Respondents Brief — Atlantic Richfield Company, Petitioner v. Gregory A. Christian, et al.

Supreme Court briefOct 15, 2019

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No. 17-1498

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In The

Supreme Court of the United States

------------------------------------------------------------------

ATLANTIC RICHFIELD COMPANY, PETITIONER,

GREGORY A. CHRISTIAN, ET AL.

-----------------------------------------------------------------ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MONTANA

------------------------------------------------------------------

RESPONSE BRIEF FOR

GREGORY A. CHRISTIAN, ET AL.

-----------------------------------------------------------------MONTE D. BECK

JUSTIN P. STALPES

BECK, AMSDEN &

STALPES, PLLC

1946 Stadium Dr., Suite 1

Bozeman, MT 59715

J. DAVID SLOVAK

MARK M. KOVACICH

ROSS JOHNSON

KOVACICH SNIPES, PC

21 3rd St. North, Suite 301

Great Falls, MT 59401

JOSEPH R. PALMORE

Counsel of Record

DEANNE E. MAYNARD

DUSTIN C. ELLIOTT

SAMUEL B. GOLDSTEIN*

MORRISON & FOERSTER LLP

2000 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 887-6940

JPalmore@mofo.com

JAMES R. SIGEL

WILLIAM F. TARANTINO

MORRISON & FOERSTER LLP

* Not admitted in the District

425 Market St.

of Columbia; admitted only in

San Francisco, CA 94105

California; practice supervised

by principals of Morrison &

Foerster LLP admitted in

the District of Columbia.

Counsel for Respondents

OCTOBER 15, 2019

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) establishes

standards and procedures that govern federal cleanups of hazardous waste sites while expressly preserving parties’ rights to press state-law claims related to

such sites. E.g., 42 U.S.C. §§ 9614(a), 9652(d), 9659.

Respondents here (collectively, “Landowners”) brought

a variety of state-law claims against petitioner Atlantic Richfield Company (“ARCO”), seeking to recover

damages for the harm caused by ARCO’s contamination of Landowners’ residential properties. Among

other things, Landowners request the funds necessary

to remove ARCO’s pollution from their land. In an

interlocutory decision, the Montana Supreme Court

held that Landowners could submit this damages

request to a jury. The questions presented are:

1. Whether this Court has jurisdiction to review

this interlocutory state-court decision.

2. Whether the Montana Supreme Court erred in

concluding that CERCLA Section 113(h) does not prohibit Landowners from bringing an action in state

court seeking the funds necessary to perform their own

cleanup on their own properties once the EPA-ordered

cleanup is complete.

3. Whether the Montana Supreme Court erred

in concluding that Landowners are not “potentially

responsible part[ies]” within the meaning of CERCLA

QUESTIONS PRESENTED—Continued

Section 122(e)(6) because, as non-polluting contiguous

landowners protected by the statute of limitations,

they could not be liable under CERCLA.

4. Whether the Montana Supreme Court erred in

concluding that Landowners’ damages request was not

preempted.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................................

TABLE OF AUTHORITIES ...................................

JURISDICTIONAL STATEMENT ........................

STATUTORY PROVISIONS ..................................

INTRODUCTION ...................................................

STATEMENT..........................................................

A. Statutory Background .................................

Factual Background .....................................

Procedural History.......................................

SUMMARY OF ARGUMENT ................................

ARGUMENT ...........................................................

THIS COURT LACKS JURISDICTION .....

II.

CERCLA DOES NOT DEPRIVE THE STATE

COURT OF JURISDICTION ...................... 21

A. CERCLA Permits State-Court, StateLaw Claims ............................................ 21

B. Landowners Do Not “Challenge” EPA’s

Orders .................................................... 31

III.

SECTION 122(e)(6) DOES NOT BAR LANDOWNERS’ RESTORATION DAMAGES ..... 35

A. Landowners Are Not Potentially Responsible Parties............................................ 36

B. Landowners Are Exempt As “Contiguous” ......................................................... 47

C. Remand Would Be Required Regardless ....

TABLE OF CONTENTS—Continued

Page

IV.

THE RESTORATION-DAMAGES REMEDY

IS NOT PREEMPTED ................................. 50

A. “Impossibility” Preemption Is Inapplicable ....................................................... 50

1. Restoration damages impose no restoration duty ..................................... 51

2. Federal law would permit ARCO’s

remediation....................................... 54

B. Landowners’

Restoration-Damages

Request Is No “Obstacle” To CERCLA’s

Purpose .................................................. 59

CONCLUSION .......................................................

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Stokes,

163 P.3d 1273 (Mont. 2007) ....................................49

Arceneaux v. Louisiana,

376 U.S. 336 (1964) .................................................20

ARCO Envtl. Remediation, L.L.C. v. Dep’t

of Health & Envtl. Quality of Mont.,

213 F.3d 1108 (9th Cir. 2000) ..................................35

AT&T Co. v. Cent. Office Tel., Inc.,

524 U.S. 214 (1998) .................................................64

Bandini Petroleum Co. v. Superior

Court, Los Angeles County,

284 U.S. 8 (1931) .....................................................20

Bates v. Dow Agrosciences LLC,

544 U.S. 431 (2005) ........................................... 52, 59

Boarhead Corp. v. Erickson,

923 F.2d 1011 (3d Cir. 1991) ...................................35

Bowen v. Georgetown Univ. Hospital,

488 U.S. 204 (1988) .................................................47

Broward Gardens Tenants Ass’n v. EPA,

311 F.3d 1066 (11th Cir. 2002) ................................35

Burlington N. & Santa Fe Ry. Co. v. United States,

556 U.S. 599 (2009) ..................................... 3, 4, 5, 37

California v. ARC America Corp.,

490 U.S. 93 (1989) ...................................................60

Christian v. Atl. Richfield Co.,

358 P.3d 131 (Mont. 2015) ......................................11

TABLE OF AUTHORITIES—Continued

Page

Cipollone v. Liggett Group, Inc.,

505 U.S. 504 (1992) .................................................64

City of Rialto v. West Coast Loading Corp.,

581 F.3d 865 (9th Cir. 2009) ....................................32

Cooper Industries, Inc. v. Availl Services, Inc.,

543 U.S. 157 (2004) ................................. 5, 37, 38, 39

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975) ..................................... 18, 20, 21

CSX Transp. v. Easterwood,

507 U.S. 658 (1993) .................................................59

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) ..................................... 4, 46, 50, 62

Cyan, Inc. v. Beaver County

Employees Retirement Fund,

138 S. Ct. 1061 (2018) ....................................... 28, 42

Dep’t of Energy v. Ohio,

503 U.S. 607 (1992) ........................................... 25, 26

Edward J. DeBartolo Corp. v. Florida Gulf

Coast Bldg. & Constr. Trades Council,

485 U.S. 568 (1988) .................................................42

El Paso Nat. Gas Co. v. United States,

750 F.3d 863 (D.C. Cir. 2014) ..................................35

Empire Healthchoice Assur., Inc. v. McVeigh,

547 U.S. 677 (2006) .................................................25

English v. Gen. Elec. Co.,

496 U.S. 72 (1990) ...................................................59

vii

TABLE OF AUTHORITIES—Continued

Page

Exxon Corp. v. Hunt,

475 U.S. 355 (1986) ...................................................3

Fisher v. District Court of

Sixteenth Judicial District,

424 U.S. 382 (1976) .................................................20

Florida Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132 (1963) .................................................50

Fort Ord Toxics Project, Inc. v. California EPA,

189 F.3d 828 (9th Cir. 1999) .............................. 23, 26

Franchise Tax Bd. of Cal. v. Constr. Laborers

Vacation Tr. for S. Cal.,

463 U.S. 1 (1983) ............................................... 25, 26

Garcia v. United States,

469 U.S. 70 (1984) ...................................................30

Garza v. Forquest Ventures, Inc.,

358 P.3d 189 (Mont. 2015) ......................................57

Geier v. American Honda Motor Co., Inc.,

529 U.S. 861 (2000) ........................................... 57, 64

Gonzalez v. Raich,

545 U.S. 1 (2005) .....................................................42

Grable & Sons Metal Prods., Inc. v.

Darue Eng’g & Mfg.,

545 U.S. 308 (2005) .................................................25

Gunn v. Minton,

568 U.S. 251 (2013) .................................................25

Jefferson v. City of Tarrant,

522 U.S. 75 (1997) ...................................................18

viii

TABLE OF AUTHORITIES—Continued

Page

Kennerly v. District Court,

400 U.S. 423 (1971) .................................................20

Key Tronic Corp. v. United States,

511 U.S. 809 (1994) ...................................................4

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) .................................................42

Louisiana Public Service Comm’n v. FCC,

476 U.S. 355 (1986) .................................................59

Madruga v. Superior Court of California,

346 U.S. 556 (1954) .................................................20

Manor Care, Inc. v. Yaskin,

950 F.2d 122 (3d Cir. 1991) ............................... 60, 62

Martin v. Artis,

290 P.3d 687 (Mont. 2012) ......................................51

McClellan Ecological Seepage Situation v. Perry,

47 F.3d 325 (9th Cir. 1995) ......................................35

Merck Sharp & Dohme Corp. v. Albrecht,

139 S. Ct. 1668 (2019) ................................. 53, 54, 55

Merit Mgmt. Grp. v. FTI Consulting, Inc.,

138 S. Ct. 883 (2018) ...............................................27

Metro. Life Ins. Co. v. Taylor,

481 U.S. 58 (1987) ...................................................24

Missouri ex rel. St. Louis B. & M. Ry. Co. v. Taylor,

266 U.S. 200 (1924) .................................................20

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992) .................................................64

TABLE OF AUTHORITIES—Continued

Page

Mt. Vernon-Woodberry Cotton Duck Co. v.

Ala. Interstate Power Co.,

240 U.S. 30 (1916) ...................................................20

Mutual Pharmaceutical Co., Inc. v. Bartlett,

570 U.S. 472 (2013) ........................................... 51, 53

New Mexico v. Gen. Elec. Co.,

467 F.3d 1223 (10th Cir. 2006) .......................... 35, 60

Niagara Mohawk Power Corp. v.

Chevron U.S.A., Inc.,

596 F.3d 112 (2d Cir. 2010) .......................................3

North Dakota State Bd. of Pharmacy v.

Snyder’s Drug Stores, Inc.,

414 U.S. 156 (1973) ........................................... 18, 19

North Shore Gas Co. v. EPA,

930 F.2d 1239 (7th Cir. 1991) ..................................32

O’Dell v. Espinoza,

456 U.S. 430 (1982) .................................................18

PLIVA, Inc. v. Mensing,

564 U.S. 604 (2011) ..................................... 53, 54, 55

Radio Station WOW, Inc. v. Johnson,

326 U.S. 120 (1945) .................................................19

Rescue Army v. Municipal Court of Los Angeles,

331 U.S. 549 (1947) .................................................20

Riegel v. Medtronic, Inc.,

552 U.S. 312 (2008) .................................................51

Russello v. United States,

464 U.S. 16 (1983) ...................................................39

TABLE OF AUTHORITIES—Continued

Page

Schalk v. Reilly,

900 F.2d 1091 (7th Cir. 1990) ..................................35

Sturgeon v. Frost,

139 S. Ct. 1066 (2019) .............................................30

Sunburst School Dist. No. 2 v. Texaco, Inc.,

165 P.3d 1079 (Mont. 2007) ...... 10, 11, 34, 49, 51, 52

Tafflin v. Levitt,

493 U.S. 455 (1990) .................................................26

United States v. Atlantic Research Corp.,

551 U.S. 128 (2007) ..................................... 37, 38, 39

United States v. Colorado,

990 F.2d 1565 (10th Cir. 1993) .......................... 33, 42

Vaden v. Discover Bank,

556 U.S. 49 (2009) ...................................................24

Village of DePue, Ill. v. Exxon Mobil Corp.,

537 F.3d 775 (7th Cir. 2008) ........................ 22, 23, 28

Virginia Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019) ................................. 64, 65, 66

Weinberger v. Salfi,

422 U.S. 749 (1975) .................................................25

Williamson v. Mazda Motor of America, Inc.,

562 U.S. 323 (2011) ..................................... 57, 62, 64

Wyeth v. Levine,

555 U.S. 555 (2009) ................... 50, 53, 54, 56, 60, 64

TABLE OF AUTHORITIES—Continued

Page

STATUTES

28 U.S.C. § 1257(a) .......................................... 18, 19, 21

28 U.S.C. § 1331 .................................................... 24, 26

28 U.S.C. § 1332 ..........................................................22

28 U.S.C. § 1337 .................................................... 25, 26

28 U.S.C. § 1338 ..........................................................25

42 U.S.C. § 9601(35) ....................................................48

42 U.S.C. § 9601(40) ....................................................49

42 U.S.C. § 9604 .................................................... 22, 32

42 U.S.C. § 9606(a) .......................................... 22, 46, 65

42 U.S.C. § 9607(a) ............................... 5, 13, 16, 37, 38,

39, 41, 44, 47, 48, 49

42 U.S.C. § 9607(q) ...................................... 5, 16, 47, 48

42 U.S.C. § 9607(r) ......................................................49

42 U.S.C. § 9613(a) ........................................................6

42 U.S.C. § 9613(b) ......... 6, 15, 23, 24, 25, 26, 27, 28, 31

42 U.S.C. § 9613(g) .................................................. 5, 36

42 U.S.C. § 9613(h).............. 2, 4, 6, 7, 12, 13, 14, 15, 16,

21, 22, 23, 27, 28, 29, 30, 31,

32, 33, 34, 35, 60, 61, 63

42 U.S.C. § 9613(j) .......................................................33

42 U.S.C. § 9613(k) ................................................ 45, 46

42 U.S.C. § 9614(a) ...................................... 4, 62, 63, 65

42 U.S.C. § 9614(b) ................................................ 61, 62

xii

TABLE OF AUTHORITIES—Continued

Page

42 U.S.C. § 9619(d) ......................................................39

42 U.S.C. § 9620(e) ......................................................40

42 U.S.C. § 9621(a) ......................................................60

42 U.S.C. § 9621(b) ......................................................33

42 U.S.C. § 9621(d) ................................ 8, 23, 33, 56, 61

42 U.S.C. § 9621(f ) ......................................................40

42 U.S.C. § 9622(a) ................................................ 43, 44

42 U.S.C. § 9622(c) .................................................. 5, 40

42 U.S.C. § 9622(e) ............................................ 5, 40, 44

42 U.S.C. § 9622(e)(6) ........................2, 6, 12, 14, 16, 35,

40, 41, 47, 48, 49, 60, 61

42 U.S.C. § 9624(b) ......................................................39

42 U.S.C. § 9652(d) ............................................ 4, 21, 63

42 U.S.C. § 9658 ............................................................4

42 U.S.C. § 9658(a) ................................................ 62, 63

42 U.S.C. § 9659(a) ......................................................27

42 U.S.C. § 9659(h).................................................. 4, 63

Superfund Amendments and Reauthorization Act

of 1986, Pub. L. No. 99-499, 100 Stat. 1613 ............29

OTHER AUTHORITIES

40 C.F.R. 300.400(g) ....................................................61

132 Cong. Rec. (1986):

p. 28,410 ..................................................................30

xiii

TABLE OF AUTHORITIES—Continued

Page

p. 33,475 ..................................................................31

p. 33,554 ............................................................ 30, 31

p. 33,555 ..................................................................30

American Heritage Dictionary (1981) ........................36

Anaconda Chamber of Commerce, Anaconda

Stack Brochure, http://stateparks.mt.gov/fwp

Doc.html?id=83581 ...................................................9

Black’s Law Dictionary (5th ed. 1979) .......................31

Black’s Law Dictionary (10th ed. 2014) ............... 26, 31

EPA, Anaconda Regional Water, Waste and Soils

Record of Decision (1998).............................. 8, 33, 58

EPA, Highlands Acid Pit Record of Decision

(Jan. 24, 1984) .........................................................43

EPA, Policy Towards Owners of Residential Property at Superfund Sites (1991) ...............................47

EPA, Summary of Technical Impracticability

Waivers at National Priorities List Sites

(2012) .......................................................................56

H.R. 2005, 99th Cong., 2d Sess. (1985) ................ 29, 43

H.R. Rep. No. 99-962 (1986) ................................. 30, 61

Press Release, EPA, EPA and Parties Reach

Conceptual Settlement Framework for Final

Cleanup Actions at Anaconda Smelter Superfund Site in Montana (July 30, 2018) .....................44

Restatement (Second) Torts § 4 .................................51

Restatement (Second) Torts § 12A .............................51

xiv

TABLE OF AUTHORITIES—Continued

Page

Restatement (Second) Torts § 920A ...........................52

Restatement (Second) Torts § 929 .............................11

Topol & Snow, Superfund Law and Procedure

(1992) .......................................................................32

JURISDICTIONAL STATEMENT

This Court lacks jurisdiction. Infra pp. 17-21.

STATUTORY PROVISIONS

Relevant statutory provisions appear in the

appendix.

INTRODUCTION

This is a case about property rights, federalism,

and statutory text. ARCO and its predecessor emitted

thousands of tons of toxic metals, contaminating Landowners’ residential properties. Landowners brought

state-law tort actions so they could remove this contamination. ARCO now claims CERCLA—a statute

designed to promote hazardous-waste cleanup—prohibits Landowners from addressing the hazardous

waste ARCO put on their property.

In ARCO’s telling, CERCLA was a federal powergrab: Congress anointed EPA the supreme authority

for all land-use decisions affecting anyone unlucky

enough to live in a hazardous-waste site. ARCO insists

that, once EPA orders polluters to conduct some

cleanup on some small subset of the area they polluted,

their obligations end. ARCO even claims Congress

deprived state courts of jurisdiction over state-law nuisance claims and permanently barred private landowners from cleaning their own land.

If the Court finds it has jurisdiction, it should

reject ARCO’s attempt to rewrite CERCLA. ARCO

divines CERCLA’s supposed purpose to nullify state

law, confer permanent polluter immunity, and destroy

private property rights from two isolated provisions.

ARCO misreads both.

The first, Section 113(h), governs judicial review

of EPA’s orders. 42 U.S.C. § 9613(h). It applies only to

suits (1) in federal court, (2) that advance federal

claims, and (3) “challenge” (i.e., seek review of ) EPA

orders. Landowners’ claims are none of these, much

less all three. ARCO’s convoluted attempt to meld

Section 113(h) with another section governing claims

“arising under” CERCLA fails because Landowners’

state-law claims do not “arise under” CERCLA. Regardless, ARCO’s statutory mash-up does not solve its fundamental problem—Section 113(h) expressly permits

state-law claims.

Section 122(e)(6), ARCO’s second provision, preserves the status quo among “potentially responsible parties” by requiring EPA approval of cleanups

while EPA negotiates CERCLA settlements. 42 U.S.C.

§ 9622(e)(6). As one might expect given its plain text

and the settlement context it governs, this provision

applies to parties that are “potentially” liable under

CERCLA. Because Landowners face zero “potential[ ]”

liability—as ARCO admits, claims against them would

be time-barred (among other problems)—they are outside Section 122(e)(6)’s scope. ARCO’s contrary interpretation assumes Congress used this obscure corner

of CERCLA to grant EPA the (likely unconstitutional)

authority to forever dictate whether homeowners may

dig even a shovelful of dirt in their own backyards.

Relying on some combination of these two provisions and atextual incantation of statutory “purpose,”

ARCO also invokes preemption. Yet ARCO hardly

faces the Scylla and Charybdis of impossibility preemption. Federal law did not require ARCO to pollute

Landowners’ land (the basis for Landowners’ tort

claims), and it does not now prohibit ARCO from funding Landowners’ effort to restore it. Equally unsupported is ARCO’s contention that Congress viewed any

additional cleanup as an obstacle to CERCLA’s purpose. Indeed, it is unclear what more Congress could

have done to protect such state-law efforts: it enacted

three separate anti-preemption provisions expressly

authorizing state-law claims.

STATEMENT

A. Statutory Background

Congress enacted CERCLA to address 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). Previously, States

were responsible for hazardous-waste remediation,

leaving the federal government powerless to respond

to unfolding environmental catastrophes like Love

Canal. Niagara Mohawk Power Corp. v. Chevron U.S.A.,

Inc., 596 F.3d 112, 120 & n.5 (2d Cir. 2010). CERCLA

remedied this situation by allocating money to “facilitate government cleanup of hazardous waste” (the

Act’s “Superfund”), Exxon Corp. v. Hunt, 475 U.S. 355,

359-60 (1986), and ensuring “the costs of such cleanup

efforts were borne by those responsible for the contamination,” Burlington, 556 U.S. at 602.

CERCLA “does not provide a complete remedial

framework,” but rather supplements State efforts.

CTS Corp. v. Waldburger, 573 U.S. 1, 18 (2014). Congress included numerous anti-preemption provisions

that preserve state-law remedies, making clear “[n]othing

in th[e Act] shall be construed or interpreted as

preempting any State from imposing any additional

liability or requirements with respect to the release of

hazardous substances within such State.” 42 U.S.C.

§ 9614(a).1 CERCLA’s only express preemption provision expands the scope of state-law tort actions by barring polluters from invoking restrictive statutes of

limitations. Id. § 9658.

CERCLA complements State efforts by granting

EPA “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). After designating a site for cleanup,

EPA “may clean up a contaminated area itself ” or

“compel responsible parties to perform the cleanup.”

See also id. § 9652(d) (“Nothing in this [Act] shall affect or

modify in any way the obligations or liabilities of any person

under other Federal or State law, including common law, with

respect to releases of hazardous substances or other pollutants

or contaminants.”); id. § 9659(h) (“This [Act] 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 [42 U.S.C. § 9613(h)] or as otherwise provided in

[42 U.S.C. § 9658] (relating to actions under State law).”).

Cooper Industries, Inc. v. Availl Services, Inc., 543 U.S.

157, 161 (2004).

Section 107 delineates the “[c]overed persons” who

may be liable for EPA’s cleanup. 42 U.S.C. § 9607(a).

As relevant here, “the owner and operator” of a contaminated “facility” is “liable” for all “costs of removal

or remedial action.” Ibid. While the class of “covered

persons” is broad, other CERCLA provisions limit

ultimate liability to those “responsible for the contamination.” Burlington, 556 U.S. at 602. For example,

Section 107(q) establishes that persons owning “real

property that is contiguous to” property from which

hazardous substances were released “shall not be

considered to be an owner or operator” of a “facility.”

42 U.S.C. § 9607(q). Meanwhile, Section 113(g) imposes

a temporal cutoff, requiring that Section 107 “action[s]

for recovery of costs” be brought “within 6 years after

initiation of physical on-site construction of the remedial action.” Id. § 9613(g)(2).

Section 122, titled “Settlements,” establishes a

framework for negotiations between EPA and “potentially responsible part[ies],” enabling them to fix their

“liability to the United States.” Id. § 9622(c)(1). Subsection (e), entitled “Special notice procedures,” creates

mechanisms to ensure all “potentially responsible parties” can participate in settlement negotiations. Id.

§ 9622(e). Subsection (e)’s sixth subpart provides:

When either the President, or a potentially

responsible party pursuant to an administrative order or consent decree under this

chapter, has initiated a remedial investigation

and feasibility study for a particular facility

under this chapter, no potentially responsible

party may undertake any remedial action

at the facility unless such remedial action

has been authorized by the President.

Id. § 9622(e)(6).

CERCLA Section 113 governs court jurisdiction

over CERCLA actions. Section 113(b) provides:

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

[CERCLA] * * * .

Id. § 9613(b). The referenced subsection (a) requires

that challenges to CERCLA regulations be brought in

the D.C. Circuit. Id. § 9613(a).

Section 113(h), in turn, is entitled “Timing of

review.” Id. § 9613(h). It 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 * * * .

Ibid. This limit on federal jurisdiction is subject to five

exceptions. Ibid.

B. Factual Background

1. While ARCO emphasizes the large geographic

scope of its remedial obligations in Montana, e.g., Pet.

34, this case involves 77 modest residential properties

in the tiny community of Opportunity.

For nearly 100 years, the Anaconda Company

(ARCO’s predecessor) and ARCO operated a copper

smelter next to Opportunity. Pet. App. 4a. This smelter emitted thousands of tons of toxic metals, including

up to 62 tons of arsenic and 10 tons of lead daily. Landowners’ App. 1:30. Arsenic and lead are both extremely

toxic—ranked first and second on the priority list for

poisons of the Agency for Toxic Substances and Diseases. Supplemental Expert Disclosure of William

Meggs 4 (July 6, 2018). Much of ARCO’s emissions

landed on Landowners’ properties, which lie a few

miles downwind (and close to a community EPA forcibly evacuated due to contamination). J.A. 65.

The presence of these toxic metals causes Landowners understandable distress. Duane Colwell—who

has lived at his property in Opportunity since 1959—

has long worried that his family’s health is affected

by the pollution. Landowners’ App. 14:11. Similarly,

Franklin Cooney explained, “I want it where there’s no

contamination for my kids and grandkids, especially,

my little ones.” Id. at 14:15.

Yet Landowners do not want to abandon their

homes. John Rusinski has lived in Opportunity for

over 40 years. ARCO MSJ Restoration Br., App. A. He

and his wife “raised [their] daughter” there, and they

do not “want to move.” Landowners’ MSJ Reasons Personal, Ex. 4 at 19. As Charles Walrod put it, “I couldn’t

find a kitchen door that’s got all my kids’ heights on it.”

Id., Ex. 6 at 16.

2. In 1983, EPA designated the 300-square-mile

area surrounding the Anaconda smelter a Superfund

site. Pet. App. 4a. It identified ARCO “as the Potentially Responsible Party (PRP) for th[e] site.” J.A. 64.

Through a series of orders, EPA required ARCO to

take specified remedial actions. It directed ARCO to

remove up to 18 inches of soil in residential yards with

arsenic levels exceeding 250 ppm. J.A. 94-95. (For reference, a level over 100 ppm is too toxic for local landfills, J.A. 389, EPA has elsewhere set a threshold of 25

ppm, Deposition of Richard Bartlett, Ex. 3 (Nov. 15,

2013), and many States set residential cleanup levels

at 0.04 ppm, Landowners’ App. 17:3). In EPA’s view,

the 250 ppm threshold would “reduce the level of overall risk” to human health “close to” a tolerable level.

J.A. 82; see 42 U.S.C. § 9621(d). For so-called “pasture

land”—anything more than 125 feet from the center of

the house (roughly the distance from home plate to second base)—EPA set an action level of 1,000 ppm and

directed ARCO to reseed such areas. Water, Waste

and Soils Record of Decision (ROD) §§ 7.1.1(4), 8.2.1

(1998). For cost reasons, EPA did not order soil removal.

Id. § 7.1; see 42 U.S.C. § 9621(d)(4)(C) (permitting EPA

to decline to enforce protective standards where

“technically impracticable”). Similarly, EPA recognized

groundwater in Opportunity remained contaminated,

but it deemed the remedies it considered “technically

impracticable.” J.A. 157-58. In none of these orders

did EPA find that additional cleanup efforts would

adversely affect anything other than ARCO’s pocketbook.

Although it has made improvements, ARCO has

not restored the land to its former bucolic glory, as its

brief suggests. While the “immediate vicinity of the

smelter is now a state park” (Br. 15), no children frolic

among acres of lush vegetation. The State took control

of the site to preserve the historic smokestack, which

ARCO intended to demolish. Anaconda Chamber of

Commerce, Anaconda Stack Brochure.2 Because the

area remains dangerously contaminated, the public is

not allowed to visit this “park,” but must view the

smokestack from a safe distance (through fences and

between massive slag piles). Ibid.

ARCO completed all EPA-ordered work on Landowners’ properties in 2016. Pet. App. 47a. In total, 24

of the 77 Landowner properties were partially remediated, comprising about 5 percent of Landowners’ total

acreage. Landowners’ S.Ct. Rehearing Pet., Ex. 1 at

3-5; Supplemental Expert Disclosure of Richard Pleus

11 (May 2, 2016); Expert Report of Thomas Jackson,

Ex. 1 (Apr. 15, 2013). The vast majority of Landowners’

land thus remains unremediated and covered in

ARCO’s toxic metals. Tammy Peters, for example, has

Available at http://stateparks.mt.gov/fwpDoc.html?id=83581.

a daycare playground near which the arsenic level is

292 ppm. Expert Report of Joyce Tsuji 52 (Apr. 15, 2013).

But because the “weighted average” results for her

yard were below 250 ppm (and because the playground

itself is in “pasture” more than 125 feet from the center

of her house), ARCO performed no remediation. Landowners’ S.Ct. Rehearing Pet., Ex. 1 at 3-5.

C. Procedural History

1. Seeking to address this contamination, Landowners sued ARCO in Montana state court. They

advanced a number of state-law claims, including trespass and nuisance. J.A. 45-51. As remedies, Landowners sought five types of damages, including the

diminution in value of their properties and the costs of

“restoration.” J.A. 54.

Only the “restoration” damages are at issue here.

Under Montana law, “the diminution in value” of the

plaintiff ’s property “generally constitutes the appropriate measure of damages.” Sunburst School Dist. No.

2 v. Texaco, Inc., 165 P.3d 1079, 1086 (Mont. 2007). Yet

the Montana Supreme Court—like many other state

courts—has recognized that such damages will not

always fulfill tort law’s purpose of putting “ ‘an injured

person in a position as nearly as possible equivalent

to his position prior to the tort.’ ” Id. at 1087-90. If

the plaintiff plans to live at the damaged property, not

sell it, diminution in market value will not “reimburse

that owner for the actual loss suffered.” Id. at 1087.

In such circumstances, damages measured by the

restoration cost “constitute[ ] the only remedy that

affords a plaintiff compensation.” Ibid.; see Restatement

(Second) Torts § 929, cmt. b. To prevent windfalls,

plaintiffs seeking such damages must demonstrate “an

award of restoration damages actually will be used to

repair the damaged property.” Sunburst, 165 P.3d at

1089.

Landowners want to stay in their homes, so they

seek funds to remove the contamination remaining on

their properties. Landowners contemplate removing

up to 24 inches of soil from portions of their yards containing greater than 15 ppm arsenic (the natural level

of arsenic in area soil). J.A. 72-73, J.A. 239. Because

much of this soil is too toxic for local landfills, Landowners plan to deposit it where ARCO deposited the

contaminated soil it removed. Supplemental Expert

Disclosure of John Kane (Sept. 27, 2018). Landowners

also propose installing permeable walls to remove

ARCO’s arsenic from their groundwater. J.A. 239-40.

Landowners’ restoration plans have evolved over

the years. CVSG Br. 10. Initially, it was not clear

ARCO would perform any remediation on Landowners’

properties. J.A. 239. But after the Montana Supreme

Court reversed an order dismissing Landowners’

claims on statute-of-limitations grounds, Christian v.

Atl. Richfield Co., 358 P.3d 131 (Mont. 2015), ARCO

finally mobilized to conduct the EPA-mandated cleanup.

Landowners then submitted a revised plan that took

account of the (limited) soil ARCO had already removed.

J.A. 389.

Any restoration damages Landowners secure will

be held in trust. Pet. App. 5a. A controller will expend

the funds as restoration work proceeds. Ibid.

2. The parties cross-moved for partial summary judgment on ARCO’s CERCLA-based affirmative

defenses. See Answer 10-11. While conceding CERCLA

permitted Landowners’ other damages theories, ARCO

contended Landowners’ restoration-damages request

was a “challenge” precluded by CERCLA Section 113(h),

and that Landowners were Section 122(e)(6) “potentially responsible parties” who could not remove contamination from their yards without EPA approval.

J.A. 323-24, 327. ARCO did not raise any conflictpreemption argument, calling the “concept” “irrelevant.” J.A. 348.

In a proposed amicus brief, EPA declined to support

ARCO’s categorical view that all Superfund property

owners are Section 122(e)(6) “potentially responsible

parties.” ARCO App. 555. Instead, EPA noted that

“[t]here are defenses to CERCLA liability for ‘innocent

landowners’ and ‘contiguous property owners,’ ” and it

took “no position as to the ultimate issues of fact to be

considered in weighing the applicability of these exclusions.” Ibid.

The district court denied ARCO’s motion and

granted Landowners’. As it explained, Landowners do

not “challenge” EPA’s orders. Pet. App. 48a. It also

found that ARCO pointed to nothing demonstrating

Landowners were “potentially responsible parties.”

Pet. App. 53a. Finally, it concluded ARCO had not met

its summary-judgment burden as to whether Landowners’ “restoration plan would conflict with ongoing

EPA investigation and cleanup.” Pet. App. 54a.

3. ARCO successfully petitioned the Montana

Supreme Court for interlocutory review. Pet. App. 3a.

In an amicus brief, EPA modified its position on

whether Landowners are “potentially responsible parties,” deeming it “likely” that many are. Pet. App. 64a.

EPA now believed Section 107(a)(1) (governing “covered persons”) “designates current owners of contaminated property as PRPs” unless they satisfy the

“requirements” of CERCLA’s contiguous-landowner

exception. Pet. App. 79a.3

EPA’s amicus brief also suggested Landowners’

proposed remediation might cause environmental harms.

It cited no evidence for that speculation. Pet. App.

73a-74a. At oral argument, EPA clarified that it had

not fully evaluated Landowners’ plan, and that its

prior orders had not rejected Landowners’ proposed

remediation actions. MT Oral Arg. 32:14-53, 38:2639:08. Counsel further acknowledged that aspects of

Landowners’ contemplated cleanup “might be something that EPA could authorize.” Id. 41:34-48; see BIO

14 n.2.

4. The Montana Supreme Court affirmed. It

observed that Section 113(h) governs “Federal”

Only in a later letter to Landowners’ counsel—sent just

before ARCO petitioned for certiorari—did EPA adopt the absolutist position that all property owners in Superfund sites are

potentially responsible parties. Br. App. 1a.

jurisdiction and contains no “reference to state court

jurisdiction over state law claims.” Pet. App. 9a. Regardless, the court continued, Landowners’ restorationdamages request was no Section 113(h) “challenge.”

Pet. App. 11a-12a. Because “CERCLA’s regulatory

standards do not apply to the common law claim at

issue,” EPA’s remedial orders “ha[ve] no bearing on

[its] success or failure.” Pet. App. 14a.

The court also held Section 122(e)(6) inapplicable.

It rejected ARCO’s argument that “even if [Landowners] were able to avail themselves of a defense to liability for cleanup costs, they would still” be Section

122(e)(6) “potentially responsible parties.” Pet. App.

16a. The court further explained that even if CERCLA

claims could have been advanced against Landowners,

“the statute of limitations for such a claim (at most six

years from the date cleanup work was initiated) ha[d]

long passed.” Ibid.

Finally, the court held CERCLA did not “expressly

or impliedly preempt” Landowners’ restoration-damages

request. Pet. App. 17a-18a.

SUMMARY OF ARGUMENT

I. This Court lacks jurisdiction. It has jurisdiction over only final state-court judgments, but the

decision below is interlocutory. There is no exception

to this finality mandate for state-court decisions arising from supervisory writs. This Court has exercised

jurisdiction over such decisions only where reversal

would terminate the proceedings. Because that is not

true here, this Court should dismiss.

II. Nothing in CERCLA deprives state courts of

the power to entertain state-law tort claims. Section

113(h) itself is inapplicable, as ARCO does not dispute.

First, Section 113(h) applies only in “Federal court.”

Second, Section 113(h) expressly exempts state-law

claims (i.e., “diversity” actions).

ARCO cannot import Section 113(h) into state

court via Section 113(b). Section 113(b) grants federal

courts exclusive jurisdiction only over cases “arising

under” CERCLA. This case does not “aris[e] under”

CERCLA because Landowners do not press CERCLA

claims. Nothing in CERCLA suggests that Congress

intended the well-known phrase “arising under” to

encompass any claim Section 113(h) might prohibit.

Even if it had, state-law claims would not “aris[e]

under” CERCLA because Section 113(h) does not prohibit them even in federal court.

Section 113(h) is also inapplicable because Landowners do not “challenge” any EPA order. Section

113(h) precludes premature judicial review of EPA’s

orders. Landowners’ state-law claims do not turn on

the validity of EPA’s orders; indeed, Landowners have

sought to exclude them as irrelevant. Because Landowners’ claims do not depend on proof EPA erred,

Landowners press no Section 113(h) “challenge.”

III. Section 122(e)(6) does not bar restoration

damages. It applies only to “potentially responsible part[ies],” and Landowners face no “potential[ ]”

CERCLA liability because the statute of limitations

has run. ARCO attempts to equate “potentially responsible party” with the “covered persons” defined in Section 107(a). But this Court has never held the two are

the same, and CERCLA’s text and structure show they

are not. CERCLA uses “potentially responsible party”

in provisions governing settlement negotiations; the

phrase encompasses only those parties that face some

risk of liability and thus might settle. ARCO’s contrary contention—that Congress, in a narrow provision

governing settlement mechanics, granted EPA a perpetual veto over every decision innocent landowners

make on their own properties—would raise serious

constitutional concerns.

Even assuming CERCLA “potentially responsible

parties” and “covered persons” were the same, Landowners still would not be covered. Section 107(q)

expressly exempts “contiguous” landowners—those

whose property was polluted by an unrelated entity—

from the definition of “covered persons.” ARCO has

failed to show Landowners fall outside this exception.

Finally, even if Landowners were “potentially

responsible parties,” remand would be needed for the

Montana courts to determine how an EPA-authorization

requirement affects Landowners’ requested state-law

remedy.

IV. Landowners’ request for restoration damages

is not preempted. “Impossibility” preemption is inapposite because ARCO may readily comply with both

Montana and federal law. Landowners’ restorationdamages request imposes no restoration duty on ARCO;

rather, ARCO is subject to this remedy because it violated its state-law obligations in polluting Landowners’ land. Regardless, ARCO could comply with any

hypothetical restoration duty by seeking EPA’s consent. Nothing in the record suggests EPA would refuse

to let ARCO (let alone Landowners) undertake restorative work.

Landowners’ restoration-damages request is

also not an “obstacle” to CERCLA’s purposes. ARCO

cites no statutory provision demonstrating Congress

intended EPA’s remedial orders to set a ceiling on

cleanup. To the contrary, CERCLA’s text, including

its numerous anti-preemption provisions, demonstrates

Congress expressly contemplated that additional

remediation efforts would occur.

ARGUMENT

THIS COURT LACKS JURISDICTION

This Court should dismiss the writ of certiorari for

lack of jurisdiction. Although the government previously warned of jurisdictional “uncertainty” (CVSG Br.

8-9; see SG Br. 16), ARCO makes a bald assertion of

jurisdiction “under 28 U.S.C. § 1257(a).” Br. 1. But Section 1257(a) limits this Court’s review of state-court

decisions to “[f ]inal judgments or decrees”—something

the decision below is not.

To be “final,” a state-court decision 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). This

requirement “avoids piecemeal review” and minimizes

“federal intrusion in state affairs.” North Dakota State

Bd. of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S.

156, 159 (1973). The Montana Supreme Court’s

“remand[ ]” (Pet. App. 18a) does not satisfy the ordinary prerequisites of finality. E.g., O’Dell v. Espinoza,

456 U.S. 430, 430 (1982).

Nor does this case satisfy any of Section 1257’s recognized exceptions. In Cox Broadcasting Corp. v. Cohn,

the Court distilled “four categories” of cases in which it

permitted “a departure from this requirement of finality.” 420 U.S. 469, 477 (1975) (quotation marks omitted). ARCO invokes only the fourth exception (Cert.

Reply 2), but it is inapplicable. Certiorari jurisdiction

extends to cases where (1) “reversal of the state court

on the federal issue would be preclusive of any further

litigation on the relevant cause of action” and (2) “refusal

immediately to review the state court decision might

seriously erode federal policy.” Cox, 420 U.S. at 482-83.

Neither is true here. Opp. 17-18. Even if this Court

were to reverse, litigation would proceed on all Landowners’ causes of action—restoration damages are

just a remedy. And as the government acknowledged

in recommending denial of certiorari (CVSG Br. 9 n.4),

declining immediate review would not erode any federal interest.

ARCO has argued (Cert. Reply 1-2), and the

government now begrudgingly suggests (SG Br. 16),

that this Court should recognize a fifth exception:

where state-court appellate proceedings are denominated “original.” To be sure, the Montana Supreme

Court reviewed the district court’s order after granting

ARCO’s petition for a writ of supervisory review, and

so the proceedings were labeled “original.” Pet. App.

1a. But aside from this label, nothing distinguishes a

supervisory writ from a discretionary interlocutory

appeal: the standard of review and even the record are

precisely the same. Pet. App. 6a.

There is certainly no distinction between supervisory and appellate proceedings relevant to the logic

underlying this Court’s Section 1257 jurisprudence. It

would make little sense to authorize piecemeal review,

and sanction federal-court interference in state affairs,

North Dakota State Bd., 414 U.S. at 159, due to the

happenstance that a case caption says “original” rather

than “on appeal.” Because the finality requirement is

critical to “the smooth working of our federal system,”

it is “not one of those technicalities to be easily scorned.”

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 124

(1945).

Although the Court has twice exercised jurisdiction where the Montana Supreme Court granted an

“original” petition for supervisory review, it never recognized the proposed fifth exception. In both cases, the

underlying decisions involved “original proceedings

in a state appellate court, in which the only issue

decided concerns the jurisdiction of a lower state court.”

Fisher v. District Court of Sixteenth Judicial District,

424 U.S. 382, 385 n.7 (1976) (emphasis added); see

Kennerly v. District Court, 400 U.S. 423, 424 (1971)

(same). That is, this Court’s reversal would terminate

the lawsuit entirely. These decisions thus reflect

straightforward applications of Cox’s fourth exception:

“reversal of the state court on the federal issue would

be preclusive of any further litigation.” 420 U.S. at 482.

The same goes for other decisions arising from similar

writ proceedings, all of which involved challenges to the

trial court’s jurisdiction. See, e.g., Madruga v. Superior

Court of California, 346 U.S. 556, 557 & n.1 (1954);

Rescue Army v. Municipal Court of Los Angeles,

331 U.S. 549, 565-67 (1947); Bandini Petroleum Co. v.

Superior Court, Los Angeles County, 284 U.S. 8, 13-14

(1931); Missouri ex rel. St. Louis B. & M. Ry. Co. v.

Taylor, 266 U.S. 200, 206 (1924); Mt. Vernon-Woodberry

Cotton Duck Co. v. Ala. Interstate Power Co., 240 U.S.

30, 30-31 (1916). Where that requirement is not met,

this Court has dismissed for lack of jurisdiction.

Arceneaux v. Louisiana, 376 U.S. 336, 337-38 (1964).

Contrary to the government’s contention (SG Br.

17), there is thus a “sound rationale” for understanding

these decisions to turn, as Fisher expressly stated, on

whether the decision reviewed resolves the trial court’s

jurisdiction over the case. 424 U.S. at 385 n.7. In such

situations, reversal would ensure “no trial at all” is

needed, and thus this Court’s intervention does not

present the same threat of piecemeal review and

unwarranted federal intrusion. Cox, 420 U.S. at 485.

While earlier decisions such as Bandini did not

expressly “treat that fact as dispositive” (SG Br. 17),

they long predated Cox’s more careful enumeration

of the circumstances in which certiorari jurisdiction

will lie. They should not be understood to create an

additional exception to Section 1257’s finality mandate

unmoored from its purpose. The petition should be

dismissed.

CERCLA DOES NOT DEPRIVE THE STATE

COURT OF JURISDICTION

Congress took care to ensure that nothing in CERCLA

would be understood to “affect or modify in any way

the obligations or liabilities of any person” under the

“common law.” 42 U.S.C. § 9652(d); see infra pp. 62-64

(discussing anti-preemption provisions). Section 113’s

jurisdictional provisions are no exception. As their

text, structure, and history confirm, Congress consciously crafted these provisions to allow state-law

claims like Landowners’ to proceed unimpaired.

A. CERCLA Permits State-Court, State-Law

Claims

1. ARCO does not contend Section 113(h) itself

bars Landowners’ claims. But that provision’s language remains critical: “No Federal court shall have

jurisdiction under Federal law other than under

section 1332 of title 28 (relating to diversity of citizenship jurisdiction) * * * to review any challenges to

removal or remedial action selected under [Section

104], or to review any order issued under [Section

106(a)] * * * .” 42 U.S.C. § 9613(h). Two aspects of Section 113(h)’s text preclude any contention that Congress stripped state courts of jurisdiction over the tort

suits they entertained for generations. ARCO and the

government acknowledge the first, but they conspicuously ignore the second.

First, Section 113(h) governs the “jurisdiction” of

“Federal court[s].” Id. (emphasis added). The plain

meaning of “Federal court” is federal court. By its

express terms, Section 113(h) does not apply in state

courts.

Second, even in federal court, Section 113(h)

exempts actions “under section 1332 of title 28 (relating to diversity of citizenship jurisdiction).” Id. The

cross-referenced statute is, of course, the jurisdictional

provision under which federal courts generally consider state-law actions. 28 U.S.C. § 1332. “Thus, section 113(h) permits a federal court to hear a challenge

to a federal cleanup initiated under CERLCA if the

challenge arises as, for instance, a state-law nuisance

action.” Village of DePue, Ill. v. Exxon Mobil Corp.,

537 F.3d 775, 784 (7th Cir. 2008). In other words, Section 113(h) applies “only * * * if the challenge arises

under federal law”—not to state-law claims like Landowners’. Ibid.4

Neither ARCO nor the government attempts to

reconcile the theory that CERCLA strips state courts

of jurisdiction over state-law actions with the fact

that CERCLA’s key jurisdiction-stripping provision

expressly exempts state-law actions.

2. Recognizing Section 113(h)’s limitation to

“Federal” courts, ARCO turns to Section 113(b) in its

search for a barrier to this state-court action. “Except

as provided” in Section 113(h) (and one other provision), Section 113(b) grants “the United States district

courts * * * exclusive original jurisdiction over all controversies arising under [CERCLA].” 42 U.S.C. § 9613(b)

(emphasis added). ARCO contends that, by some osmosis, Section 113(b) precludes Section 113(h) “challenges” in state court. But Section 113(b) does not

import Section 113(h) into state court, and Section

113(h) would not preclude state-law claims even if it

Section 113(h) also mentions state-law claims involving

“applicable or relevant and appropriate” state law, which refers

to state-law standards EPA incorporates into CERCLA cleanups.

42 U.S.C. § 9621(d). It is unclear whether such claims constitute

a second exception to Section 113(h)’s jurisdiction-stripping mandate (Br. 26) or, more likely, an additional category of prohibited

“challenges” (Fort Ord Toxics Project, Inc. v. California EPA,

189 F.3d 828, 831 (9th Cir. 1999)). Regardless, Landowners’

claims invoke no “applicable or relevant and appropriate” state

law (infra p. 61 n.12), and Section 113(h)’s reference to “diversity”

jurisdiction unequivocally delineates a category of cases federal

courts may entertain.

did. For both of these reasons, Section 113(b) provides

ARCO no shelter.

a. Section 113(b) does not create exclusive federal jurisdiction over state-law claims like Landowners’ because they “aris[e] under” state law, not

CERCLA. Section 113(b)’s coverage of cases “arising

under” CERCLA is familiar: it parallels the “arising

under” jurisdiction of the federal-question statute,

28 U.S.C. § 1331. And Landowners’ claims do not satisfy the traditional “arising under” requirements recognized in that context—as neither ARCO nor the

government disputes.

“Under the longstanding well-pleaded complaint

rule, * * * a suit ‘arises under’ federal law ‘only when

the plaintiff ’s statement of his own cause of action

shows that it is based upon federal law.’ ” Vaden v. Discover Bank, 556 U.S. 49, 60 (2009) (alterations omitted). Landowners’ state-law complaint does not meet

that test. ARCO injected any CERCLA issues as

defenses, and “federal-court jurisdiction cannot be

invoked on the basis of a defense or counterclaim.” Id.

at 54; see Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63

(1987).

Even setting aside the well-pleaded complaint

rule, Landowners’ suit would not “arise under” CERCLA

for the simple reason that Landowners do not press

CERCLA claims. A case generally “arises under federal law” only “when federal law creates the cause

of action asserted.” Gunn v. Minton, 568 U.S. 251, 257

(2013) (emphasis added, quotation marks omitted).5

Because Landowners’ claims do not meet these

well-established requirements, they are outside Section 113(b)’s scope. Consistent with the “demands of

[l]inguistic consistency” and the presumption that Congress legislates against the backdrop of the federalquestion statute’s longstanding interpretation, this

Court has generally “interpreted the phrase ‘arising

under’ * * * identically” when other statutes repeat it.

Gunn, 568 U.S. at 257 (28 U.S.C. § 1338); accord, e.g.,

Dep’t of Energy v. Ohio, 503 U.S. 607, 625-26 (1992)

(Clean Water Act); Franchise Tax Bd. of Cal. v. Constr.

Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 8 n.7 (1983)

(28 U.S.C. § 1337); but cf. Weinberger v. Salfi, 422 U.S.

749, 760-61 (1975) (claims “arising under” Social Security Act encompassed constitutional claims for Social

Security benefits where Congress clearly intended to

channel them through administrative-exhaustion

process). That Section 113(b) concurrently deprives

state courts of jurisdiction provides all the more reason

not to stretch its use of “arising under” beyond this

Neither ARCO nor the government contends this case fits

the “special and small category” of cases where federal-question

jurisdiction lies over state-law claims (assuming the well-pleaded

complaint rule is satisfied). Gunn, 568 U.S. at 258. It would not

(and ARCO never attempted removal on that ground): no federal

issue is “necessarily raised” because no element of Landowners’

claims turns on federal law, ibid.; any federal issue is insubstantial because Landowners’ claims are “fact-bound and situationspecific,” Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S.

677, 681 (2006); and exercising jurisdiction would sweep “garden

variety state tort law” cases into federal courts, Grable & Sons

Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 318 (2005).

settled understanding. See Tafflin v. Levitt, 493 U.S. 455,

458 (1990) (adhering to “deeply rooted presumption in

favor of concurrent state court jurisdiction”).

ARCO scrambles to locate some indication that

Section 113(b) employs the phrase “arising under” to

mean something novel. It comes up empty. ARCO

relies almost entirely on the conclusory assertion that

“ ‘Congress used language more expansive than would

be necessary if it intended to limit exclusive jurisdiction [under § 113(b)] solely to those claims created by

CERCLA.’ ” Br. 27 (quoting Fort Ord, 189 F.3d at 832).

ARCO never identifies exactly what this “more expansive” language is. It would be hard-pressed to do so:

Congress used precisely the “arising under” phrasing

one would expect it to use to limit Section 113(b) to

claims created by CERLCA. After all, the “most familiar definition of the statutory ‘arising under’ limitation

is Justice Holmes’ statement, ‘A suit arises under the

law that creates the cause of action.’ ” Franchise Tax

Bd., 463 U.S. at 8-9.6

While Section 113(b) refers to “controversies” arising under

CERCLA and the federal-question statute refers to “civil actions,”

28 U.S.C. § 1331, ARCO does not contend this distinction makes

any difference. For good reason: both terms refer to judicial proceedings. Compare Black’s Law Dictionary 35 (10th ed. 2014)

(defining “action” as “[a] civil or criminal judicial proceeding”);

with id. at 404 (defining “controversy” as “[a] justiciable dispute”).

And this Court has interpreted the phrase “arising under” consistently even when it does not modify the specific term “civil

action.” See Franchise Tax Bd., 463 U.S. at 8 n.7 (addressing

28 U.S.C. § 1337, which governs “any civil action or proceeding

arising under” federal law regulating commerce); Dep’t of Energy,

503 U.S. at 631 (“civil penalties arising under”).

The government’s variation on this argument is

slightly more nuanced but no less wrong. The government focuses on the opening clause of Section 113(b)’s

grant of exclusive federal jurisdiction over controversies “arising under” CERCLA: “Except as provided in

subsection (a) and (h) of this section.” Emphasizing

this cross-reference to subsection (h), the government

contends “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)” and

thus cannot be brought in state court. SG Br. 25. It

reasons that Section 113(h) is an exception to Section

113(b) and an “exception must by definition be narrower than the corresponding rule.” SG Br. 25.

The government’s premise is wrong. An exception

need not be “narrower than the corresponding rule”—

at least not in the sense the government contends.

The word “except” does not transform every Venn Diagram into a set of concentric circles. Rather, an exception “derogates from the provision to which it refers,”

rendering the rule inapplicable where the exception’s

requirements are met. Merit Mgmt. Grp. v. FTI Consulting, Inc., 138 S. Ct. 883, 893 (2018) (quotation

marks omitted). Take the following variation on Section 113(b): “Except as provided in the Eleventh

Amendment, the federal district courts shall have

exclusive original jurisdiction over all controversies

arising under CERCLA.” Cf. 42 U.S.C. § 9659(a)(1).

This provision would not mean that all claims barred

by the Eleventh Amendment are necessarily “controversies arising under CERCLA,” but instead that the

Eleventh Amendment supersedes the grant of subjectmatter jurisdiction when the Amendment also applies.

Likewise, Congress clarified in Section 113(b) that

Section 113(h)’s elimination of federal-court jurisdiction over specified “challenges” supersedes Section

113(b)’s general grant of federal-court jurisdiction

when both provisions otherwise apply. Nothing in this

familiar structure suggests Congress further intended

to establish that all Section 113(h) “challenges”

are also Section 113(b) “controversies arising under”

CERCLA. See Cyan, Inc. v. Beaver County Employees

Retirement Fund, 138 S. Ct. 1061, 1070 (2018) (“Thousands of statutory provisions use the phrase ‘except as

provided in * * * ’ followed by a cross-reference in order

to indicate that one rule should prevail over another in

any circumstance in which the two conflict.”).

b. In any event, even if ARCO and the government were right that Section 113(b) gave federal

courts exclusive jurisdiction over all Section 113(h)prohibited “challenges,” it would not apply here.

Again, Section 113(h) itself precludes only federal-law

claims. 42 U.S.C. § 9613(h) (expressly allowing “challenge” within federal courts’ diversity jurisdiction);

Village of DePue, 537 F.3d at 784. Section 113(h)’s

carve-out for state-law claims (which categorically are

not barred as “challenges”) thus dooms ARCO’s reliance on Section 113(b) as well.

The statutory text also disposes of ARCO’s policy

arguments. Most prominently, ARCO insists “[i]t would

be perverse to permit litigants to file in state courts

exactly the same claims that federal courts cannot

hear.” Br. 31. But federal courts can hear such statelaw claims if the requirements for diversity jurisdiction are satisfied. 42 U.S.C. § 9613(h). It is ARCO’s

interpretation that would generate “perverse” results.

Why would Congress strip state courts of jurisdiction

over the very state-law tort claims it expressly allowed

to proceed in federal court, or leave relief to turn on the

fortuity of whether the complete-diversity requirement is satisfied?

3. The legislative history confirms what the statutory text dictates: Section 113 does not bar state-law

actions in state court.

Section 113 achieved its current form in 1986,

when Congress enacted the Superfund Amendments

and Reauthorization Act (SARA). See SARA § 113(c)(2),

Pub. L. No. 99-499, 100 Stat. 1613, 1650. The original

House version of that bill contained a variation of Section 113(h) that provided: “No court shall have jurisdiction to review any challenges to removal or remedial

action * * * .” H.R. 2005 § 113(h), 99th Cong. at 68

(1985). But Congress revised the provision to expressly

limit it to “Federal” court and exempt diversity cases.

Congress’ reasons for doing so are apparent. As

the Conference Committee Report expressly stated:

“New section 113(h) is not intended to affect in any

way the rights of persons to bring nuisance actions

under State law with respect to releases or threatened

releases of hazardous substances, pollutants, or contaminants.” H.R. Rep. No. 99-962, at 224 (1986) (Conf.

Rep.). Senator Mitchell, one of the sponsors, explained

the provision was revised to preserve actions “based

on State nuisance law, or actions to abate the hazardous substance release itself, independent of Federal

response action.” 132 Cong. Rec. 33,554-55 (Oct. 17,

1986). Similarly, Senator Stafford, another sponsor

and the provision’s drafter, observed that “the fundamental purpose [of Section 113(h)] is to preserve rights

under nuisance law as it is defined under the relevant

State law.” 132 Cong. Rec. 28,410 (Oct. 3, 1986).

These statements from the Conference Report and

the bill’s sponsors leave little doubt as to Congress’

intent. See Sturgeon v. Frost, 139 S. Ct. 1066, 1085

(2019). Perhaps for this reason, ARCO never suggests

the legislative history supports its far broader reading

of Section 113.

The government attempts the argument, but the

snippets of legislative history on which it relies provide

no support. The government points to floor statements

from Senator Thurmond and Representative Glickman. SG Br. 26. Such “[i]solated statements * * * are

not impressive legislative history,” particularly in comparison to the far “more authoritative” Conference

Committee Report. Garcia v. United States, 469 U.S.

70, 76, 78 (1984) (quotation marks omitted). Even if

considered, they shed little light here. That federal

courts would, as Senator Thurmond stated, have

“exclusive jurisdiction over all controversies under

CERCLA” (SG Br. 26) adds nothing to what Section

113(b) itself provides. To the extent these individual

members of Congress suggested Section 113 might preclude state-law actions, the bill’s sponsors refuted that

interpretation. As Senator Mitchell explained, “the

original text” of Section 113(h) (referring to “No court”)

might have “extinguish[ed] the jurisdiction of any

court to review any challenge. Clearly, the conference

substitute no longer does this.” 132 Cong. Rec. 33,554

(Oct. 17, 1986). Similarly, Senator Stafford reiterated:

“Section 113 of CERCLA governs only claims arising

under the act. Whether or not a challenge to a clean

up will lie under nuisance law is determined by that

body of law, not section 113.” 132 Cong. Rec. 33,475

(Oct. 17, 1986).

B. Landowners Do Not “Challenge” EPA’s

Orders

Even if Section 113(h) did somehow work through

Section 113(b) to preclude state-law actions in state

court, Landowners’ claims could proceed. Because

Landowners’ restoration-damages request in no way

depends on EPA’s remedial orders being wrong, Landowners do not “challenge[ ]” those orders.

1. In the legal context, a “challenge” generally

means “[a]n act or instance of formally questioning the

legality or legal qualifications of a person, action, or

thing.” Black’s Law Dictionary 278 (10th ed. 2014);

accord, e.g., Black’s Law Dictionary 209 (5th ed. 1979)

(“to question form[ally] the legality or legal qualifications of ”). To “challenge[ ]” a “removal or remedial

action under [42 U.S.C. § 9604],” as Section 113(h)

provides, a plaintiff thus must contest the legality

of the EPA-ordered remedy. 42 U.S.C. § 9613(h). In

other words, a section 113(h) “challenge[ ]” is one

calling for judicial review of EPA’s actions.

The structure of Section 113(h) confirms this

understanding, revealing Congress’ specific concern

with the “[t]iming of review” over EPA orders (as Section 113(h)’s heading states). Ibid. (emphasis added).

Section 113(h) contains five enumerated exceptions,

each of which relates to a specific type of CERCLA

enforcement action at a particular time in the clean-up

process. See City of Rialto v. West Coast Loading Corp.,

581 F.3d 865, 870-72 (9th Cir. 2009). The fourth exception, for example, permits CERCLA citizen suits “alleging that the removal or remedial action taken * * * was

in violation of any requirement” of CERCLA, but only

once no further remedial action “is to be undertaken at

the site.” 42 U.S.C. § 9613(h)(4). Through its prohibition on “challenges” and its enumerated exceptions,

Section 113(h) channels suits questioning the legality

of EPA’s selected remedy to specified times, generally

postponing the “presumptive right of judicial review”

until “completion of the remedial action.” North Shore

Gas Co. v. EPA, 930 F.2d 1239, 1245 (7th Cir. 1991).

Section 113(h) is thus a prohibition on premature

review of EPA actions under CERCLA. Topol & Snow,

Superfund Law and Procedure § 2.5, 108 (1992) (“In

short, Section 113(h) bars judicial review of an EPA

removal or remedial action until the Agency has taken

some enforcement action related thereto.”). Congress

believed litigation regarding EPA’s orders while remediation was underway had “the effect of slowing down

or preventing the EPA’s cleanup activities.” United

States v. Colorado, 990 F.2d 1565, 1576 (10th Cir. 1993)

(emphasis omitted) (quoting H.R. Rep. No. 253(I),

99th Cong., 2d Sess. 266 (1985)). Together with Section

113(j)—which establishes the standard of review for

the proceedings Section 113(h) permits, 42 U.S.C.

§ 9613(j)—Section 113(h) thus sets forth comprehensive procedures for judicial review of EPA’s actions.

2. Because Landowners’ claims do not depend on

the invalidity of any EPA action, Landowners do not

advance a Section 113(h) “challenge.” Landowners

press no claim that EPA’s “decision in selecting the

response actions” was “arbitrary and capricious or

otherwise not in accordance with law.” 42 U.S.C.

§ 9613(j)(2). They need not contest EPA’s determination that its residential soil remedy, J.A. 94, was “protective of human health and the environment” under

CERCLA. 42 U.S.C. § 9621(b)(1). Nor need they dispute EPA’s conclusions that removal of “pasture” soil,

or construction of an underground trench, would not

meet CERCLA’s standard of cost-effectiveness. J.A.

157-58; Water, Waste and Soils ROD § 7.1; see 42 U.S.C.

§ 9621(d)(4)(C).7 Far from seeking review of EPA’s

While ARCO and the government repeatedly invoke EPA’s

supposed determination that Landowners’ proposed remedies

could have environmental consequences (Br. 29, SG Br. 21), they

orders here, Landowners successfully moved to exclude

them as irrelevant. Landowners’ App. 26:9.

Simply put, the federal-law propriety of EPA’s

remediation efforts—which have been completed on

Landowners’ property, Pet. App. 47a—has no bearing

on whether Landowners can prevail under Montana

law, which sets a different standard. Montana “common law seeks to restore a party to the condition that

existed before the injury.” Sunburst, 165 P.3d at 1095.

That ARCO was subject to CERCLA-mandated remedial orders affects neither ARCO’s Montana-law liability for polluting Landowners’ land nor the availability

of Montana-law damages to restore it. Id. at 1095-96.

3. ARCO and the government argue that Section

113(h) precludes not just legal “challenges to removal

or remedial action” EPA selects under CERCLA,

42 U.S.C. § 9613(h) (emphasis added), but also any

legal claim that involves a cleanup different from the

one EPA selects. See Br. 29; SG Br. 20-22. That is

not what Section 113(h) provides. Had Congress

intended Section 113(h) to preclude any additional,

non-CERCLA remediation, it would have said so

expressly.

Indeed, aside from cursory references to dictionary definitions of “challenge,” neither ARCO nor the

government attempts to ground its broad reading

in CERCLA’s text, structure, or legislative history.

Instead, they rely entirely on various lower-court

cite only the government’s amicus brief below (which in turn cited

nothing). Pet. App. 72a-74a; see infra pp. 56-58.

decisions. Br. 28; SG Br. 17-18. These opinions do little

to advance the argument. While they articulate varying formulations of what constitutes a Section 113(h)

“challenge,” none deems a claim a “challenge[ ]” where

it is not premised on the invalidity of an EPA remedial

action.8

Here, by contrast, Landowners can be right without proving EPA wrong. Because their claims do not

call for review of the agency’s orders, Section 113(h)

has no application.

III. SECTION 122(e)(6) DOES NOT BAR LANDOWNERS’ RESTORATION DAMAGES

ARCO next relies on Section 122(e)(6), which

requires “potentially responsible part[ies]” to secure EPA

authorization before conducting “remedial action[s].”

42 U.S.C. § 9622(e)(6). Contrary to ARCO’s contentions,

this provision does not forever prevent all property

See ARCO Envtl. Remediation, L.L.C. v. Dep’t of Health &

Envtl. Quality of Mont., 213 F.3d 1108, 1115 (9th Cir. 2000) (claim

was not a challenge); Boarhead Corp. v. Erickson, 923 F.2d 1011,

1019 (3d Cir. 1991) (suit against EPA challenging its ability to

conduct CERCLA remediation study); Schalk v. Reilly, 900 F.2d

1091, 1097 (7th Cir. 1990) (claim against EPA challenging “the

procedure employed in selecting a remedy”); New Mexico v. Gen.

Elec. Co., 467 F.3d 1223, 1249 (10th Cir. 2006) (claim premised

on contention EPA was “ ‘not applying the ‘proper remediation

standard[s]’ ’ ”); Broward Gardens Tenants Ass’n v. EPA, 311 F.3d

1066, 1073 (11th Cir. 2002) (suit against EPA to “alter the remedial plan”); El Paso Nat. Gas Co. v. United States, 750 F.3d 863,

881 (D.C. Cir. 2014) (suit against federal government to enforce

standards that would alter EPA remedial plan); McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 330-31 (9th Cir.

1995) (same).

owners at Superfund sites from removing the hazardous wastes others left on their land.

A. Landowners Are Not Potentially Responsible Parties

1. The parties appear to agree on the plain

meaning of the phrase “potentially responsible party.”

As ARCO puts it, “ ‘PRP’ starts with a ‘P’ because

[it] covers everyone who is potentially responsible for

hazardous-waste contamination, not just parties actually deemed liable for cleanup costs or remediation.”

Br. 36 (quotation marks omitted). Exactly right: a

“potentially responsible party” is a party who might

potentially be liable under CERCLA. E.g., American

Heritage Dictionary 1025 (1981) (“potential”: “possible but not yet realized; capable of being but not yet in

existence”).

The parties also appear to agree Landowners

themselves cannot be liable for any of the hazardous

waste ARCO put on their properties. As the Montana

Supreme Court held, the relevant statute of limitations has long passed. Pet. App. 16a; see 42 U.S.C.

§ 9613(g)(2)(B). ARCO does not and could not dispute

that conclusion. Br. 38.

The parties’ agreement on those issues should

resolve the dispute. A “potentially responsible party”

is a party who faces some possibility of CERCLA

liability, yet there is no such “potential[ ]” here. How

could Landowners be “potentially responsible parties”?

ARCO’s answer is that, notwithstanding the plain

meaning of “potentially responsible,” a “PRP is anyone

who fits within § 107(a)’s broad definitions of ‘covered

persons’—full stop.” Br. 36. But Section 107(a) defines

the term “covered persons,” not “potentially responsible party.” And CERCLA nowhere defines “potentially

responsible party” as a Section 107(a) “covered person.”

Rather, CERCLA consistently uses the phrase only to

describe persons who could potentially be held liable.

ARCO identifies no statutory basis for nevertheless

treating “covered persons” and “potentially responsible

parties” as identical.

2. ARCO’s principal argument is that this Court

has already decided that “potentially responsible

party” and “covered person” are the same. Br. 32-33.

We acknowledge this Court has used language that

equates the two.9 For example, in United States v.

Atlantic Research Corp., this Court stated: “Section

107(a) defines four categories of PRPs.” 551 U.S. 128,

131-32 (2007); accord Burlington, 556 U.S. at 608-09;

Cooper, 543 U.S. at 160; but see Br. 32 (“CERCLA does

not define ‘potentially responsible parties’ ”); SG Br. 33

(same).

Upon closer examination, these authorities do not

decide the statutory construction question here. This

Court has never actually interpreted CERCLA’s use of

The government’s halfhearted endorsement of ARCO’s

position begins and ends with these prior decisions, which it says

have “treated”—note the careful language—“potentially responsible part[ies]” as “corresponding to the ‘covered persons’ identified

in CERCLA Section 107(a).” SG Br. 33.

the phrase “potentially responsible party.” Indeed, the

Court has never even addressed a CERCLA provision

containing that phrase. Instead, this Court has used

“PRP” as short-hand to describe Section 107(a) “covered persons” because the parties before it have done

so. E.g., Petitioner’s Brief, Cooper, 543 U.S. 157, 2004

WL 341586, at *9 (Section 107(a) “ ‘covered persons’ ”

are “ ‘referred to as potentially responsible parties’

(‘PRPs’)”).

Litigants’ use of this acronym is understandable

because the two concepts are obviously related. Section 107(a) defines who may be liable under CERCLA,

and thus all “potentially responsible parties” must

fall within Section 107(a). But in no prior case did

the litigants (let alone this Court) have reason to

consider the converse—whether all Section 107(a)

“covered persons” are “potentially responsible parties.”

That is because no prior case turned on the meaning of

“potentially responsible party.”

This Court’s decision in Atlantic Research—on

which ARCO relies, Br. 36—is illustrative. There, this

Court confronted Section 107(a)(4)(B), which provides

that “covered persons” identified in Section 107(a)(1)-(4)

are liable for “any other necessary costs of response

incurred by any other person.” 551 U.S. at 135. The

question presented was whether “other person” meant

persons other than those in Section 107(a)(1)-(4), or

persons other than “the United States, a State, or an

Indian tribe,” which were listed in the immediately

preceding subsection. Ibid. This Court adopted the

latter reading. Ibid. It reasoned, in part, that “other

person” could not mean persons other than those identified in Section 107(a)(1)-(4) because Section 107(a)(1)-(4)

was sufficiently broad to “sweep in virtually all persons

likely to incur cleanup costs.” Id. at 136. Though this

Court used the phrase “PRP” in explaining that conclusion, nothing turned on that acronym’s meaning: the

Court could have replaced every reference to “PRP”

with “Section 107(a) covered person” without changing

its holding or reasoning one bit. Ibid. “Questions

which merely lurk in the record, neither brought to the

attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Cooper, 543 U.S. at 170.

3. The proper interpretation of “potentially

responsible party” is thus an issue this Court has

yet to confront. Consistent with its plain meaning,

the phrase should be understood to encompass only

parties who face some risk of CERCLA liability.

Had Congress intended “potentially responsible

parties” to mean Section 107(a) “covered persons,” it

would have said “Section 107(a) covered persons.” Congress did just that elsewhere in CERCLA, referring to

“any person covered by the provisions of paragraph (1),

(2), (3), or (4) of section [107](a).” 42 U.S.C. § 9619(d);

accord id. § 9624(b)(2). When Congress instead used

the different phrase “potentially responsible party,” it

presumably meant something different. See Russello

v. United States, 464 U.S. 16, 23 (1983).

Context reinforces that inference. “Potentially

responsible party” makes the vast majority of its

appearances in Section 122, which governs settlements. All told, 33 of CERCLA’s 54 uses of the phrase

are contained in Section 122. The bulk of CERCLA’s

remaining uses of the phrase either directly crossreference Section 122, e.g., 42 U.S.C. § 9620(e)(6) (“Settlements with other parties”), or otherwise refer to

settlement negotiations, e.g., id. § 9621(f )(1) (EPA

“shall provide notice to the State of negotiations with

potentially responsible parties”).

A “potentially responsible party” is thus a covered

person who faces potential liability and therefore

might settle. The phrase is an apt descriptor for such

parties: litigants settle to eliminate some existing risk

(i.e., “potential[ ]”) of liability. Parties that face no risk

of liability, by contrast, would not engage in the negotiations Section 122 contemplates—they have no need

to settle their “liability to the United States” by securing a “covenant not to sue.” Id. § 9622(c)(1).

4. The scope of Section 122(e)(6) becomes clear

when understood in this settlement context. Section

122(e) ensures all “potentially responsible part[ies]”

are apprised of any ongoing settlement negotiations

and not unfairly surprised by the remediation costs

they are forced to bear. It includes requirements that

the federal government provide each potentially responsible party with a list of all other potentially responsible

parties and specifies procedures for proposals and

counter-proposals. Id. § 9622(e)(1)-(3). Subsection (e)(6)’s

bar on “potentially responsible parties” taking unauthorized remedial action furthers Section 122(e)’s purpose by ensuring EPA retains control over the response

costs with which settlement negotiations are concerned: no party can unilaterally incur CERCLA

response costs that might be foisted on other negotiating parties.

Under ARCO’s interpretation of “potentially responsible party,” however, Section 122(e)(6) would have far

more radical effects. If Section 122(e)(6) applies to any

party listed in Section 107(a), then it forever prevents

anyone whose property has been contaminated from

taking any steps to clean their property without EPA

approval. EPA would, in effect, be granted an easement allowing it to compel residential landowners to

forever store the arsenic, lead, and other toxic materials polluters have dumped on their lawns, gardens, and

homes. That is the very premise of ARCO’s argument

here—ARCO insists Landowners can never disturb

even a “cubic foot” of soil in their own backyards without EPA’s say-so. MSJ Hearing Tr. 83-84 (June 20,

2016); see Br. 37 (claiming it would “warp the overall

statutory design” if EPA lacked this extraordinary

power).

Such federal destruction of private property rights

cannot be reconciled with CERCLA’s text. Had Congress intended to take the unprecedented step of

granting EPA perpetual veto power over private property owners’ efforts to clean their own land within a

vast Superfund site, it would have spoken more clearly.

For example, it might have imposed Section 122(e)(6)’s

restrictions on all “persons,” rather than all “potentially responsible parties.” It also would have located

this extraordinary power in a less obscure corner of

CERCLA. “[I]t seems highly suspect that Congress

intended this provision which is buried within a subsection entitled ‘notice provisions’ in a section addressing settlements with private responsible parties” to

vest EPA with this expansive authority over the property rights of thousands of residential landowners.

Colorado, 990 F.2d at 1583. “Congress does not hide

elephants in mouseholes.” Cyan, 138 S. Ct. at 1071

(quotation marks omitted).

That is to say nothing of the constitutional concerns ARCO’s reading raises. Forcing innocent residential landowners to forever house pollutants another

party put on their land is the sort of “permanent physical occupation of an owner’s property authorized by

government [that] constitutes a ‘taking.’ ” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 421

(1982); see id. at 427 (“where real estate is actually

invaded by superinduced additions of water, earth,

sand, or other material * * * so as to effectually destroy

or impair its usefulness, it is a taking”). And granting

EPA the power to regulate each shovelful of dirt homeowners dig in their own lawns would test the far

reaches of Congress’ power under the Commerce

Clause. See Gonzalez v. Raich, 545 U.S. 1, 57-59 (2005)

(Thomas, J., dissenting). Where an interpretation of

a statute “would raise serious constitutional problems, the Court will construe the statute to avoid such

problems” absent some indication Congress clearly

intended that result. Edward J. DeBartolo Corp. v.

Florida Gulf Coast Bldg. & Constr. Trades Council,

485 U.S. 568, 575 (1988). There is none here.

5. CERCLA’s legislative history reinforces the

plain-language reading of “potentially responsible

party.” As originally enacted, CERCLA did not use this

phrase. Instead, the phrase arose between CERCLA’s

1980 enactment and the 1986 passage of SARA. During this period, EPA used the “PRP” acronym to refer

to the parties with which it negotiated and that would

be responsible for cleanup. E.g., EPA, Highlands Acid

Pit Record of Decision 18 (Jan. 24, 1984) (only “one

potentially responsible party” had been identified at

acid pit that leaked into local waterways, and this person “d[id] not have the financial assets to pay for the

cleanup”). That usage was reflected in the version of

SARA that passed the House, which expressly defined

“potentially responsible party” to mean “a person

against whom an action could be brought under section

106 with respect to [a] release or a person who would

be liable under section 107 if response costs were

incurred.” H.R. 2005 § 122(k), 99th Cong., at 182

(1985) (emphasis added). Congress later dropped any

definition of “potentially responsible party,” likely

because it was viewed as unnecessary. There is no

indication Congress intended to deviate from the plain

meaning of “potentially responsible party” as encompassing only persons who face potential CERCLA liability.

6. ARCO’s remaining arguments are unavailing. Textually, ARCO focuses on two provisions of Section 122 (which, again, is titled “Settlements”). Br. 33.

The first, Section 122(a), authorizes EPA to 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 a

response action.”

42 U.S.C. § 9622(a) (emphasis

added). By its terms, this provision has no application

to Landowners, who are not the source of any pollution.

Regardless, this language simply reflects Congress’

understandable presumption that polluters would

face CERCLA liability; again, EPA would not settle

with individuals who cannot be liable.

The second provision is Section 122(e)(1)(A),

which requires that when EPA enters negotiations

with a potentially responsible party, it must provide all

such parties with “the names and addresses of potentially responsible parties (including owners and

operators and other persons referred to in section

107(a)).” 42 U.S.C. § 9622(e)(1)(A). This provision

indicates that the class of “potentially responsible

parties” will include individuals liable under Section

107(a); it does not establish that all individuals identified in Section 107(a) are necessarily “potentially

responsible parties.”

EPA’s conduct in this case confirms the inapplicability of Section 122(e)(1)(A) to Landowners. EPA has

engaged in substantial settlement negotiations with

ARCO. See Press Release, EPA, EPA and Parties

Reach Conceptual Settlement Framework for Final

Cleanup Actions at Anaconda Smelter Superfund Site

in Montana (July 30, 2018). But EPA does not claim it

ever included Landowners on the Section 122(e)(1)(A)mandated list. Nor does it claim it ever served them

with notice of those negotiations, as Section 122(e)(1)(A)

requires. Indeed, until this case reached the steps of

this Court (and the record was closed), see Br. App. 1a,

EPA never treated Landowners as potentially responsible parties. But see 42 U.S.C. § 9613(k)(2)(D) (requiring EPA “to identify and notify potentially responsible

parties as early as possible before selection of a

response action”). Instead, it identified ARCO alone

as “the Potentially Responsible Party (PRP) for this

site.” J.A. 64 (emphasis added).

ARCO also invokes a parade of horribles—all of

which are either not horrible or readily avoided. ARCO

asserts, for example, that “if parties must have entered

into voluntary settlements or have been subjected

to judicial determinations of liability” to qualify as

“potentially responsible parties,” the procedural protections the statute affords potentially responsible

parties would lose meaning. Br. 37. That is not Landowners’ position. The question is whether a party is

potentially (not actually) liable. Many parties at

Superfund sites will face some risk of liability long

before final judgment. But if their potential for liability is eliminated—whether through judicial determinations or the passage of time—they are no longer

“potentially responsible parties.”

ARCO worries that if passage of CERCLA’s statute of limitations means a “party” is no longer “potentially responsible,” then EPA will be unable to exercise

direct authority over that party unless EPA brings suit

within six years after commencing a cleanup. Br. 3839. That is how limitations periods work; they encourage “diligent prosecution of known claims” and allow

parties ultimately to “put past events behind” them.

CTS, 573 U.S. at 8-9; see 42 U.S.C. § 9613(k)(2)(D).

ARCO’s contention that Congress would not have

“hid[den]” these straightforward consequences of a

statute of limitations within CERCLA’s statute of

limitations presupposes that “potentially responsible

party” status is both unrelated to potential liability

and everlasting. Br. 38. ARCO cites no statutory basis

for these assumptions—which would conflict with the

plain meaning of “potentially responsible party,” ignore

the context in which CERCLA uses the phrase, and

raise serious constitutional concerns. Supra pp. 36-37,

39-43.

But this does not mean EPA is left powerless to

protect “the community as a whole from environmental

threats.” Contra Br. 39. If Landowners were to create

“an imminent and substantial endangerment to the

public health or welfare or the environment,” CERCLA

empowers EPA to seek equitable relief. 42 U.S.C.

§ 9606(a); see CVSG Br. 17 (CERCLA provides EPA

ample “mechanisms” to address any remedial actions

that would “undermine[ ]” EPA remedial plan). Landowners would also face liability if they were to somehow worsen the environmental harms ARCO caused.

Nothing in the record suggests Landowners’ contemplated restoration could have such adverse effects. See

supra pp. 8-9, 13.

Finally, ARCO claims EPA has shared its reading

of the statute for “nearly 30 years.” Br. 34. That is

untrue—as EPA’s shifting positions in this case reveal.

Supra pp. 12-13. In the guidance document on which

ARCO relies, EPA announced it would exercise its

enforcement discretion not to impose liability on residential landowners. EPA, Policy Towards Owners of

Residential Property at Superfund Sites (1991). EPA

did not say such individuals are forever “potentially

responsible parties” under Section 122(e)(6) or any

other provision. Ibid. This guidance was thus consistent with EPA’s district-court brief here, which

cautioned that Landowners may not be “potential

responsible parties” given available “defenses to

CERCLA liability.” ARCO App. 555. EPA later

changed its view of the statute (twice), arriving at its

latest position in an informal letter to Landowners’

counsel issued weeks before ARCO’s certiorari petition. Br. App. 1a. And EPA did not sign the United

States’ brief in this case. Cf. United States’ Amicus

Brief, County of Maui v. Hawaii Wildlife Fund, No.

18-260 (U.S. May 16, 2019). Perhaps for these reasons,

no one contends EPA’s current reading (whatever it is)

warrants any deference. See Bowen v. Georgetown

Univ. Hospital, 488 U.S. 204, 213 (1988).

B. Landowners Are Exempt As “Contiguous”

Even accepting ARCO’s view that when Congress

referred to “covered person” in Section 107(a) it actually meant “potentially responsible party,” Landowners

would not qualify. That is because, as reflected in the

second of EPA’s three positions (Pet. App. 79a), Section

107(q) provides that “contiguous” landowners “shall

not be considered to be an owner or operator of a vessel

or facility under paragraph (1) or (2) of ” Section 107(a).

42 U.S.C. § 9607(q) (emphasis added). In other words,

Section 107(q) is not just a defense to liability; it establishes that contiguous landowners are not Section

107(a) “owners and operators” at all. Thus, if Landowners are contiguous landowners, they are not Section 107(a) “covered persons,” and they cannot be

“potentially responsible parties” under any reading of

CERCLA.

The contiguous-landowner exception fits Landowners to a T. It is designed for individuals who,

through no fault of their own, suffer contamination

from neighboring properties. Landowners own property that is “contiguous to or otherwise similarly situated with respect to” property they do not own and

from which a “hazardous substance” was released. Id.

§ 9607(q)(1)(A). They did not “cause, contribute, or consent to the release” of that substance; they are not

potentially liable through any relationship with

the entity that did pollute their land (i.e., ARCO);

they have not allowed any further releases from their

property; and they have complied with any land-use

and notice obligations that might be imposed. Id.

§ 9607(q)(1)(A)(i)-(vii).

ARCO has previously suggested Landowners

may not meet a final requirement of Section 107(q)

because they should have known of ARCO’s pollution

when they purchased their properties. See id.

§ 9607(q)(1)(A)(viii). But for residential landowners,

CERCLA requires only a basic title search and site

inspection before purchase.

Id. § 9601(35)(B)(v).

And because ARCO raises Section 122(e)(6) as an

affirmative defense, it must produce evidence that

Landowners either did not perform this search or

affirmatively knew the extent of ARCO’s pollution.

Anderson v. Stokes, 163 P.3d 1273, 1280 (Mont. 2007).

ARCO did not meet that burden—and it certainly produced nothing that would demonstrate that all of

the many Landowners fall outside this exception. See

ARCO App. 482 & n.2.10

C. Remand Would Be Required Regardless

Finally, even if Landowners were “potentially

responsible parties,” that would not defeat their

restoration-damages request. Section 122(e)(6) cannot

“bar[ ]” Landowners’ proposed cleanup. Br. 22. If it

applies, it requires Landowners to ensure EPA

“authorize[s]” their plans. 42 U.S.C. § 9622(e)(6). EPA

has never stated it would refuse such approval; to the

contrary, counsel told the Montana Supreme Court

that some version of Landowners’ plan “might be

something that EPA could authorize.” MT Oral Arg.

41:34-48. There is thus a possibility of EPA approval.

Whether that prospect is sufficient for Landowners to

show they will use any damages to restore their properties, see Sunburst, 165 P.3d at 1089, is a complex,

factbound question of state law. Thus, even if ARCO’s

interpretation of CERCLA is correct, this Court should

remand for the Montana courts to address how

Many of Landowners also qualify for the “bona fide prospective purchaser” exception, which exempts from Section

107(a)’s coverage owners who knew of the pollution if they purchased the property after 2002. 42 U.S.C. §§ 9607(r), 9601(40).

Landowners’ status as “potentially responsible parties” affects their claims.

IV. THE RESTORATION-DAMAGES REMEDY

IS NOT PREEMPTED

“CERCLA, it must be remembered, does not provide a complete remedial framework” or a “general

cause of action for all harm caused by toxic contaminants.” CTS, 573 U.S. at 18. Instead, the statute’s only

preemptive provision “leaves untouched States’ judgments about causes of action” and “the scope of liability.” Ibid. Nonetheless, ARCO contends CERCLA

broadly preempts state-law remedies for quintessential state-law property torts like trespass and nuisance. Its arguments lack support in CERCLA’s text

or structure: the statute expressly authorizes statelaw actions like Landowners’.

A. “Impossibility” Preemption Is Inapplicable

ARCO contends Landowners’ restoration-damages

request is preempted under the “impossibility” doctrine. Br. 41-47. “Impossibility preemption is a

demanding defense.” Wyeth v. Levine, 555 U.S. 555, 573

(2009). The defendant must demonstrate “compliance

with both federal and state regulations is a physical

impossibility.” Florida Lime & Avocado Growers, Inc.

v. Paul, 373 U.S. 132, 142-43 (1963). ARCO’s claim that

it meets this high standard reflects fundamental misunderstandings of both state and federal law.

1. Restoration damages impose no restoration duty

To determine whether “federal law forbids an

action that state law requires,” it is necessary to know

what “duties” state law imposes. Mutual Pharmaceutical Co., Inc. v. Bartlett, 570 U.S. 472, 486, 488 (2013).

In general, “common-law liability is ‘premised on the

existence of a legal duty,’ and a tort judgment therefore

establishes that the defendant has violated a state-law

obligation.” Riegel v. Medtronic, Inc., 552 U.S. 312, 324

(2008). ARCO’s “impossibility” claim depends on

its assertions that Landowners’ restoration-damages

request imposes a “state-law duty to restore [Landowners’] land to pristine, pre-smelter conditions.” Br. 41.

ARCO is subject to no such “duty.” Landowners do

not bring a failure-to-restore tort claim. J.A. 45-51.

Rather, they claim ARCO polluted their properties,

thereby trespassing and creating a nuisance. ARCO

violated any relevant state-law obligations when it

took actions that obstructed Landowners’ “exclusive

possession” of their properties and were “injurious” to

their use of their land. See Martin v. Artis, 290 P.3d

687, 689, 691 (Mont. 2012). Restoration damages are

(as the name would suggest) simply a measure of the

damages Landowners may secure if they prove ARCO

breached its obligations not to trespass or create a nuisance. Sunburst, 165 P.3d at 1087; J.A. 54-55; compare

Restatement (Second) Torts § 4 (“Duty”), with id. § 12A

(“Damages.”).

ARCO grounds its contrary claims in a misreading

of Sunburst. There, the Montana Supreme Court recognized that restoration damages—derived from a

Restatement provision governing “damages” (id. § 929)—

may “compensate a plaintiff more effectively than

diminution in value under certain circumstances.”

Sunburst, 165 P.3d at 1087. The court did not, as

ARCO claims, hold that the “responsible party [must]

restore the property to ‘the condition [it] would have

been [in] absent [the] contamination.’ ” Br. 43 (quoting

Sunburst, 165 P.3d at 1086-87). Instead, it held that

plaintiffs seeking such damages must demonstrate

they will “repair the damaged property”—a rule

designed to prevent plaintiffs from receiving more

than needed to “compensate [them] fully.” Id. at

1088-89. Any restoration requirement is thus imposed

entirely on the property owners themselves. The availability of this remedy does not mean defendants like

ARCO are under an obligation to restore property, only

to avoid polluting it in the first place.

That ARCO might conceivably reduce an ultimate

restoration-damages award by initiating its own remediation effort is beside the point. A party can always

seek to mitigate the damage its tort has caused. E.g.,

Restatement (Second) Torts § 920A. But Montana’s

restoration-damages remedy does not require ARCO to

do so. And “[t]he proper inquiry calls for an examination of the elements of the common-law duty at issue;

it does not call for speculation as to whether a jury verdict will prompt the [defendant] to take any particular

action.” Bates v. Dow Agrosciences LLC, 544 U.S. 431,

445 (2005) (citation omitted). Were it otherwise, any

number of additional state-law remedies would be

preempted—including remedies ARCO expressly concedes are viable. Further remediation would raise

property values and thus reduce any diminution-invalue damages. Yet “all agree that CERCLA poses

no impediment to such [diminution-in-value] relief.”

Br. 5. There is no basis for treating a restorationdamages award differently.

For these reasons, this case is nothing like the

“impossibility” decisions ARCO cites. Br. 41-43, 46-47.

There, the question was whether federal law preempted

claims that the defendants breached state-law duties

to provide adequate drug warnings. Wyeth, 555 U.S. at

560; PLIVA, Inc. v. Mensing, 564 U.S. 604, 610-11

(2011); Bartlett, 570 U.S. at 484; Merck Sharp & Dohme

Corp. v. Albrecht, 139 S. Ct. 1668, 1675 (2019). This

Court held that defendants’ ability to disregard statelaw warning requirements and pay damages does not

save warnings claims from impossibility preemption

because the defendants would still be “contraven[ing]

the law”—state law requires adequate warnings, and

damages are simply the “sanction” for violating that

mandate. Bartlett, 570 U.S. at 491. If federal law prohibits those warnings, the defendant is subject to

inconsistent legal obligations regardless of what the

punishment for violating the state-law obligation is.

Ibid.

Here, ARCO “contravene[d]” the law by polluting

Landowners’ property, and restoration damages are

simply the “sanction” for that prior breach of duty. No

federal law required ARCO to deposit arsenic, lead,

and other toxic metals on Landowners’ yards or prohibits ARCO from paying money to Landowners to use

in cleaning their land. ARCO is thus not subject to any

conflicting obligations.

2. Federal law would permit ARCO’s remediation

a. Although this Court need not address the

issue, federal law would not prevent ARCO from

restoring Landowners’ properties in any event. ARCO

would need to seek EPA’s authorization. Br. 44-45. But

ARCO presented no evidence EPA would deny that

request, and “the possibility of impossibility [is] not

enough.” Merck, 139 S. Ct. at 1678 (quotation marks

omitted).

ARCO contends any action is “impossible” if federal-agency approval is needed. Br. 42-43, 46-47. This

Court has not adopted that categorical rule. Instead,

in the duty-to-warn cases ARCO cites, this Court

applied a context-specific analysis in distinguishing

between brand-name and generic drug manufacturers.

Brand-name manufacturers can change their warning

labels based on new information, so compliance with

state-law duties to strengthen warnings is “impossible”

only if the defendant establishes the FDA would reject

the change. Wyeth, 555 U.S. at 571; see Merck,

139 S. Ct. at 1676. But generic manufacturers must

ensure their labels are precisely the same as those of

brand-name manufacturers. PLIVA, 564 U.S. at 614.

Thus, generic manufacturers can change labels only if

they ask the FDA for assistance, the FDA “decide[s]

there [is] sufficient supporting information,” the “FDA

undert[akes] negotiations with the brand-name manufacturer,” and “adequate label changes [are] decided

on and implemented.” Id. at 619. Viewing this

winding, multi-step, and multi-actor path as the functional equivalent of convincing Congress to amend governing law, this Court has held that, for preemption

purposes, federal law prohibits generic manufacturers

from changing drug warnings. Id. at 621.

ARCO’s path to compliance with its state-law

obligation is far less daunting (assuming, arguendo,

Montana law imposes a “restoration” duty). ARCO

faces nothing like this “Mouse Trap game” to perform

additional cleanup. Id. at 619. Further remediation

would not require EPA’s “special permission and assistance,” only its consent. Id. at 623-24; see J.A. 127.

Moreover, unlike in the failure-to-warn context, any

delay in securing agency approval would not leave

ARCO facing inconsistent legal obligations. Every

moment a drug manufacturer awaits FDA assistance

to change its label, it violates state law requiring that

label’s modification. PLIVA, 564 U.S. at 611-12. By

contrast, ARCO could eliminate any ultimate restoration-damages award by conducting the cleanup at

some point before a jury issued its verdict. Unless EPA

would never permit ARCO to further remediate, it

would not be “impossible” for ARCO to “compl[y] with

both federal and state regulations.” Merck, 139 S. Ct.

at 1672 (quotation marks omitted).

b. ARCO made no effort below to demonstrate

EPA would prohibit it from removing additional contamination from Landowners’ properties (having now

completed all EPA-ordered remediation there). See

Wyeth, 555 U.S. at 571-72 (defendant has burden to

offer “clear evidence” that agency “would not have

approved”). Far from making the required evidentiary

showing in the trial court, ARCO affirmatively disclaimed any attempt to do so, asserting conflict preemption was “irrelevant.” J.A. 348. And EPA counsel

later told the Montana Supreme Court that aspects of

Landowners’ contemplated cleanup “might be something that EPA could authorize.” MT Oral Arg. 41:3448.

ARCO offers no basis for disturbing the district

court’s conclusion that it failed to create a material

dispute of fact. Pet. App. 54a. ARCO focuses on Landowners’ proposal to install walls to clean their groundwater. Br. 45-46. EPA had considered a similar wall

elsewhere, but decided it was “technically impracticable from an engineering perspective.” J.A. 158.

That, in CERCLA-speak, means the remedy would be

difficult and expensive—not that it would cause environmental harm. See EPA, Summary of Technical

Impracticability Waivers at National Priorities List

Sites (2012); compare 42 U.S.C. § 9621(d)(4)(C) (allowing EPA to waive compliance with standard that would

be “technically impracticable from an engineering perspective”), with id. § 9621(d)(4)(B) (allowing waiver

where compliance would “result in greater risk to

human health and the environment”). EPA did not

determine such a wall could not be installed, only that

EPA would not require ARCO to do so. See Williamson

v. Mazda Motor of America, Inc., 562 U.S. 323, 335

(2011) (“the fact that DOT made a negative judgment

about cost-effectiveness * * * cannot by itself show that

DOT sought to forbid common-law tort suits in which

a judge or jury might reach a different conclusion”).11

ARCO’s assertion that “EPA wants this groundwater undisturbed and unadulterated” is thus unsupported by any actual EPA order. Br. 46. For that

proposition, ARCO relies entirely on EPA’s Montana

Supreme Court amicus brief. Yet in Montana, as elsewhere, summary judgment requires actual evidence,

not just attorney argument. Garza v. Forquest Ventures, Inc., 358 P.3d 189, 193 (Mont. 2015). And EPA’s

amicus brief cited no factual support for its statements that Landowners’ proposal “may” pose risks and

“could” have detrimental effects. Pet. App. 73a-74a. As

counsel clarified at oral argument, EPA simply was not

sure: it had not considered the specific walls Landowners proposed or “had an opportunity” to fully evaluate

their plan. MT Oral Arg. 31:40-32:00, 38:08-15.

Perhaps for this reason, ARCO does not contend Landowners’ restoration-damages request is preempted as an “obstacle to

the accomplishment and execution” of any of these EPA remedial

orders themselves. Cf. Geier v. American Honda Motor Co., Inc.,

529 U.S. 861, 873 (2000). Similarly, while ARCO observes that

restoring all of Landowners’ properties would involve work on the

(limited) areas ARCO has already remediated in addition to the

(vast) areas it has not (e.g., Br. 18), the point appears to be more

rhetorical than legal: ARCO never suggests EPA would preclude

such additional remediation (Br. 45-46).

Nothing in the record demonstrates EPA would forbid

ARCO from performing (or, more accurately, paying

for) this aspect of Landowners’ remediation plan.

Similarly, ARCO insists EPA refused to let it further remediate any “pasture lands” (again, a term of

art for large residential yards). Br. 45. Contrary to

ARCO’s repeated assertions, EPA’s remedial orders

never found that soil removal “might cause greater

harm.” Br. 14. EPA simply deemed it “cost prohibitive”

for ARCO to remove all of its contamination. Water,

Waste and Soils ROD § 7.1.

The only evidence ARCO cites for EPA’s purported

prohibition of that remedy is a letter from ARCO’s own

attorney. ARCO Supp. App. 182. The letter briefly references “discussions between Atlantic Richfield and

EPA” in which EPA supposedly “indicated that it would

not approve the proposed ‘pasture’ area cleanup work.”

Ibid. But the remedy ARCO had proposed involved

tilling the soil, not removing it. Expert Report of David

Folkes 2 (June 19, 2013). Landowners themselves

oppose tilling as potentially harmful. Supplemental

Expert Disclosure of David Coles, Ex. B, at 2-3 (July 16,

2018). Tellingly, neither the government’s brief to this

Court nor EPA’s brief to the Montana Supreme Court

makes any reference to an EPA prohibition on pastureland soil removal.

B. Landowners’ Restoration-Damages Request

Is No “Obstacle” To CERCLA’s Purpose

ARCO also contends suits like Landowners’

“ ‘stand[ ] as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.’ ” Br. 47 (quoting English v. Gen. Elec. Co.,

496 U.S. 72, 79 (1990)). But Congress made its “purposes and objectives” clear in CERCLA’s text, and

Landowners’ request for restoration damages is no

obstacle to them.

1. “The critical question in any pre-emption

analysis is always whether Congress intended that

federal regulation supersede state law.” Louisiana

Public Service Comm’n v. FCC, 476 U.S. 355, 369

(1986). Like other questions of statutory interpretation, “[e]vidence of pre-emptive purpose is sought in

the text and structure of the statute at issue.” CSX

Transp. v. Easterwood, 507 U.S. 658, 664 (1993). And

“[i]n areas of traditional state regulation” such as this,

the Court “assume[s] that a federal statute has not

supplanted state law unless Congress has made such

an intention clear and manifest.” Bates, 544 U.S. at

449 (quotation marks omitted).

Neither ARCO nor the government identifies any

“clear and manifest” indication of Congress’ intent

to preclude state-law tort claims holding polluters liable for the costs of redressing their pollution. Congress

authorized EPA to address the same problem and

impose liability on those responsible. Br. 48-49 (citing

42 U.S.C. § 9621(a)); SG Br. 28 (citing EPA’s authority

to implement remedial plans). But “[o]rdinarily, state

causes of action are not pre-empted solely because they

impose liability over and above that authorized by federal law.” California v. ARC America Corp., 490 U.S.

93, 105 (1989).

The case for “obstacle” preemption thus depends

on the contention that “CERCLA sets both a floor and

ceiling for remediation.” Br. 50. According to ARCO

and the government, CERCLA does not just authorize

EPA-led cleanup efforts, it contemplates those efforts

will be “exclusive.” SG Br. 28 (emphasis added). As this

Court said of the same contention directed at a similar

statutory scheme, “[t]he most glaring problem with

this argument is that all evidence of Congress’ purpose

is to the contrary.” Wyeth, 555 U.S. at 574. “Congress

did not intend for CERCLA to occupy the field or to

prevent the states from enacting laws to supplement

federal measures relating to the cleanup of hazardous

wastes.” Manor Care, Inc. v. Yaskin, 950 F.2d 122,

126 (3d Cir. 1991) (Alito, J.); accord, e.g., New Mexico,

467 F.3d at 1246 (“CERCLA sets a floor, not a ceiling.”).

The primary statutory provisions ARCO cites for

CERCLA’s supposed “floor and ceiling” mandate are,

once again, Sections 113(h) and 122(e)(6). Br. 48-50.

The government cites only Section 113(h) (coupled

with general provisions outlining how EPA implements remedial plans). SG Br. 28-30. The “obstacle”

preemption argument thus largely rises or falls on the

validity of ARCO’s interpretation of those two provisions.

Fall it does. Section 122(e)(6) preserves the status

quo in settlement negotiations by requiring potentially

responsible parties to seek EPA authorization for remedial actions; it does not grant EPA exclusive authority

to forever dictate all land-use decisions at every property in Superfund sites. Supra pp. 36-49. Even if Section 122(e)(6) applied to persons like Landowners, it

would simply require them to seek EPA approval for

restoration work, not preclude any additional cleanup.

Supra pp. 49-50. For its part, Section 113(h) channels

judicial review of EPA’s remedial orders to particular

points in the remediation process; it does nothing to

preclude additional cleanup efforts. Supra pp. 31-33.

If anything, Section 113(h) demonstrates Congress’

intent to do the opposite: by limiting Section 113(h) to

federal courts and exempting diversity actions, Congress ensured CERCLA would not “affect in any way

the rights of persons to bring nuisance actions under

State law.” H.R. Rep. No. 99-962, at 224.12

2. Other CERCLA provisions confirm Congress

had no intention of precluding state-law cleanup

efforts. In particular, Section 114(b) reduces the

amount a person can recover under state law for

Confusingly, ARCO also invokes Section 121(d), which

directs EPA to apply “any promulgated standard, requirement,

criteria, or limitation under a State environmental or facility siting law that is more stringent than any Federal standard,” subject to exceptions. 42 U.S.C. § 9621(d)(2)(A)(ii), (d)(4); see Br. 55.

As ARCO cannot dispute, tort claims like Landowners’ involve no

such regulations. SG Br. 29-30 n.4; 40 C.F.R. 300.400(g). Regardless, that EPA can sometimes elect not to apply state regulations

does not suggest EPA’s cleanup precludes all other efforts.

“removal costs” by the “compensation for removal

costs or damages or claims” that person secured under

CERCLA. 42 U.S.C. § 9614(b). As then-Judge Alito

noted, “if CERCLA’s remedies preempted state remedies for recovering costs of hazardous waste cleanups,

§ 114(b) would make no sense at all.” Manor Care, 950

F.2d at 127.

Likewise, CERCLA’s sole express preemption

provision, Section 309, expands rather than restricts

state-law tort actions—including actions for property

damage—by extending the statute of limitations.

42 U.S.C. § 9658(a)(1). As this Court has held of

CERCLA specifically, “[t]he case for federal pre-emption

is particularly weak where Congress has indicated

its awareness of the operation of state law in a field of

federal interest, and has nonetheless decided to stand

by both concepts.” CTS, 573 U.S. at 18 (quotation

marks omitted).

3. CERCLA’s many anti-preemption provisions

remove all doubt: “CERCLA expressly does not preempt State law.” Manor Care, 950 F.2d at 125; see

Williamson, 562 U.S. at 339 (Thomas, J., concurring in

the judgment) (savings clause “speaks directly to this

question and answers it”). The language of these provisions is worth repeating given its clarity.

•

Section 114(a): “Nothing in this [Act] shall be

construed or interpreted as preempting any

State from imposing any additional liability

or requirements with respect to the release

of hazardous substances within such State.”

42 U.S.C. § 9614(a).

•

Section 302(d): “Nothing in this [Act] shall

affect or modify in any way the obligations or

liabilities of any person under other Federal

or State law, including common law, with

respect to releases of hazardous substances or

other pollutants or contaminants.” Id. § 9652(d).

•

Section 310(h): “This [Act] 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)] or as otherwise provided in

[Section 309] (relating to actions under State

law).” Id. § 9659(h).

ARCO cannot evade this plain language. ARCO

claims Section 114(a) does not authorize “conflicting”

liability. Br. 54. But a state-law claim for additional

cleanup costs imposes no “conflicting” liability; it

imposes “additional liability”—just as Section 114(a)

allows. 42 U.S.C. § 9614(a). Similarly, ARCO argues

Section 302(d) does not “permit state laws that overrule EPA’s remediation plan.” Br. 55. But if, as ARCO

asserts, EPA’s remedial orders exempt polluters from

further cleanup liability, then CERCLA would “modify

* * * the obligations or liabilities” of those polluters,

just as Section 302(d) prohibits. 42 U.S.C. § 9652(d).

ARCO never attempts to address Section 310(h),

which spells out precisely which CERCLA provisions

limit suits: Section 113(h) (for federal claims) and Section 309 (for state claims). Id. § 9659(h). Consistent

with “the familiar principle of expressio unius est

exclusio alterius,” Section 310’s express delineation of

CERCLA’s “pre-emptive reach” demonstrates “matters

beyond that reach are not pre-empted.” Cipollone v.

Liggett Group, Inc., 505 U.S. 504, 517 (1992).

ARCO’s principal argument is that this Court

should ignore these provisions. Br. 51-53; see SG Br.

31-32. Yet the goal of preemption analysis is to discern

Congress’ intent, and such clauses reveal that “Congress took care to preserve state law.” Wyeth, 555 U.S.

at 567; accord, e.g., Williamson, 562 U.S. at 335; see generally Virginia Uranium, Inc. v. Warren, 139 S. Ct.

1894, 1901 (2019) (plurality opinion) (preemption

inquiry governed by “traditional tools of statutory

interpretation”). True, this Court has not held every

state-law action salvaged by provisions generally disclaiming preemptive intent. See Geier, 529 U.S. at 870.

But in carving out exceptions, this Court has merely

adhered to the canon that the specific controls the general. See Morales v. Trans World Airlines, Inc., 504 U.S.

374, 384-85 (1992). Thus, for example, the Communications Act’s general allowance for common-law

remedies could not permit tort plaintiffs to obtain preferences from common carriers, as the Act specifically

forbids common carriers from discriminating among

customers. AT&T Co. v. Cent. Office Tel., Inc., 524 U.S.

214, 222, 227-28 (1998). Here, by contrast, ARCO can

identity no statutory provision—whether specific or

general—that could supersede Congress’ codification

of its intent to preserve state-law actions like Landowners’.

4. None of ARCO’s remaining arguments justifies disregarding CERCLA’s text. “Invoking some

brooding federal interest or appealing to a judicial

policy preference should never be enough to win preemption of a state law.” Virginia Uranium, 139 S. Ct. at

1901 (plurality opinion). “Brooding” is the perfect word

for the supposed “purposes and objectives” ARCO

invokes.

ARCO is aghast that juries might determine

the extent of polluters’ liability. Br. 49; see SG Br. 29.

One could imagine a statutory scheme granting an

expert agency like EPA exclusive authority to conduct

hazardous-waste cleanups. Yet that is not the scheme

Congress adopted. Juries have long been a central feature of our legal system, and CERCLA preserves their

role. E.g., 42 U.S.C. § 9614(a).

Similarly, ARCO contends state-law cleanup claims

will affect settlement negotiations between EPA and

polluting companies, as the settlement will not “fix

[their] obligations.” Br. 50. But such settlements

cannot fix polluters’ liability regardless: even ARCO

acknowledges CERCLA does not preempt all state-law

claims. Br. 50. ARCO cites nothing in CERCLA even

hinting Congress intended to facilitate settlement by

precluding the specific subset of state-law remedies at

issue here.

The same goes for ARCO’s contention that allowing claims like Landowners’ will create environmental

risks. Br. 49-50. Congress addressed that concern by

allowing EPA to bring actions to prevent an “imminent

and substantial endangerment to the public health or

welfare or the environment.” 42 U.S.C. § 9606(a). Congress nowhere took the further step of forbidding all

state-law actions that contemplate additional hazardouswaste remediation. And it is the statute Congress

enacted, not the one ARCO wishes it had, that controls.

Virginia Uranium, 139 S. Ct. at 1901 (plurality opinion).

CONCLUSION

The writ of certiorari should be dismissed. If it is

not, the judgment should be affirmed.

Respectfully submitted,

MONTE D. BECK

JUSTIN P. STALPES

BECK, AMSDEN &

STALPES, PLLC

1946 Stadium Dr., Suite 1

Bozeman, MT 59715

J. DAVID SLOVAK

MARK M. KOVACICH

ROSS JOHNSON

KOVACICH SNIPES, PC

21 3rd St. North, Suite 301

Great Falls, MT 59401

JOSEPH R. PALMORE

Counsel of Record

DEANNE E. MAYNARD

DUSTIN C. ELLIOTT

SAMUEL B. GOLDSTEIN*

MORRISON & FOERSTER LLP

2000 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 887-6940

JPalmore@mofo.com

JAMES R. SIGEL

WILLIAM F. TARANTINO

MORRISON & FOERSTER LLP

* Not admitted in the District

425 Market St.

of Columbia; admitted only in

San Francisco, CA 94105

California; practice supervised

by principals of Morrison &

Foerster LLP admitted in

the District of Columbia.

Counsel for Respondents

OCTOBER 15, 2019

APPENDIX

TABLE OF CONTENTS

Page

28 U.S.C. 1257(a).........................................................1a

28 U.S.C. 1331 .............................................................1a

28 U.S.C. 1332(a).........................................................1a

42 U.S.C. 9601(9), 20(A), (23), (24), (25),

(35), (40)

(CERCLA Section 101)............................................2a

42 U.S.C. 9606(a)

(CERCLA Section 106)..........................................14a

42 U.S.C. 9607(a), (b), (q), (r)

(CERCLA Section 107)..........................................15a

42 U.S.C. 9613

(CERCLA Section 113)..........................................24a

42 U.S.C. 9614(a), (b)

(CERCLA Section 114)..........................................36a

42 U.S.C. 9619(a)(1), (c)(1), (d), (e)

(CERCLA Section 119)..........................................37a

42 U.S.C. 9620(e)

(CERCLA Section 120)..........................................39a

42 U.S.C. 9621

(CERCLA Section 121)..........................................40a

42 U.S.C. 9622

(CERCLA Section 122)..........................................55a

42 U.S.C. 9624

(CERCLA Section 124)..........................................80a

42 U.S.C. 9652

(CERCLA Section 302)..........................................81a

TABLE OF CONTENTS – Continued

Page

42 U.S.C. 9657

(CERCLA Section 308)..........................................83a

42 U.S.C. 9658

(CERCLA Section 309)..........................................83a

42 U.S.C. 9659

(CERCLA Section 310)..........................................86a

APPENDIX

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.

28 U.S.C. 1331 provides:

Federal question

The district courts shall have original jurisdiction

of all civil actions arising under the Constitution, laws,

or treaties of the United States.

28 U.S.C. 1332(a) provides:

Diversity of citizenship; amount in controversy;

costs

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of

interest and costs, and is between—

(1)

citizens of different States;

(2) citizens of a State and citizens or subjects

of a foreign state, except that the district courts

shall not have original jurisdiction under this subsection of an action between citizens of a State and

citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the

United States and are domiciled in the same

State;

(3) citizens of different States and in which

citizens or subjects of a foreign state are additional

parties; and

(4) a foreign state, defined in section 1603(a)

of this title, as plaintiff and citizens of a State or

of different States.

4. 42 U.S.C. 9601(9), 20(A), (23), (24), (25), (35), (40)

(CERCLA Section 101) provide in pertinent part:

Definitions

For purpose of this subchapter—

(9) The term “facility” means (A) any building,

structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment,

ditch, landfill, storage container, motor vehicle, rolling

stock, or aircraft, or (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.

(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.

(23) The terms “remove” or “removal” means3 the

cleanup or removal of released hazardous substances

from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions

as may be necessary to monitor, assess, and evaluate

So in original. Probably should be “mean”.

the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to

prevent, minimize, or mitigate damage to the public

health or welfare or to the environment, which may

otherwise result from a release or threat of release.

The term includes, in addition, without being limited

to, security fencing or other measures to limit access,

provision of alternative water supplies, temporary

evacuation and housing of threatened individuals not

otherwise provided for, action taken under section

9604(b) of this title, and any emergency assistance

which may be provided under the Disaster Relief and

Emergency Assistance Act.

(24) The terms “remedy” or “remedial action”

means3 those actions consistent with permanent

remedy taken instead of or in addition to removal actions in the event of a release or threatened release of

a hazardous substance into the environment, to prevent or minimize the release of hazardous substances

so that they do not migrate to cause substantial danger to present or future public health or welfare or

the environment. The term includes, but is not limited

to, such actions at the location of the release as storage, confinement, perimeter protection using dikes,

trenches, or ditches, clay cover, neutralization, cleanup

of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or

excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment

or incineration, provision of alternative water supplies,

and any monitoring reasonably required to assure that

such actions protect the public health and welfare and

the environment. The term includes the costs of permanent relocation of residents and businesses and

community facilities where the President determines

that, alone or in combination with other measures,

such relocation is more cost-effective than and environmentally preferable to the transportation, storage,

treatment, destruction, or secure disposition offsite of

hazardous substances, or may otherwise be necessary

to protect the public health or welfare; the term includes offsite transport and offsite storage, treatment,

destruction, or secure disposition of hazardous substances and associated contaminated materials.

(25) The terms “respond” or “response” means3

remove, removal, remedy, and remedial action;,4 all

such terms (including the terms “removal” and “remedial action”) include enforcement activities related

thereto.

(35)(A) The term “contractual relationship”, for

the purpose of section 9607(b)(3) of this title, includes,

but is not limited to, land contracts, deeds, easements,

leases, or other instruments transferring title or possession, unless the real property on which the facility

concerned is located was acquired by the defendant after the disposal or placement of the hazardous substance on, in, or at the facility, and one or more of the

So in original.

circumstances described in clause (i), (ii), or (iii) is also

established by the defendant by a preponderance of the

evidence:

(i) At the time the defendant acquired the

facility the defendant did not know and had no

reason to know that any hazardous substance

which is the subject of the release or threatened

release was disposed of on, in, or at the facility.

(ii) The defendant is a government entity

which acquired the facility by escheat, or through

any other involuntary transfer or acquisition, or

through the exercise of eminent domain authority

by purchase or condemnation.

(iii) The defendant acquired the facility by

inheritance or bequest.

In addition to establishing the foregoing, the defendant

must establish that the defendant has satisfied the requirements of section 9607(b)(3)(a) and (b) of this title,

provides full cooperation, assistance, and facility access to the persons that are authorized to conduct response actions at the facility (including the cooperation

and access necessary for the installation, integrity, operation, and maintenance of any complete or partial

response action at the facility), is in compliance with

any land use restrictions established or relied on in

connection with the response action at a facility, and

does not impede the effectiveness or integrity of any

institutional control employed at the facility in connection with a response action.

(B)

REASON TO KNOW.—

(i) ALL APPROPRIATE INQUIRIES.—To establish

that the defendant had no reason to know of the

matter described in subparagraph (A)(i), the defendant must demonstrate to a court that—

(I) on or before the date on which the defendant acquired the facility, the defendant

carried out all appropriate inquiries, as provided in clauses (ii) and (iv), into the previous

ownership and uses of the facility in accordance with generally accepted good commercial

and customary standards and practices; and

(II)

the defendant took reasonable steps

to—

(aa)

stop any continuing release;

(bb) prevent any threatened future

release; and

(cc) prevent or limit any human,

environmental, or natural resource exposure to any previously released hazardous substance.

(ii) STANDARDS AND PRACTICES.—Not later

than 2 years after January 11, 2002, the Administrator shall by regulation establish standards and

practices for the purpose of satisfying the requirement to carry out all appropriate inquiries under

clause (i).

(iii) CRITERIA.—In promulgating regulations

that establish the standards and practices

referred to in clause (ii), the Administrator shall

include each of the following:

(I) The results of an inquiry by an environmental professional.

(II) Interviews with past and present

owners, operators, and occupants of the facility for the purpose of gathering information

regarding the potential for contamination at

the facility.

(III) Reviews of historical sources, such

as chain of title documents, aerial photographs, building department records, and

land use records, to determine previous uses

and occupancies of the real property since the

property was first developed.

(IV) Searches for recorded environmental cleanup liens against the facility that are

filed under Federal, State, or local law.

(V) Reviews of Federal, State, and local

government records, waste disposal records,

underground storage tank records, and hazardous waste handling, generation, treatment, disposal, and spill records, concerning

contamination at or near the facility.

(VI) Visual inspections of the facility

and of adjoining properties.

(VII) Specialized knowledge or experience on the part of the defendant.

(VIII) The relationship of the purchase

price to the value of the property, if the property was not contaminated.

(IX) Commonly known or reasonably

ascertainable information about the property.

(X) The degree of obviousness of the

presence or likely presence of contamination

at the property, and the ability to detect the

contamination by appropriate investigation.

(iv)

INTERIM STANDARDS AND PRACTICES.—

(I) PROPERTY PURCHASED BEFORE May 31,

1997.—With respect to property purchased

before May 31, 1997, in making a determination with respect to a defendant described in

clause (i), a court shall take into account—

(aa) any specialized knowledge or

experience on the part of the defendant;

(bb) the relationship of the purchase price to the value of the property, if

the property was not contaminated;

(cc) commonly known or reasonably

ascertainable information about the

property;

(dd) the obviousness of the presence or likely presence of contamination

at the property; and

(ee) the ability of the defendant to

detect the contamination by appropriate

inspection.

(II) PROPERTY PURCHASED ON OR AFTER

MAY 31, 1997.—With respect to property purchased on or after May 31, 1997, and until the

Administrator promulgates the regulations

10a

described in clause (ii), the procedures of the

American Society for Testing and Materials,

including the document known as “Standard

E1527-97”, entitled “Standard Practice for

Environmental Site Assessment: Phase 1 Environmental Site Assessment Process”, shall

satisfy the requirements in clause (i).

(v) SITE INSPECTION AND TITLE SEARCH.—In

the case of property for residential use or other

similar use purchased by a nongovernmental or

noncommercial entity, a facility inspection and

title search that reveal no basis for further investigation shall be considered to satisfy the requirements of this subparagraph.

9607(b)(3) of this title shall diminish the liability of

any previous owner or operator of such facility who

would otherwise be liable under this chapter. Notwithstanding this paragraph, if the defendant obtained actual knowledge of the release or threatened release of

a hazardous substance at such facility when the defendant owned the real property and then subsequently transferred ownership of the property to

another person without disclosing such knowledge,

such defendant shall be treated as liable under section

9607(a)(1) of this title and no defense under section

9607(b)(3) of this title shall be available to such defendant.

(D) Nothing in this paragraph shall affect the liability under this chapter of a defendant who, by any

act or omission, caused or contributed to the release or

11a

threatened release of a hazardous substance which is

the subject of the action relating to the facility.

(40) BONA FIDE PROSPECTIVE PURCHASER.—The

term ‘‘bona fide prospective purchaser’’ means a person

(or a tenant of a person) that acquires ownership of a

facility after January 11, 2002, and that establishes

each of the following by a preponderance of the evidence:

(A) DISPOSAL PRIOR TO ACQUISITION.—All

disposal of hazardous substances at the facility

occurred before the person acquired the facility.

(B)

INQUIRIES.—

(i) IN GENERAL.—The person made all

appropriate inquiries into the previous ownership and uses of the facility in accordance

with generally accepted good commercial and

customary standards and practices in accordance with clauses (ii) and (iii).

(ii) STANDARDS AND PRACTICES.—The

standards and practices referred to in clauses

(ii) and (iv) of paragraph (35)(B) shall be considered to satisfy the requirements of this

subparagraph.

(iii) RESIDENTIAL USE.—In the case of

property in residential or other similar use at

the time of purchase by a nongovernmental or

noncommercial entity, a facility inspection

and title search that reveal no basis for

12a

further investigation shall be considered to

satisfy the requirements of this subparagraph.

or release of any hazardous substances at the facility.

(D) CARE.—The person exercises appropriate care with respect to hazardous substances

found at the facility by taking reasonable steps

to—

(i)

stop any continuing release;

(ii) prevent any threatened future release;

and prevent or limit human, environmental,

or natural resource exposure to any previously released hazardous substance.

(E) COOPERATION, ASSISTANCE, AND ACCESS.—

The person provides full cooperation, assistance,

and access to persons that are authorized to

conduct response actions or natural resource

restoration at a vessel or facility (including the

cooperation and access necessary for the installation, integrity, operation, and maintenance of any

complete or partial response actions or natural resource restoration at the vessel or facility).

(F)

INSTITUTIONAL CONTROL.—The person—

(i) is in compliance with any land use restrictions established or relied on in connection with the response action at a vessel or

facility;

13a

(ii) and does not impede the effectiveness or integrity of any institutional control

employed at the vessel or facility in connection with a response action.

(G) REQUESTS; SUBPOENAS.—The person complies with any request for information or administrative subpoena issued by the President under

this chapter.

(H)

NO AFFILIATION.—The person is not—

(i) potentially liable, or affiliated with

any other person that is potentially liable, for

response costs at a facility through—

(I) any direct or indirect familial relationship; or

(II) any contractual, corporate, or

financial relationship (other than a contractual, corporate, or financial relationship that is created by the instruments by

which title to the facility is conveyed or

financed or by a contract for the sale of

goods or services); or

(ii) the result of a reorganization of a

business entity that was potentially liable.

14a

42 U.S.C. 9606(a) (CERCLA Section 106) 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.

15a

6. 42 U.S.C. 9607(a), (b), (q), (r) (CERCLA Section

107) 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) the owner and operator of a vessel or a

facility,

(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—

16a

(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;

or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a

release; and

(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.

17a

(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, 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) any combination of the foregoing paragraphs.

18a

(q)

Contiguous properties

(1)

Not considered to be an owner or operator

(A)

In general

A person that owns real property that is contiguous to or otherwise similarly situated with respect to, and that is or may be contaminated by a

release or threatened release of a hazardous substance from, real property that is not owned by

that person shall not be considered to be an owner

or operator of a vessel or facility under paragraph

(1) or (2) of subsection (a) solely by reason of the

contamination if—

(i) the person did not cause, contribute,

or consent to the release or threatened release;

(ii)

the person is not—

(I) potentially liable, or affiliated

with any other person that is potentially

liable, for response costs at a facility

through any direct or indirect familial relationship or any contractual, corporate,

or financial relationship (other than a

contractual, corporate, or financial relationship that is created by a contract for

the sale of goods or services); or

(II) the result of a reorganization of

a business entity that was potentially liable;

(iii)

to—

the person takes reasonable steps

19a

(I)

stop any continuing release;

(II) prevent any threatened future

release; and

(III) prevent or limit human, environmental, or natural resource exposure

to any hazardous substance released on

or from property owned by that person;

(iv) the person provides full cooperation,

assistance, and access to persons that are authorized to conduct response actions or natural resource restoration at the vessel or

facility from which there has been a release or

threatened release (including the cooperation

and access necessary for the installation, integrity, operation, and maintenance of any

complete or partial response action or natural

resource restoration at the vessel or facility);

(v)

the person—

(I) is in compliance with any land

use restrictions established or relied on in

connection with the response action at

the facility; and

(II) does not impede the effectiveness or integrity of any institutional control employed in connection with a

response action;

(vi) the person is in compliance with

any request for information or administrative

subpoena issued by the President under this

chapter;

20a

(vii) the person provides all legally required notices with respect to the discovery or

release of any hazardous substances at the facility; and

(viii) at the time at which the person acquired the property, the person—

(I) conducted all appropriate inquiry within the meaning of section

9601(35)(B) of this title with respect to

the property; and

(II) did not know or have reason to

know that the property was or could be

contaminated by a release or threatened

release of one or more hazardous substances from other real property not

owned or operated by the person.

(B)

Demonstration

To qualify as a person described in subparagraph (A), a person must establish by a preponderance of the evidence that the conditions in clauses

(i) through (viii) of subparagraph (A) have been

met.

(C)

Bona fide prospective purchaser

Any person that does not qualify as a person

described in this paragraph because the person

had, or had reason to have, knowledge specified in

subparagraph (A)(viii) at the time of acquisition of

the real property may qualify as a bona fide prospective purchaser under section 9601(40) of this

21a

title if the person is otherwise described in that

section.

(D)

Ground water

With respect to a hazardous substance from

one or more sources that are not on the property

of a person that is a contiguous property owner

that enters ground water beneath the property of

the person solely as a result of subsurface migration in an aquifer, subparagraph (A)(iii) shall not

require the person to conduct ground water investigations or to install ground water remediation

systems, except in accordance with the policy of

the Environmental Protection Agency concerning

owners of property containing contaminated aquifers, dated May 24, 1995.

(2)

Effect of law

With respect to a person described in this subsection, nothing in this subsection—

(A) limits any defense to liability that may

be available to the person under any other provision of law; or

(B) imposes liability on the person that is

not otherwise imposed by subsection (a).

22a

(3)

Assurances

The Administrator may—

(A) issue an assurance that no enforcement

action under this chapter will be initiated against

a person described in paragraph (1); and

(B) grant a person described in paragraph

(1) protection against a cost recovery or contribution action under section 9613(f ) of this title.

(r)

Prospective purchaser and windfall lien

(1)

Limitation on liability

Notwithstanding subsection (a)(1), a bona fide prospective purchaser whose potential liability for a release or threatened release is based solely on the bona

fide prospective purchaser being considered to be an

owner or operator of a facility shall not be liable as long

as the bona fide prospective purchaser does not impede

the performance of a response action or natural resource restoration.

(2)

Lien

If there are unrecovered response costs incurred

by the United States at a facility for which an owner of

the facility is not liable by reason of paragraph (1), and

if each of the conditions described in paragraph (3) is

met, the United States shall have a lien on the facility,

or may by agreement with the owner, obtain from the

owner a lien on any other property or other assurance

of payment satisfactory to the Administrator, for the

unrecovered response costs.

23a

(3)

Conditions

The conditions referred to in paragraph (2) are the

following:

(A)

Response action

A response action for which there are unrecovered costs of the United States is carried out at

the facility.

(B)

Fair market value

The response action increases the fair market

value of the facility above the fair market value of

the facility that existed before the response action

was initiated.

(4)

Amount; duration

A lien under paragraph (2)—

(A) shall be in an amount not to exceed the

increase in fair market value of the property attributable to the response action at the time of a

sale or other disposition of the property;

(B) shall arise at the time at which costs are

first incurred by the United States with respect to

a response action at the facility;

subsection (l)(3); and

(D) shall continue until the earlier of—

24a

(i) satisfaction of the lien by sale or

other means; or

(ii) notwithstanding any statute of limitations under section 9613 of this title, recovery of all response costs incurred at the

facility.

42 U.S.C. 9613 (CERCLA Section 113) 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.

(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.

25a

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.

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 II1 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.

See References in Text note below.

26a

(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 in an administrative or judicially

27a

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).

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.

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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

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a waiver under section 9604(c)(1)(C) of this title for continued response action; and

(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

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(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 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

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(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 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

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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.

(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 of 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

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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.

(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 pro

This text is long and has been trimmed here. Open the source document for the complete record.

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.