Amicus Curiae Brief — Atlantic Richfield Company, Petitioner v. Gregory A. Christian, et al.
Supreme Court briefAug 28, 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.
ON WRIT OF CERTIORARI TO
THE SUPREME COURT OF MONTANA
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
ERIC GRANT
Deputy Assistant Attorney
General
MALCOLM L. STEWART
Deputy Solicitor General
CHRISTOPHER G. MICHEL
Assistant to the Solicitor
General
MATTHEW R. OAKES
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
Respondents own property within a site that has
been designated for cleanup under the Comprehensive
Environmental Response, Compensation, and Liability
Act of 1980 (CERCLA), Pub. L. No. 96-510, 94 Stat.
2767 (42 U.S.C. 9601 et seq.). Respondents filed statelaw tort claims against petitioner in a Montana court,
seeking “restoration damages” to fund proposed
cleanup activities that are not part of the Environmental Protection Agency (EPA)’s CERCLA remedial action. The questions presented are as follows:
1. Whether the state courts had jurisdiction to hear
respondents’ claims for restoration damages.
2. Whether CERCLA preempts respondents’ claims
for restoration damages.
3. Whether respondents are “potentially responsible part[ies]” who are prohibited by Section 122(e)(6) of
CERCLA, 42 U.S.C. 9622(e)(6), from undertaking remedial action without EPA authorization.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statutory and regulatory provisions involved ........................... 2
Statement ...................................................................................... 2
A. CERCLA............................................................................ 2
B. The Anaconda Smelter Superfund site ........................... 5
C. Restoration damages under Montana law ...................... 8
D. Proceedings below............................................................. 9
Summary of argument ............................................................... 13
Argument:
Respondents’ claims for restoration damages should
be dismissed ........................................................................... 15
A. This Court has jurisdiction under 28 U.S.C. 1257 ....... 15
B. The Montana state courts lacked jurisdiction over
respondents’ claims for restoration damages............... 18
C. Even if the Montana state courts had jurisdiction,
respondents’ claims for restoration damages are
preempted ........................................................................ 27
D. Respondents’ claims for restoration damages
cannot proceed without EPA authorization under
CERCLA Section 122(e)(6) ............................................ 32
Conclusion ................................................................................... 35
Appendix — Statutory and regulatory provisions ................ 1a
TABLE OF AUTHORITIES
Cases:
ARCO Envtl. Remediation, L.L.C. v. Department of
Health & Envtl. Quality, 213 F.3d 1108
(9th Cir. 2000) ................................................................ 11, 25
Bandini Petroleum Co. v. Superior Court,
284 U.S. 8 (1931) ................................................................. 17
Board of Educ. v. Superior Court, 448 U.S. 1343
(1980) .................................................................................... 17
(III)
IV
Cases—Continued:
Page
Broward Gardens Tenants Ass’n v. United States
EPA, 311 F.3d 1066 (11th Cir. 2002) ................................ 19
Burlington N. & Santa Fe Ry. Co. v. United States,
556 U.S. 599 (2009).................................................... 2, 19, 33
CTS Corp. v. Waldburger, 573 U.S. 1 (2014)....................... 28
Cooper Indus., Inc. v. Aviall Servs., Inc.,
543 U.S. 157 (2004)........................................................ 27, 33
Fisher v. District Court, 424 U.S. 382 (1976) ......... 16, 17, 18
Fort Ord Toxics Project, Inc. v. California EPA,
189 F.3d 828 (9th Cir. 1999) ................................... 25, 26, 27
Gade v. National Solid Wastes Mgmt. Ass’n,
505 U.S. 88 (1992) ............................................................... 30
Geier v. American Honda Motor Co., 529 U.S. 861
(2000) .................................................................................... 31
Gunn v. Minton, 568 U.S. 251 (2013) .................................. 23
Heckler v. Ringer, 466 U.S. 602 (1984) ................................ 24
International Paper Co. v. Ouellette, 479 U.S. 481
(1987) .............................................................................. 30, 32
Jefferson v. City of Tarrant, 522 U.S. 75 (1997) ................. 16
Jones v. R. R. Donnelley & Sons Co., 541 U.S. 369
(2004) .................................................................................... 24
Kennerly v. District Court, 400 U.S. 423 (1971) ................ 16
Key Tronic Corp. v. United States, 511 U.S. 809
(1994) ...................................................................................... 3
Lampi v. Speed, 261 P.3d 1000 (Mont. 2011) ........................ 9
McClellan Ecological Seepage Situation v. Perry,
47 F.3d 325 (9th Cir.), cert. denied, 516 U.S. 807
(1995) .............................................................................. 20, 26
Merck Sharp & Dohme Corp. v. Albrecht,
139 S. Ct. 1668 (2019) ......................................................... 31
Merit Mgmt. Grp., LP v. FTI Consulting, Inc.,
138 S. Ct. 883 (2018) ........................................................... 25
V
Cases—Continued:
Page
Mutual Pharm. Co. v. Bartlett, 570 U.S. 472 (2013) .......... 31
New Mexico v. General Elec. Co., 467 F.3d 1223
(10th Cir. 2006) .............................................................. 19, 32
Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591 (2015) ............ 27
Osborn v. Bank of the United States,
22 U.S. (9 Wheat.) 738 (1824)............................................. 24
Sunburst Sch. Dist. No. 2 v. Texaco, Inc.,
165 P.3d 1079 (Mont. 2007) ........................................ 8, 9, 20
United States v. Atlantic Research Corp.,
551 U.S. 128 (2007)............................................ 23, 27, 33, 34
Verlinden B. V. v. Central Bank of Nigeria,
461 U.S. 480 (1983)........................................................ 24, 25
Constitutions, statutes, regulations, and rule:
U.S. Const. Art. III ............................................................... 23
Mont. Const. Art. IX, § 1 ...................................................... 30
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No.
96-510, 94 Stat. 2767 (42 U.S.C. 9601 et seq.) ..................... 1
§ 113(b), 94 Stat. 2795 ..................................................... 26
42 U.S.C. 9601(9)(B) .................................................. 33, 1a
42 U.S.C. 9601(24) ........................................................... 33
42 U.S.C. 9601(25) ............................................................. 3
42 U.S.C. 9604 .............................................................. 3, 28
42 U.S.C. 9605 ................................................................ 3, 4
42 U.S.C. 9606 .............................................................. 3, 28
42 U.S.C. 9606(a) ....................................................... 31, 4a
42 U.S.C. 9607(a) (§ 107(a)) ...................................... 33, 4a
42 U.S.C. 9607(a)(1) ............................................. 15, 33, 4a
42 U.S.C. 9613 (§ 113) .......................... 3, 17, 18, 24, 25, 7a
42 U.S.C. 9613(a) (§ 113(a)) ............................ 4, 18, 25, 7a
42 U.S.C. 9613(b) (§ 113(b)) ..............................passim, 8a
VI
Statutes, regulations, and rule—Continued:
Page
42 U.S.C. 9613(h) (§ 113(h)) ............................passim, 14a
42 U.S.C. 9613(h)(1)-(5)) (§ 113(h)(1)-(5)) ..................... 24
42 U.S.C. 9613(h)(4) ................................................ 29, 14a
42 U.S.C. 9613( j) (§ 113( j)) ....................................... 4, 15a
42 U.S.C. 9613( j)(1) ................................................. 29, 15a
42 U.S.C. 9613( j)(1)-(3) ..................................................... 4
42 U.S.C. 9613( j)(2) ................................................. 29, 15a
42 U.S.C. 9613( j)(3) ................................................. 29, 16a
42 U.S.C. 9613(k) ....................................................... 3, 16a
42 U.S.C. 9613(k)(2) .................................................. 6, 16a
42 U.S.C. 9614(a) ....................................................... 5, 19a
42 U.S.C. 9617 .......................................................... 3, 6, 28
42 U.S.C. 9621 ........................................................ 3, 6, 21a
42 U.S.C. 9621-9622......................................................... 28
42 U.S.C. 9621(c) ....................................................... 3, 23a
42 U.S.C. 9621(d) ..................................................... 29, 24a
42 U.S.C. 9621(d)(4) .................................................... 3, 28
42 U.S.C. 9621(f )(1) ............................................. 3, 28, 25a
42 U.S.C. 9621(f )(2)(A)........................................ 3, 28, 27a
42 U.S.C. 9622(e)(6) (§ 122(e)(6)) ...................passim, 31a
42 U.S.C. 9652(d) ....................................................... 5, 31a
42 U.S.C. 9659 .......................................................... 29, 32a
42 U.S.C. 9659(b)(1) ................................................ 29, 33a
42 U.S.C. 9659(b)(2) ................................................ 29, 33a
42 U.S.C. 9659(h) ....................................................... 5, 33a
Superfund Amendments and Reauthorization Act of
1986, Pub. L. No. 99-499, 100 Stat. 1613 ............................ 1
§ 113(c)(1), 100 Stat. 1649 ............................................... 26
§ 113(c)(2), 100 Stat. 1650 ............................................... 26
28 U.S.C. 1257 ...................................................... 14, 15, 16, 17
28 U.S.C. 1257(a) ................................................. 13, 16, 17, 1a
VII
Statutes, regulations, and rule—Continued:
Page
28 U.S.C. 1331 .................................................................. 23, 24
28 U.S.C. 1442 ........................................................................ 10
Mont. Code Ann. §§ 75-1-202 to 75-26-310 (2017) .............. 30
40 C.F.R.:
Section 300.400(g) .................................................... 28, 34a
Section 300.400(g)(4) ............................................... 30, 34a
Section 300.435 .................................................................. 6
Section 300.435(b)(1) ............................................... 31, 35a
Section 300.515(f ) ............................................................ 28
Mont. Admin. R. 17.1.101 to 17.86.122 (2018) ..................... 30
Mont. R. App. P. 14(3) ........................................................... 11
Miscellaneous:
132 Cong. Rec. (1986):
p. 28,441 ............................................................................ 26
p. 29,736 ............................................................................ 26
Environmental Protection Agency:
Explanation of Significant Differences:
Community Soils Operable Unit
Anaconda Smelter NPL Site (May 2017),
https://go.usa.gov/xVbZD ........................................... 6
Fifth Five-Year Review Report: Anaconda
Smelter Superfund Site, Anaconda-Deer
Lodge County, Montana (Sept. 2015),
https://go.usa.gov/xVxgZ ............................................ 7
Policy Towards Owners of Residential
Property at Superfund Sites (July 3, 1991),
https://go.usa.gov/xVbmN ........................................ 34
Superfund Priority “Anaconda” (Apr. 2018),
https://go.usa.gov/xVxYh ............................................ 7
VIII
Miscellaneous—Continued:
Page
Environmental Protection Agency and Montana
Dep’t of Environmental Quality:
Record of Decision: Anaconda Regional Water,
Waste, and Soils Operable Unit, Anaconda
Smelter NPL Site, Anaconda, Montana
(Sept. 1998), https://go.usa.gov/xVx3N ........... 6, 7, 30
Record of Decision: Community Soils
Operable Unit, Anaconda Smelter NPL Site,
Anaconda, Montana (Sept. 25, 1996),
https://go.usa.gov/xVxqk....................................... 6, 30
Record of Decision Amendment: Anaconda
Regional Water, Waste, and Soils Operable
Unit, Anaconda Smelter NPL Site,
Anaconda-Deer Lodge County, Montana
(Sept. 2011), https://go.usa.gov/xVxr7 ....................... 7
48 Fed. Reg. 40,658 (Sept. 8, 1983) ........................................ 5
Restatement (Second) of Torts (1979) ................................... 8
S. Rep. No. 848, 96th Cong., 2d Sess. (1980)......................... 3
S. Rep. No. 11, 99th Cong., 1st Sess. (1985)........................ 26
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts (2012) ......................... 25
Webster’s New International Dictionary of the
English Language (2d ed. 1958) ....................................... 19
In the Supreme Court of the United States
No. 17-1498
ATLANTIC RICHFIELD COMPANY, PETITIONER
v.
GREGORY A. CHRISTIAN, ET AL.
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF MONTANA
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
This case involves an environmental cleanup at a Superfund site administered by the Environmental Protection Agency (EPA) under the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA), Pub. L. No. 96-510, 94 Stat. 2767,
as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100
Stat. 1613. Respondents, who own land within the site,
brought Montana-law claims in state court. Among
other elements of relief, respondents sought funds to
conduct cleanup activities that were not part of the remedy EPA had selected under CERCLA, and that would
require undoing parts of that remedy. The Court’s decision whether to permit such claims to proceed will
have a significant effect on the cleanup at this Superfund site and others throughout the country. The
United States accordingly has a substantial interest in
(1)
2
the resolution of the questions presented. At the
Court’s invitation, the United States filed an amicus
brief at the petition stage of this case.
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
Pertinent statutory and regulatory provisions are
reproduced in the appendix to this brief. App., infra,
1a-35a.
STATEMENT
After completing the extensive process prescribed
by CERCLA, EPA selected multiple remedies to clean
up contamination at the Anaconda Smelter Superfund
site near Butte, Montana (the Site). Pet. App. 4a. At
EPA’s direction, petitioner has performed—and continues to perform—extensive remediation work at the
Site. Ibid. Respondents, who own land within the Site,
brought an action in Montana state court seeking “restoration damages” to fund remedial actions that EPA
had not selected as part of its cleanup plan. Id. at 5a.
Petitioner sought dismissal of the claims for restoration
damages. Ibid. The state trial court allowed the claims
to proceed. Id. at 41a-55a. After granting a writ of supervisory control before trial, the Montana Supreme
Court affirmed. Id. at 1a-40a.
A. CERCLA
In 1980, Congress enacted CERCLA “in response to
the serious environmental and health risks posed by industrial pollution.” Burlington N. & Santa Fe Ry. Co.
v. United States, 556 U.S. 599, 602 (2009). Members of
Congress expressed particular concern about the
dearth of federal authority to clean up toxic contamination at sites like the Love Canal in New York, where
3
dumped chemicals had spread into residential neighborhoods. See S. Rep. No. 848, 96th Cong., 2d Sess. 8-10
(1980). CERCLA addressed that problem by granting
the President (and, as relevant here, EPA as his delegate) “broad power to command government agencies
and private parties to clean up hazardous waste sites.”
Key Tronic Corp. v. United States, 511 U.S. 809, 814
(1994).
CERCLA directs EPA to compile and revise annually a prioritized list of contaminated sites for cleanup,
commonly known as Superfund sites. 42 U.S.C. 9605.
CERCLA establishes a detailed process for investigating, selecting, and implementing a cleanup plan (or “response” action) to protect human health and the environment at each site. 42 U.S.C. 9601(25); see 42 U.S.C.
9604, 9606, 9621. Among other steps, CERCLA prescribes extensive public consultation, including an opportunity for public notice-and-comment on a cleanup
plan, 42 U.S.C. 9613(k), 9617; “substantial and meaningful involvement by each State in initiation, development
and selection of ” cleanup actions in that State, 42 U.S.C.
9621(f )(1); and a remedy that complies with more stringent “applicable or relevant and appropriate” requirements of state environmental law (unless those requirements are waived), 42 U.S.C. 9621(d)(4), (f )(2)(A). CERCLA also provides for review of a selected cleanup plan
at least once every five years at sites where contamination remains in place. 42 U.S.C. 9621(c).
Section 113 of CERCLA, titled “Civil proceedings,”
governs CERCLA-related litigation. 42 U.S.C. 9613.
Of particular relevance here, Section 113(b) states that,
“[e]xcept as provided in subsections (a) and (h) of this
section, the United States district courts shall have ex-
4
clusive 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). Section 113(a) requires any “application” for
“[r]eview of any regulation promulgated under” CERCLA to be made in the D.C. Circuit “within ninety days”
after the regulation is promulgated. 42 U.S.C. 9613(a).
Section 113(h), titled “Timing of review,” provides:
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 [as authorized by five enumerated CERCLA provisions].
42 U.S.C. 9613(h).
Even in the enumerated categories of lawsuits that
Section 113(h) allows, Section 113( j) imposes substantial restrictions on the scope of judicial review. Section
113( j) limits “judicial review of any issues concerning
the adequacy of any response action taken or ordered
by” EPA “to the administrative record”; requires a
court to “uphold” EPA’s decision unless it “was arbitrary and capricious or otherwise not in accordance with
law”; and limits court-imposed remedies to those consistent with the National Contingency Plan—a set of
regulations that informs the federal government’s response to releases of hazardous substances. 42 U.S.C.
9613( j)(1)-(3); see 42 U.S.C. 9605.
5
Section 122(e)(6) of CERCLA, titled “Inconsistent
response action,” contains another significant limitation. 42 U.S.C. 9622(e)(6). Under that provision, “[w]hen
either [EPA], or a potentially responsible party * * *
has initiated a remedial investigation and feasibility
study for a particular facility * * * , no potentially responsible party may undertake any remedial action at
the facility unless such remedial action has been authorized by” EPA. Ibid.
CERCLA includes several savings clauses. First,
“[n]othing 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). Second, “[n]othing in [CERCLA]
shall affect or modify in any way the obligations or liabilities of any person under other Federal or State law,
including common law, with respect to releases of hazardous substances or other pollutants or contaminants.”
42 U.S.C. 9652(d). Finally, CERCLA “does not affect
or otherwise impair the rights of any person under Federal, State, or common law, except with respect to
the timing of review as provided in” Section 113(h).
42 U.S.C. 9659(h).
B. The Anaconda Smelter Superfund Site
The Anaconda Company “opened its first copper
smelter in 1884, twenty-six miles west of the mining
town of Butte.” 358 P.3d 131, 137. For nearly a century,
copper smelting generated prosperity and needed materials, but it also created hazardous byproducts. Ibid.
In 1977, petitioner purchased the Anaconda Company.
Id. at 138. The smelter “ceased operations” three years
later. Ibid. In 1983, EPA designated an area of more
than 300 square miles around the Anaconda smelter as
6
one of the inaugural Superfund sites. Ibid.; see 48 Fed.
Reg. 40,658 (Sept. 8, 1983).
Over the past 35 years, EPA has managed an extensive cleanup at the Site. In 1984, EPA “issued an administrative order requiring [petitioner] to begin a remedial investigation” at the Site. Pet. App. 4a. EPA,
along with the Montana Department of Environmental
Quality (MDEQ), then engaged in the detailed process
of study and consultation that CERCLA provides for
selecting a remedy. See 42 U.S.C. 9613(k)(2), 9617,
9621; 40 C.F.R. 300.435. Among other measures, EPA
published its proposed remedial plans for public comment, provided notice of its plans in local newspapers,
presented scientific reports for public inspection, convened community meetings, and held formal public
hearings. See EPA and MDEQ, Record of Decision:
Community Soils Operable Unit, Anaconda Smelter
NPL Site, Anaconda, Montana § 3 (Sept. 25, 1996)
(Soils ROD), https://go.usa.gov/xVxqk; EPA and
MDEQ, Record of Decision: Anaconda Regional Water, Waste, and Soils Operable Unit, Anaconda Smelter
NPL Site, Anaconda, Montana § 3 (Sept. 1998) (Water
ROD), https://go.usa.gov/xVx3N.
EPA ultimately selected multiple remedies, two of
which are relevant here. First, in 1996, EPA selected a
remedy to clean residential yards contaminated with arsenic. J.A. 93. The plan called for cleaning up any residential yards whose soil arsenic concentrations exceeded 250 parts per million (ppm) by removing the existing soil to a maximum depth of 18 inches, replacing it
with clean soil, and capping the soil with a protective
barrier. J.A. 94-95. EPA has since revised the plan to
require soil removal in residential yards to a depth of 12
inches. EPA, Explanation of Significant Differences:
7
Community Soils Operable Unit Anaconda Smelter
NPL Site § 4.2 (May 2017), https://go.usa.gov/xVbZD.
Second, in 1998, EPA selected a remedy to address,
among other problems, groundwater and surface-water
contamination. Water ROD §§ 9.5, 9.6. That plan required remediation where arsenic levels in the water exceeded 18 parts per billion (ppb). Ibid. In 2011, EPA
amended the plan to require remediation where arsenic
water levels exceeded 10 ppb. EPA and MDEQ, Record
of Decision Amendment: Anaconda Regional Water,
Waste, and Soils Operable Unit, Anaconda Smelter
NPL Site, Anaconda-Deer Lodge County, Montana Pt.
II, § 3 (Sept. 2011), https://go.usa.gov/xVxr7. EPA also
considered requiring the construction of underground
barriers for collecting and treating groundwater in particular areas of the Site, but determined that such structures would not be effective. See id. Pt. II, §§ 6.4.2.1,
6.4.3.1; id. Pt. III, § 3.0.
As a result of these and other cleanup efforts at the
Site, more than 800 residential and commercial properties have been cleaned up; 10 million cubic yards of tailings, mine wastes, and contaminated soils have been removed; 500 million cubic yards of waste over 5000 acres
of land have been capped in place; and 12,500 acres of
land have been reclaimed. EPA, Superfund Priority
“Anaconda” 9 (Apr. 2018), https://go.usa.gov/xVxYh.
Considerable work at the Site still remains. EPA’s
plans call for the cleanup of more than 1000 additional
residential yards, revegetation of 7000 acres of upland
soils, and removal and closure of waste areas, stream
banks, and railroad beds. EPA, Fifth Five-Year Review
Report: Anaconda Smelter Superfund Site, AnacondaDeer Lodge County, Montana Tbl. 10-1 (Sept. 2015),
8
https://go.usa.gov/xVxgZ. EPA projects that active remediation work will remain ongoing at the Site until at
least 2025. See id. Tbl. 10-7.
C. Restoration Damages Under Montana Law
Under Montana law, several forms of damages are
available for an injury to property. Generally, the “difference between the value of the property before and
after the injury, or the diminution in value, * * * constitutes the appropriate measure of damages.” Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 165 P.3d 1079,
1086 (Mont. 2007). In its 2007 Sunburst decision, however, the Montana Supreme Court held that a different
and potentially greater form of damages—“restoration
damages”—may be available under certain circumstances. Ibid. Restoration damages compensate a property owner for the reasonable costs of restoring the
damaged property to its condition before the injury,
even if that amount exceeds the lost property value. See
ibid. Thus, if contamination of a property reduces its
value by $25,000 and would cost $50,000 to remediate,
restoration damages could allow the owner to obtain the
higher amount. See ibid.; Restatement (Second) of
Torts § 929(1)(a) & cmt. b (1979) (Restatement).
Under Montana law, restoration damages are available only when several conditions are satisfied. First,
the injury must be “temporary,” Sunburst, 165 P.3d at
1086, which means it must be “reasonably abatable,”
Pet. App. 6a. If no “more than a theoretical possibility”
exists that the injury could be repaired, the injury is
“permanent,” and restoration damages are unavailable.
Sunburst, 165 P.3d at 1086. Second, the injured party
must have “reasons personal,” such as a desire to continue living in a family home, for seeking to restore the
9
property rather than collecting the diminution in market value. Id. at 1087; see Restatement § 929 cmt. b.
Of particular relevance here, to satisfy the “reasons
personal” element of a Montana claim for restoration
damages, the injured party must “establish that the
award actually will be used for restoration.” Lampi v.
Speed, 261 P.3d 1000, 1006 (Mont. 2011). That requirement ensures that a plaintiff does not receive an improper “windfall” by obtaining extra-compensatory
damages that can be used for unrelated purposes. Sunburst, 165 P.3d at 1089. In Sunburst, for example, the
Montana Supreme Court approved a restorationdamages award where injured homeowners presented
evidence that they “actually will use the award of restoration damages to remediate the groundwater contamination” caused by the defendant’s refinery. Ibid.
D. Proceedings Below
1. Respondents own property within the 300square-mile Site. Pet. App. 4a. In 2008, they sued petitioner in a Montana trial court, asserting claims based
on common-law trespass, nuisance, and strict liability.
Id. at 5a. They sought damages to compensate for lost
property values, id. at 6a, but their “primary goal” was
“to have their properties restored,” id. at 43a. They accordingly sought restoration damages, which would “be
placed in a trust account and distributed only for the
purpose of conducting restoration work.” Id. at 5a.
In asserting their claims for restoration damages,
respondents “sought the opinion of outside experts to
determine what actions would be necessary to fully restore their properties to pre-contamination levels.”
Pet. App. 4a. Among other measures, the experts recommended removing “the top two feet of soil from af-
10
fected properties and install[ing] permeable walls to remove arsenic from the groundwater.” Ibid. Both proposals “required restoration work in excess of what the
EPA required * * * in its selected remedy.” Ibid. Respondents’ experts also proposed “a soil action level of
8 ppm for arsenic rather than the 250 ppm level set by
EPA,” as well as “transporting the excavated soil to
Missoula or Spokane rather than to” local repositories,
as required by EPA. Id. at 72a. 1
2. Petitioner sought to remove the case to federal
court on grounds of fraudulent joinder or federal-officer
removal, see 28 U.S.C. 1442, but the federal district
court remanded. No. 08-cv-45, 2008 U.S. Dist. LEXIS
123882. Petitioner then argued that respondents’
claims were untimely, and the state trial court agreed,
but the Montana Supreme Court reversed. 358 P.3d
131.
On remand to the trial court, petitioner moved for
summary judgment on respondents’ claims for restoration damages. Pet. App. 42a. As relevant here, petitioner argued that (1) CERCLA Section 113(h)’s bar on
“challenges” to response actions selected by EPA,
42 U.S.C. 9613(h), precluded the court from exercising
jurisdiction; and (2) respondents were potentially responsible parties (PRPs) who could not “undertake any
remedial action” at the Site without EPA approval under CERCLA Section 122(e)(6), 42 U.S.C. 9622(e)(6).
Pet. App. 43a. Petitioner also contended that respondents’ claims for restoration damages were preempted
by CERCLA, and respondents moved for summary
Respondents have subsequently modified their proposals in
some respects. EPA has also amended its remedy in some respects.
As explained further below, the measures proposed by respondents’
experts still conflict with EPA’s remedy in fundamental ways.
1
11
judgment on that issue. Id. at 42a. The state court
ruled for respondents on both motions, allowing the
claims for restoration damages to proceed to trial. Id.
at 41a-55a.
3. Petitioner asked the Montana Supreme Court to issue a writ of supervisory control, “an extraordinary
remedy” that is “sometimes justified” when “the case
involves purely legal questions.” Mont. R. App. P. 14(3).
The court “accepted supervisory control of th[e] case
for the limited purpose of considering the” trial court’s
decision that respondents’ claims for restoration damages were not barred or preempted by CERCLA. Pet.
App. 3a. The court invited the United States to participate as amicus curiae, and the government filed a brief
contending that the trial court had erred on each of the
issues it had resolved. Id. at 56a-80a.
The Montana Supreme Court affirmed. Pet. App. 1a40a. As a threshold matter, the court observed that
CERCLA Section 113(h)’s withdrawal of jurisdiction
over “ ‘challenges’ ” to EPA remedies lacks “any reference to state court jurisdiction.” Id. at 9a (citation omitted). The court recognized that CERCLA Section
113(b) gives federal courts exclusive jurisdiction over
“all controversies arising under” CERCLA.” Ibid.
(quoting 42 U.S.C. 9613(b)). The court also noted that
the Ninth Circuit has construed the term “controversies
arising under [CERCLA]” in Section 113(b) to encompass all “challenges” to EPA response actions under
Section 113(h). Ibid. (quoting ARCO Envtl. Remediation, L.L.C. v. Department of Health & Envtl. Quality,
213 F.3d 1108, 1115 (9th Cir. 2000)) (brackets in original).
The Montana Supreme Court declined to decide
whether that Ninth Circuit analysis is correct, however,
because it concluded that respondents’ claims were not
12
“challenges” under Section 113(h). Pet. App. 10a-15a.
In the court’s view, “a § 113(h) challenge must actively
interfere with EPA’s work, as when the relief sought
would stop, delay, or change the work EPA is doing.”
Id. at 11a. The court observed that respondents were
“not seeking to enjoin any of EPA’s activities, or requesting that EPA be required to alter, delay, or expedite its plan in any fashion,” but 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.” Id. at 13a. The
court concluded that respondents’ claims therefore
were not “challenges” and did not “implicate § 113(h)
[o]r * * * § 113(b).” Id. at 15a.
The Montana Supreme Court next held that respondents were not PRPs subject to CERCLA Section
122(e)(6)’s requirement that PRPs obtain EPA authorization before “undertak[ing] any remedial action” at the
Site. 42 U.S.C. 9622(e)(6). The court observed that respondents had not caused the contamination and had
“never been treated as PRPs for any purpose.” Pet.
App. 16a. The court declined to treat respondents as
PRPs “solely for the purpose of using § 122(e)(6) to bar
their claim for restoration damages.” Id. at 17a.
Finally, the Montana Supreme Court held that CERCLA did not preempt respondents’ claims for restoration damages “for the same reason that § 113(h) does
not apply: [respondents’] claim does not prevent the
EPA from accomplishing its goals at the” cleanup site.
Pet. App. 17a. The court added that CERCLA’s savings
clauses “expressly contemplate the applicability of state
law remedies.” Ibid.
Justice Baker issued a concurring opinion. Pet. App.
19a-23a. She reiterated the elements of a Montana
13
claim for restoration damages, including that an injury
is considered “temporary” only if the “proposed restoration plan is * * * feasible.” Id. at 22a. In her view,
petitioner could “rebut” that “essential element[] of
proof ” by showing that respondents’ “proposed remedy
conflicts with or requires modification of measures [petitioner] already has taken to clean up the site.” Ibid.
Justice McKinnon dissented. Pet. App. 23a-40a. In
her view, CERCLA Sections 113(b) and (h) “in conjunction * * * divest state courts of jurisdiction to review
any state law claim which amounts to a challenge of a
CERCLA removal or remedial action.” Id. at 29a. She
would have held that respondents’ claims for restoration damages are “challenges” under Section 113(h) because they are “plainly contrary to the EPA’s remediation plan.” Id. at 38a-39a. Among other conflicts, she
noted that respondents “advocate a lower level of arsenic in the soil than that proposed by the EPA[,] * * *
propose excavating the soil to a deeper level,” and “propose that a series of underground trenches and barriers
be constructed to capture and treat shallow groundwater,” even though “EPA maintains” that such an approach “could unintentionally contaminate both ground
and surface water.” Id. at 38a.
SUMMARY OF ARGUMENT
The Montana Supreme Court committed multiple errors of federal law in allowing respondents’ claims for
restoration damages to proceed to trial. The judgment
below should be reversed, and respondents’ claims for
restoration damages should be dismissed.
A. This Court has jurisdiction under 28 U.S.C.
1257(a) to review the Montana Supreme Court’s decision. Although the decision below did not terminate the
litigation, it terminated the original proceeding in the
14
Montana Supreme Court on the writ of supervisory control. This Court has viewed such decisions as “[f ]inal”
for purposes of Section 1257 jurisdiction. Ibid.
B. The Montana courts lacked jurisdiction over respondents’ claims for restoration damages. As relevant
here, CERCLA Section 113(b) vests federal courts with
“exclusive original jurisdiction over all controversies
arising under” CERCLA, “[e]xcept as provided in” Section 113(h). 42 U.S.C. 9613(b). Section 113(h) states,
with limited exceptions that are inapplicable here, that
“[n]o Federal court shall have jurisdiction * * * to
review any challenges” to an EPA response action.
42 U.S.C. 9613(h).
Read together, those provisions indicate that the category of “controversies arising under” CERCLA that
are subject to exclusive federal jurisdiction under Section 113(b) necessarily includes all “challenges” to EPA
response actions under Section 113(h). Because respondents’ claims for restoration damages are premised on the
alleged feasibility and appropriateness of cleanup activities that would contradict—indeed, physically undo—
EPA’s selected remedy, those claims raise “challenges”
to EPA’s response actions under Section 113(h) and
thereby constitute “controversies arising under” CERCLA for purposes of Section 113(b). The claims, moreover, necessarily require resolution of CERCLA issues—such as whether respondents’ proposed cleanup
can be implemented—which underscores that they create “controversies arising under” CERCLA subject
to the “exclusive” jurisdiction of federal district courts.
42 U.S.C. 9613(b).
C. Even if the Montana courts had jurisdiction to
consider respondents’ claims for restoration damages,
15
those claims should have been dismissed under principles of conflict preemption. Congress enacted CERCLA to ensure that a single entity—here, EPA—has
authority to direct a timely and effective cleanup. CERCLA creates important but limited roles for the public,
landowners at Superfund sites, and States in the selection and implementation of a remedy. The Montana Supreme Court’s decision disregards those carefully designed roles by allowing a state jury to award damages
for cleanup activities that do not comport with CERCLA’s substantive or procedural standards. The conflict with federal law is particularly apparent here, because respondents’ claims contemplate restoration
work that would require physically reversing parts of
EPA’s cleanup, thereby making it impossible to execute
respondents’ proposed remedy while also maintaining
the CERCLA-directed remedy.
D. Respondents’ claims for restoration damages cannot proceed for the additional reason that respondents
are PRPs who must obtain EPA’s authorization to undertake “any remedial action” at the Site, 42 U.S.C.
9622(e)(6), but have not done so. The Montana Supreme
Court concluded that respondents are not PRPs for
purposes of that requirement because they have not
been sued for causing the contamination at the Site.
But respondents are PRPs under the plain text of CERCLA because they “own[]” land within the Site.
42 U.S.C. 9607(a)(1). Because respondents’ restorationdamages claims require proof that their proposed work
at the Site is feasible and appropriate, those claims cannot succeed unless and until respondents show they will
obtain the authorization required by CERCLA.
16
ARGUMENT
RESPONDENTS’ CLAIMS FOR RESTORATION DAMAGES
SHOULD BE DISMISSED
A. This Court Has Jurisdiction Under 28 U.S.C. 1257
Respondents contest (Br. in Opp. 15-18) this Court’s
jurisdiction under 28 U.S.C. 1257(a), which authorizes
the Court to review “[f ]inal judgments * * * rendered
by the highest court of a State.” Although the issue is
not free of doubt, this Court’s precedents indicate that
the “writ of supervisory control issued by the Montana
Supreme Court” in this case “is a final judgment” that
this Court may review under Section 1257. Fisher v.
District Court, 424 U.S. 382, 385 n.7 (1976) (per curiam).
To be “final” for purposes of Section 1257, a statecourt judgment “ ‘must be * * * an effective determination of the litigation and not of merely interlocutory or
intermediate steps therein.’ ” Jefferson v. City of Tarrant, 522 U.S. 75, 81 (1997) (citation omitted). The Montana Supreme Court’s decision in this case did not terminate respondents’ lawsuit; the court “remanded the
case for further proceedings,” including “a trial on the
merits of the state-law claims.” Ibid.; see Pet. App. 5a,
18a. The decision did, however, terminate the “original
proceedings in the Montana Supreme Court” concerning the writ of supervisory control. Fisher, 424 U.S. at
385 n.7; see Pet. App. 1a, 3a, 5a, 18a. This Court has
twice before exercised jurisdiction over Montana Supreme Court decisions that resolved writs of supervisory control, even though those state-court decisions
contemplated further proceedings in a lower court. See
Fisher, 424 U.S. at 385; Kennerly v. District Court, 400
U.S. 423, 424 (1971) (per curiam).
The posture of this case differs slightly from that of
Kennerly and Fisher. In each of those cases, the Court
17
exercised jurisdiction under Section 1257 to review a
“judgment that terminate[d] original proceedings in a
state appellate court, in which the only issue decided
concern[ed] the jurisdiction of a lower state court.”
424 U.S. at 385 n.7 (emphasis added). Here, only one of
the issues that the Montana Supreme Court decided—
petitioner’s contention that CERCLA Section 113
barred the claims for restoration damages—“concerns
the jurisdiction of a lower state court.” Ibid. But the
Court in Fisher did not hold, and no sound rationale
suggests, that Section 1257 confers jurisdiction to review a state-court decision terminating an original proceeding only when the decision resolves exclusively
questions of lower-state-court jurisdiction. Section
1257 jurisdiction turns on finality, and the Montana Supreme Court’s resolution of the nonjurisdictional issues
in the original proceeding below was no less “[f ]inal”
than its resolution of the jurisdictional question.
28 U.S.C. 1257(a).
In Bandini Petroleum Co. v. Superior Court, 284
U.S. 8 (1931), the Court explained that a “proceeding
for a writ of prohibition is a distinct suit and the judgment finally disposing of it is a final judgment within the
meaning of ” Section 1257(a)’s statutory predecessor.
Id. at 14. While the issue in Bandini did involve statecourt jurisdiction, this Court’s explanation for its exercise of jurisdiction did not treat that fact as dispositive.
See ibid.; cf. Board of Educ. v. Superior Court, 448 U.S.
1343, 1346 (1980) (Rehnquist, J., in chambers) (concluding that the Court “would in all probability have jurisdiction” over a state court’s resolution of a “petition for
a writ of mandamus and/or prohibition” because that
petition “was a distinct lawsuit which was fully and finally determined by” a state supreme court). And at a
18
minimum, the Court has jurisdiction to review the Montana Supreme Court’s resolution of the CERCLA Section 113 question, which “concerns the jurisdiction of a
lower state court.” Fisher, 424 U.S. at 385 n.7.
B. The Montana State Courts Lacked Jurisdiction Over
Respondents’ Claims For Restoration Damages
Under CERCLA Section 113(b), federal district
courts have “exclusive original jurisdiction over all controversies arising under” CERCLA “without regard to
the citizenship of the parties or the amount in controversy,” “[e]xcept as provided in” Sections 113(a) and (h).
42 U.S.C. 9613(b). Respondents’ claims for restoration
damages “arise[] under” CERCLA for purposes of Section 113(b)’s grant of exclusive federal-district-court jurisdiction, and the claims do not fall within any exception created by Section 113(a) or (h). Ibid. Section
113(b) accordingly divested the Montana state courts of
jurisdiction over the claims for restoration damages.
1. CERCLA Section 113 establishes multiple limitations on CERCLA-related litigation. Section 113(a) requires a petition for “[r]eview of any regulation promulgated under” CERCLA to be filed in the D.C. Circuit
“within ninety days” after the regulation is promulgated. 42 U.S.C. 9613(a). Section 113(b) states that,
“[e]xcept as provided in [Sections 113](a) and (h),” federal “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). Section
113(h), entitled “Timing of review,” provides:
No Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 (re-
19
lating 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 circumstances where other CERCLA
provisions authorize specific types of suit].
42 U.S.C. 9613(h).
2. In the Montana Supreme Court, the parties and
the court focused on the question whether respondents’
claims for restoration damages constitute “challenges,”
within the meaning of Section 113(h), to EPA’s response
action at the Site. 42 U.S.C. 9613(h); see Pet. App. 10a15a. As explained further below, Section 113(b)—
rather than Section 113(h)—is the specific provision that
divests the Montana state courts of jurisdiction over respondents’ claims for restoration damages. See pp. 2227, infra. But Section 113(h) is relevant to the proper
interpretation of Section 113(b), and the Montana Supreme Court’s reading of Section 113(h) was mistaken.
Because “CERCLA does not specifically define” the
term “challenges,” 42 U.S.C. 9613(h), this Court should
“give the [term] its ordinary meaning,” Burlington N.
& Santa Fe Ry. Co. v. United States, 556 U.S. 599, 610611 (2009). The ordinary meaning of a “challenge” is
“the act of calling into question.” Webster’s New International Dictionary of the English Language 445 (2d
ed. 1958). Federal courts of appeals have accordingly
long held that a suit constitutes a “challenge” under
Section 113(h) if it “calls into question,” New Mexico v.
General Elec. Co., 467 F.3d 1223, 1249 (10th Cir. 2006);
Broward Gardens Tenants Ass’n v. United States EPA,
20
311 F.3d 1066, 1073 (11th Cir. 2002), or “would secondguess,” McClellan Ecological Seepage Situation v.
Perry, 47 F.3d 325, 330 (9th Cir.), cert. denied, 516 U.S.
807 (1995), EPA’s selected response action.
Under that ordinary meaning, respondents’ claims
for restoration damages constitute “challenges” to
EPA’s response action at the Site. 42 U.S.C. 9613(h).
Montana law requires that restoration damages must
“actually * * * be used to repair the damaged property.” Sunburst Sch. Dist. No. 2 v. Texaco, Inc.,
165 P.3d 1079, 1089 (Mont. 2007). Consistent with that
state-law requirement, any restoration damages received by respondents “are to be placed in a trust account and distributed only for the purpose of conducting
restoration work.” Pet. App. 5a. As explained above,
the restoration work that respondents propose to perform would contradict EPA’s selected remedy in numerous ways. Respondents’ experts proposed (1) to apply a soil action level of 8 ppm for arsenic rather than
the 250 ppm level set by EPA; (2) to excavate soil up to
two feet rather than EPA’s chosen depth of 12 inches;
(3) to transport excavated soil to Missoula or Spokane
rather than to local repositories, as required by EPA;
and (4) to capture and treat shallow groundwater
through a series of underground trenches and barriers
that EPA had determined could upset a balance that
currently protects human health and the environment.
See pp. 9-10, supra; Pet. App. 72a, 74a.
Despite those contradictions, the Montana Supreme
Court concluded that respondents’ claims for restoration damages did not present a “challenge” to EPA’s
remedy because the proposed restoration work would
“not affect, alter, or delay EPA’s work in any fashion.”
Pet. App. 14a. The court went on to state that claims
21
for restoration damages do “not implicate § 113(h)
[]or * * * § 113(b)” because respondents are “not seeking to compel EPA to do, or refrain from doing, any action.” Id. at 15a.
That analysis reflects an unduly narrow reading of
the statutory language. The remedial measures that respondents contemplate are inconsistent with, and indeed would physically undo, significant aspects of
EPA’s response actions. For example, respondents’
proposal to excavate soil in residential yards to two feet
rather than 12 inches would not simply require extra
digging. When petitioner finishes remediating a yard,
the EPA remedy requires that the yard be “capped or
backfilled with clean soil.” Pet. App. 73a. “Tearing up
that protective cap or layer of soil * * * could expose
the neighborhood to an increased risk of dust transfer
or contaminant ingestion.” Ibid. Similarly, “[o]ffsite
disposal of excavated soil,” as respondents’ experts propose, “would also increase the risk of dust transfer or
contaminant ingestion.” Ibid. And the underground
“barriers proposed by [respondents’] experts * * *
could unintentionally contaminate groundwater and
surface water.” Id. at 74a. Allowing claims premised
on proposed restoration work that fundamentally
contradicts—and in some ways would physically
reverse—EPA’s cleanup plan constitutes a “challenge[]” to a selected response action under any usual
understanding of that term. 42 U.S.C. 9613(h); see Pet.
App. 37a-39a (McKinnon, J., dissenting).
The Montana Supreme Court also observed that the
federal appellate precedents referenced above (see
pp. 19-20, supra) did not “involve a claim by private
property owners, against another private party, seeking money damages for the purpose of restoring their
22
own private property.” Pet. App. 12a. The court appeared to conclude that, because the entry of a money
judgment standing alone would not compromise EPA’s
cleanup, respondents’ claims for restoration damages
did not constitute a Section 113(h) “challenge[].” Ibid.
That analysis disregards the ways in which a claim for
restoration damages under Montana law differs from a
typical claim for money damages.
A landowner’s request for an ordinary moneydamages award, which would be based on the diminution in value of contaminated property and could be
spent in whatever manner the recipient chose, would
not constitute a “challenge” to an EPA response action.
See Pet. App. 6a (noting that petitioner does not contend that respondents’ other requests for money damages are barred “challenges”). But as explained above,
respondents’ entitlement to restoration damages depends on proof that their own proposed restoration activities are feasible and appropriate; any restoration
damages received can be spent only on the approved
restoration activities; and the restoration activities respondents propose would conflict with EPA’s selected
response action. See pp. 8-9, 20-21, supra. Respondents’ claims thus present “challenges” to EPA’s response action, even though the requested relief comes
in the form of money damages. 42 U.S.C. 9613(h).
3. Although the parties and the court below focused
on CERCLA Section 113(h), that provision is by its
terms a limitation on the jurisdiction of any “Federal
court.” 42 U.S.C. 9613(h). It therefore does not directly
resolve the question whether the Montana state courts
could properly exercise jurisdiction over respondents’
claims for restoration damages. The provision that directly resolves that question is Section 113(b), which
23
(with exceptions that are inapplicable here) gives federal district courts “exclusive original jurisdiction over
all controversies arising under” CERCLA. 42 U.S.C.
9613(b). But subsections (b) and (h) should be read together, and Congress’s treatment of “challenges” to
EPA response actions sheds substantial light on the
question whether respondents’ claims for restoration
damages “aris[e] under” CERCLA. 42 U.S.C. 9613(b)
and (h); see United States v. Atlantic Research Corp.,
551 U.S. 128, 135 (2007) (emphasizing that CERCLA
must be “read as a whole”) (citation omitted).
a. The term “arising under” appears in Article III of
the Constitution and in various federal statutes, but it
has not been given a single uniform meaning. In construing the general federal-question jurisdiction statute, see 28 U.S.C. 1331 (“The district courts shall have
original jurisdiction of all civil actions arising under
[federal law].”), this Court has adopted a narrow interpretation of the term. For purposes of Section 1331, the
determination whether a claim “arises under” federal
law depends predominantly on whether “federal law
creates the cause of action asserted.” Gunn v. Minton,
568 U.S. 251, 257 (2013). Respondents’ claims for restoration damages do not “arise under” CERCLA in that
sense, because they are created by Montana law. 2
In other legal contexts, however, this Court has
adopted a broader construction of the term “arising un-
Even under Section 1331, a claim that “finds its origins in state
rather than federal law” may still “aris[e] under” federal law in certain circumstances. Gunn, 568 U.S. at 258. Because this case does
not involve Section 1331, the Court does not need to determine
whether respondents’ claims for restoration damages would fall
within those circumstances.
2
24
der.” For purposes of “ ‘arising under’ ” jurisdiction under Article III, the Court has “upheld the constitutionality of a statute that granted the Bank of the United
States the right to sue in federal court on causes of action based upon state law.” Verlinden B. V. v. Central
Bank of Nigeria, 461 U.S. 480, 492 (1983) (citation omitted); see Osborn v. Bank of the United States, 22 U.S.
(9 Wheat.) 738, 818-824 (1824). The Court’s early decision in Osborn “reflects a broad conception of ‘arising
under’ jurisdiction, according to which Congress may
confer on the federal courts jurisdiction over any case
or controversy that might call for the application of federal law.” Verlinden, 461 U.S. at 492. In interpreting
federal statutes as well, the Court has sometimes “construed the term [‘arising under’] more broadly” than it
has in Section 1331, based on “the context in which [the
statute] was enacted and the purposes it was designed
to accomplish.” Jones v. R. R. Donnelley & Sons Co.,
541 U.S. 369, 376-377 & n.7 (2004); see, e.g., Heckler v.
Ringer, 466 U.S. 602, 614 (1984).
b. Here, the statutory structure indicates that respondents’ claims for restoration damages are “controversies arising under” CERCLA for purposes of Section 113(b), even though Montana law creates respondents’ cause of action. 42 U.S.C. 9613(b). Taken together, the interlocking provisions within Section 113
direct “all controversies arising under” CERCLA to
federal district court, “[e]xcept” that (i) an “application”
for review of regulations promulgated under CERCLA
must be filed in the D.C. Circuit, and (ii) “[n]o [f ]ederal
court shall have jurisdiction” over “challenges” to EPA
response actions other than under the specific CERCLA provisions that are cross-referenced in Section
25
113(h)(1)-(5). 42 U.S.C. 9613(a), (b), and (h). That structure indicates that, at a minimum, every “application”
for review of a CERCLA regulation under Section
113(a), and every “challenge[]” to an EPA response action under Section 113(h), is necessarily a “controvers[y] arising under” CERCLA for purposes of Section 113(b). Ibid. After all, Sections 113(a) and (h) operate as “except[ions]” to Section 113(b), 42 U.S.C.
9613(b), and exceptions must by definition be narrower
than the corresponding rule. See Merit Mgmt. Grp., LP
v. FTI Consulting, Inc., 138 S. Ct. 883, 893 (2018) (citing
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 126 (2012)). And as this
case illustrates, a claim that calls for implementation of
a cleanup that conflicts with—and thereby constitutes a
challenge to—an EPA response action necessarily
“call[s] for the application of ” CERCLA, because it
raises questions about the permissibility of the cleanup
activities to which CERCLA supplies the answers. Verlinden, 461 U.S. at 492. The claim therefore “arises under” CERCLA, 42 U.S.C. 9613(b), in this distinctive
statutory context. See ARCO Envtl. Remediation,
L.L.C. v. Department of Health & Envtl. Quality,
213 F.3d 1108, 1115 (9th Cir. 2000) (adopting this reading of Section 113); Fort Ord Toxics Project, Inc. v. California EPA, 189 F.3d 828, 832 (9th Cir. 1999) (same).
The structural relationship among Section 113’s subsections also explains why Section 113(h)’s jurisdictional limitation refers specifically to “[f ]ederal
court[s].” 42 U.S.C. 9613(h) (emphasis added). If every
“challenge[]” to a CERCLA cleanup necessarily creates
a “controvers[y] arising under” CERCLA, 42 U.S.C.
9613(b) and (h), then “only federal courts * * * have
jurisdiction to adjudicate a ‘challenge’ to a CERCLA
26
cleanup in the first place,” Fort Ord, 189 F.3d at 832 (citation omitted).
CERCLA’s history reinforces that understanding.
Congress enacted Section 113(b) in 1980 as part of the
original CERCLA. § 113(b), 94 Stat. 2795. Congress
added Section 113(h) in 1986, see SARA § 113(c)(2), 100
Stat. 1650, in response to concerns that “the scheme and
purposes of CERCLA would be disrupted by affording
judicial review of ” EPA response actions, S. Rep. No.
11, 99th Cong., 1st Sess. 58 (1985). That chronology reinforces the inference that the “challenges” over which
Section 113(h) restricts federal jurisdiction are a subset
of the “controversies arising under” CERCLA over
which Section 113(b) grants exclusive federal jurisdiction. 42 U.S.C. 9613(b) and (h); see SARA § 113(c)(1),
100 Stat. 1649 (amending the opening clause of Section
113(b) to read “[e]xcept as provided in subsection[] * * * (h)”). Indeed, Members of Congress explained that Section 113(h)’s “reference to ‘[f ]ederal
court’ is simply to recognize existing section 113(b) of
CERCLA, which provides that except for review of regulations, [f ]ederal district courts have exclusive
jurisdiction over all controversies under CERCLA.”
132 Cong. Rec. 28,441 (1986) (statement of Sen. Thurmond); see 132 Cong. Rec. 29,736 (1986) (statement of
Rep. Glickman) (similar).
Finally, Section 113(h)’s purpose—to “protect[] the
execution of a CERCLA plan * * * from lawsuits that
might interfere with the expeditious cleanup effort,”
McClellan, 47 F.3d at 329—underscores that all “challenges” must also be “controversies arising under”
CERCLA subject to exclusive federal jurisdiction.
42 U.S.C. 9613(b) and (h). If, as respondents suggest,
“challenges” to CERCLA response actions are barred
27
in federal court by Section 113(h) but may proceed without limitation in state court, Congress’s purpose in enacting Section 113(h) would be frustrated. “Congress
did not intend to preclude dilatory litigation in federal
courts but allow such litigation in state courts.” Fort
Ord, 189 F.3d at 832; cf. Atlantic Research, 551 U.S. at
135 (explaining that one provision of CERCLA could
properly be understood only “with reference to” a
closely related provision); Cooper Indus., Inc. v. Aviall
Servs., Inc., 543 U.S. 157, 167 (2004) (similar).
c. In sum, respondents’ claims for restoration damages call for the application of CERCLA and are therefore “controversies arising under” CERCLA subject
to exclusive federal jurisdiction. 42 U.S.C. 9613(b).
They are also “challenges” to EPA response actions,
42 U.S.C. 9613(h), which Congress necessarily considered to be a subset of the “controversies arising under”
CERCLA that it channeled exclusively to federal court,
42 U.S.C. 9613(b). The Montana Supreme Court’s erroneous conclusion that the claims do not “implicate
§ 113(h) [o]r * * * § 113(b),” Pet. App. 15a, should be
reversed.
C. Even If The Montana State Courts Had Jurisdiction,
Respondents’ Claims For Restoration Damages Are
Preempted
The Montana Supreme Court devoted only a single
paragraph of its opinion to petitioner’s conflictpreemption argument. Pet. App. 17a-18a. The apparent thrust of the court’s analysis was that, because respondents do not seek a judicial order that would prevent EPA from conducting its own response action,
their state-law claims cannot be preempted. In reaching that conclusion, the court relied in part on CERCLA’s savings clauses. See ibid. That analysis reflects
28
an unduly narrow conception of conflict preemption under CERCLA.
Conflict preemption bars a state-law claim that
“stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1595 (2015)
(citation omitted). The purpose of CERCLA is “to promote the timely cleanup of hazardous waste sites.” CTS
Corp. v. Waldburger, 573 U.S. 1, 4 (2014) (citation and
internal quotation marks omitted). More specifically,
Congress enacted CERCLA to fill a gap in federal law
that had previously prevented the timely and efficient
cleanup of contaminated sites, see p. 2, supra, and
CERCLA filled that gap by vesting a single entity—the
federal government—with exclusive authority to select
and oversee the implementation of remedial plans at Superfund sites, see 42 U.S.C. 9604, 9606, 9617, 9621-9622.
CERCLA sets out a detailed process for the selection of a remedy and identifies specific standards that
must be considered as part of a remedy. Of particular
relevance here, CERCLA directs that States be given
the opportunity to have “substantial and meaningful involvement * * * in initiation, development, and selection of ” EPA remedies, 42 U.S.C. 9621(f )(1), and that
EPA response actions comply with more stringent “applicable or relevant and appropriate” requirements
(ARAR) of state environmental law (unless those requirements are waived), 42 U.S.C. 9621(d)(4), (f )(2)(A);
see 40 C.F.R. 300.400(g) (explaining EPA’s approach
for identifying ARAR); 40 C.F.R. 300.515(f ) (providing
that a State may enhance an EPA-selected remedy if
the enhancement would not be inconsistent with the
remedy and the State agrees to fund the additional cost
associated with the enhancement). Finally, to protect
29
the remedy against disruption, CERCLA establishes
circumscribed mechanisms for judicial review. See 42
U.S.C. 9613. 3
Respondents’ approach conflicts in multiple ways
with the legislative judgments embodied in CERCLA.
Rather than providing information that might assist
EPA in selecting an appropriate remedy, respondents
seek “to present their own plan * * * to a jury of twelve
Montanans.” Pet. App. 13a. Rather than applying the
health-based standards selected by EPA under CERCLA or incorporated through state environmental law,
respondents rely on “differ[ent]” standards devised by
their experts and the jury’s “assess[ment of ] the merits
of th[eir] plan.” Id. at 13a, 14a. 4 And rather than complying with CERCLA’s provisions on the timing and
Through its citizen-suit provision, 42 U.S.C. 9659, CERCLA
provides a mechanism by which private parties like respondents can
seek judicial relief if they view an EPA response action as inadequate. See 42 U.S.C. 9613(h)(4) (identifying an “action under section 9659 of this title” as an exception to Section 113(h)’s general bar
on “challenges” to EPA response actions). Respondents’ current
state-court suit for restoration damages, however, is inconsistent
with several limitations that CERCLA places on citizen suits. A
CERCLA citizen suit must be f iled in federal district court,
42 U.S.C. 9659(b)(1) and (2); the court’s review is “limited to the administrative record,” 42 U.S.C. 9613( j)(1); the court applies a familiar administrative-law standard to determine whether EPA’s “decision in selecting the response action * * * was arbitrary and capricious or otherwise not in accordance with law,” 42 U.S.C. 9613( j)(2);
and the relief that may be awarded is limited to remedies consistent
with the National Contingency Plan, 42 U.S.C. 9613( j)(3).
4
Respondents do not base their claims for restoration damages
on any state law that would qualify as an ARAR of state environmental law under 42 U.S.C. 9621(d). In their complaint, respondents cite the Montana Constitution, which directs that the “state and
3
30
manner of judicial review (see pp. 3-4, 28-29 & n.3, supra), respondents have asserted their claims during a
cleanup, in a state court, without any limitation to the
administrative record. Respondents’ claims for restoration damages thus cannot be reconciled with “Congress’ considered judgment as to the best method of ”
cleaning up contaminated sites. International Paper
Co. v. Ouellette, 479 U.S. 481, 497 (1987). Indeed, “[i]t
would be extraordinary for Congress, after devising an
elaborate [cleanup] system that sets clear standards, to
tolerate common-law suits that have the potential to undermine” that statutory scheme. Ibid.
More narrowly, the particular claims for restoration
damages asserted by respondents in this case are
preempted because they conflict with the particular
remedy selected by EPA. See, e.g., Gade v. National
Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 108 (1992)
(holding that a state-law claim is preempted where it
“interferes with or is contrary to federal law”) (citation
omitted). As explained above, the restoration plan respondents have proposed would conflict with, and in significant respects would undo, EPA’s own response action. See pp. 9-10, 20-21, supra. Indeed, it would be
each person shall maintain and improve a clean and healthful environment in Montana.” Mont. Const. Art. IX, § 1; see J.A. 54-55.
That constitutional provision does not qualify as an ARAR of state
environmental law under EPA’s regulatory definition because it is
not an “identified” “standard[]” that is “more stringent than federal
requirements.” 40 C.F.R. 300.400(g)(4). To fulf ill that state constitutional directive, Montana has enacted environmental statutes and
promulgated environmental regulations that do qualify as ARAR of
state environmental law, see Mont. Code Ann. §§ 75-1-202 to 75-26310 (2017); Mont. Admin. R. 17.1.101 to 17.86.122 (2018), and EPA
considered those standards in developing its cleanup plan at the
Site, see Soils ROD § 10.2, at DS-49; Water ROD § 10.2, at DS-99.
31
impossible for either petitioner or respondents to implement the restoration-damages remedy that respondents propose and to comply with CERCLA. See
42 U.S.C. 9622(e)(6) (barring “any remedial action” that
has not “been authorized by [EPA]”); 40 C.F.R.
300.435(b)(1) (requiring all remedial activities to be “in
conformance with the remedy [EPA] selected and set
forth”). Principles of impossibility preemption, in addition to broader conflict preemption, therefore foreclose
respondents’ claims for restoration damages. See, e.g.,
Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct.
1668, 1672 (2019); Mutual Pharm. Co. v. Bartlett,
570 U.S. 472, 486-487 (2013).
To be sure, if respondents’ claims for restoration
damages are allowed to proceed and the suit culminates
in a monetary award, EPA could seek to prevent respondents from using those funds to carry out any remedial actions that the agency believed would violate
federal law. See 42 U.S.C. 9606(a) and 9622(e)(6). As a
non-party to this lawsuit, EPA would not be bound by a
state-court judgment that respondents’ proposed remedial actions are feasible and appropriate. But the prospect that EPA might ultimately invoke alternative enforcement mechanisms to protect the integrity of its
remedy does not alleviate the basic conflict between respondents’ state-law theory and the dictates of federal
law.
In rejecting petitioner’s conflict-preemption argument, the Montana Supreme Court relied almost entirely on CERCLA’s savings clauses. Pet. App. 17a-18a.
But the presence of statutory savings clauses “does not
bar the ordinary working of conflict pre-emption principles.” Geier v. American Honda Motor Co., 529 U.S.
32
861, 869 (2000); see Ouellette, 479 U.S. at 494, 497 (finding conflict preemption despite savings clauses); New
Mexico, 467 F.3d at 1247 (same under CERCLA). That
is particularly true where, as here, “giv[ing] broad effect to saving clauses * * * would upset the careful regulatory scheme established by federal law.” Geier,
529 U.S. at 870 (citation omitted). CERCLA’s savings
clauses might allow a state-law claim that does not seek
to undo an EPA remedy—for example, an ordinary tort
claim seeking money damages that compensates landowners for diminution in the value of their property.
But the savings clauses do not permit circumvention of
Congress’s careful judgments about the limited ways in
which States and landowners can seek to influence an
EPA remedy. See ibid. And those congressional judgments foreclose the state-law claims at issue here,
which can succeed only if respondents persuade a jury
that restoration activities inconsistent with EPA’s remedial plans are feasible and appropriate. Thus, even
if CERCLA Section 113(b) did not divest the state
courts of jurisdiction over respondents’ restorationdamages claims, the Montana Supreme Court should
have found those claims to be preempted.
D. Respondents’ Claims For Restoration Damages Cannot
Proceed Without EPA Authorization Under CERCLA
Section 122(e)(6)
Section 122(e)(6) of CERCLA provides that “[w]hen
either [EPA], or a [PRP] * * * has initiated a remedial
investigation and feasibility study for a particular facility * * * , no [PRP] may undertake any remedial action
at the facility unless such remedial action has been authorized by [EPA].” 42 U.S.C. 9622(e)(6). It is undisputed that EPA and petitioner, a PRP acting at EPA’s
direction, have “initiated a remedial investigation and
33
feasibility study for” the Site. Ibid. There is likewise
no dispute that EPA has not “authorized” the “remedial
action” that respondents propose to “undertake” if they
are awarded restoration damages, which under Montana law can be spent only for specified restoration
work on their properties. Ibid.; see 42 U.S.C. 9601(24)
(defining “remedial action” to include, among other
things, “cleanup of released hazardous substances,”
“dredging or excavations,” or “offsite transport” and
“disposition of hazardous substances”). The Montana
Supreme Court concluded, however, that respondents
are not PRPs and therefore did not require EPA authorization before undertaking their proposed remedial
action. See Pet. App. 15a-16a. That holding was erroneous.
CERCLA does not define the term “potentially responsible party.” This Court’s decisions, however, have
uniformly treated the term as corresponding to the
“[c]overed persons” identified in CERCLA Section
107(a), which imposes liability for the costs of a CERCLA cleanup (subject to defenses and exceptions set
forth elsewhere in the statute). 42 U.S.C. 9607(a) (emphasis omitted); see Burlington, 556 U.S. at 608-610;
Atlantic Research, 551 U.S. at 131-132; Cooper Indus.,
543 U.S. at 161. Of particular relevance here, the covered persons identified in Section 107(a) include the
“owner” of a “facility,” 42 U.S.C. 9607(a)(1), and the
term “ ‘facility’ ” is in turn defined as “any site or area
where a hazardous substance has been deposited,” 42
U.S.C. 9601(9)(B). Because respondents own land
where a hazardous substance has been deposited, they
are “covered persons” under a straightforward reading
34
of the statutory text. EPA has accordingly informed respondents that they will be treated as PRPs at the Site.
See Pet. Br. App. 1a-3a.
The Montana Supreme Court acknowledged that
PRPs ordinarily include “all current owners of property
at a CERCLA facility,” a category that includes respondents. Pet. App. 15a. The court declined to “treat
[respondents] as PRPs under § 122(e)(6),” however, because respondents were not responsible for the contamination or the costs of the cleanup. Id. at 16a. That
reading conflates status as a PRP with liability for the
payment of response costs based on that status. Cf. Br.
in Opp. 31-32 (contending that respondents are not
PRPs because “they face no prospect of liability”). Under longstanding policy, EPA generally does not seek
to recover costs from residential landowners who are
not responsible for contamination and do not interfere
with EPA’s remedy. See EPA, Policy Towards Owners
of Residential Property at Superfund Sites (July 3,
1991), https://go.usa.gov/xVbmN. But that does not
change the fact that “even parties not responsible for
contamination may fall within the broad definitions of
PRPs in” Section 107(a). Atlantic Research, 551 U.S. at
136. Indeed, even an “ ‘innocent’ * * * landowner
whose land has been contaminated by another” party
may be a PRP. Ibid.
Because respondents are PRPs, they must obtain
EPA authorization before they “undertake any remedial action at the” Site. 42 U.S.C. 9622(e)(6). And as
explained above, one of the elements of a Montana
restoration-damages claim is that the proposed remedial work will actually abate the damage to their property. See pp. 8-9, 20, 22, supra. If Section 122(e)(6)
would preclude respondents from carrying out their
35
proposed restoration plan, they cannot demonstrate
that their proposed cleanup activities will actually remedy that damage, and their claim accordingly cannot
succeed “on the merits.” Pet. App. 14a.
CONCLUSION
The judgment of the Montana Supreme Court should
be reversed.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
ERIC GRANT
Deputy Assistant Attorney
General
MALCOLM L. STEWART
Deputy Solicitor General
CHRISTOPHER G. MICHEL
Assistant to the Solicitor
General
MATTHEW R. OAKES
Attorney
AUGUST 2019
APPENDIX
1.
28 U.S.C. 1257(a) provides:
State courts; certiorari
(a) Final judgments or decrees rendered by the
highest court of a State in which a decision could be had,
may be reviewed by the Supreme Court by writ of
certiorari where the validity of a treaty or statute of the
United States is drawn in question or where the validity
of a statute of any State is drawn in question on the
ground of its being repugnant to the Constitution,
treaties, or laws of the United States, or where any title,
right, privilege, or immunity is specially set up or
claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised
under, the United States.
2.
42 U.S.C. 9601 provides in pertinent part:
Definitions
For purpose of this subchapter—
*
*
*
*
*
(9) The term “facility” means * * * (B) any
site or area where a hazardous substance has been
deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any
consumer product in consumer use or any vessel.
*
*
*
(1a)
*
*
2a
(20)(A) The term “owner or operator” means
(i) in the case of a vessel, any person owning, operating, or chartering by demise, such vessel, (ii) in the
case of an onshore facility or an offshore facility, any
person owning or operating such facility, and (iii) in
the case of any facility, title or control of which was
conveyed due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means to a unit of
State or local government, any person who owned,
operated, or otherwise controlled activities at such
facility immediately beforehand. Such term does not
include a person, who, without participating in the
management of a vessel or facility, holds indicia of
ownership primarily to protect his security interest
in the vessel or facility.
*
3.
*
*
*
*
42 U.S.C. 9604(a)(1) provides:
Response authorities
(a)
Removal and other remedial action by President;
applicability of national contingency plan; response
by potentially responsible parties; public health
threats; limitations on response; exception
(1) Whenever (A) any hazardous substance is released or there is a substantial threat of such a release
into the environment, or (B) there is a release or substantial threat of release into the environment of any
pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare, the President is authorized to act, consistent with
3a
the national contingency plan, to remove or arrange for
the removal of, and provide for remedial action relating
to such hazardous substance, pollutant, or contaminant
at any time (including its removal from any contaminated
natural resource), or take any other response measure
consistent with the national contingency plan which the
President deems necessary to protect the public health
or welfare or the environment. When the President
determines that such action will be done properly and
promptly by the owner or operator of the facility or
vessel or by any other responsible party, the President
may allow such person to carry out the action, conduct
the remedial investigation, or conduct the feasibility
study in accordance with section 9622 of this title. No
remedial investigation or feasibility study (RI/FS) shall
be authorized except on a determination by the President that the party is qualified to conduct the RI/FS
and only if the President contracts with or arranges for
a qualified person to assist the President in overseeing
and reviewing the conduct of such RI/FS and if the responsible party agrees to reimburse the Fund for any
cost incurred by the President under, or in connection
with, the oversight contract or arrangement. In no
event shall a potentially responsible party be subject to
a lesser standard of liability, receive preferential treatment, or in any other way, whether direct or indirect,
benefit from any such arrangements as a response
action contractor, or as a person hired or retained by
such a response action contractor, with respect to the
release or facility in question. The President shall give
primary attention to those releases which the President deems may present a public health threat.
4a
4.
42 U.S.C. 9606(a) provides:
Abatement actions
(a)
Maintenance, jurisdiction, etc.
In addition to any other action taken by a State or
local government, when the President determines that
there may be an imminent and substantial endangerment to the public health or welfare or the environment
because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat,
and the district court of the United States in the district in which the threat occurs shall have jurisdiction
to grant such relief as the public interest and the equities of the case may require. The President may also,
after notice to the affected State, take other action
under this section including, but not limited to, issuing
such orders as may be necessary to protect public health
and welfare and the environment.
5.
42 U.S.C. 9607(a)-(b) provides:
Liability
(a)
Covered persons; scope; recoverable costs and damages; interest rate; “comparable maturity” date
Notwithstanding any other provision or rule of law,
and subject only to the defenses set forth in subsection
(b) of this section—
(1)
cility,
the owner and operator of a vessel or a fa-
5a
(2) any person who at the time of disposal of any
hazardous substance owned or operated any facility
at which such hazardous substances were disposed of,
(3) any person who by contract, agreement, or
otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal
or treatment, of hazardous substances owned or possessed by such person, by any other party or entity,
at any facility or incineration vessel owned or operated by another party or entity and containing such
hazardous substances, and
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected
by such person, from which there is a release, or a
threatened release which causes the incurrence of
response costs, of a hazardous substance, shall be
liable for—
(A) all costs of removal or remedial action incurred by the United States Government or a State
or an Indian tribe not inconsistent with the national
contingency plan;
(B) any other necessary costs of response incurred by any other person consistent with the
national contingency plan;
(C) damages for injury to, destruction of, or
loss of natural resources, including the reasonable
costs of assessing such injury, destruction, or loss
resulting from such a release; and
6a
(D) the costs of any health assessment or
health effects study carried out under section
9604(i) of this title.
The amounts recoverable in an action under this section shall include interest on the amounts recoverable
under subparagraphs (A) through (D). Such interest
shall accrue from the later of (i) the date payment of a
specified amount is demanded in writing, or (ii) the date
of the expenditure concerned. The rate of interest on
the outstanding unpaid balance of the amounts recoverable under this section shall be the same rate as is
specified for interest on investments of the Hazardous
Substance Superfund established under subchapter A
of chapter 98 of title 26. For purposes of applying such
amendments to interest under this subsection, the term
“comparable maturity” shall be determined with reference to the date on which interest accruing under this
subsection commences.
(b)
Defenses
There shall be no liability under subsection (a) of this
section for a person otherwise liable who can establish
by a preponderance of the evidence that the release or
threat of release of a hazardous substance and the damages resulting therefrom were caused solely by—
(1)
an act of God;
(2)
an act of war;
(3) an act or omission of a third party other than
an employee or agent of the defendant, or than one
whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly,
7a
with the defendant (except where the sole contractual arrangement arises from a published tariff and
acceptance for carriage by a common carrier by rail),
if the defendant establishes by a preponderance of
the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking
into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and
the consequences that could foreseeably result from
such acts or omissions; or
(4)
6.
any combination of the foregoing paragraphs.
42 U.S.C. 9613 provides:
Civil proceedings
(a)
Review of regulations in Circuit Court of Appeals
of the United States for the District of Columbia
Review of any regulation promulgated under this
chapter may be had upon application by any interested
person only in the Circuit Court of Appeals of the United
States for the District of Columbia. Any such application shall be made within ninety days from the date of
promulgation of such regulations. Any matter with respect to which review could have been obtained under
this subsection shall not be subject to judicial review in
any civil or criminal proceeding for enforcement or to
obtain damages or recovery of response costs.
8a
(b)
Jurisdiction; venue
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. Venue shall
lie in any district in which the release or damages occurred, or in which the defendant resides, may be found,
or has his principal office. For the purposes of this section, the Fund shall reside in the District of Columbia.
(c)
Controversies or other matters resulting from tax
collection or tax regulation review
The provisions of subsections (a) and (b) of this section shall not apply to any controversy or other matter
resulting from the assessment of collection of any tax,
as provided by subchapter II 1 of this chapter, or to the
review of any regulation promulgated under title 26.
(d)
Litigation commenced prior to December 11, 1980
No provision of this chapter shall be deemed or held
to moot any litigation concerning any release of any hazardous substance, or any damages associated therewith,
commenced prior to December 11, 1980.
(e)
Nationwide service of process
In any action by the United States under this chapter, process may be served in any district where the defendant is found, resides, transacts business, or has appointed an agent for the service of process.
1
See References in Text note below.
9a
(f )
Contribution
(1) Contribution
Any person may seek contribution from any other
person who is liable or potentially liable under section 9607(a) of this title, during or following any civil
action under section 9606 of this title or under section
9607(a) of this title. Such claims shall be brought
in accordance with this section and the Federal Rules
of Civil Procedure, and shall be governed by Federal
law. In resolving contribution claims, the court may
allocate response costs among liable parties using
such equitable factors as the court determines are
appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for
contribution in the absence of a civil action under
section 9606 of this title or section 9607 of this title.
(2) Settlement
A person who has resolved its liability to the
United States or a State in an administrative or judicially approved settlement shall not be liable for
claims for contribution regarding matters addressed
in the settlement. Such settlement does not discharge any of the other potentially liable persons
unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.
(3) Persons not party to settlement
(A) If the United States or a State has obtained
less than complete relief from a person who has resolved its liability to the United States or the State
10a
in an administrative or judicially approved settlement,
the United States or the State may bring an action
against any person who has not so resolved its liability.
(B) A person who has resolved its liability to the
United States or a State for some or all of a response
action or for some or all of the costs of such action in
an administrative or judicially approved settlement
may seek contribution from any person who is not
party to a settlement referred to in paragraph (2).
(C) In any action under this paragraph, the
rights of any person who has resolved its liability to
the United States or a State shall be subordinate to
the rights of the United States or the State. Any
contribution action brought under this paragraph
shall be governed by Federal law.
(g)
Period in which action may be brought
(1) Actions for natural resource damages
Except as provided in paragraphs (3) and (4), no
action may be commenced for damages (as defined
in section 9601(6) of this title) under this chapter,
unless that action is commenced within 3 years after
the later of the following:
(A) The date of the discovery of the loss and
its connection with the release in question.
(B) The date on which regulations are promulgated under section 9651(c) of this title.
11a
With respect to any facility listed on the National
Priorities List (NPL), any Federal facility identified
under section 9620 of this title (relating to Federal
facilities), or any vessel or facility at which a remedial
action under this chapter is otherwise scheduled, an
action for damages under this chapter must be commenced within 3 years after the completion of the
remedial action (excluding operation and maintenance
activities) in lieu of the dates referred to in subparagraph (A) or (B). In no event may an action for
damages under this chapter with respect to such a
vessel or facility be commenced (i) prior to 60 days
after the Federal or State natural resource trustee
provides to the President and the potentially responsible party a notice of intent to file suit, or (ii) before
selection of the remedial action if the President is
diligently proceeding with a remedial investigation
and feasibility study under section 9604(b) of this title
or section 9620 of this title (relating to Federal facilities). The limitation in the preceding sentence on
commencing an action before giving notice or before
selection of the remedial action does not apply to actions filed on or before October 17, 1986.
(2) Actions for recovery of costs
An initial action for recovery of the costs referred
to in section 9607 of this title must be commenced—
(A) for a removal action, within 3 years after
completion of the removal action, except that such
cost recovery action must be brought within 6 years
after a determination to grant a waiver under section 9604(c)(1)(C) of this title for continued response action; and
12a
(B) for a remedial action, within 6 years after
initiation of physical on-site construction of the remedial action, except that, if the remedial action
is initiated within 3 years after the completion of
the removal action, costs incurred in the removal
action may be recovered in the cost recovery action brought under this subparagraph.
In any such action described in this subsection, the
court shall enter a declaratory judgment on liability
for response costs or damages that will be binding
on any subsequent action or actions to recover further response costs or damages. A subsequent action or actions under section 9607 of this title for
further response costs at the vessel or facility may
be maintained at any time during the response action, but must be commenced no later than 3 years
after the date of completion of all response action.
Except as otherwise provided in this paragraph, an
action may be commenced under section 9607 of this
title for recovery of costs at any time after such
costs have been incurred.
(3) Contribution
No action for contribution for any response costs
or damages may be commenced more than 3 years
after—
(A) the date of judgment in any action under
this chapter for recovery of such costs or damages,
or
(B) the date of an administrative order under
section 9622(g) of this title (relating to de minimis
settlements) or 9622(h) of this title (relating to
13a
cost recovery settlements) or entry of a judicially
approved settlement with respect to such costs or
damages.
(4) Subrogation
No action based on rights subrogated pursuant to
this section by reason of payment of a claim may be
commenced under this subchapter more than 3 years
after the date of payment of such claim.
(5) Actions to recover indemnification payments
Notwithstanding any other provision of this subsection, where a payment pursuant to an indemnification agreement with a response action contractor
is made under section 9619 of this title, an action under section 9607 of this title for recovery of such indemnification payment from a potentially responsible party may be brought at any time before the expiration of 3 years from the date on which such payment is made.
(6) Minors and incompetents
The time limitations contained herein shall not begin to run—
(A) against a minor until the earlier of the
date when such minor reaches 18 years of age or
the date on which a legal representative is duly
appointed for such minor, or
(B) against an incompetent person until the
earlier of the date on which such incompetent’s
incompetency ends or the date on which a legal
14a
representative is duly appointed for such incompetent.
(h)
Timing of review
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 one of the following:
(1) An action under section 9607 of this title to
recover response costs or damages or for contribution.
(2) An action to enforce an order issued under
section 9606(a) of this title or to recover a penalty
for violation of such order.
(3) An action for reimbursement under section
9606(b)(2) of this title.
(4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or
remedial action taken under section 9604 of this title
or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an
action may not be brought with regard to a removal
where a remedial action is to be undertaken at the
site.
(5) An action under section 9606 of this title in
which the United States has moved to compel a remedial action.
15a
(i)
Intervention
In any action commenced under this chapter or under the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.]
in a court of the United States, any person may intervene as a matter of right when such person claims an
interest relating to the subject of the action and is so
situated that the disposition of the action may, as a
practical matter, impair or impede the person’s ability
to protect that interest, unless the President or the State
shows that the person’s interest is adequately represented by existing parties.
( j)
Judicial review
(1) Limitation
In any judicial action under this chapter, judicial
review of any issues concerning the adequacy of any
response action taken or ordered by the President
shall be limited to the administrative record. Otherwise applicable principles of administrative law shall
govern whether any supplemental materials may be
considered by the court.
(2) Standard
In considering objections raised in any judicial
action under this chapter, the court shall uphold the
President’s decision in selecting the response action
unless the objecting party can demonstrate, on the
administrative record, that the decision was arbitrary
and capricious or otherwise not in accordance with
law.
16a
(3) Remedy
If the court finds that the selection of the response
action was arbitrary and capricious or otherwise not
in accordance with law, the court shall award (A) only
the response costs or damages that are not inconsistent with the national contingency plan, and (B) such
other relief as is consistent with the National Contingency Plan.
(4) Procedural errors
In reviewing alleged procedural errors, the court
may disallow costs or damages only if the errors were
so serious and related to matters of such central relevance to the action that the action would have been
significantly changed had such errors not been made.
(k)
Administrative record and participation procedures
(1) Administrative record
The President shall establish an administrative
record upon which the President shall base the selection of a response action. The administrative record shall be available to the public at or near the facility at issue. The President also may place duplicates of the administrative record at any other location.
(2) Participation procedures
(A) Removal action
The President shall promulgate regulations in
accordance with chapter 5 of title 5 establishing
procedures for the appropriate participation of interested persons in the development of the admin-
17a
istrative record on which the President will base
the selection of removal actions and on which judicial review of removal actions will be based.
(B) Remedial action
The President shall provide for the participation of interested persons, including potentially responsible parties, in the development of the administrative record on which the President will base
the selection of remedial actions and on which judicial review of remedial actions will be based. The
procedures developed under this subparagraph
shall include, at a minimum, each of the following:
(i) Notice to potentially affected persons
and the public, which shall be accompanied by
a brief analysis of the plan and alternative plans
that were considered.
(ii) A reasonable opportunity to comment
and provide information regarding the plan.
(iii) An opportunity for a public meeting in
the affected area, in accordance with section
9617(a)(2) of this title (relating to public participation).
(iv) A response to each of the significant
comments, criticisms, and new data submitted
in written or oral presentations.
(v) A statement of the basis and purpose of
the selected action.
18a
For purposes of this subparagraph, the administrative record shall include all items developed and
received under this subparagraph and all items
described in the second sentence of section 9617(d)
of this title. The President shall promulgate regulations in accordance with chapter 5 of title 5 to
carry out the requirements of this subparagraph.
(C) Interim record
Until such regulations under subparagraphs (A)
and (B) are promulgated, the administrative record shall consist of all items developed and received pursuant to current procedures for selection of the response action, including procedures
for the participation of interested parties and the
public. The development of an administrative record and the selection of response action under this
chapter shall not include an adjudicatory hearing.
(D) Potentially responsible parties
The President shall make reasonable efforts to
identify and notify potentially responsible parties
as early as possible before selection of a response
action. Nothing in this paragraph shall be construed to be a defense to liability.
(l) Notice of actions
Whenever any action is brought under this chapter
in a court of the United States by a plaintiff other than
the United States, the plaintiff shall provide a copy of
the complaint to the Attorney General of the United
States and to the Administrator of the Environmental
Protection Agency.
19a
7.
42 U.S.C. 9614(a) provides:
Relationship to other law
(a)
Additional State liability or requirements with respect
to release of substances within State
Nothing in this chapter 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.
8.
42 U.S.C. 9617(a)-(d) provides:
Public participation
(a)
Proposed plan
Before adoption of any plan for remedial action to be
undertaken by the President, by a State, or by any other
person, under section 9604, 9606, 9620, or 9622 of this
title, the President or State, as appropriate, shall take
both of the following actions:
(1) Publish a notice and brief analysis of the proposed plan and make such plan available to the public.
(2) Provide a reasonable opportunity for submission of written and oral comments and an opportunity
for a public meeting at or near the facility at issue
regarding the proposed plan and regarding any proposed findings under section 9621(d)(4) of this title
(relating to cleanup standards). The President or the
State shall keep a transcript of the meeting and make
such transcript available to the public.
20a
The notice and analysis published under paragraph (1)
shall include sufficient information as may be necessary
to provide a reasonable explanation of the proposed plan
and alternative proposals considered.
(b)
Final plan
Notice of the final remedial action plan adopted shall
be published and the plan shall be made available to the
public before commencement of any remedial action.
Such final plan shall be accompanied by a discussion
of any significant changes (and the reasons for such
changes) in the proposed plan and a response to each of
the significant comments, criticisms, and new data submitted in written or oral presentations under subsection (a) of this section.
(c)
Explanation of differences
After adoption of a final remedial action plan—
(1)
if any remedial action is taken,
(2) if any enforcement action under section 9606
of this title is taken, or
(3) if any settlement or consent decree under
section 9606 of this title or section 9622 of this title
is entered into,
and if such action, settlement, or decree differs in any
significant respects from the final plan, the President
or the State shall publish an explanation of the significant
differences and the reasons such changes were made.
21a
(d)
Publication
For the purposes of this section, publication shall include, at a minimum, publication in a major local newspaper of general circulation. In addition, each item developed, received, published, or made available to the
public under this section shall be available for public
inspection and copying at or near the facility at issue.
9.
42 U.S.C. 9621 provides in pertinent part:
Cleanup standards
(a)
Selection of remedial action
The President shall select appropriate remedial actions determined to be necessary to be carried out under section 9604 of this title or secured under section
9606 of this title which are in accordance with this section and, to the extent practicable, the national contingency plan, and which provide for cost-effective response.
In evaluating the cost effectiveness of proposed alternative remedial actions, the President shall take into
account the total short- and long-term costs of such actions, including the costs of operation and maintenance
for the entire period during which such activities will
be required.
(b)
General rules
(1) Remedial actions in which treatment which permanently and significantly reduces the volume, toxicity
or mobility of the hazardous substances, pollutants, and
contaminants is a principal element, are to be preferred
over remedial actions not involving such treatment. The
22a
offsite transport and disposal of hazardous substances
or contaminated materials without such treatment should
be the least favored alternative remedial action where
practicable treatment technologies are available. The
President shall conduct an assessment of permanent
solutions and alternative treatment technologies or resource recovery technologies that, in whole or in part,
will result in a permanent and significant decrease in
the toxicity, mobility, or volume of the hazardous substance, pollutant, or contaminant. In making such assessment, the President shall specifically address the
long-term effectiveness of various alternatives. In assessing alternative remedial actions, the President shall,
at a minimum, take into account:
(A) the long-term uncertainties associated with
land disposal;
(B) the goals, objectives, and requirements of the
Solid Waste Disposal Act [42 U.S.C. 6901 et seq.];
(C) the persistence, toxicity, mobility, and propensity to bioaccumulate of such hazardous substances
and their constituents;
(D) short- and long-term potential for adverse
health effects from human exposure;
(E) long-term maintenance costs;
(F) the potential for future remedial action costs
if the alternative remedial action in question were to
fail; and
(G) the potential threat to human health and the
environment associated with excavation, transportation, and redisposal, or containment.
23a
The President shall select a remedial action that is protective of human health and the environment, that is
cost effective, and that utilizes permanent solutions and
alternative treatment technologies or resource recovery
technologies to the maximum extent practicable. If the
President selects a remedial action not appropriate for
a preference under this subsection, the President shall
publish an explanation as to why a remedial action
involving such reductions was not selected.
(2) The President may select an alternative remedial
action meeting the objectives of this subsection whether
or not such action has been achieved in practice at any
other facility or site that has similar characteristics.
In making such a selection, the President may take into
account the degree of support for such remedial action
by parties interested in such site.
(c)
Review
If the President selects a remedial action that results in any hazardous substances, pollutants, or contaminants remaining at the site, the President shall review such remedial action no less often than each 5 years
after the initiation of such remedial action to assure
that human health and the environment are being protected by the remedial action being implemented. In
addition, if upon such review it is the judgment of the
President that action is appropriate at such site in accordance with section 9604 or 9606 of this title, the President shall take or require such action. The President
shall report to the Congress a list of facilities for which
such review is required, the results of all such reviews,
and any actions taken as a result of such reviews.
24a
(d)
Degree of cleanup
(1) Remedial actions selected under this section or
otherwise required or agreed to by the President under
this chapter shall attain 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. Such remedial actions shall be
relevant and appropriate under the circumstances presented by the release or threatened release of such substance, pollutant, or contaminant.
(2)(A) With respect to any hazardous substance,
pollutant or contaminant that will remain onsite, if—
(i) any standard, requirement, criteria, or limitation under any Federal environmental law, including,
but not limited to, the Toxic Substances Control Act
[15 U.S.C. 2601 et seq.], the Safe Drinking Water Act
[42 U.S.C. 300f et seq.], the Clean Air Act [42 U.S.C.
7401 et seq.], the Clean Water Act [33 U.S.C. 1251 et
seq.], the Marine Protection, Research and Sanctuaries Act [16 U.S.C. 1431 et seq., 1447 et seq., 33 U.S.C.
1401 et seq., 2801 et seq.], or the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.]; or
(ii) any promulgated standard, requirement, criteria, or limitation under a State environmental or facility siting law that is more stringent than any Federal standard, requirement, criteria, or limitation, including each such State standard, requirement, criteria, or limitation contained in a program approved,
authorized or delegated by the Administrator under
a statute cited in subparagraph (A), and that has been
25a
identified to the President by the State in a timely
manner,
is legally applicable to the hazardous substance or pollutant or contaminant concerned or is relevant and
appropriate under the circumstances of the release or
threatened release of such hazardous substance or pollutant or contaminant, the remedial action selected under section 9604 of this title or secured under section
9606 of this title shall require, at the completion of the
remedial action, a level or standard of control for such
hazardous substance or pollutant or contaminant which
at least attains such legally applicable or relevant and
appropriate standard, requirement, criteria, or limitation.
Such remedial action shall require a level or standard
of control which at least attains Maximum Contaminant
Level Goals established under the Safe Drinking Water
Act [42 U.S.C. 300f et seq.] and water quality criteria
established under section 304 or 303 of the Clean Water
Act [33 U.S.C. 1314, 1313], where such goals or criteria
are relevant and appropriate under the circumstances
of the release or threatened release.
*
(f )
*
*
*
*
State involvement
(1) The President shall promulgate regulations providing for substantial and meaningful involvement by
each State in initiation, development, and selection of
remedial actions to be undertaken in that State. The
regulations, at a minimum, shall include each of the
following:
26a
(A) State involvement in decisions whether to perform a preliminary assessment and site inspection.
(B) Allocation of responsibility for hazard ranking
system scoring.
(C) State concurrence in deleting sites from the
National Priorities List.
(D) State participation in the long-term planning
process for all remedial sites within the State.
(E) A reasonable opportunity for States to review
and comment on each of the following:
(i) The remedial investigation and feasibility
study and all data and technical documents leading to its issuance.
(ii) The planned remedial action identified in
the remedial investigation and feasibility study.
(iii) The engineering design following selection
of the final remedial action.
(iv) Other technical data and reports relating
to implementation of the remedy.
(v) Any proposed finding or decision by the
President to exercise the authority of subsection
(d)(4) of this section.
(F) Notice to the State of negotiations with potentially responsible parties regarding the scope of
any response action at a facility in the State and an
opportunity to participate in such negotiations and,
subject to paragraph (2), be a party to any settlement.
27a
(G) Notice to the State and an opportunity to
comment on the President’s proposed plan for remedial action as well as on alternative plans under consideration. The President’s proposed decision regarding the selection of remedial action shall be accompanied by a response to the comments submitted by the State, including an explanation regarding
any decision under subsection (d)(4) of this section
on compliance with promulgated State standards. A
copy of such response shall also be provided to the
State.
(H) Prompt notice and explanation of each proposed action to the State in which the facility is located.
Prior to the promulgation of such regulations, the President shall provide notice to the State of negotiations
with potentially responsible parties regarding the scope
of any response action at a facility in the State, and such
State may participate in such negotiations and, subject
to paragraph (2), any settlements.
(2)(A) This paragraph shall apply to remedial actions secured under section 9606 of this title. At least
30 days prior to the entering of any consent decree, if
the President proposes to select a remedial action that
does not attain a legally applicable or relevant and appropriate standard, requirement, criteria, or limitation,
under the authority of subsection (d)(4) of this section,
the President shall provide an opportunity for the State
to concur or not concur in such selection. If the State
concurs, the State may become a signatory to the consent decree.
28a
(B) If the State does not concur in such selection,
and the State desires to have the remedial action conform to such standard, requirement, criteria, or limitation, the State shall intervene in the action under section 9606 of this title before entry of the consent decree, to seek to have the remedial action so conform.
Such intervention shall be a matter of right. The remedial action shall conform to such standard, requirement, criteria, or limitation if the State establishes, on
the administrative record, that the finding of the President was not supported by substantial evidence. If
the court determines that the remedial action shall conform to such standard, requirement, criteria, or limitation, the remedial action shall be so modified and the
State may become a signatory to the decree. If the
court determines that the remedial action need not conform to such standard, requirement, criteria, or limitation, and the State pays or assures the payment of the
additional costs attributable to meeting such standard,
requirement, criteria, or limitation, the remedial action
shall be so modified and the State shall become a signatory to the decree.
(C) The President may conclude settlement negotiations with potentially responsible parties without State
concurrence.
(3)(A) This paragraph shall apply to remedial actions at facilities owned or operated by a department,
agency, or instrumentality of the United States. At
least 30 days prior to the publication of the President’s
final remedial action plan, if the President proposes to
select a remedial action that does not attain a legally
applicable or relevant and appropriate standard, require-
29a
ment, criteria, or limitation, under the authority of subsection (d)(4) of this section, the President shall provide an opportunity for the State to concur or not concur in such selection. If the State concurs, or does not
act within 30 days, the remedial action may proceed.
(B) If the State does not concur in such selection as
provided in subparagraph (A), and desires to have the
remedial action conform to such standard, requirement,
criteria, or limitation, the State may maintain an action
as follows:
(i) If the President has notified the State of selection of such a remedial action, the State may bring
an action within 30 days of such notification for the
sole purpose of determining whether the finding of
the President is supported by substantial evidence.
Such action shall be brought in the United States
district court for the district in which the facility is
located.
(ii) If the State establishes, on the administrative
record, that the President’s finding is not supported
by substantial evidence, the remedial action shall be
modified to conform to such standard, requirement,
criteria, or limitation.
(iii) If the State fails to establish that the President’s finding was not supported by substantial evidence and if the State pays, within 60 days of judgment, the additional costs attributable to meeting such
standard, requirement, criteria, or limitation, the remedial action shall be selected to meet such standard,
requirement, criteria, or limitation. If the State fails
30a
to pay within 60 days, the remedial action selected
by the President shall proceed through completion.
(C) Nothing in this section precludes, and the court
shall not enjoin, the Federal agency from taking any
remedial action unrelated to or not inconsistent with
such standard, requirement, criteria, or limitation.
10. 42 U.S.C. 9622 provides in pertinent part:
Settlements
(a)
Authority to enter into agreements
The President, in his discretion, may enter into an
agreement with any person (including the owner or operator of the facility from which a release or substantial
threat of release emanates, or any other potentially responsible person), to perform any response action (including any action described in section 9604(b) of this
title) if the President determines that such action will
be done properly by such person. Whenever practicable and in the public interest, as determined by the
President, the President shall act to facilitate agreements under this section that are in the public interest
and consistent with the National Contingency Plan in
order to expedite effective remedial actions and minimize litigation. If the President decides not to use the
procedures in this section, the President shall notify in
writing potentially responsible parties at the facility of
such decision and the reasons why use of the procedures is inappropriate. A decision of the President to
use or not to use the procedures in this section is not
subject to judicial review.
31a
*
(e)
*
*
*
*
*
*
Special notice procedures
*
*
*
(6) Inconsistent response action
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.
*
*
*
*
*
11. 42 U.S.C. 9652(d) provides:
Effective dates; savings provisions
(d) Nothing in this chapter shall affect or modify
in any way the obligations or liabilities of any person
under other Federal or State law, including common
law, with respect to releases of hazardous substances
or other pollutants or contaminants. The provisions
of this chapter shall not be considered, interpreted, or
construed in any way as reflecting a determination, in
part or whole, of policy regarding the inapplicability of
strict liability, or strict liability doctrines, to activities
relating to hazardous substances, pollutants, or contaminants or other such activities.
32a
12. 42 U.S.C. 9659 provides in pertinent part:
Citizens suits
(a)
Authority to bring civil actions
Except as provided in subsections (d) and (e) of this
section and in section 9613(h) of this title (relating to
timing of judicial review), any person may commence a
civil action on his own behalf—
(1) against any person (including the United
States and any other governmental instrumentality
or agency, to the extent permitted by the eleventh
amendment to the Constitution) who is alleged to be
in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter (including any provision of an
agreement under section 9620 of this title, relating
to Federal facilities); or
(2) against the President or any other officer of
the United States (including the Administrator of
the Environmental Protection Agency and the Administrator of the ATSDR) where there is alleged a
failure of the President or of such other officer to
perform any act or duty under this chapter, including an act or duty under section 9620 of this title
(relating to Federal facilities), which is not discretionary with the President or such other officer.
Paragraph (2) shall not apply to any act or duty under
the provisions of section 9660 of this title (relating to
research, development, and demonstration).
33a
(b)
Venue
(1) Actions under subsection (a)(1)
Any action under subsection (a)(1) of this section
shall be brought in the district court for the district
in which the alleged violation occurred.
(2) Actions under subsection (a)(2)
Any action brought under subsection (a)(2) of this
section may be brought in the United States District
Court for the District of Columbia.
(c)
Relief
The district court shall have jurisdiction in actions
brought under subsection (a)(1) of this section to enforce the standard, regulation, condition, requirement,
or order concerned (including any provision of an agreement under section 9620 of this title), to order such
action as may be necessary to correct the violation, and
to impose any civil penalty provided for the violation.
The district court shall have jurisdiction in actions
brought under subsection (a)(2) of this section to order
the President or other officer to perform the act or
duty concerned.
*
(h)
*
*
*
*
Other rights
This chapter does not affect or otherwise impair the
rights of any person under Federal, State, or common
law, except with respect to the timing of review as
34a
provided in section 9613(h) of this title or as otherwise
provided in section 9658 of this title (relating to actions
under State law).
*
*
*
*
*
13. 40 C.F.R. 300.400(g) provides in pertinent part:
General.
(g) Identification of applicable or relevant and
appropriate requirements. * * *
*
*
*
*
*
(4) Only those state standards that are promulgated,
are identified by the state in a timely manner, and are
more stringent than federal requirements may be applicable or relevant and appropriate. For purposes of
identification and notification of promulgated state standards, the term promulgated means that the standards
are of general applicability and are legally enforceable.
*
*
*
*
*
14. 40 C.F.R. 300.435(a)-(b) provides:
Remedial design/remedial action, operation and maintenance.
(a) General. The remedial design/remedial action
(RD/RA) stage includes the development of the actual
design of the selected remedy and implementation of
the remedy through construction. A period of operation and maintenance may follow the RA activities.
35a
(b) RD/RA activities. (1) All RD/RA activities shall
be in conformance with the remedy selected and set
forth in the ROD or other decision document for that
site. Those portions of RD/RA sampling and analysis
plans describing the QA/QC requirements for chemical
and analytical testing and sampling procedures of samples taken for the purpose of determining whether
cleanup action levels specified in the ROD are achieved,
generally will be consistent with the requirements of
§ 300.430(b)(8).
(2) During the course of the RD/RA, the lead agency
shall be responsible for ensuring that all federal and state
requirements that are identified in the ROD as applicable or relevant and appropriate requirements for the
action are met. If waivers from any ARARs are involved, the lead agency shall be responsible for ensuring that the conditions of the waivers are met.
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.