless
held that the provision “cannot in reason be construed as
continuing in shippers a common-law right, the continued
existence of which would be absolutely inconsistent with
the provisions of the act.” Tex. & Pac. Ry. Co. v. Abilene
Cotton Oil Co., 204 U.S. 426, 446 (1907). The Court later
held that this same savings clause did not preserve statelaw claims that impeded the Interstate Commerce Act.
See Chi. & Nw. Transp. Co. v. Kalo Brick & Tile Co., 450
U.S. 311, 328-31 (1981). And where Congress has copied
materially identical savings-clause language into other
statutes, the Court has read it the same way. Morales v.
Trans World Airlines, Inc., 504 U.S. 374, 384-85 (1992)
(Federal Aviation Act); AT&T Co. v. Cent. Office Tel.,
Inc., 524 U.S. 214, 227-28 (1998) (Communications Act).
Sections 114(a) and 302(d) closely resemble savings
clauses the Court has encountered before. Like those
provisions, § 114(a) and § 302(d) make clear that CERCLA does not preempt the whole field of state environmental regulation. And, like those other provisions,
§ 114(a) and § 302(d) contain no indication that Congress
preserved state laws that would require a party to violate
federal law or destroy the integrity of the federal regulatory scheme. There is “no reason to believe” that those
two provisions wrought a major realignment of the federal-state balance and authorized state laws to supersede
conflicting federal obligations. Geier, 529 U.S. at 872.
2. Reading these two CERCLA savings clauses to authorize state laws that conflict with federal law would also
54
pervert their text. CERCLA imposes certain forms of liability on responsible parties, including liability for EPA’s
cleanup costs, 42 U.S.C. § 9607(a)(4)(A). Section 114(a)
preserves States’ ability to impose “any additional liability or requirements with respect to the release of hazardous substances.” Id. § 9614(a) (emphasis added). “Additional” in this context means “supplemental,” not “alternative” or “conflicting.” See Additional, Random House
Dictionary of the English Language (1967) (“added; supplementary”). Thus, § 114(a) underscores that CERCLA
does not occupy the field with respect to liability.
For instance, if a state law established a duty to offer
medical monitoring to a homeowner exposed to toxic substances, CERCLA would not preempt that duty, which
would not interfere with EPA’s exclusive authority over
cleanups. That makes sense, because CERCLA elsewhere indicates that state-law actions “for personal injury, or property damages” caused by pollution will remain available—those actions will just be subject to a
CERCLA-mandated statute of limitations. See 42 U.S.C.
§ 9658(a). In sum, § 114(a) preserves common-law actions
that do not seek to dictate substantive cleanup steps—but
it does not protect conflicting state laws that the Supremacy Clause says must yield to federal law.
Section 302(d)’s text likewise does not signal any subversion of ordinary conflict preemption. Its first sentence
disclaims any intent to “affect or modify” parties’ “obligations or liabilities . . . under other Federal or State law . . .
with respect to releases of” contaminants. Id. § 9652(d).
Again, this Court has never read such language to disclaim the normal operation of the Supremacy Clause with
respect to state laws that conflict with federal law. Section 302(d)’s second sentence confirms that intuition, elab-
55
orating that CERCLA “shall not be considered, interpreted, or construed in any way as reflecting a determination . . . of policy regarding the inapplicability of strict liability, or strict liability doctrines, to activities relating to
hazardous substances.” Id. Considered as a whole,
§ 302(d) concerns (and preserves) state-law duties not to
pollute, but does not permit state laws that overrule
EPA’s remediation plan.
Other provisions reinforce that CERCLA treats state
law setting substantive pollution-cleanup standards differently from state law governing compensation for injury
to persons or property. CERCLA provides that EPA, in
selecting a remedy, must take into account state laws that
set a cleanup threshold more stringent than federal law.
Id. § 9621(d)(2)(A)(ii). But if EPA determines that the application of such a state standard is inappropriate—for example, if compliance would cause more environmental
harm than good—EPA can waive that standard. See id.
§ 9621(d)(4). Congress determined, then, that when selecting a remedy and choosing the substantive cleanup
thresholds to apply, EPA has the authority to override
state law. And respondents have never claimed that EPA
failed to account for Montana law in this fashion here.
In sum, CERCLA leaves wide swaths of state law untouched. Nothing in CERCLA prevents respondents
from bringing their state common-law claims to hold Atlantic Richfield liable for Anaconda’s pollution. Montana
law establishes a general duty not to pollute others’ property, which plaintiffs usually pursue through common-law
claims such as nuisance, trespass, strict liability, or negligence. See Christian, 358 P.3d at 140, 150. CERCLA
does not conflict with that duty not to pollute. J.A. 54. But
CERCLA’s routine savings clauses do not save respondents’ restoration remedy, which conflicts with Atlantic
56
Richfield’s CERCLA obligations and would destroy Congress’s carefully wrought design.
57
CONCLUSION
The judgment of the Montana Supreme Court should
be reversed.
Respectfully submitted,
ROBERT J. KATERBERG
ELISABETH S. THEODORE
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
JONATHAN W. RAUCHWAY
SHANNON W. STEVENSON
DAVIS GRAHAM & STUBBS
LLP
1550 17th St., Suite 500
Denver, CO 80202
AUGUST 21, 2019
LISA S. BLATT
JOHN S. WILLIAMS
SARAH M. HARRIS
CHARLES L. MCCLOUD
MENG JIA YANG
THOMAS S. CHAPMAN
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, NW
Washington, DC 20005
(202) 434-5000
lblatt@wc.com
Counsel for Petitioner
APPENDIX
1a
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
REGION 8
1595 Wynkoop Street
Denver, CO 80202-1129
Phone 800-227-8917
www.epa.gov/region8
Ref: ENF-IO
Mr. J. David Slovak
Lewis, Slovak, Kovacich & Snipes, P.C.
725 - 3rd Avenue North
P.O. Box 2325
Great Falls, Montana 59403
Re: Gregory A. Christian, et al, v. Atlantic Richfield
Company, Montana Second Judicial District,
Silver Bow County, Cause No. DV-08-173
Dear Mr. Slovak:
This letter concerns the above-referenced lawsuit
that involves the Anaconda Smelter Superfund Site,
located at Anaconda, Montana (Site). It is the understanding of the U.S. Environmental Protection Agency
that your clients are seeking, among other things,
funding to perform cleanup actions on property located
within the Site. As you are aware, EPA is already
addressing this Site using its authority under the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA). 42 U.S.C. § 9601-9675.
Depending on the specifics of the situation, your clients’
future actions may put them at risk of becoming liable
for significant response costs.
CERCLA identifies current owners of property within
Superfund sites as potentially responsible parties,
liable for costs of cleaning up contamination at these
2a
sites. 42 U.S.C. § 9607(a). However, as a matter of
enforcement discretion, EPA generally will not take
enforcement actions against an owner of residential
property within a Superfund site to require the owner
to perform response actions or pay response costs, unless
the homeowner’s activities exacerbate existing contamination, resulting in the need for a response action at
the site; the owner does not cooperate with EPA or
interferes with an EPA response action; or, if the owner
fails to comply with any other CERCLA obligations.
See EPA’s “Policy Towards Owners of Residential
Property at Superfund Sites.” A residential landowner
faces significant legal and financial exposure pursuant
to CERCLA’s statutory provisions; the policy towards
residential property owners describes the circumstances EPA will consider in exercising its enforcement
discretion. Furthermore, a residential landowner who
manages and arranges for the disposal of contaminated
media, such as soil, may be potentially responsible
parties under the other provisions of CERCLA. 42
U.S.C. § 9607(a).
CERCLA also prohibits potentially responsible parties
from performing response actions at Superfund sites
where the remedial action is already underway unless
such actions have been authorized by EPA. 42 U.S.C.
§ 9622(e)(6). This prohibition is consistent with Congress’
mandate to expeditiously cleanup sites - it ensures
that ongoing CERCLA cleanups undertaken at significant expense and public process are not jeopardized by
inconsistent response actions.
Further, it is EPA’s responsibility under CERCLA
to ensure that its selected cleanup actions continue to
be protective. Therefore, every 5 years, EPA considers
whether new information merits a change to the cleanup
action in order to remain protective. Please notify your
3a
clients that their proposed cleanup activities at the
Site need to be reviewed and authorized by EPA. It is
critical that your clients understand if they perform
cleanup actions at the Site without authorization from
EPA that cause the EPA cleanup to fail in whole or in
part, they may be liable to pay for additional cleanup
actions at the Site.
EPA is available to consult about these matters at
your convenience. Additional information about liability
under CERCLA can be found at https://www.epa.gov/
enforcement/superfund-liability.
If any of your clients wish to discuss potential remedial actions at properties within the Site, please have
them contact Charles Coleman, the EPA’s remedial
project manager for the Site at (406) 457-5038. Any legal
questions should be directed to Andy Lensink, EPA’s
enforcement attorney for the Site, at (303) 312-6908.
Sincerely,
/s/ Suzanne J. Bohan
Suzanne J. Bohan
Assistant Regional Administrator
Office of Enforcement, Compliance,
and Environmental Justice
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.