Petition for Writ of Certiorari — Atlantic Richfield Company, Petitioner v. Gregory A. Christian, et al.

Supreme Court briefApr 27, 2018

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No. 17IN T H E

Supreme Court of the United States

ATLANTIC RICHFIELD COMPANY,

Petitioner,

GREGORY A. CHRISTIAN, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Montana

PETITION FOR A WRIT OF CERTIORARI

JONATHAN W. RAUCHWAY

SHANNON W. STEVENSON

DAVIS GRAHAM &

STUBBS LLP

1550 17th St., Suite 500

Denver, CO 80202

(303) 892-9400

LISA S. BLATT

Counsel of Record

ROBERT J. KATERBERG

ELISABETH S. THEODORE

ANDREW T. TUTT

STEPHEN K. WIRTH

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Mass. Ave., NW

Washington, DC 20001

(202) 942-5000

lisa.blatt@arnoldporter.com

QUESTIONS PRESENTED

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of federal courts of appeals nationwide, the Supreme

Court of Montana held that landowners can pursue

common-law claims for “restoration” requiring environmental cleanups at Superfund sites that directly

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The Montana court reached that result for one of the

largest, oldest, and most expensive Superfund sites

in the country, the Anaconda Smelter site. The court

ignored EPA’s views that the Superfund statute—the

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)—barred the restoration claims and that plaintiffs’ preferred remedies would hurt the environment. The state court’s

holding throws remediation efforts at Anaconda and

other massive sites into chaos and opens the door for

thousands of private individuals to select and impose

their own remedies at CERCLA sites at a potential

cost of many millions of dollars per site.

The questions presented are:

1. Whether a common-law claim for restoration

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ordered remedies is a “challenge” to EPA’s cleanup

jurisdictionally barred by § 113 of CERCLA.

2. Whether a landowner at a Superfund site is a

“potentially responsible party” that must seek EPA’s

approval under CERCLA § 122(e)(6) before engaging

in remedial action, even if EPA has never ordered the

landowner to pay for a cleanup.

3. Whether CERCLA preempts state commonlaw claims for restoration that seek cleanup remeEJFTUIBUDPOnJDUXJUI&1"PSEFSFESFNFEJFT

PARTIES TO THE PROCEEDING

Petitioner, who was petitioner below and defendBOU JO UIF USJBM DPVSU JT"UMBOUJD 3JDImFME $PNQBOZ

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America Inc., which is a wholly owned subsidiary of

BP America Limited. BP America Limited is a wholly owned subsidiary of BP Holdings North America

Limited. BP Holdings North America Limited is a

wholly owned subsidiary of BP p.l.c., which is a pubMJDMZ IFME DPNQBOZ /FJUIFS"UMBOUJD 3JDImFME $PN

pany nor any of its direct or indirect parent companies other than BP p.l.c, is publicly held.

Respondents, who were counter-petitioners below

and plaintiffs in the trial court, are Gregory A. Christian; Michelle D. Christian; Rosemary Choquette;

Duane N. Colwell; Shirley A. Colwell; Franklin J.

Cooney; Vicki Cooney; George Coward; Shirley Coward; Jack E. Datres; Sheila Dorscher; Viola Duffy,

Bruce Duxbury; Joyce Duxbury; Bill Field; Chris

Field; Andrew Gress and Frank Gress as Co-Personal

Representatives of the Estate of James Gress;

Charles Gustafson; Michael Hendrickson; Patrice

Hoolahan; Shaun Hoolahan; Ed Jones, Ruth Jones;

Barbara Kelsey; Myrtle Koepplin; Brenda Krattiger;

Doug Krattiger; Julie Latray; Leonard Mann; Valerie

Mann; Kristy McKay; Russ McKay, Bryce Meyer;

Mildred Meyer; Judy Minnehan; Ted Minnehan; Diane Morse; Richard Morse; Karen Mulcahy; Patrick

Mulcahy; Nancy Myers; Serge Myers; Leslie Nelson;

Ron Nelson; Jane Newell; John Newell; George Niland; Laurie Niland; David Ostrom; Rose Ann

Ostrom; Judy Peters; Tammy Peters; Robert Phillips;

Toni Phillips; Carol Powers; William D. Powers; Gary

Raasakka; Malissa Raasakka; Alex Reid; Kent Reisenauer; Peter Reisenauer; Sue Reisenauer; Larry

Rupp; John A. Rusinski; Kathryn Rusiski; Emily

iii

Russ; Scott Russ; Carl Ryan; Penny Ryan; Rich Salle;

Diane Salle; Dale Schafer; David D. Schlosser; Ilona

M. Schlosser; Michael Sevalstad; Jim Shafford;

Rosemarie Silzly; Anthony Solan; Kevin Sorum; Don

Sparks; Vickie Spehar; Zane Spehar; Cara Svendsen;

Caron Svendsen; James H. Svendsen, Sr.; James

Svendsen, Jr.; Doug Violette; Ester Violette; Carol

Walrod; Charles Walrod; Darlene Willey; Ken Yates;

Sharon Yates; Linda Eggen as Personal Representative of the Estate of William Yelsa and as Guardian

of Maurine Yelsa; David Zimmer; and Toni Zimmer.

Respondent Montana Second Judicial District

Court, Silver Bow County, the Honorable Katherine

M. Bidegaray, was the nominal respondent below.

TABLE OF CONTENTS

Page

Questions Presented ................................................... i

Parties to the Proceedings ......................................... ii

Table of Authorities ....................................................vi

Opinions Below ............................................................1

Jurisdiction ..................................................................1

Statutes and Constitutional Provisions Involved ......1

Statement of the Case .................................................2

A. Statutory Background ...................................5

B. Factual Background.......................................6

C. Proceedings Below .........................................9

Reasons the Petition Should Be Granted ................. 13

The Montana Supreme Court’s

Interpretation of CERCLA Conflicts with

Decisions of Other Courts ................................. 15

A. The Decision Conflicts with Other Courts

Regarding What Constitutes a

“Challenge” Under § 113(h) ......................... 15

B. The Decision Conflicts with Other Courts

Regarding Who Is a “Potentially

Responsible Party” Barred from NonEPA-Authorized Cleanups........................... 19

C. The Decision Conflicts with Other Courts

Regarding the Application of Conflict

Preemption to CERCLA............................... 21

II. The Decision Is Wrong ...................................... 24

III. The Questions Presented Are Immensely

Important........................................................... 30

Conclusion ................................................................. 37

Table of Contents—Continued

Page

Appendix A: Opinion of the Montana Supreme

Court (Dec. 29, 2017) ........................... 1a

Appendix B: Opinion of the Montana Second

Judicial District Court

(Aug. 30, 2016) ................................... 41a

Appendix C: United States’ Amicus Brief

(Dec. 9, 2016) ...................................... 56a

TABLE OF AUTHORITIES

Page(s)

Allied Corp. v. Acme Solvents Reclaiming, Inc.,

691 F. Supp. 1100 (N.D. Ill. 1988) ......................... 30

Am. Tradition P’ship v. Bullock,

567 U.S. 516 (2012)................................................. 36

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

Health & Envtl. Quality of Mont.,

213 F.3d 1108 (9th Cir. 2000) .................... 15, 16, 24

Arizona v. United States,

567 U.S. 387 (2012)........................................... 27, 28

BNSF Ry. Co. v. Tyrrell,

137 S. Ct. 1549 (2017)............................................. 36

Boarhead Corp. v. Erickson,

923 F. 2d 1011 (3rd Cir. 1991) ......................... 17, 30

Broward Gardens Tenants Ass’n v. EPA,

311 F.3d 1066 (11th Cir. 2002)............................... 17

Buckman Co. v. Plaintiffs’ Legal Comm.,

531 U.S. 341 (2001)................................................. 29

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

States,

556 U.S. 599 (2009)....................................... 5, 25, 30

Cal. Dep’t of Toxic Substances Control v.

Hearthside Residential Corp.,

613 F.3d 910 (9th Cir. 2010) .................................. 20

Cannon v. Gates,

538 F.3d 1328 (10th Cir. 2008)............................... 17

Chubb Custom Ins. Co. v. Space Sys./Loral, Inc.,

710 F.3d 946 (9th Cir. 2013) .................................. 30

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

750 F.3d 863 (D.C. Cir. 2014) ................................. 17

Cases

vii

Cases—Continued

Page(s)

Encino Motorcars, LLC v. Navarro,

136 S. Ct. 2117 (2016)............................................. 33

Fireman’s Fund Ins. Co. v. City of Lodi,

302 F.3d 928 (9th Cir. 2002) .................................. 22

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

189 F.3d 828 (9th Cir. 1999) .................................. 24

Geier v. Am. Honda Motor Co.,

529 U.S. 861 (2000)................................................. 29

Hines v. Davidowitz,

312 U.S. 52 (1941)................................................... 22

In re Reading Co.,

115 F.3d 1111 (3d Cir. 1997) .................................. 22

Key Tronic Corp. v. United States,

511 U.S. 809 (1994)................................................. 28

Litgo N.J. Inc. v. Comm’r N.J. Dep’t of Envtl. Prot.,

725 F.3d 369 (3d Cir. 2013) .............................. 20, 21

McClellan Ecological Seepage Situation v. Perry,

47 F.3d 325 (9th Cir. 1995) .......................... 5, 16, 18

New Mexico v. Gen. Elec. Co.,

467 F.3d 1223 (10th Cir. 2006)................... 17, 18, 22

Niagara Mohawk Power Corp. v. Chevron

U.S.A., Inc.,

596 F.3d 112 (2d Cir. 2010) .............................. 20, 21

Pakootas v. Teck Cominco Metals, Ltd.,

646 F.3d 1214 (9th Cir. 2011) .......................... 16, 18

PMC, Inc. v. Sherwin-Williams Co.,

151 F.3d 610 (7th Cir. 1998) ...................... 22, 23, 29

Pollack v. U.S. Dep’t of Def.,

507 F.3d 522 (7th Cir. 2007) .................................. 17

PPL Mont., LLC v. Montana,

565 U.S. 576 (2012)................................................. 36

viii

Cases—Continued

Page(s)

Rumpke of Ind., Inc. v. Cummins Engine Co.,

107 F.3d 1235 (7th Cir. 1997) .......................... 20, 21

Schalk v. Reilly,

900 F.2d 1091 (7th Cir. 1990) ................................ 17

United States v. Akzo Coatings of Am., Inc.,

949 F.2d 1409 (6th Cir. 1991) .......................... 22, 30

United States v. Atl. Research Corp.,

551 U.S. 128 (2007)....................................... 5, 19, 26

United States v. Bestfoods,

524 U.S. 51 (1998)......................................... 5, 25, 26

United States v. City & Cty. of Denver,

100 F.3d 1509 (10th Cir. 1996)............................... 22

Constitutional Provisions, Statutes & Rules

U.S. Const. art. VI ....................................................... 2

28 U.S.C.

§ 1257(a) .................................................................... 1

§ 1332 ........................................................................ 1

42 U.S.C.

§ 9601(9) .............................................................. 5, 26

§ 9601(20)(A) ....................................................... 5, 26

§ 9604 .................................................................. 1, 28

§ 9604(a) .................................................................... 5

§ 9606(a) ................................................................ 1, 5

§ 9607(a)(1) ............................................. 5, 19, 20, 26

§ 9607(a)(2) ......................................................... 5, 26

§ 9607(a)(4)(A)........................................................... 5

§ 9613 .......................................... 5, 10, 11, 13, 24, 25

§ 9613(b) .................................................................. 24

§ 9613(h).................... 1-3, 5, 11, 13, 15-18, 24, 25, 30

§ 9614(a) ...................................................... 12, 22, 29

§ 9617 ...................................................................... 28

Statutes & Rules—Continued

Page(s)

42 U.S.C. (continued)

§ 9621 ........................................................................ 1

§ 9622(e)(6) ...................... 1-3, 5, 10-12, 19, 25-27, 30

§ 9652(d) ...................................................... 12, 22, 29

Mont. R. App. P. 14(3) ............................................... 11

Other Authorities

132 Cong. Rec. 28,430 (1986) ................................... 27

Black’s Law Dictionary (5th ed. 1979) ..................... 24

EPA, Anaconda Co. Smelter: Reports and

Documents ................................................................ 7

EPA, Anaconda Regional Water, Waste, and Soils

Operable Unit Record of Decision (1998) ................ 8

EPA, Anaconda Regional Water, Waste, and Soils

Operable Unit Record of Decision Amendment

(2011).................................................................... 7, 8

EPA, Community Soils Operable Unit Record

of Decision (1996) ................................................. 7, 8

EPA, Fifth Five-Year Review Report: Anaconda

Smelter Superfund Site (2015) ............................ 8, 9

EPA, Fourth Five-Year Review Report: Anaconda

Smelter National Priority List Site (2010).............. 8

EPA, Fourth Five-Year Review Report for Silver

Bow Creek/Butte Area Superfund Site (2016)........ 8

EPA, Superfund: National Priorities List (NPL)....... 9

EPA, Superfund National Priorities List (NPL)

Where You Live Map. ............................................. 34

EPA, Superfund Sites in Region 8 ........................... 34

EPA, Superfund Sites Targeted for Immediate,

Intense Action (last updated Apr. 16, 2018) ............ 9

Other Authorities—Continued

Page(s)

GAO, Superfund: Litigation Has Decreased

and EPA Needs Better Information on Site

Cleanup and Cost Issues to Estimate Future

Program Funding Requirements (2009) ..........35, 36

C.B. Glasscock, The War of the Copper Kings

(1935)........................................................................ 6

Joe Griffen & David Williams, Ready, Fire,

Aim: Daines and Pruitt to Fix Berkeley Pit

Disaster, Missoulian (Mar. 17, 2017)..................... 34

Michael P. Malone et al., Montana: A History of

Two Centuries (rev. ed. 1991)................................... 6

Laurie Mercier, Anaconda: Labor, Community,

and Culture in Montana’s Smelter City (2001)....... 6

Kathie R. Miller, Attorneys Discuss Possibility

of Lawsuit Against ARCo for Anaconda

Residents, Anaconda Leader, Jan. 24, 2018 .......... 35

Katherine N. Probst, Superfund 2017: Cleanup

Accomplishments and the Challenges Ahead

(2017)...................................................................... 35

U.S. Census Bureau, QuickFacts.......................... 6, 34

OPINIONS BELOW

The opinion of the Supreme Court of Montana is

reported at 408 P.3d 515 (Mont. 2017) and reproduced at App. 1a. The opinion of the trial court is

unpublished but reproduced at App. 41a.

JURISDICTION

The Supreme Court of Montana issued its opinion and entered judgment on December 29, 2017.

App. 1a. On February 20, 2018, Justice Kennedy exUFOEFE UIF UJNF UP mMF B QFUJUJPO GPS DFSUJPSBSJ VOUJM

April 30, 2018. This Court has jurisdiction under 28

U.S.C. § 1257(a).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

Section 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of

1980 (CERCLA), 42 U.S.C. § 9613(h), provides:

No Federal court shall have jurisdiction under

Federal law other than under section 1332 of

Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section

9621 of this title (relating to cleanup standards) to review any challenges to removal or

remedial action selected under section 9604 of

this title, or to review any order issued under

section 9606(a) of this title, in any action except

Section 122(e)(6) of CERCLA, 42 U.S.C.

§ 9622(e)(6), provides:

When either the President, or a potentially responsible party pursuant to an administrative

order or consent decree under this chapter, has

initiated a remedial investigation and feasibil1

ity 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.

Article VI of the United States Constitution provides:

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof … shall be the supreme Law of the

Land; and the Judges in every State shall be

bound thereby, any Thing in the Constitution

or Laws of any State to the Contrary notwithstanding.

STATEMENT OF THE CASE

This is one of the most consequential decisions

interpreting CERCLA in years. While CERCLA encourages public participation in EPA’s selection of a

remedy at “Superfund” sites, once EPA selects the

remedy, CERCLA establishes multiple protections

against interference with EPA’s plans. First, § 113(h)

jurisdictionally bars “challenges” to EPA remedies

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§ 9613(h). Second f F CBST BOZPOF BGmMJBUFE

with a Superfund site—a “potentially responsible

party,” innocent or otherwise—from undertaking remedial actions absent EPA’s approval.

Id.

§ 9622(e)(6). Third, under the Supremacy Clause,

CERCLA preempts state-law claims that interfere

with EPA’s remedial plans.

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EPA for 35 years to remediate Montana’s Anaconda

Smelter Superfund site, at a cost of approximately

$470 million. But the Montana Supreme Court, over

a strong dissent, held that private landowners may

bring state-law “restoration” claims to require companies to pay for remedies directly at odds with

EPA’s chosen remedy. The court held that neither

§ 113(h), § 122(e)(6), nor preemption principles bar

restoration claims. In the court’s view, “a jury of

twelve Montanans” could second-guess the EPAselected remedies and order implementation of a different remedy. App. 13a. The court remarkably ignored the views of the United States on the interpretation of § 113(h), § 122(e)(6), and preemption. App.

63a-65a.

Worse still, the court did not even

acknowledge the United States’ warning that plaintiffs’ proposed remedies seriously threatened to

damage the environment. App. 73a-74a.

The decision below creates splits on what kind of

lawsuit constitutes a “challenge” barred by § 113(h),

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barred from conducting unilateral, non-EPAapproved cleanups under § 122(e)(6), and on whether

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der CERCLA.

This Court should grant review because the holdings below are simultaneously so wrong and so consequential. The issue whether a state-law claim

“challenges” a CERCLA remedy arises frequently in

the context of long-term and expensive CERCLA

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sponsible party.” No court has adopted as constricted

a view of these provisions as the Montana Supreme

Court. And no court has held, as the Montana SuQSFNF $PVSU EJE UIBU DPOnJDU QSFFNQUJPO EPFT OPU

apply in the CERCLA context. This lawsuit would

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court in Montana, subject to Ninth Circuit precedent.

Left uncorrected, the decision will create confusion, delay, and immense cost at the Anaconda Smelter site, undermining 35 years of efforts by Atlantic

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remove soil that EPA determined there was no reason to remove. Plaintiffs’ restoration plan requires

digging trenches EPA thinks should not be dug,

erecting barriers EPA thinks should not be built, and

inserting enzymes into the groundwater that EPA

has represented could endanger human health. In

other words, EPA will have spent the last 35 years,

and will spend the next seven years, remediating one

of the largest and most complex Superfund sites in

the Nation just so the plaintiffs can bulldoze it and

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madness.

The decision below also provides a roadmap for

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the decision’s immediate impact at Anaconda and the

16 other Superfund sites across Montana alone warrants this Court’s review given the sheer size and

scope of these sites. The decision invites thousands

of unforeseen plaintiffs-landowners to sue companies

to implement expensive and contradictory remedies

at each site. The decision permits juries to order

“restoration” remedies affecting tens of thousands of

people even where EPA concludes those remedies

would harm the environment. The decision permits

countless landowners to undertake remedial efforts

on their own without consulting EPA. And the decision threatens the integrity of every future CERCLA

settlement EPA enters.

Certiorari is warranted.

A. Statutory Background

CERCLA promotes the “timely cleanup of hazardous waste sites.” Burlington N. & Santa Fe Ry.

Co. v. United States, 556 U.S. 599, 602 (2009). The

Act grants EPA “broad power to command government agencies and private parties to clean up [the

sites].” United States v. Bestfoods, 524 U.S. 51, 55

(1998). EPA may undertake remedial action on its

own, or compel responsible parties to undertake remedial actions under the agency’s supervision. See

42 U.S.C. §§ 9604(a), 9606(a), 9607(a)(4)(A); Bestfoods, 524 U.S. at 55.

CERCLA contains two key provisions that prevent interference with EPA-ordered remedial actions.

First, CERCLA § 113(h), except in circumstances not

relevant here, jurisdictionally bars any “challenges”

to EPA cleanups. 42 U.S.C. § 9613(h). Section 113

thus “protects the execution of a CERCLA plan during its pendency from lawsuits that might interfere

with the expeditious cleanup effort.” McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 329

(9th Cir. 1995) (emphasis omitted).

Second, CERCLA § 122(e)(6) provides that “no

potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by” EPA.

42 U.S.C.

§ 9622(e)(6). A “potentially responsible party” includes the “owner” of “any site or area where a hazardous substance has ... come to be located.” 42

U.S.C. §§ 9607(a)(1)-(2), 9601(9), 9601(20)(A). The

phrase is accordingly “broad” and extends to even

those landowners “not responsible for contamination.” United States v. Atl. Research Corp., 551 U.S.

128, 134 n.2, 136 (2007).

B. Factual Background

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owner at the Anaconda Smelter site, one of the country’s oldest and largest Superfund sites. The site itself is massive: it stretches across 300 square miles

of residential, commercial, recreational, and agricultural lands in western Montana. Over 9,000 people

live within the site’s borders. U.S. Census Bureau,

QuickFacts: Anaconda-Deer Lodge County, Montana,

goo.gl/aqJhCD.

From 1884 until 1980, the site was home to one

of the world’s largest copper smelters. Fueled by

Montana’s seemingly boundless natural resources,

Anaconda employed thousands of workers and produced a massive portion of the world’s copper supply,

wiring America’s homes and cities, powering Montana’s economy, and dominating state politics for almost a century.1

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successor to the company that operated the Anaconda Smelter site, has worked with EPA to remediate

environmental damage there. EPA designated the

site as a Superfund site in 1983, shortly after CERCLA’s enactment. At EPA’s direction, Atlantic RichmFME VOEFSUPPL FYUFOTJWF FYQFOTJWF BOE ZFBSTMPOH

investigations at the site to assess the extent of the

environmental damage. Two targets of the remediation are relevant here—arsenic and lead contamination in certain residential yards and pastures, and

Michael P. Malone et al., Montana: A History of Two Centuries

229-31, 324-27 (rev. ed. 1991); Laurie Mercier, Anaconda: Labor, Community, and Culture in Montana’s Smelter City 21-30

(2001); see also C.B. Glasscock, The War of the Copper Kings

(1935).

groundwater contamination throughout the site.

Through voluminous “Records of Decision,” EPA selected remedies for those units in the 1990s and has

continued to update them.2

EPA developed the Records of Decision over the

course of decades. These remedial orders total more

than 1,300 pages and consist of detailed soil and waUFSSFQPSUT UPQPHSBQIJDBMTVSWFZT TDJFOUJmDBOBMZTFT

and countless charts, tables, and graphs supporting

EPA’s decisions. The Records of Decision order AtMBOUJD3JDImFMEUPSFNPWFBOESFQMBDFVQUPJODIFT

of soil in yards with arsenic levels above 250 parts

per million (ppm) and treat water with arsenic levels

above 10 parts per billion (ppb). EPA, Community

Soils Operable Unit Record of Decision (CS ROD)

§§ 4.0, 9.1 (1996), goo.gl/FJ5VRc; EPA, Anaconda Regional Water, Waste, and Soils Operable Unit Record

of Decision Amendment (ARWWS ROD Amend.) § 3.1

(2011), goo.gl/gj1CZ3.

EPA determined that, due to hydrologic and geochemical conditions, targeting groundwater arsenic

levels of 10 ppb was technically impracticable.

ARWWS ROD Amend. § 6.4.4.1. As an alternative,

EPA implemented source-control measures, together

with domestic-well monitoring and replacement to

protect human health and the environment. Id.

§ 6.4.5. EPA painstakingly considered—and rejected—a host of alternative remedies. E.g., CS ROD

§§ 7.0, 8.0.

Members of the community, including residents,

participated in EPA’s multi-year decisionmaking process. EPA conducted notice-and-comment periods,

See EPA, Anaconda Co. Smelter: Reports and Documents,

goo.gl/pJ2rQL.

public meetings, and extensive outreach to citizens’

groups and state and local governments. E.g., CS

ROD Responsiveness Summary § 1.0; EPA, Anaconda Regional Water, Waste, and Soils Operable Unit

Record of Decision (ARWWS ROD) Responsiveness

Summary § 1.0 (1998), goo.gl/GG8aQC. EPA offered

lengthy responses to public comments and questions.

For example, after one plaintiff in this action objected that EPA’s 250 ppm arsenic standard was too

high, EPA responded that the standard was “based

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levels below 250 ppm “do not present a risk to residents.” ARWWS ROD Amend. Responsiveness Summary § 6.0.C. Since issuing the Records of Decision,

EPA has continued to solicit and respond to the

views of the community, and several plaintiffs have

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imately $470 million implementing EPA’s orders.

The company has remediated more than 340 residential properties and more than 11,500 acres of undeveloped land.4 And the company has already reUVSOFETJHOJmDBOUQPSUJPOTPGUIFTJUFUPQSPEVDUJWJUZ

including a world-class golf course designed by Jack

Nicklaus, and a wildlife area managed cooperatively

with the State.5

E.g., EPA, Fourth Five-Year Review Report: Anaconda Smelter National Priority List Site § 4 tbl.4-1 (2010), goo.gl/7g4RRk;

EPA, Fifth Five-Year Review Report: Anaconda Smelter Superfund Site § 5.2 tbl.5-1 (2015), goo.gl/7RLczh.

Fifth Five-Year Review, supra note 3, at ES-1.

Id. §§ 8.2.1, 10.1, 10.4; ARWWS ROD Responsiveness Summary § 1.2; see also EPA, Fourth Five-Year Review Report for

Silver Bow Creek/Butte Area Superfund Site § 3.2 (2016),

goo.gl/xCnT9e.

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fund sites, out of 1184 nationwide, “targeted for immediate, intense action” because Anaconda “reRVJS<FT> UJNFMZ SFTPMVUJPO PG TQFDJmD JTTVFT UP FYQF

dite cleanup and redevelopment efforts.”6 EPA projects a construction completion date of approximately

2025, followed by monitoring and maintenance work.

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the company will have cleaned up an additional

1,150 residential yards, revegetated 7,000 acres of

upland soil, and removed tens of millions of cubic

yards of hazardous smelting waste. App. 62a; Fifth

Five-Year Review, supra note 3, at tbls.10-1, 10-7.

C. Proceedings Below

In 2008, landowners within the Anaconda SuperGVOE TJUF TVFE "UMBOUJD 3JDImFME JO .POUBOB TUBUF

court, alleging that their properties were damaged by

pollution from the Smelter’s operation between 1884

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jections UPGPVSPVUPGUIFmWFUZQFTPGEBNBHFTQMBJO

tiffs sought, namely, loss of use and enjoyment of

property, diminution of value, incidental and consequential damages, and annoyance and discomfort.

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common law claim for “restoration” damages. Plaintiffs do not dispute, and the court below held, that to

establish a claim for restoration damages in Montana, plaintiffs must prove that they will actually use

the award for restoration, i.e., cleaning up the site.

App. 5a, 11a; App. 24a n.1 (McKinnon, J., dissenting).

EPA, Superfund Sites Targeted for Immediate, Intense Action

(last updated Apr. 16, 2018), goo.gl/YKa6EN; EPA, Superfund:

National Priorities List (NPL), goo.gl/ZFjAx1.

As the court explained, plaintiffs here allege that

restoration of their property requires “work in excess

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want to lower the arsenic level in the soil to 8 ppm,

i.e., 31 times lower than EPA’s level of 250 ppm. App.

72a. Plaintiffs also demand removal of 24 inches of

topsoil, at least 33% more than the maximum of 18

inches EPA thinks necessary. Id. And plaintiffs demand the construction of 19,000 feet of underground

trenches and barriers to change water chemistry

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trenches and barriers threaten to worsen environmental conditions by creating risks of surface and

ground water contamination. Id. at 72a-74a.

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arguing that the restoration claim constituted a

“challenge” to EPA’s remedy, and was thus jurisdicUJPOBMMZCBSSFECZ$&3$-"f"UMBOUJD3JDImFME

also argued that because landowners are always “potentially responsible parties,” or PRPs, CERCLA

§ 122(e)(6) barred plaintiffs from pursuing restoration damages without EPA authorization, which they

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CLA in all events preempted plaintiffs’ restoration

claim.

The United States tried to enter the case at the

state trial-court level, contending that the court

lacked jurisdiction “to consider Plaintiffs’ restoration

damages claim, because [CERCLA] expressly prohibits challenges to ongoing CERCLA response actions.”

U.S. Motion for Leave to File Amicus Brief ¶ 1, Dist.

Ct. Dkt. 429. The court did not permit the governNFOUUPmMFBCSJFGBOETFQBSBUFMZIFMEUIBU$&3$-"

permitted plaintiffs’ restoration-damages claim.

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sought a writ of supervisory control—available only

when “urgency or emergency factors exist making

the normal appeal process inadequate,” Mont. R. App.

P. 14(3)—which the Montana Supreme Court granted. App. 3a.

In an amicus brief to the Montana Supreme

Court, the United States argued that the trial court

misinterpreted § 113 and § 122(e)(6) and should have

found the restoration claim preempted. App. 63a65a. The United States explained that this claim

would “undermine EPA’s ability to implement its own

remedy.” App. 71a-75a. The government contended

that restoration claims would “discourage the type of

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enacting CERCLA,” because “[p]arties have less incentive to settle if they are subject to potentially

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71a.

The government also explained that plaintiffs’

remedies risked damaging the environment. App.

72a-75a. And it explained that the relief plaintiffs

sought constituted “the type of uncoordinated response that CERCLA … was designed to prevent,”

App. 78a, and would cause “delay of EPA’s cleanup efforts contrary to Congress’s intent,” App. 75a. In

short, the United States stated that CERCLA “does

not allow the landowners to use their state-court

lawsuit to supplement EPA’s selected response-action

cleanup levels.” Id.

Over a dissent, the Supreme Court of Montana

rejected all three of the company’s and the United

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court’s decision permitting plaintiffs to proceed to a

jury trial on their restoration claim. App. 18a.

First, the court held that the claim did not constitute a “challenge” barred by § 113(h). The court

did not dispute that plaintiffs sought restoration

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site. The court nonetheless held that a state tort

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selected by EPA is not a “challenge” unless it “would

stop, delay, or change the work EPA is doing.” App.

11a. The court stated that “any restoration will be

performed by the Property Owners themselves and

will not seek to force the EPA to do, or refrain from

doing, anything at the Site.” App. 13a. The court

stated that the plaintiffs were “simply asking to be

allowed to present their own plan to restore their

own private property to a jury of twelve Montanans

who will then assess the merits of that plan.” Id.

Second, the court held that § 122(e)(6)’s prohibition on unauthorized remedial actions by PRPs did

not bar relief, because plaintiffs were not PRPs. App.

16a-17a. The court reasoned that it was too late to

identify the plaintiffs as PRPs: “[T]hey have never

been treated as PRPs” since the property was designated as a Superfund site, and thus “the PRP horse

left the barn decades ago.” App. 16a. The court further reasoned that the lack of a prior judicial or

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parties exempted them from the statutory consequences of PRP status. App. 16a-17a. The court accordingly regarded it as irrelevant that EPA would

not authorize—and indeed vigorously opposed—the

work contemplated by plaintiffs’ remedy.

Third, the court concluded that CERCLA did not

preempt plaintiffs’ claims. App. 17a-18a. The court

held that savings clauses in CERCLA §§ 114(a) and

152(d), 42 U.S.C. §§ 9614(a), 9652(d), categorically

preserve plaintiffs’ ability to bring any state-law res-

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with CERCLA or an EPA-selected remedy. Id.

Justice McKinnon dissented, explaining that the

restoration claim constituted a challenge barred under § 113. Justice McKinnon observed that plaintiffs’

restoration plan, “which includes digging an 8,000foot trench for a groundwater wall and removing

650,000 tons of soil over a period of years, would

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CERCLA cleanup.” App. 23a-24a. She noted that

“the undisputed evidence shows the EPA rejected the

soil and groundwater remedies proposed by [plaintiffs] during the course of the EPA’s regulatory deliberations at the Smelter Site.” App. 39a.7

Justice McKinnon found the majority’s interpretation of § 113 “inconsistent with CERCLA and federal precedent.” App. 24a. “Given the substantial

weight of authority” interpreting § 113(h) to bar

claims like those made by plaintiffs, she declared

herself “at a loss to understand how this Court can

suggest, without any authority, that we ‘simply’ allow

‘a jury of twelve Montanans’ to ‘assess the merits of

[plaintiffs’] plan.’” App. 35a.

REASONS THE PETITION SHOULD BE GRANTED

The decision below permits state tort suits to obstruct complex and costly CERCLA cleanups undertaken at EPA’s direction. The court reached this result by ignoring clear federal-law obstacles, not to

mention the position of the relevant expert federal

agency. Certiorari is warranted for three reasons.

The majority and dissent below focused on plaintiffs’ plans to

dig an 8,000-foot trench. Plaintiffs also propose to dig 11,000

feet of other trenches, for a total of 19,000 feet. Pls.’ Supp. Expert Witness Discl. at 4, Dist. Ct. Dkt. 574 (R. at APP-0905).

First, the decision below splits with decisions interpreting CERCLA by multiple federal courts of appeals, including the court of appeals covering Montana. The three questions presented are squarely

presented and outcome-determinative. Second, the

decision is wrong, and it disregards CERCLA’s plain

text and purpose of avoiding costly litigation and expediting cleanups. Third, the questions presented

address important and recurring issues that should

be resolved by this Court.

The decision of the Montana Supreme Court upends decades of remediation and delicate negotiation

and cooperation among numerous stakeholders over

how best to clean up one of the country’s oldest and

largest Superfund sites. Companies will not willingly enter into settlements and consent decrees with

EPA to conduct remediation at a Superfund site if

they are simultaneously subject to state-law tort

suits that require diametrically different remediation

steps. The decision below is a case in point: it exposFT"UMBOUJD3JDImFMEUPTVEEFOBOEVOFYQFDUFEMJBCJM

ities in the tens of millions of dollars. This is so even

though plaintiffs’ proposed remedy would be wasteful

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undo the remedies EPA ordered it to undertake. In

other words, not only does the decision frustrate a

cleanup that is currently proceeding under federal

law, it means that much of the last 35 years of work

and the next seven years of work by EPA would be

for naught.

The decision also invites thousands more landowners across the State to sue to supplant EPA’s

remedy or to implement remedial efforts themselves

without EPA’s authorization. And the decision provides a roadmap for other states to bless similar theories of recovery that run roughshod over CERCLA’s

calibrated scheme. Given the sheer number of CERCLA sites in Montana, their great size and complex

cleanup efforts, and the many millions of dollars and

thousands of hours that EPA, parties at the sites,

and the surrounding communities have invested in

remediation over decades, the decision plainly warrants this Court’s review.

The Montana Supreme Court’s Interpretation of

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Courts

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Regarding What Constitutes a “Challenge”

Under § 113(h)

The Montana Supreme Court held that “fundamentally, a § 113(h) challenge must actively interfere

with EPA’s work, as when the relief sought would

stop, delay, or change the work EPA is doing.” App.

11a. The court deemed it irrelevant that plaintiffs’

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EPA ordered and that is currently underway. Id.

The court failed even to acknowledge EPA’s view that

the proposed remedy would undermine its decadeslong efforts and could even worsen environmental

conditions and risks to human health. App. 71a-75a.

All that mattered to the state court was that plaintiffs’ remedy could be implemented by the owners

themselves after "UMBOUJD3JDImFMEmOJTIFEUIF&1"

ordered cleanup, so that EPA would not need to itself

“alter” its own plan. App. 13a. The court’s interpreUBUJPOPGUIFTUBUVUPSZUFSNiDIBMMFOHFwDPOnJDUTXJUI

the decisions of six other federal courts of appeals.

1. Start with the Ninth Circuit, where Montana

sits. In the Ninth Circuit, “[a]n action constitutes a

challenge to a CERCLA cleanup if it is related to the

goals of the cleanup.” ARCO Envtl. Remediation,

L.L.C. v. Dep’t of Health & Envtl. Quality of Mont.,

213 F.3d 1108, 1115 (9th Cir. 2000) (quotation marks

omitted). The Ninth Circuit has thus held that

§ 113(h) bars any situation “where the EPA works

out a plan, and a ... suit seeks to improve on the

CERCLA cleanup because it wants more.” Pakootas

v. Teck Cominco Metals, Ltd., 646 F.3d 1214, 1220

(9th Cir. 2011) (quotation marks omitted); McClellan

Ecological Seepage Situation v. Perry, 47 F.3d 325,

330 (9th Cir. 1995). “[D]isputes, including those over

what measures actually are necessary to clean-up

the site and remove the hazard, may not be brought

while the cleanup is in progress.” McClellan, 47 F.3d

at 329 (internal quotation omitted).

The state court’s construction of § 113(h) was

outcome-determinative. Plaintiffs’ claim for restoration damages would have been barred under the

Ninth Circuit’s interpretation of § 113(h). Put simply, “EPA work[ed] out a plan,” and plaintiffs “want[]

more.” Pakootas, 646 F.3d at 1220. Neither the court

below nor the plaintiffs dispute that the restoration

claims seeks a different remedy than the one EPA selected. Nor could they. As EPA concluded, “aspects of

[the plaintiffs’] plans are a dramatic departure from

EPA’s ROD requirements.” App. 72a. EPA explained

that plaintiffs would “apply a soil action level of 8

ppm for arsenic rather than the 250 ppm level set by

EPA”; would “excavat[e] to two feet [of topsoil] rather

than EPA’s chosen depth of 18 inches within residential areas”; would “transport[] the excavated soil to

Missoula or Spokane rather than to local repositories, as required by EPA”; and would “construct[] a

series of underground trenches and barriers for capturing and treating shallow groundwater.” Id. The

dissent below, applying the Ninth Circuit’s test, thus

concluded that plaintiffs’ “restoration plan … would

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CERCLA cleanup,” and consequently is barred as a

“challenge” under § 113(h). App. 23a-24a.

Like the Ninth Circuit, the Third, Seventh,

Tenth, Eleventh, and D.C. Circuits have held that a

challenge under § 113(h) encompasses any suit that

“calls into question” or “impacts” EPA’s ordered

cleanup. Thus, the Third Circuit holds that § 113(h)

bars suits contesting “what measures actually are

necessary to clean-up the site and remove the hazard.” Boarhead Corp. v. Erickson, 923 F. 2d 1011,

1019 (3rd Cir. 1991). The Seventh and D.C. Circuits

hold that § 113(h) bars any suit that would “impact

the remedial action selected.” El Paso Nat. Gas Co. v.

United States, 750 F.3d 863, 880 (D.C. Cir. 2014); Pollack v. U.S. Dep’t of Def., 507 F.3d 522, 526-27 (7th

Cir. 2007); Schalk v. Reilly, 900 F.2d 1091, 1097 (7th

Cir. 1990). The Tenth and Eleventh Circuits hold

that no suit may be brought that “calls into question”

EPA’s chosen remedy. Cannon v. Gates, 538 F.3d

1328, 1335 (10th Cir. 2008); New Mexico v. Gen. Elec.

Co., 467 F.3d 1223, 1249 (10th Cir. 2006); Broward

Gardens Tenants Ass’n v. EPA, 311 F.3d 1066, 1073

(11th Cir. 2002).

These circuits have adopted broad functional

tests for determining what constitutes a “challenge”

under § 113(h). Their tests do not depend on who is

implementing the remedy or whether the terms of

the EPA order would change. Rather, these courts

focus on what is happening at the site. In contrast,

the Montana Supreme Court adopted a counterintuitive and highly formalistic test, requiring the plaintiffs’ remedy actually to alter the terms of the EPA

order or to force EPA to implement those changed

terms.

2. The court below found the circuit precedents

“inapposite” because they purportedly did not involve

claims by “private property owners, against another

private party, seeking money damages for the purpose of restoring their own private property.” App.

12a. That is incorrect. The Ninth Circuit has explained that the “prohibitory language of Section

113(h) does not distinguish between plaintiffs,”

McClellan, 47 F.3d at 328, and applied its interpretation to preclude suits between two private parties

seeking money damages, Pakootas, 646 F.3d at 1214.

Moreover, the Tenth Circuit barred a common-law

tort suit by New Mexico against a private party, expressly rejecting the notion that § 113(h)’s prohibitions exempted suits for “money damages.” New

Mexico, 467 F.3d at 1249-50. The Tenth Circuit concluded that § 113(h) does not permit private parties

to be “held liable for monetary damages because they

are complying with an EPA-ordered remedy which

[they] have no power to alter without prior EPA approval.” Id.

The court below thus relied on a distinction

without a difference. While some of the cases involve

suits against EPA rather than against private parties, none of them suggested that the question mattered, and the circuits to consider a suit for money

damages against a private party hold that § 113(h)

applies. Plaintiffs’ challenge to EPA’s cleanup remedy obviously “impacts” and “calls into question” EPA’s

remedy, i.e., the controlling standard in the Ninth

and all the other circuits. Plaintiffs’ restoration

claims are a brazen assault on EPA’s remedial efforts

that no other court would permit.

B. 5IF %FDJTJPO $POnJDUT XJUI 0UIFS $PVSUT

Regarding Who Is a “Potentially Responsible Party” Barred from Non-EPAAuthorized Cleanups

The decision below creates a second split on who

is a “potentially responsible party,” or “PRP,” barred

under CERCLA § 122(e)(6) from conducting unilateral cleanups at Superfund sites without EPA’s approval.

Once EPA orders or initiates remedial activity at

a Superfund site, § 122(e)(6) bars any “potentially responsible party” from “undertak[ing] any remedial

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to include any “owner or operator” of property within

a Superfund site, without the need for any designation or prior determination. 42 U.S.C. § 9607(a)(1);

see Atl. Research Corp., 551 U.S. at 131-32. Section

122(e)(6) naturally applies to all landowners, because

site owners or operators are the entities most likely

to undertake unauthorized remedial actions. The

Montana Supreme Court’s holding that plaintiffs are

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United States and the uniform consensus of every

federal court of appeals to have addressed the question. As the United States told the court below, any

current property owner is automatically a PRP, regardless of whether they were “somehow ‘declared

PRPs’” and “regardless of whether they have defenses that could absolve them of liability.” App. 79a-80a.

Because plaintiffs are property owners at the Superfund site, they are PRPs, full stop. Id.

Likewise, the courts of appeals agree that PRP

status under CERCLA occurs solely by reference to

the party’s relationship to a hazardous waste site;

fault is irrelevant. Plaintiffs would be considered

PRPs at least in the Second, Third, Seventh, and

Ninth Circuits. The Ninth Circuit has explained, for

example, that any owner of property at the time of

the cleanup is a PRP. Cal. Dep’t of Toxic Substances

Control v. Hearthside Residential Corp., 613 F.3d 910,

914-16 (9th Cir. 2010). The Seventh Circuit has held

that a landowner was a “PRP for CERCLA purposes

… based solely on its ownership of the [hazardous

waste] site.” Rumpke of Ind., Inc. v. Cummins Engine Co., 107 F.3d 1235, 1239-42 (7th Cir. 1997). The

Second Circuit likewise held that multiple “property

owners” were PRPs simply by dint of their ownership

status, “regardless of whether or not they deposited

[hazardous waste].” Niagara Mohawk Power Corp. v.

Chevron U.S.A., Inc., 596 F.3d 112, 120 (2d Cir. 2010).

As the Third Circuit has explained, “in the case of a

current operator … [one] is not even required to

show that the [PRP] was an operator when an active

‘disposal’ of hazardous waste occurred.” Litgo N.J.

Inc. v. Comm’r N.J. Dep’t of Envtl. Prot., 725 F.3d 369,

381 (3d Cir. 2013).

The Montana Supreme Court did not disagree

that plaintiffs are owners under the plain terms of

§ 9607(a)(1). The court rather “decline[d]” to “treat

the [plaintiffs] as PRPs” because the remediation had

been occurring for many years and plaintiffs had not

previously been “designated” as PRPs by a court or

EPA. App. 16a-17a. But the federal appellate decisions just cited reject this extra-statutory exception.

The Seventh Circuit held that a current owner was a

PRP in 1997 even though it was “not a party that is

now or ever has been subject to a civil action under

CERCLA” or “any administrative cleanup order from

the … EPA,” and though CERCLA remediation had

been occurring since 1982. Rumpke, 107 F.3d at

1239. The Second Circuit recognized parties as PRPs

18 years after remediation began, even though they

had never been previously “designated” as PRPs by

the courts or EPA. Niagara Mohawk, 596 F.3d at

118, 135-36. Likewise, the Third Circuit held that

former owners of a polluted parcel in New Jersey

were PRPs more than 15 years after cleanup efforts

began, and despite the lack of a prior “designation.”

Litgo, 725 F.3d at 375-76, 379-85.

"TGBSBT"UMBOUJD3JDImFMEJTBXBSF OPDPVSUCF

sides the one below has ever suggested that landowners can conduct remediation efforts at Superfund

sites without EPA approval. No other court has engrafted onto the statute exemptions from PRP status

akin to those the Montana Supreme Court invented

here. The holding was outcome determinative and

constitutes a radical departure from an established

consensus among the circuits. The decision now

gives a green light to unilateral remediation by landowners even during an ongoing EPA-ordered cleanup.

C. 5IF %FDJTJPO $POnJDUT XJUI 0UIFS $PVSUT

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emption to CERCLA

The decision below creates yet a third split, on

the applicability of conflict preemption in the CERCLA context. This is a classic case of conflict

preemption: the remedy plaintiffs seek conflicts with

the CERCLA cleanup that EPA has ordered. The

United States accordingly argued that allowing the

claim for restoration damages to proceed triggers

impossibility preemption principles and would

“stand[] as an obstacle to the accomplishment and

execution of the full purposes and objectives of Con-

gress.” App. 77a (quoting Hines v. Davidowitz, 312

U.S. 52, 67 (1941)).

Federal courts of appeals have recognized that

CERCLA preempts state environmental laws, including common-law remedies, where they deprive EPA

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lems,” United States v. City & Cty. of Denver, 100 F.3d

1509, 1512-13 (10th Cir. 1996), “dramatically restrict[] the range of options available to the EPA,” id.,

conflict with the terms of an EPA consent decree,

United States v. Akzo Coatings of Am., Inc., 949 F.2d

1409, 1458 (6th Cir. 1991), or would “create a path

around the statutory settlement scheme,” In re Reading Co., 115 F.3d 1111, 1117 (3d Cir. 1997).

At least three circuits, including the Ninth, hold

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standing [CERCLA’s] savings clauses.” Fireman’s

Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 952 n.26

(9th Cir. 2002). Discussing 42 U.S.C. §§ 9614(a) and

9652(d), the Ninth Circuit explained that those

clauses “make it clear that CERCLA does not

preempt themFMEof hazardous waste cleanup,” but do

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CERCLA.” Fireman’s Fund, 302 F.3d at 952 n.26.

The Ninth Circuit then held that various local laws

were preempted. Id. at 943, 949, 952. The Tenth

$JSDVJUIPMETUIBUiDPOnJDUQSFFNQUJPOwJTiBOBGmSN

ative defense available to [CERCLA defendants]

notwithstanding” §§ 9614(a) and 9652(d). New Mexico, 467 F.3d at 1244. Likewise, the Seventh Circuit

holds that § 9652(d) “merely … nix[es] an inference

that [CERCLA] is intended to be the exclusive remeEZ w CVU EPFT OPU iBMMPX TQFDJmD QSPWJTJPOT PG <$&3

$-">UPCFOVMMJmFEwPMC, Inc. v. Sherwin-Williams

Co., 151 F.3d 610, 618 (7th Cir. 1998). “CERCLA’s

savings clause must not be used to gut provisions of

CERCLA.” Id.

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below held that CERCLA’s savings clauses categorically save all state common-law claims from preemption, no matter how much the remedy sought conflicts with EPA’s orders. App. 17a-18a. The court

accordingly did not even engage in the conflict

preemption analysis. Id. This Court should grant

certiorari to resolve the split with the Seventh,

Ninth, and Tenth Circuits. Moreover, the conflict

preemption question—and the extent to which the

savings clauses negate preemption—is inextricably

intertwined with the statutory questions presented,

and granting on all three issues would give this

Court the greatest flexibility in resolving this case.

***

This case is an ideal vehicle to address all three

questions. All three questions are squarely presented and outcome determinative; resolving any one of

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dismissal of plaintiffs’ restoration claims. Moreover,

as the sheer number of cases cited above demonstrates, the decision below raises important and recurring questions concerning one of the most consequential federal environmental statutes. Especially

troubling, the Montana Supreme Court split on all

three questions presented with the Ninth Circuit,

which includes Montana. Plaintiffs in Montana now

have every incentive to forum shop. Only this Court

can restore uniformity, both within Montana and nationally.

II. The Decision Is Wrong

The Montana Supreme Court’s decision is inconsistent with CERCLA’s text, structure, and design.

The United States agrees. Taken together, the

court’s three holdings eviscerate the statutory and

constitutional protections that prevent interference

with EPA-ordered cleanups.

1. Section 113 jurisdictionally bars restoration

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cause such claims directly challenge EPA’s selected

remedy. Section 113(b) gives federal courts “exclusive original jurisdiction over all controversies arising under [CERCLA].” 42 U.S.C. § 9613(b). Section

113(h), in turn, bars federal courts from reviewing

“any challenges” to EPA’s chosen remedy. 42 U.S.C.

§ 9613(h) (“No Federal court shall have jurisdiction

… to review any challenges” to any EPA removal or

remedial action). The court below (App. 9a) noted in

passing § 113(h)’s reference to federal courts, but as

the Ninth Circuit has long held, §§ 113(b) and (h),

when read together, “deprive the Montana state

court[s] of jurisdiction” over any claim that “constitute[s] a challenge to a CERCLA cleanup.” ARCO

Envtl. Remediation, 213 F.3d at 1115; accord Fort

Ord Toxics Project, Inc. v. Cal. EPA, 189 F.3d 828, 832

(9th Cir. 1999). For this reason, the United States

has concluded that “state courts, like federal courts,

lack subject matter jurisdiction to decide claims like

the landowners’ restoration damages claim.” App.

67a n.2.

Plaintiffs’ restoration claim is a quintessential

“challenge” to EPA’s remedial orders under § 113(h).

To “challenge” is “to object or except to; … to call or

put in question; to put into dispute; to render doubtful.” Black’s Law Dictionary 209 (5th ed. 1979). As

the United States argued below and multiple circuits

hold, any state-law claim that impacts EPA’s remedy

at a CERCLA site constitutes an impermissible

“challenge.” Supra pp. 15-16. This Court has repeatedly held that CERCLA’s terms should be afforded their ordinary meaning. See Burlington, 556

U.S. at 610-11; Bestfoods, 524 U.S. at 66.

The Montana Supreme Court’s contrary holding

disregards § 113(h)’s plain text. Plaintiffs seek to dig

up soil that EPA wants in the ground. App. 72a; App.

36a-37a (McKinnon, J., dissenting). The United

States described plaintiffs’ plans as a “dramatic departure from EPA’s” plans. App. 72a. If plaintiffs’

restoration claim does not “object” to or “put in question” EPA’s remedy, nothing does.

The court below held that § 113(h) did not apply

because the remedy could be implemented after

EPA’s cleanup was conducted, but offered no textual

or other basis for creating such an exception. A challenge is a challenge. And as for the court’s observation that plaintiffs rather than EPA would implement the restoration, App. 12a, the statute bars “any

challenges.” 42 U.S.C. § 9613(h) (emphasis added).

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litigants could simply sue to force EPA’s privatesector partner to fund a private effort to undo EPA’s

work. Moreover, this suit implicates all of the policies that undergird § 113. EPA can hardly superintend complex cleanups at sites across the country

while juries second-guess the agency’s judgment at

every turn.

2. The court’s interpretation of § 122(e)(6) was

equally erroneous, as the United States agrees.

Plaintiffs are barred from bringing their claims because they are “potentially responsible part[ies]” and

their proposed “remedial action has [not] been authorized by” EPA. 42 U.S.C. § 9622(e)(6). Plaintiffs

never sought EPA approval, and the United States

has stated it is “unlikely to approve the cleanup proposed by the [plaintiffs] because that approach is inconsistent with EPA’s.” App. 79a.

The court’s holding that plaintiffs were not PRPs

XBTXSPOH$&3$-"EFmOFT131TUPJODMVEF BTSFM

evant, the “owner” of “any site or area where a hazardous substance has … come to be located.” 42

U.S.C. §§ 9607(a)(1)-(2), 9601(9), 9601(20)(A). The

Anaconda Smelter Superfund site is indisputably

such a site. And it does not matter whether plaintiffs themselves contributed to the hazard. Atl. Research Corp., 551 U.S. at 136. The term “PRP” in

CERCLA includes “everyone who is potentially responsible for hazardous-waste contamination,”

Bestfoods, 524 U.S. at 56 n.1 (emphasis added), regardless of defenses they may have to any ultimate

liability. The term serves many statutory functions

other than assigning liability—here, defining a category of persons who are barred from conducting

EPA-unauthorized remediation.

The court “decline[d]” to treat as PRPs owners

who met the statutory terms but had not been previously “designat[ed]” as PRPs by EPA or a court in

one of three ways. App. 15a-17a. But no such exemption or prior “designation” requirement appears

in the text or in any of the cases the court cited, and

the language of § 122(e)(6) and § 107(a)(1) is not discretionary.

Nor is there any “horse left the barn” exception

to PRP status, App. 16a, as the absence of any citation in the decision below demonstrates. The court

below pointed to the statute of limitations on private

suits against PRPs for recovery of cleanup costs, id.,

but § 122(e)(6) bars remedial action by PRPs without

EPA authorization. CERCLA imposes no statute of

limitations on that prohibition, nor would such a limitation make sense. And the fact that Atlantic Richfield and EPA did not seek contribution from plaintiffs or otherwise treat them as PRPs until plaintiffs

filed this lawsuit, App. 16a, is irrelevant. Their PRP

status only became relevant because of this lawsuit.

That plaintiffs were never asked to contribute financially to the remediation in the past does not mean

they should be allowed to undermine it now.

The Montana Supreme Court’s cramped reading

of the term PRP would drain § 122(e)(6) of its central

purpose. Section 122(e)(6) is designed “to avoid situations in which the PRP begins work at a site that

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remedy should be or exacerbates the problem.” 132

Cong. Rec. 28,430 (1986) (statement of Sen. Mitchell).

And the type of PRP most plausibly positioned to do

such a thing is, of course, current property owners,

the very category the Montana court excised by judiDJBMmBU

The consequences of the court’s holding extend

well beyond allowing restoration-damage claims.

This holding allows any property owner on any of

Montana’s 17 Superfund sites to immediately start

digging trenches, removing soil, and treating contamination—on their own. Congress obviously did not

intend to allow landowners to bring in their own

bulldozers smack in the middle of EPA-ordered

cleanups.

3. Plaintiffs’ remedy is preempted under ordinary

JNQMJFEDPOnJDUQSFFNQUJPOQSJODJQMFT XIJDIJODMVEF

both impossibility and obstacle preemption. See Ari-

zona v. United States, 567 U.S. 387, 398-99 (2012).

This is a paradigmatic case. The United States has

determined that plaintiffs’ restoration plan “connJDU<T> XJUI &1"Tw SFNFEJBM QMBO BOE iDPVME NBLF

<&1"T> SFNFEJFT EJGmDVMU PS JNQPTTJCMF UP BDIJFWFw

App. 78a.

First, compliance with plaintiffs’ restoration

damages remedy and the mandates of CERCLA is an

“impossibility.” Arizona, 567 U.S. at 399. Plaintiffs’

restoration plan directly contradicts EPA’s plan. The

government articulated four examples: arsenic action

levels for treatment (250 versus 8 ppm); depth of soil

removal (18 versus 24 inches); location of soil removal (local versus hundreds of miles away); and construction of underground barriers that change

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sands of feet). App. 72a, 74a. Nor is it relevant that

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BGUFS &1" BOE "UMBOUJD 3JDImFME iQVMM VQ TUBLFTw

App. 14a. Plaintiffs can prevail under state law only

by persuading a jury that the cleanup EPA ordered

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3JDImFME DPVME BWPJE MJBCJMJUZ JT CZ DPOEVDUJOH B

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violation of EPA’s orders.

Second, plaintiffs’ claim “stands as an obstacle to

the accomplishment and execution” of CERCLA’s

purposes. Arizona, 567 U.S. at 399. Again as the

United States urged, App. 77a-78a, granting a restoration-damages remedy would usurp EPA’s exclusive

statutory authority to select and implement the appropriate remedy, Key Tronic Corp. v. United States,

511 U.S. 809, 814 (1994); 42 U.S.C. §§ 9604, 9617, and

would thwart CERCLA’s central objectives of promotJOH TFUUMFNFOU BOE QSFWFOUJOH NVMUJQMF DPOnJDUJOH

remedies at a Superfund site.

The court below essentially ignored the government’s carefully considered views. The court observed that the government stated at oral argument

UIBU iTPNFw VOJEFOUJmFE iBTQFDUTw PG QMBJOUJGGT QMBO

would not constitute a “challenge.” App. 14a. But

the court ignored the government’s repeated, strenuous representations during argument and throughout its brief that multiple aspects of plaintiffs’ plan

wouldEJSFDUMZDPOnJDUXJUI&1"TSFNFEJBUJPO"QQ

71a-80a. Instead, the court concluded that CERCLA’s savings clauses, 42 U.S.C. §§ 9614(a), 9652(d),

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That was wrong. This Court has “repeatedly decline[d] to give broad effect to saving clauses where

doing so would upset the careful regulatory scheme

established by federal law.’” Geier v. Am. Honda Motor Co., 529 U.S. 861, 870 (2000) (quotation marks

omitted). A “saving clause” does “not bar the ordiOBSZXPSLJOHPGDPOnJDUQSFFNQUJPOQSJODJQMFTwId.

at 869; accord Buckman Co. v. Plaintiffs’ Legal

Comm., 531 U.S. 341, 352 (2001). That is why multiple circuits have held, in line with the ordinary rule,

UIBU$&3$-"TTBWJOHTDMBVTFTSVMFPVUmFMECVUOPU

DPOnJDU QSFFNQUJPO Supra pp. 22-23. CERCLA’s

savings clauses preserve state-law causes of action

that complement CERCLA, and indeed, Atlantic

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GPVSPVUPGmWFUZQFTPGEBNBHFTDMBJNFEJOUIJTDBTF

But where, as here, a common-law restoration remedy would “gut [other] provisions of CERCLA,” PMC,

Inc., 151 F.3d at 618, it is preempted.

III. The Questions

Important

Presented

Are

Immensely

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sions of the Ninth Circuit and other federal appellate

courts and would merit review for that reason alone.

But the decision also strips away CERCLA’s central

protections against interference with EPA-ordered

remedies, invites damage to the environment, upsets

longstanding and massive reliance interests, and

threatens to impose immense costs on private companies that for decades have been working side by

side with EPA to remediate the nation’s most hazardous waste sites.

1. A decision that threatens to frustrate a federal

agency’s implementation of an important federal

scheme warrants this Court’s review. Congress enacted CERCLA to “promote the timely cleanup of

hazardous waste sites,” Burlington, 556 U.S. at 602

(quotations omitted), to centralize decisionmaking in

expert agencies like EPA, Akzo Coatings, 949 F.2d at

BOE UP QSPNPUF mOBMJUZ CZ iFODPVSBH<JOH>

settlement,” Chubb Custom Ins. Co. v. Space

Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013).

The United States told the court below that plaintiffs’ restoration claims frustrate each of those objectives. App. 77a-78a. A decision so cavalierly ignoring

the views of the government warrants this Court’s

review.

Sections 113(h) and 122(e)(6) play a crucial role

in protecting EPA-ordered remedial action from interference and delay. “The limits § 113(h) imposes

on a district court’s jurisdiction are an integral part

of [CERCLA’s] overall goal,” Boarhead, 923 F.2d at

1019, and § 122(e)(6) is part of “the cornerstone of

[the modern CERCLA] settlement process,” Allied

Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp.

1100, 1109 (N.D. Ill. 1988).

The Montana Supreme Court opened up massive

loopholes in both provisions, while simultaneously

IPMEJOH UIBU PSEJOBSZ QSJODJQMFT PG DPOnJDU QSFFNQ

tion do not apply under CERCLA. Montana’s outlier

decision turns Superfund cleanups into free-for-alls,

where different groups of landowners not only may

ask juries to decide for themselves whether EPA’s

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own remediations without consulting EPA. The deciTJPOUIVTQFSNJUTNVMUJQMF DPOnJDUJOH VODPPSEJOBUFE

cleanups at the behest of thousands of individual

landowners across hundreds of miles of Montana Superfund sites.

Beyond that, absent this Court’s intervention,

the Montana Supreme Court’s decision will undermine the ability of EPA and companies to remediate

Superfund sites. In many cases, companies have enUFSFEJOUPDPNQSFIFOTJWFBOEDPTUMZSFNFEZEFmOJOH

consent decrees with EPA that took years to negotiate, involving remedies that take years to implement.

The United States put it bluntly: “The main incentive

for a responsible party to enter into a CERCLA conTFOU EFDSFF XJUI UIF 6OJUFE 4UBUFT JT UP mY UIF QBS

ty’s cleanup obligations. Parties have less incentive

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or additional cleanup obligations.” App. 71a. The deDJTJPO UIVT iEJTDPVSBHF<T> UIF UZQF PG mOBM TFUUMF

ments that Congress sought to foster in enacting

CERCLA.” Id.

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USBUJWF "UMBOUJD 3JDImFME IBT XPSLFE DPPQFSBUJWFMZ

with EPA at Montana Superfund sites for over 35

years, complying with dozens of EPA requests to im-

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tering into six consent decrees to fund and implement EPA’s selected remedies in the Upper Clark

Fork River Basin Superfund area. The company’s

primary incentive to enter into agreements like

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Montana Supreme Court’s decision is allowed to

stand.

2. The decision below also seriously threatens

the environment. It is not just that plaintiffs’ plans

would “divert cleanup resources from the implementation of EPA’s plan.” App. 72a-73a. At every stage

of the administrative and judicial proceedings, EPA

has rejected plaintiffs’ plans as infeasible and downright dangerous. In EPA’s expert view, for example,

plaintiffs’ proposed 8,000-foot-long underground barrier and the various shorter barriers “could change

UIF HSPVOEXBUFS nPX JO VOQSFEJDUBCMF XBZT w BOE

could “unintentionally contaminate groundwater and

surface water.” App. 74a. EPA expressly rejected

very similar proposals. App. 62a-63a. Likewise,

plaintiffs propose to “[t]ear[] up” soil that EPA orEFSFEDBQQFEBOECBDLmMMFE XIJDIiDPVMEFYQPTFUIF

neighborhood to an increased risk of dust transfer or

contaminant ingestion.” App. 72a-73a. “Offsite disposal of excavated soil would also increase the risk of

dust transfer or contaminant ingestion, as well as

the safety of the traveling public.” App. 73a. As EPA

explained, “Congress’s approach, requiring one coordinated cleanup, helps ensure a protective remedy,

minimizes these types of risks, and avoids ad hoc addition of potentially competing cleanup measures.”

App. 74a.

But under the holding below, newly empowered

plaintiffs may substitute their own plans for EPA’s

remedy or tear up work that has already been com-

pleted, even if those plans are environmentally counterproductive. And they can do all this without so

much as a heads-up to EPA. The question whether

federal law permits private citizens to impose their

own remedial judgment in a way that EPA says will

risk environmental damage clearly merits this

Court’s review. Over 9,000 people live within the

Anaconda site’s borders and will face the consequences of environmental damage wrought by illBEWJTFE SFNFEJBUJPO TUFQT UIBU DPOnJDU XJUI UIPTF

ordered by EPA.

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would be substantial and unexpected, and this

Court’s intervention is necessary to provide meaningful relief. This Court regularly grants certiorari in

cases where a lower court has frustrated the petitioner’s longstanding reliance on agency rules or settled practice. E.g., Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016). As noted, Atlantic

3JDImFME IBT DPPQFSBUFE XJUI &1" GPS ZFBST BOE

has already spent approximately $470 million remediating the site. This progress has been possible beDBVTF"UMBOUJD 3JDImFME BOE &1" IBWF SFMJFE PO UIF

mOBMJUZ BOE EVSBCJMJUZ PG UIF SFDPSET PG EFDJTJPO BOE

other administrative orders that govern cleanup

work at the site. That reliance will be frustrated if

the Montana Supreme Court’s decision is allowed to

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good faith with EPA, could be required to pay many

millions of dollars undoing that same work. See Pls.’

Supp. Expert Witness Discl., supra note 7, at 4-5

(plaintiffs’ expert estimating a cost of between $50

million and $57.6 million to “restore” about 70 residential properties).

4. The consequences of the decision below extend

far beyond this case, far beyond the Anaconda SmelUFSTJUF BOEGBSCFZPOE"UMBOUJD3JDImFME

Superfund sites are located in some of the most

densely populated regions in the country. EPA, Superfund National Priorities List (NPL) Where You

Live Map, goo.gl/eT92CR. Montana itself has 17 Superfund sites totaling many hundreds of square

miles, located within or near some of Montana’s largest cities, including sites in or near the cities of

Billings, Missoula, Helena, Great Falls, Bozeman,

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$1.4 billion to address Superfund obligations in MonUBOB BOE JT OPU ZFU mOJTIFE XJUI JUT XPSL 5IF

Smelter site itself is contiguous with three other

massive sites; together they form the largest Superfund complex in the country, spanning roughly 500

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expected to exceed one billion dollars. Joe Griffen &

David Williams, Ready, Fire, Aim: Daines and Pruitt

to Fix Berkeley Pit Disaster, Missoulian (Mar. 17,

2017), goo.gl/8Kth32. Over 50,000 Montanans live or

own property within the borders of a Superfund site.

And as many as 250,000 people—nearly a quarter of

the State’s total population—live in close proximity

to a site.

EPA, Superfund Sites in Region 8,

goo.gl/psbrnB; U.S. Census Bureau, QuickFacts,

goo.gl/FCALki.

Left undisturbed, the decision below will undermine EPA cleanups across the entire State and

would provide a troubling roadmap for landowners

and courts throughout the country. As EPA noted below, “recognizing this claim could lead to more claims

affecting hundreds of thousands of additional contaminated acres” in Montana alone. App. 73a. This

most immediately includes the roughly 9,000 other

individuals residing at Anaconda, who could demand

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plan, but with the action sought by plaintiffs who

sued the time before. Indeed, following issuance of

the court’s opinion, plaintiffs’ lawyers began soliciting new plaintiffs to join this lawsuit, and they have

publicly discussed bringing another suit on behalf of

Anaconda residents. See Kathie R. Miller, Attorneys

Discuss Possibility of Lawsuit Against ARCo for Anaconda Residents, Anaconda Leader, Jan. 24, 2018,

at 1.

Plaintiffs at other sites will surely follow suit if

this Court does not step in. EPA will be unable to

craft remediation plans with any assurance that

some property owner will not tear it all up. These

suits have the potential to cause greater harm to the

environment, at great risk to hundreds of thousands

of citizens of Montana alone. And even if no more

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immediately undo EPA’s remediation by conducting

their own unilateral work at sites without obtaining

EPA’s approval.

The potential burdens on EPA and its private

remediation partners are enormous. On average,

remediating a Superfund site costs tens of millions of

dollars, and, at larger sites, that number soars to

nearly $200,000,000.8 Mining sites—and 12 of Montana’s sites are mining sites—are the most expensive, typically costing three times more than the

next-most-expensive sites, manufacturing sites.9 It

Katherine N. Probst, Superfund 2017: Cleanup Accomplishments and the Challenges Ahead 5 & n.12 (2017), goo.gl/

Lm4Dqi.

GAO, Superfund: Litigation Has Decreased and EPA Needs

Better Information on Site Cleanup and Cost Issues to Estimate

UBLFT POBWFSBHF UFOZFBSTGSPNXIFOBTJUFJTmSTU

proposed as a Superfund site to when it is deemed

“construction complete,” and almost 15 years for

more expensive cleanups.10 And even after construction is complete, fully executing EPA’s remediation

plans often requires many more years—and sometimes decades—of additional work, maintenance, and

monitoring.11

The decision below threatens every company

that has worked in good faith with EPA with new

lawsuits requiring these companies to spend tens or

hundreds of millions of dollars undoing the work the

companies have already put in. This Court regularly

reviews decisions of the Montana Supreme Court

that raise important questions of federal law. See

BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017); Am.

Tradition P’ship v. Bullock, 567 U.S. 516 (2012); PPL

Mont., LLC v. Montana, 565 U.S. 576 (2012). It

should also do so here.

Future Program Funding Requirements, GAO-09-656 at 58

tbl.11 (2009), goo.gl/2TktVW.

Id. at 70 tbl.15.

Probst, supra note 8, at 15.

CONCLUSION

The Court should grant certiorari.

Respectfully submitted,

JONATHAN W. RAUCHWAY

SHANNON W. STEVENSON

DAVIS GRAHAM &

STUBBS LLP

1550 17th St., Suite 500

Denver, CO 80202

(303) 892-9400

LISA S. BLATT

Counsel of Record

ROBERT J. KATERBERG

ELISABETH S. THEODORE

ANDREW T. TUTT

STEPHEN K. WIRTH

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Mass. Ave., NW

Washington, DC 20001

(202) 942-5000

lisa.blatt@arnoldporter.com

Counsel for Petitioner

April 27, 2018

APPENDIX

APPENDIX A

OP 16-0555

IN THE SUPREME COURT OF THE

STATE OF MONTANA

————

2017 MT 324

————

ATLANTIC RICHFIELD COMPANY,

Petitioner,

MONTANA SECOND JUDICIAL DISTRICT COURT, SILVER

BOW COUNTY, THE HON. KATHERINE M. BIDEGARAY,

Respondent,

————

ORIGINAL PROCEEDING:

Petition for Writ of Supervisory Control

District Court of the Second Judicial District,

In and for the County of Silver Bow,

Cause No. DV-08-173BN

Honorable Katherine M. Bidegaray,

Presiding Judge

COUNSEL OF RECORD:

For Petitioner:

Jonathan W. Rauchway (argued), Shannon Wells

Stevenson, James R. Henderson, Davis Graham &

Stubbs LLP, Denver, Colorado

John P. Davis, Patrick M. Sullivan, Poore, Roth &

Robinson, P.C., Butte, Montana

For Plaintiff Gregory Christian, et al.:

Monte D. Beck, Justice P. Stalpes (argued), Beck,

Amsden & Stalpes, PLLC, Bozeman, Montana

J. David Slovak, Mark M. Kovacich, Ross

Johnson, Lewis, Slovak, Kovacich & Snipes, PC,

Great Falls, Montana

For Amicus Curiae:

John C. Cruden, Matthew R. Oakes (argued),

Assistant Attorneys General, United States

Department of Justice, Washington D.C.

Domenic A. Cossi (argued), Western Justice

Associates, PLLC, Bozeman, Montana

(Attorney for Amicus Curiae Montana Trial

Lawyers Association)

Roger Sullivan, McGarvey, Neberling, Sullivan &

Lacey, Kalispell, Montana

(Attorneys

for

Montana

Environmental

Information Center)

Kurt G. Alme, United States Attorney, Victoria

Francis, Assistant United Stated Attorney,

District of Montana, Billings, Montana

(Attorneys for Amicus Curiae United States of

America)

Elizabeth A. Brennan, Brennan Law & Mediation,

PLLC, Missoula, Montana

(Attorneys for Amicus Curiae Clark Fork

Coalition)

Argued: April 7, 2017

Submitted: April 11, 2017

Decided: December 29, 2017

Filed:

/s/ [Illegible]

Clerk

OPINION AND ORDER

Justice James Jeremiah Shea delivered the Opinion

and Order of the Court.

¶1 Petitioner Atlantic Richfield Company (“ARCO”)

petitioned this Court for a writ of supervisory control,

seeking reversal of five orders of the Second Judicial

District Court in Silver Bow County in the matter of

Christian, et al. v. Atlantic Richfield Co. Relevant to

the issue before us, the action in the District Court

concerns a claim for restoration damages brought by

property owners in and around the town of Opportunity, Montana (hereafter referred to as “Property

Owners”). We accepted supervisory control of this case

for the limited purpose of considering the District

Court’s August 30, 2016 Order Denying ARCO’s

Motion for Summary Judgment on Property Owners’

Claim for Restoration Damages as Barred by CERCLA

and Granting Property Owners’ Motion for Summary

Judgment on ARCO’s CERCLA Preemption Affirmative Defenses (11th–13th). We restate the issues as

follows:

Issue One: Whether the Property Owners’

claim constitutes a challenge to EPA’s selected

remedy, and thus does not comply with

CERCLA’s timing of review provision.

Issue Two: Whether the Property Owners are

“Potentially Responsible Parties,” and thus

cannot proceed with their chosen restoration

activities without EPA approval.

Issue Three: Whether the Property Owners’

claim otherwise conflicts with CERCLA, and

is thus preempted.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 The Anaconda Smelter, originally constructed

by the Anaconda Copper Mining Company, processed

copper ore from Butte for nearly one hundred years

before shutting down in 1980. Also in 1980, Congress

passed the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (“CERCLA”),

42 U.S.C. § 9601, et seq. Also known as “Superfund,”

the purpose of CERCLA is to foster the cleanup of sites

contaminated by hazardous waste, and to protect

human health and the environment. In 1983, the

Environmental Protection Agency (“EPA”) designated

the area impacted by the Anaconda Smelter, now

owned by ARCO, as a Superfund site. In 1984, EPA

issued an administrative order requiring ARCO to

begin a remedial investigation at the Smelter Site. In

1998, EPA selected a remedy pursuant to CERCLA

that detailed ARCO’s cleanup responsibilities moving

forward.

¶3 As part of ARCO’s cleanup responsibility, EPA

required ARCO to remediate residential yards within

the Smelter Site harboring levels of arsenic exceeding

250 parts per million in soil, and to remediate all wells

used for drinking water with levels of arsenic in excess

of ten parts per billion. The Property Owners, a group

of ninety-eight landowners located within the bounds

of the Smelter Site, sought the opinion of outside

experts to determine what actions would be necessary

to fully restore their properties to pre-contamination

levels. The experts recommended the Property Owners

remove the top two feet of soil from affected properties

and install permeable walls to remove arsenic from the

groundwater. Both remedies required restoration

work in excess of what the EPA required of ARCO in

its selected remedy.

¶4 The Property Owners filed this action in 2008,

claiming common law trespass, nuisance, and strict

liability against ARCO, and seeking restoration damages. Any recovered restoration damages are to be

placed in a trust account and distributed only for the

purpose of conducting restoration work.

¶5 In 2013, ARCO moved for summary judgment

on the grounds that CERCLA barred the Property

Owners’ claims. The District Court did not address

ARCO’s CERCLA preemption issue because it dismissed the Property Owners’ case on the basis that

their claims were barred by the statute of limitations.

The Property Owners appealed and we affirmed in

part, reversed in part, and remanded the case to the

District Court for further proceedings. Christian v. Atl.

Richfield Co., 2015 MT 255, ¶ 79, 380 Mont. 495, 358

P.3d 131. On remand, the District Court denied all of

ARCO’s contested motions for summary judgment.

Among the orders denied was ARCO’s Motion for

Summary Judgment on the Property Owners’ Claim

for Restoration Damages as Barred by CERCLA.

ARCO petitioned this Court for a writ of supervisory

control, asking us to vacate four of the District Court’s

orders denying summary judgment and one order on

a motion in limine. On October 5, 2016, we issued an

order granting the writ for the limited purpose of

considering the District Court’s 2016 Order Denying

ARCO’s Motion for Summary Judgment on Property

Owners’ Claim for Restoration Damages as Barred by

CERCLA and Granting Property Owners’ Motion for

Summary Judgment on ARCO’s CERCLA Preemption

Affirmative Defenses (11th–13th).

¶6 The Property Owners bring several claims

against ARCO: (1) injury to and loss of use and

enjoyment of real and personal property; (2) loss of the

value of real property; (3) incidental and consequential

damages, including relocation expenses and loss of

rental income and/or value; (4) annoyance, inconvenience, and discomfort over the loss and prospective loss

of property value; and (5) expenses for and cost of

investigation and restoration of real property. ARCO

concedes that the Property Owners may move forward

on their first four claims, but contend that the claim

for restoration damages is preempted by CERCLA.

STANDARD OF REVIEW

¶7 We review de novo a district court’s grant or

denial of summary judgment, applying the same

criteria of M. R. Civ. P. 56 as a district court. Pilgeram

v. GreenPoint Mortg. Funding, Inc., 2013 MT 354, ¶ 9,

373 Mont. 1, 313 P.3d 839. Under Rule 56(c), judgment

“shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a

matter of law.” Roe v. City of Missoula, 2009 MT 417,

¶ 14, 354 Mont. 1, 221 P.3d 1200 (citation omitted).

DISCUSSION

¶8 In Sunburst School Dist. No. 2 v. Texaco, 2007

MT 183, ¶ 34, 338 Mont. 259, 165 P.3d 1079, we held:

“If a plaintiff wants to use the damaged property,

instead of selling it, restoration of the property constitutes the only remedy that affords a plaintiff full

compensation.” To recover restoration damages, a

plaintiff must show (1) the injury to the property is

reasonably abatable, and (2) the plaintiff has “reasons

personal” for seeking restoration damages. Lampi v.

Speed, 2011 MT 231, ¶ 29, 362 Mont. 122, 261 P.3d

1000 (citing Sunburst, ¶¶ 31–39). In Sunburst, the

plaintiffs sought restoration damages from Texaco to

restore their properties to the condition the properties

would have been in absent a benzene leak from a

Texaco gasoline refinery. Sunburst, ¶ 38. Texaco argued

that the plaintiffs’ common law claim for restoration

damages was preempted by Montana’s Comprehensive Environmental Cleanup and Responsibility Act

(CECRA), a state statute similar in purpose and scope

to CERCLA. Sunburst, ¶ 55. We further noted in

Sunburst that “[a] presumption exists against statutory preemption of common law claims. A statute does

not take away common law claims except to the extent

that the statute expressly or by necessary implication

declares.” Sunburst, ¶ 51 (internal citations omitted).

Accordingly, we held: “[N]o conflict exists between

DEQ’s supervisory role under CECRA and restoration

damages awarded under the common law. We further

conclude that nothing in CECRA precludes a common

law claim by necessary implication.” Sunburst, ¶ 59.

¶9 ARCO argues that the Property Owners may not

bring their state law claim for restoration damages

because the claim conflicts with various provisions

of CERCLA, and thus are preempted. Preemption is

established expressly, through the unambiguous language of Congress in statute, or impliedly through the

doctrines of field preemption or conflict preemption.

Oneok, Inc. v. Learjet, Inc., ___ U.S. ___, 135 S. Ct.

1591, 1594–95 (2015). Field preemption exists if

Congress intended the relevant federal law to entirely

occupy the field. California v. ARC Am. Corp., 490 U.S.

93, 100, 109 S. Ct. 1661, 1665 (1989). There is no field

preemption in this case, as CERCLA expressly allows

for complementary state laws, including common law,

through a series of savings clauses:

Nothing in [CERCLA] shall affect or modify

in any way the obligations or liabilities of any

person under other Federal or State law,

including common law, with respect to

releases of hazardous substances or other

pollutants or contaminants. . . .

42 U.S.C. § 9652(d).

Nothing in [CERCLA] shall be construed or

interpreted as preempting any State from

imposing any additional liability or requirements with respect to the release of hazardous substances within such State.

42 U.S.C. § 9614(a).

¶10 ARCO advances three arguments regarding

how it contends CERCLA bars the Property Owners’

claim for restoration damages: (1) Property Owners’

restoration damages claim constitutes a direct challenge to EPA’s selected remedy and CERCLA’s timing

of review provision, 42 U.S.C. § 9613(h) (“CERCLA

§ 113(h)”), prevents this Court from hearing challenges to an EPA remedy; (2) the Property Owners are

“potentially responsible parties” under CERCLA, and

as such may not perform any restoration activities

without EPA approval; and (3) the Property Owners’

claim otherwise conflicts with CERCLA and is barred

under the doctrine of conflict preemption. We address

each of these arguments in turn.

¶11 Issue One: Whether the Property Owners’ claim

constitutes a challenge to EPA’s selected remedy,

and thus does not comply with CERCLA’s

timing of review provision.

¶12 ARCO cites CERCLA’s “timing of review” provision, § 113(h), for the proposition that CERCLA

expressly preempts the Property Owners’ claim by

denying Montana courts jurisdiction over any challenges to a CERCLA cleanup. Section 113(h) reads, in

relevant part:

No Federal court shall have jurisdiction

under Federal law other than under section

1332 of title 28 (relating to diversity of

citizenship jurisdiction) or under State law

which is applicable or relevant and appropriate under section § 9621 of this title (relating

to cleanup standards) to review any challenges to removal or remedial action selected

under section of § 9604 of this title, or

to review any order issued under section

§ 9606(a) of this title. . . .

At the outset, it bears noting that this statute begins:

“No Federal court shall have jurisdiction under

Federal law . . . .” (Emphasis added). Conspicuously

absent is any reference to state court jurisdiction over

state law claims. It is well-established that “[i]n the

construction of a statute, the office of the judge is

simply to ascertain and declare what is in terms or in

substance contained therein, not to insert what has

been omitted or to omit what has been inserted.”

Section 1-2-101, MCA.

¶13 ARCO relies on a Ninth Circuit Court of

Appeals case in which the Ninth Circuit read § 113(h)

together with § 113(b) to conclude that Montana state

courts lack jurisdiction over any claims that “constitute ‘a challenge to a CERCLA cleanup.’” ARCO Envtl.

Remediation, LLC v. Dep’t of Health & Envtl. Quality,

213 F.3d 1108, 1115 (9th Cir. 2000). The Ninth Circuit

concluded that because § 113(b) grants federal courts

“exclusive original jurisdiction over all controversies

arising under [CERCLA],” it interpreted § 113(h)’s

reference to “challenges to removal or remedial action”

to be a “controversy arising under [CERCLA],” and

thus exclusively within the jurisdiction of the federal

courts. ARCO Envtl. Remediation, 213 F.3d at 1115.

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¶14 Irrespective of this jurisdictional question,

however, ARCO acknowledges that its argument for

conflict preemption under § 113(h) turns on whether

the Property Owners’ claim for restoration damages

“challenges” the CERCLA cleanup. We have not previously addressed what constitutes a “challenge” within

the context of § 113(h). In ARCO Environmental

Remediation the Ninth Circuit defined a “challenge”

as a claim that “is related to the goals of the cleanup.”

ARCO Envtl. Remediation, 213 F.3d at 1115. More

specifically, the Ninth Circuit further held that a

“challenge” was any action in which a party seeks

“to dictate specific remedial actions; to postpone the

cleanup; to impose additional reporting requirements

on the cleanup; or to ... alter the method and order of

cleanup.” ARCO Envtl. Remediation, 213 F.3d at 1115

(internal citations omitted). Another definition comes

from the Southern District of Indiana. In Taylor Farm

Ltd. Liab. Co. v. Viacom, Inc., 234 F. Supp. 2d 950,

974–75 (S.D. Ind. 2002), the Indiana District Court

rejected the defendant’s proposed definition of a challenge as being anything more comprehensive than the

EPA-selected remedy. The Court held:

[T]he only sense in which Taylor’s lawsuit can

be said to “challenge” Viacom’s settlement

agreement with the EPA is that, if Taylor is

successful, Viacom will be required to spend

more money to clean up the land for Taylor’s

benefit than the EPA required Viacom to

spend for the public’s benefit.

Taylor Farm, 234 F. Supp. 2d at 976. Yet another

interpretation comes from Samples v. Conoco, Inc.,

165 F. Supp. 2d 1303, 1315–16 (N.D. Fla 2001), in

which the Florida District Court concluded the plaintiffs’ claim was not a “challenge” under § 113(h),

because:

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[It] is not an action designed to review or

contest the remedy selected by the EPA prior

to implementation; it is not an action

designed to obtain a court order directing the

EPA to select a different remedy; it is not an

action designed to delay, enjoin, or prevent

the implementation of a remedy selected by

the EPA; and it is not a citizen suit brought

pursuant to 42 U.S.C. § 9659.

Still other interpretations come from the Third Circuit

in Boarhead Corp. v. Erickson, 923 F.2d 1011, 1019,

1024 (3rd Cir. 1991) (holding a claim is a challenge

only if it “would interfere” with or “delay[] the prompt

cleanup” of hazardous sites); and the District of New

Mexico in Reynolds v. Lujan, 785 F. Supp. 152, 154

(D.N.M. 1992) (holding a claim is a challenge if it

would require the court to “alter the [EPA’s] ongoing

response activities.”).

¶15 Synthesizing the various interpretations of

what constitutes a “challenge” in light of the nature of

the Property Owners’ claim and CERCLA’s savings

clauses evinces that, fundamentally, a § 113(h) challenge must actively interfere with EPA’s work, as

when the relief sought would stop, delay, or change the

work EPA is doing. At a minimum, a “challenge” must

be more than merely requiring ARCO to spend more

money to clean up the land for the Property Owners’

benefit, as the court in Taylor Farm noted. In this case,

the restoration damages Property Owners seek are to

be placed in a trust account and used to further restore

affected properties beyond the levels required by the

EPA, and the restoration work would be completed by

the Property Owners themselves. To the extent that

EPA’s work is ongoing, the Property Owners are not

seeking to interfere with that work, nor are they

seeking to stop, delay, or change the work EPA is

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doing. The Property Owners’ claim is exactly the sort

contemplated in CERCLA’s savings clauses, and does

not present a “challenge” to EPA’s selected remedy.

Absent a “challenge” to removal or remedial action

selected in the CERCLA cleanup process, §§ 113(h)

and (b) do not deprive Montana courts of jurisdiction

to entertain state-law restoration claims.

¶16 Despite ARCO’s efforts to overcomplicate this

matter and recast what is, at its essence, a common

law claim for damages into a challenge to EPA’s

cleanup, the fundamental issue before us is one of

timing. Specifically, when can private landowners

bring a state common law claim for restoration damages for the purpose of cleaning up their own private

property? The Dissent maintains that any such claim,

if it relates to the goals of the cleanup, must wait until

the EPA has completed its work and moved on because

CERCLA “protects the execution of a CERCLA plan

during its pendency from lawsuits that might interfere

with the expeditious cleanup effort.” Dissent, ¶ 48,

quoting McClellan Ecological Seepage Situation v.

Perry, 47 F.3d 325, 329 (9th Cir. 1995) (hereinafter

referred to as MESS) (emphasis in original). Even by

the Dissent’s analysis, though, the Property Owners’

claim does not constitute a challenge to EPA’s plan.

The Dissent cites a litany of cases from other jurisdictions in ostensible support of the contention that the

Property Owners’ damage claim constitutes a challenge to EPA’s remediation plan. Dissent, ¶ 44. These

cases are inapposite to the Property Owners’ claim

presently before us. None of the cases cited by the

Dissent, nor any of the cases cited by ARCO or the

United States, involve a claim by private property

owners, against another private party, seeking money

damages for the purpose of restoring their own private

property. The Property Owners are not asking the

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Court “to dictate specific remedial actions.” The Property Owners are not asking the Court to “impose additional reporting requirements on the cleanup.” The

Property Owners are not asking the Court to “terminate the Remedial Investigation/Feasibility Study

(RI/FS) and alter the method and order of cleanup.”

Nothing in the Property Owners’ claim for restoration

damages “stands as an obstacle to the accomplishment

of congressional objectives as encompassed in

CERCLA,” unless Congress’s objective was to condemn, in perpetuity, the private property of an individual property owner because that property happened to have been contaminated by a third party.

¶17 Put simply, the Property Owners are not

asking the Court to interfere with the EPA’s plan. The

Property Owners are not seeking to enjoin any of

EPA’s activities, or requesting that EPA be required to

alter, delay, or expedite its plan in any fashion whatsoever. The Property Owners are simply asking to be

allowed to present their own plan to restore their own

private property to a jury of twelve Montanans who

will then assess the merits of that plan. If the jury

awards restoration damages, those damages will be

placed in a trust for the express purpose of effectuating

the Property Owners’ restoration plan. Indeed, any

restoration will be performed by the Property Owners

themselves and will not seek to force the EPA to do, or

refrain from doing, anything at the Site.

¶18 The Dissent contends that § 113(h) requires

rejecting claims that challenge EPA’s ongoing remedial action. Dissent, ¶ 43. What, if any, actual remedial action remains ongoing is, at least, unclear. Even

assuming there is something that would constitute

ongoing remedial action, however, this still does not

morph the Property Owners’ claim for restoration

14a

damages—for purposes of funding an eventual restoration according to the Property Owners’ plan—into a

challenge to EPA’s cleanup. As Justice Baker notes in

her concurrence, the United States’ counsel acknowledged during oral argument that some aspects of

the Property Owners’ restoration plan would not

constitute a “challenge” within the meaning of the law.

Concurrence, ¶ 32. As to other aspects of the Property

Owners’ restoration plan, even the federal government

has to pull up stakes at some point and leave these

private property owners alone to attend to their own

private property. If the Property Owners must wait for

that eventuality to conclude their restoration plan, the

history of this case amply demonstrates that they have

the patience for it.

¶19 Whether or not the Property Owners succeed

on their claim for restoration damages will not affect,

alter, or delay EPA’s work in any fashion. Likewise,

EPA’s work, whether ongoing or not, has no bearing

on the success or failure of the Property Owners’ claim

for restoration damages on the merits. In Sunburst, we

noted “that CECRA’s focus on cost effectiveness and

limits on health-based standards differ from the factors to be considered in assessing damages under the

common law.” Sunburst, ¶ 59. The same reasoning

applies here: CERCLA’s regulatory standards do not

apply to the common law claim at issue. The District

Court has already recognized this fact when it granted

the Property Owners’ motion in limine to preclude

ARCO from presenting evidence regarding its compliance with EPA requirements, and correctly noted that

allowing such evidence at trial “pose[d] the clear risk

for ARCO to ‘cloak itself’ in the authority of the federal

government.” See Sunburst, ¶¶ 107, 121 (discussing

Texaco’s efforts to cloak itself in the authority of the

State of Montana in order to create confusion). That

15a

being noted, nothing in our holding here should be

construed as precluding ARCO from contesting the

Property Owners’ restoration damages claim on its

own merits, just as it may contest the Property

Owners’ other claims.

¶20 The Property Owners’ claim for restoration

damages in this case arises solely under state common

law, and does not implicate federal law or cleanup

standards. The Property Owners are not seeking to

compel EPA to do, or refrain from doing, any action.

Therefore, the Property Owners’ claim does not

implicate § 113(h), nor does it implicate § 113(b).

United States v. Akzo Coatings of Am., Inc., 949 F.2d

1409, 1455 (6th Cir. 1991) (“Clearly preserved [by

§ 113(h)], are challenges to the selection or adequacy

of remedies based on state nuisance law . . .

independent of federal response action.”).

¶21 Issue Two: Whether the Property Owners are

“Potentially Responsible Parties,” and thus

cannot proceed with their chosen restoration

activities without EPA approval.

¶22 ARCO argues that under 42 U.S.C. § 9622(e)(6)

(“CERCLA § 122(e)(6)”), the Property Owners are

“Potentially Responsible Parties” (“PRP”), and are

thus prohibited from conducting any remedial action

that is inconsistent with EPA’s selected remedy without EPA’s consent. There are several categories of

PRPs. For purposes of our analysis, however, the only

relevant category is a class consisting of all current

owners of property at a CERCLA facility. 42 U.S.C.

§ 9607(a)(1).

¶23 Designation as a PRP may occur in one of three

ways: (1) if the party has entered into a voluntary

settlement with the EPA; (2) upon a judicial determination that the party is a responsible party; or (3) if

16a

the party is currently a defendant in a CERCLA lawsuit and has been found not to be entitled to statutory

defenses. Taylor Farm, 234 F. Supp. 2d at 966–71

(citing Pneumo Abex Corp. v. High Point, Thomasville

and Denton R. Co., 142 F.3d 769, 773, n.2 (4th Cir.

1998) and New Castle County v. Halliburton NUS

Corp., 111 F.3d 1116, 1120, n.2 (3d Cir. 1997)). The

statutory defenses relevant to the Property Owners

are the “innocent landowner” defense and the “contiguous landowner” defense. 42 U.S.C. § 9607(b)(3), (q).

¶24 ARCO argues that a PRP is a strictly defined

category, subject to liability even if the PRP did not

cause or contribute to the contamination. Chubb Custom

Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956–

57 (9th Cir. 2013). ARCO also contends that even if the

Property Owners were able to avail themselves of a

defense to liability for cleanup costs, they would still

meet the broader definition of PRP, and be bound by

§ 122(e)(6). Essentially, ARCO asks us to treat the

Property Owners as PRPs under § 122(e)(6), even

though they have never been treated as PRPs for any

purpose—by either EPA or ARCO—during the entire

thirty-plus years since the Property Owners’ property

was designated as being within the Superfund site. As

the Property Owners correctly point out, the statute of

limitations for such a claim (at most six years from the

date cleanup work was initiated) has long passed.

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

596 F.3d 112, 128 (2d Cir. 2010). Put simply, the PRP

horse left the barn decades ago.

¶25 The Property Owners have never entered into

a voluntary settlement with the EPA. There has never

been a judicial determination that the Property

Owners are responsible parties. The Property Owners

are not currently, nor have they ever been, defendants

in a CERCLA lawsuit in which they were found not to

17a

be entitled to statutory defenses. The EPA has not

included the Property Owners as a defendant in the

legal proceedings in this matter, nor have they been

party to any settlement agreements regarding cleanup

proceedings. Despite the EPA never engaging the

Property Owners as PRPs, ARCO now asks us to treat

the Property Owners as PRPs—for the first time in

these proceedings solely for the purpose of using

§ 122(e)(6) to bar their claim for restoration damages.

We decline to do so.

¶26 Issue Three: Whether the Property Owners’

claim otherwise conflicts with CERCLA, and is

thus preempted.

¶27 ARCO’s final argument is that other conflicts

exist between CERCLA and the Property Owners’

claim for restoration damages. ARCO proffers three

lines of reasoning for this argument. First, ARCO

argues that the EPA has sole authority to select

environmental remedies at Superfund sites, which

would preclude alternative standards and remedies.

To adopt this reasoning would be to ignore CERCLA’s

savings clauses. As stated above, CERCLA’s savings

clauses expressly contemplate the applicability of state

law remedies. 42 U.S.C. §§ 9614(a), 9652(d). Second,

ARCO contends there is an “unambiguous congressional intent to foreclose any state law remedy that

challenges or obstructs EPA’s remedy at a Superfund

site.” This argument fails for the same reason that

§ 113(h) does not apply: the Property Owners’ claim

does not prevent the EPA from accomplishing its goals

at the ARCO Site. Lastly, ARCO again characterizes

the Property Owners’ claim as a challenge to EPA’s

selected remedy, and argues that the claim cannot

proceed until EPA’s remedy is fully performed. Yet

CERCLA’s savings clauses operate to preserve the

18a

Property Owners’ ability to pursue this claim. 42

U.S.C. § 9652(d) (“Nothing in [CERCLA] shall affect or

modify in any way the obligations or liabilities of any

person under other Federal or State law, including

common law, with respect to releases of hazardous

substances or other pollutants or contaminants.”

(emphasis added)). CERCLA does not expressly or

impliedly preempt the Property Owners’ claim for

restoration damages in this matter.

CONCLUSION

¶28 We conclude that the District Court did not err

by Denying ARCO’s Motion for Summary Judgment

on Property Owners’ Claim for Restoration Damages

as Barred by CERCLA and Granting Property Owners’

Motion for Summary Judgment on ARCO’s CERCLA

Preemption Affirmative Defenses (11th–13th). To be

clear, ARCO is not precluded from contesting the

merits of the Property Owners’ restoration plans.

However, that is an issue of fact to be resolved at trial.

¶29 THEREFORE, IT IS ORDERED:

¶30 The District Court’s order Denying ARCO’s

Motion for Summary Judgment on Property Owners’

Claim for Restoration Damages as Barred by CERCLA

and Granting Property Owners’ Motion for Summary

Judgment on ARCO’s CERCLA Preemption Affirmative Defenses (11th–13th) is AFFIRMED. This matter

is remanded to the District Court for further proceedings consistent with this Opinion.

DATED this 29th day of December, 2017.

/S/ JAMES JEREMIAH SHEA

We Concur:

/S/ JAMES MANLEY

Sitting for Chief Justice Mike McGrath

19a

/S/ JOHN KUTZMAN

Sitting for Justice Jim Rice

/S/ MICHAEL E WHEAT

/S/ DIRK M. SANDEFUR

Justice Beth Baker, specially concurring.

¶31 I understand the Court’s decision today to be a

narrow one: CERCLA does not, as a matter of law,

preempt all common-law claims for restoration damages to the property of a private individual. I agree

with that conclusion and with the decision not to treat

the Property Owners as PRPs. I thus concur with the

Court’s ruling that the District Court did not err in

denying ARCO’s motion for summary judgment on the

restoration damages claims. I appreciate the Dissent’s

thorough analysis of CERCLA § 113(h), but do not

agree that it applies to foreclose the Property Owners’

claims.

¶32 It became clear during oral argument in this

case that the parties dispute whether aspects of the

Property Owners’ proposed restoration plan would

conflict with actions ARCO has taken in the Superfund cleanup effort. ARCO’s counsel characterized the

dispute as one of jurisdiction, which empowers the

trial court to determine underlying facts. Here, the

trial court determined, for conflict preemption purposes, that the Property Owners’ claims did not stand

as an obstacle to the CERCLA cleanup underway or

impede EPA’s requirements on the site. Amicus curiae

the United States argues that the purpose of CERCLA

is to assure that EPA coordinates the cleanup between

multiple stakeholders, so that the selected plan may

move forward without obstruction, delay, or the diversion of resources that would accompany multiple individual plans and proposals. The government stresses

20a

that state-court lawsuits cannot, under § 113(h), supplement EPA’s selected response-action cleanup levels

if such a proposed plan challenges or conflicts with

EPA’s proposed remedy. The government recognizes,

though, that CERCLA does not bar all state-law

claims by affected landowners, and its counsel

acknowledged during oral argument that some aspects

of the Property Owners’ plan would not be a “challenge” within the meaning of the law. The Property

Owners’ counsel protested during argument that it

was the first time they had heard that some aspects of

their plan would “undo” what already has been done,

and that in nine years of litigation no evidence had

been presented to the District Court that the Property

Owners’ plan conflicted with EPA’s remedy.

¶33 The large-scale environmental remediation

projects made possible by CERCLA are intended, and

are essential, to clean up severe widespread contamination resulting from decades of historic mining

practices that left expansive deposits of toxic tailings

and particulate fallout in floodplains, ranchlands, and

soils. The massive cleanup efforts in which ARCO,

EPA, and the State of Montana have engaged for more

than thirty years have gone far to remediate the

Superfund site. But CERLCA draws a distinction

between remedial action and damages for injury to,

destruction of, or loss of natural resources. 42 U.S.C.

§ 9607(a)(4)(A), (C). Outside of the remediation process, States may pursue recovery of damages on behalf

of the public as trustee of the state’s natural resources

to “restore, replace, or acquire the equivalent of such

natural resources by the State.” 42 U.S.C. § 9607(f)(1)

(emphasis added). “CERCLA sets a floor, not a ceiling.” New Mexico v. Gen. Elec. Co., 467 F.3d 1223, 1246

(10th Cir. 2006). And CERCLA does not cover damages to “purely private property.” Ohio v. U.S. Dep’t of

21a

the Interior, 880 F.2d 432, 460 (D.C. Cir. 1989). It does

not force local residents simply to live with the impacts

if they can prove, through their nuisance and trespass

actions, that state law entitles them to damages

for the restoration of their own land. As the Court

observes, consistent with our parallel conclusion in

Sunburst, CERCLA’s “focus on cost effectiveness and

limits on health-based standards differ from the factors to be considered in assessing damages under the

common law.” Opinion, ¶ 19 (quoting Sunburst, ¶ 59).

The dynamic between individual restoration and

CERCLA’s coordinated large-scale response does not

give rise to preemption as a matter of law. “Tension

between federal and state law is not enough to establish conflict preemption. We find preemption only in

those situations where conflicts will necessarily arise.

A hypothetical conflict is not a sufficient basis for

preemption.” Incalza v. Fendi N. Am., Inc., 479 F.3d

1005, 1010 (9th Cir. 2007) (internal citations and

quotations omitted).

¶34 In our limited Order accepting supervisory

control in this case, we did not agree to review the

District Court’s orders in limine. But the Court

observes that ARCO is not precluded at trial from

contesting the merits of the Property Owners’ restoration plans. Opinion, ¶¶ 19, 28. A claim for restoration

damages requires the Property Owners to prove two

separate elements: (1) temporary injury and (2) reasons personal for the restoration. Lampi, ¶ 29 (quoting

Sunburst, ¶¶ 31-39). An injury is temporary “if the

tortfeasor could restore the destroyed property to

substantially the condition in which it existed before

the injury. An injury that would cease to exist once

remediation or restoration has been completed qualifies as temporary.” Lampi, ¶ 32 (internal citations

omitted). For temporary injury, the ability to repair

22a

the injury “must be more than a theoretical possibility.” Sunburst, ¶ 31 (citing Burk Ranches v. State, 242

Mont. 300, 306, 790 P.2d 443, 447 (1990)).

¶35 The “reasons personal” element requires the

Property Owners “to establish that the award actually

will be used for restoration.” Lampi, ¶ 31. The “personal reasons” analysis is required only when the

restoration costs “exceed disproportionately” the diminution in value of the property. McEwen v. MCR, LLC,

2012 MT 319, ¶ 30, 368 Mont. 38, 291 P.3d 1253;

Sunburst, ¶ 38. Finally, an “injured party is to be made

as nearly whole as possible—but not to realize a profit.

Compensatory damages are designed to compensate

the injured party for actual loss or injury—no more, no

less.” Sunburst, ¶ 40 (quoting Burk Ranches, 242

Mont. at 307, 790 P.2d at 447).

¶36 “[T]hese issues normally present factual questions for the jury to resolve.” Lampi, ¶ 48. The Court

acknowledges the District Court’s concern about

allowing ARCO to “‘cloak itself’ in the authority of the

federal government.” Opinion, ¶ 19. I write separately

to add that if ARCO contends that the Property

Owners’ proposed remedy conflicts with or requires

modification of measures ARCO already has taken to

clean up the site, ARCO must be able to address those

conflicts in seeking to rebut the Property Owners’

claim on the essential elements of proof under our

standards for a restoration damages claim. What

ARCO may not do at trial is point to the EPA’s selected

remedy and say, “We’ve done everything the government required; that’s all we need to do.” What ARCO

may do is offer evidence to support its claim that the

Property Owners’ proposed restoration plan is not

feasible and thus does not qualify as a temporary

injury. And the Property Owners should have the

opportunity to prove their claim that ARCO’s cleanup

23a

efforts to date have not returned their properties to

substantially the same condition in which they were

before the injury, but that the injury will cease to exist

if their proposed restoration plan is implemented. The

Property Owners’ proposals should be considered by

the jury in the context of determining whether ARCO

is liable for their alleged injuries and whether those

injuries are compensable by an award of restoration

damages. Evidence on the issue of temporary injury

may well overlap with the evidence required to show,

pursuant to our holding in Atlantic Richfield Co., ¶ 77,

whether the continuing tort doctrine tolled the period

of limitations for the Property Owners’ claims. It

makes sense to allow the parties to develop the evidence for the jury’s consideration of these issues and a

record that may be reviewed, if necessary, on appeal

from any final judgment.

/S/ BETH BAKER

Justice Laurie McKinnon, dissenting.

¶37 Property Owners seek monetary damages for

state law claims of nuisance, trespass, and strict

liability. ARCO does not contest that litigation of these

state law claims may proceed during the pendency of

the CERCLA cleanup process and, accordingly, that

issue is not before the Court. ARCO does contend that

Property Owners’ claim for restoration damages proposes a different cleanup plan than that chosen by

the EPA, thus constituting a challenge which is preempted by CERCLA. In my view, Property Owners’

restoration plan, which includes digging an 8,000-foot

trench for a groundwater wall and removing 650,000

tons of soil over a period of years, would conflict

with the ongoing EPA investigation and CERCLA

24a

cleanup. The Court’s conclusion that, during the

pendency of a CERCLA cleanup effort, a jury may

determine restoration damages and place the amount

of money so determined in a trust for future restoration efforts, Opinion, ¶ 17, is not only inconsistent with

CERCLA and federal precedent, but has no authority

in Montana law.2 Property Owners may not “achieve

indirectly through the threat of monetary damages

. . . what [they] cannot obtain directly through mandatory injunctive relief incompatible with the ongoing

CERCLA-mandated remediation.” New Mexico, 467

F.3d at 1250. Moreover, “[d]amages must be proven by

substantial evidence which is not the product of mere

guess or speculation.” Sebena v. Am. Auto. Ass’n, 280

Mont. 305, 309, 930 P.2d 51, 53 (1996). “[W]here no

costs have been incurred, and no costs are reasonably

certain to be incurred in the future, the plaintiff has

not stated a claim for damages,” and summary judgment should be granted. Town of Superior v. Asarco,

To recover restoration damages under Montana law, the

plaintiff must present evidence and convince the fact-finder that

he will actually conduct the restoration upon which the restoration claim is based. Lampi, ¶ 31 (“The reasons personal rule

requires plaintiff to establish that the award actually will be used

for restoration . . . .”); Sunburst, ¶ 43; McEwen, ¶ 50. It is the

actual performance of Property Owners’ restoration plan—a

prerequisite to their damage award—that impermissibly challenges the EPA’s remedy. For purposes of brevity, I do not

address other provisions of CERCLA which ARCO asserts would

bar Property Owners from completing their restoration plan.

The Court errs when it applies the Sunburst analysis to the

instant proceedings. In Sunburst, there was no question that

Montana state courts had subject-matter jurisdiction over

CERCLA and common law claims. Here, however, CERCLArelated activities are the exclusive, original jurisdiction of the

federal courts and a challenge in state court to the chosen EPA

remedy implicates the Supremacy Clause of the United States

Constitution.

25a

Inc., 874 F. Supp. 2d 937, 949 (D. Mont. 2004). See also

B.M. v. State, 215 Mont. 175, 179, 698 P.2d 399, 401

(1985) (“Where plaintiff presents evidence of damages

which are purely speculative, summary judgment

is appropriate.”). Here, there is no genuine issue of

material fact that Property Owners’ claim for restoration damages is a challenge to the EPA’s remedial

action and prohibited by CERCLA as a matter of law.

¶38 CERCLA is a “comprehensive statute that

grants the President broad power to command government agencies and private parties to clean up hazardous waste sites.” Key Tronic Corp. v. United States, 511

U.S. 809, 814, 114 S. Ct. 1960, 1964 (1994).3 “CERCLA

is best known as setting forth a comprehensive mechanism to cleanup hazardous waste sites under a

restoration-based approach.” New Mexico, 467 F.3d

at 1244 (citation omitted; emphasis added). CERCLA

was intended to “promote the timely cleanup of hazardous waste sites, ensure that polluters were held

responsible for the cleanup efforts, and encourage

settlement through specified contribution protection.”

Chubb, 710 F.3d at 956. “One of the core purposes of

CERCLA is to foster settlement through its system of

incentives and without unnecessarily further complicating already complicated litigation.” Cal. Dep’t of

Toxic Substances Control v. City of Chico, 297 F. Supp.

2d 1227, 1235 (E.D. Cal. 2004). See also In re Cuyahoga

Equip. Corp., 980 F.2d 110, 119 (2d Cir. 1992) (“Congress sought through CERCLA . . . to encourage settlements that would reduce the inefficient expenditure of

public funds on lengthy litigation.”); City of Emeryville

v. Robinson, 621 F.3d 1251, 1264 (9th Cir. 2010) (noting

CERCLA vests authority in the President, who, in turn, has

delegated most of his functions and authority to the EPA. See 42

U.S.C. §§ 9606(c), 9615; 40 C.F.R. § 300.100.

26a

that CERCLA was designed to ensure, inter alia, “that

settlements are encouraged through specified contribution protection”); 42 U.S.C. § 9622. Under CERCLA

§ 113(f)(2), “[a] person who has resolved its liability to

the United States or a State in an administrative or

judicially approved settlement shall not be liable for

claims for contribution regarding matters addressed

in the settlement.” 42 U.S.C. § 9613(f)(2).

¶39 There are two types of cleanup actions under

CERCLA: remedial actions and removal actions.

Remedial actions generally are “long-term or permanent containment or disposal programs” while removal

actions are “typically short-term cleanup arrangements.” Schaefer v. Town of Victor, 457 F.3d 188,

195 (2d Cir. 2006) (citation and quotation omitted).

CERCLA defines “remedial action” as:

[T]hose actions consistent with permanent

remedy taken instead of or in addition to

removal actions in the event of a release or

threatened release of a hazardous substance

into the environment, to prevent or minimize

the release of hazardous substances so that

they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes,

but is not limited to, such actions at the location of the release as storage, confinement,

perimeter protection using dikes, trenches, or

ditches, clay cover, neutralization, cleanup of

released hazardous substances and associated

contaminated materials, recycling or reuse,

diversion, destruction, segregation of reactive

wastes, dredging or excavations, repair or

replacement of leaking containers, collection

of leachate and runoff, onsite treatment or

incineration, provision of alternative water

27a

supplies, and any monitoring reasonably

required to assure that such actions protect

the public health and welfare and the environment. The term includes the costs of permanent relocation of residents and businesses and community facilities where the

President determines that, alone or in combination with other measures, such relocation

is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous substances, or may

otherwise be necessary to protect public

health or welfare; the term includes offsite

transport and offsite storage, treatment,

destruction, or secure disposition of hazardous substances and associated contaminated

materials.

42 U.S.C. § 9601(24) (emphasis added).

¶40 CERCLA defines “remove” or “removal” as:

[T]he cleanup or removal of released hazardous substances from the environment, such

actions as may be necessary . . . to monitor,

assess, and evaluate the release or threat of

release of hazardous substances, the disposal

of removed material, or the taking of such

other actions as may be necessary to prevent,

minimize, or mitigate damage to the public

health or welfare or to the environment,

which may otherwise result from a release

or threat of release. The term includes, in

addition, without being limited to, security

fencing or other measures to limit access, pro-

28a

vision of alternative water supplies, temporary evacuation and housing of threatened

individuals not otherwise provided for . . . .

42 U.S.C. § 9601(23).

¶41 CERCLA-related activities may qualify as

removal or remedial actions in at least three ways.

Hanford Downwinders Coal. v. Dowdle, 71 F.3d 1469,

1474 (9th Cir. 1995). First, the action may be specifically designated as removal or remedial activity.

Hanford Downwinders, 71 F.3d at 1474. Second,

cleanup activity explicitly classified in CERCLA as

a “response” is, by definition, a removal or remedial

action. See 42 U.S.C. § 9601(25) (defining “response”

as a “removal” or “remedial action”). Finally, “even if

action taken at a CERCLA site is not referred to in the

statute as a removal or remedial action or a response

action, the Timing of Review provision will still apply

if the action satisfies CERCLA’s definition of ‘removal’

or ‘remedial.’” Hanford Downwinders, 71 F.3d at 1474.

¶42 CERCLA provides that “the United States district courts shall have exclusive original jurisdiction

over all controversies arising under [CERCLA].” 42

U.S.C. § 9613(b). Section 113(h) of CERCLA, titled

“Timing of review,” provides an exception to federal

jurisdiction during the pendency of a CERCLA removal

or remedial action: “No Federal court shall have

jurisdiction under Federal law . . . or under State law

. . . to review any challenges to removal or remedial

action . . . .” 42 U.S.C. § 9613(h). Section 113(h) clearly

and unequivocally precludes contemporaneous challenges to CERCLA cleanups, regardless of whether the

challenge is made pursuant to federal or state law.

Section 113(h) amounts to a “blunt withdrawal of

federal jurisdiction” and precludes any challenge to

CERCLA cleanups. N. Shore Gas Co. v. EPA, 930 F.2d

29a

1239, 1244 (7th Cir. 1991); accord Broward Gardens

Tenants Ass’n v. EPA, 311 F.3d 1066, 1075 (11th Cir.

2002). “Section 113 withholds federal jurisdiction to

review any . . . claims, including those made in citizen

suits and under non-CERCLA statutes, that are found

to constitute ‘challenges’ to ongoing CERCLA cleanup

actions.” MESS, 47 F.3d at 329. Read in conjunction,

§ 113(b) and (h) divest state courts of jurisdiction

to review any state law claim which amounts to a

challenge of a CERCLA removal or remedial action.

Fort Ord Toxics Project v. Cal. EPA, 189 F.3d 828, 832

(9th Cir. 1999). In Fort Ord Toxics Project, the Ninth

Circuit observed that “by granting district courts

exclusive jurisdiction over all controversies arising

under CERCLA, Congress used language more expansive than would be necessary if it intended to limit

exclusive jurisdiction solely to those claims created by

CERCLA.” Fort Ord, 189 F.3d at 832 (internal quotations and citations omitted).

¶43 The Ninth Circuit explained, “Congress concluded that the need for [swift execution of CERCLA

cleanup plans] was paramount, and that peripheral

disputes, including those over what measures actually

are necessary to clean-up the site and remove the

hazard, may not be brought while the cleanup is in

progress.” MESS, 47 F.3d at 329 (internal quotations

and citations omitted). Accordingly, § 113(h) “protects

the execution of a CERCLA plan during its pendency

from lawsuits that might interfere with the expeditious cleanup effort. This result furthers the policy

underlying CERCLA by allowing a quick response to

serious hazards.” MESS, 47 F.3d at 329 (emphasis in

original). The court explained in MESS:

We recognize that the application of Section

113(h) may in some cases delay judicial

review for years, if not permanently, and may

30a

result in irreparable harm to other important

interests. Whatever its likelihood, such a

possibility is for legislators, and not judges, to

address. We must presume that Congress has

already balanced all concerns and concluded

that the interest in removing the hazard

of toxic waste from Superfund sites clearly

outweighs the risk of irreparable harm.

MESS, 47 F.3d at 329 (internal quotations, citations,

and footnote omitted). In MESS, the court was careful

to explain that it was not deciding “whether or to what

extent the district court can entertain MESS’s various

claims after implementation of the CERCLA cleanup

at McClellan is complete.” MESS, 47 F.3d at 329, n.6.

Accordingly, § 113(h) bars any claim that challenges

an ongoing CERCLA cleanup effort. Further, the language of § 113(h) does not distinguish between federal

and state claims or constitutional and statutory claims;

instead, it delays judicial review of any challenges

to unfinished remedial EPA efforts. See Broward

Gardens, 311 F.3d at 1075.

¶44 The Ninth Circuit has provided clear guidance

concerning what constitutes a “challenge” to a

CERCLA cleanup effort. In Razore v. Tulalip Tribes,

the court explained that “[a]n action constitutes a

challenge if it is related to the goals of the cleanup.”

66 F.3d 236, 239 (9th Cir. 1995) (emphasis added).

Challenges to CERCLA cleanups were found where

the plaintiff seeks to dictate specific remedial actions,

Hanford Downwinders, 71 F.3d at 1482; to postpone

cleanup, Fort Ord, 189 F.3d at 831; to impose additional reporting requirements on the cleanup, MESS,

47 F.3d at 330; and to terminate the Remedial

Investigation/Feasibility Study (RI/FS) and alter the

method and order of cleanup, Razore, 66 F.3d at 239.

Consistent with the Ninth Circuit, the Tenth Circuit

31a

has held that a state claim is preempted by CERCLA

if the “claim, or any portion thereof, stands as an

obstacle to the accomplishment of congressional objectives as encompassed in CERCLA.” New Mexico, 467

F.3d at 1244. The Eleventh Circuit similarly explained

that “[t]o determine whether a suit interferes with,

and thus challenges, a cleanup, courts look to see if

the relief requested will impact the remedial action

selected.” Broward Gardens, 311 F.3d at 1072. The

Eighth Circuit held that a suit challenges a remedial

action within the meaning of § 113(h) if it interferes

with the implementation of a CERCLA remedy. Costner

v. URS Consultants, Inc., 153 F.3d 667, 675 (8th Cir.

1998).

¶45 The Ninth Circuit has also distinguished when

a claim does not constitute a challenge to a CERCLA

cleanup effort. In Beck v. Atlantic Richfield Co., 62

F.3d 1240, 1243 (9th Cir. 1995), the court held that

a state law claim by water users seeking financial

compensation for lost crops and profits resulting from

the EPA’s diversion of water was not a challenge to

the CERCLA cleanup plan; however, the water users’

claim for injunctive relief to prevent ARCO from

diverting the water was a challenge to the EPA

cleanup. In ARCO Environmental Remediation, 213

F.3d at 1113, a state law claim for access to public

records and meetings did not relate to the goals of

the EPA’s cleanup and therefore did not constitute a

challenge divesting the court of jurisdiction to entertain the claim. The lawsuit did not alter cleanup

requirements or environmental standards and did not

seek to delay or terminate the cleanup. Instead, the

lawsuit involved the public’s right to information

about the cleanup. ARCO Envtl. Remediation, 213

F.3d at 1115.

32a

¶46 CERCLA does not completely occupy the field

of environmental regulation. Congress expressly

declared that it had no intent for CERCLA to do so by

enacting two savings clauses within CERCLA upon

which Property Owners rely. The first savings clause,

42 U.S.C. § 9614(a), provides: “Nothing in this Act

shall be construed or interpreted as preempting any

State from imposing any additional liability or

requirements with respect to the release of hazardous

substances within such State.” The second, 42 U.S.C.

§ 9652(d) provides: “Nothing in this Act shall affect or

modify in any way the obligations or liabilities of any

person under other Federal or State law, including

common law, with respect to releases of hazardous

substances or other pollutants or contaminants.”

Furthermore, Congress recognized the role of state

law in hazardous waste cleanup when it addressed the

overlap of CERCLA and state law in 42 U.S.C.

§ 9614(b), which provides, in relevant part, that “[a]ny

person who receives compensation for removal costs or

damages or claims pursuant to any other Federal or

State law shall be precluded from receiving compensation for the same removal costs or damages or claims

as provided in this Act.” Congress clearly expressed

“its intent that CERCLA should work in conjunction

with other federal and state hazardous waste laws in

order to solve this country’s hazardous waste cleanup

problem.” United States v. Colorado, 990 F.2d 1565,

1575 (10th Cir. 1993); accord Manor Care, Inc. v.

Yaskin, 950 F.2d 122, 125-26 (3d Cir. 1991). The Ninth

Circuit also explained that “Congress did not want

§ 113(h) to serve as a shield against litigation that is

33a

unrelated to disputes over environmental standards.”

Fort Ord, 189 F.3d at 831.4

¶47 While a principle purpose of CERCLA’s savings

clauses is to reinforce the right to demand hazardous

waste cleanup apart from CERCLA, a savings clause

“is not intended to allow specific provisions of the

statute that contains it to be nullified.” PMC, Inc. v.

Sherwin-Williams Co., 151 F.3d 610, 618 (7th Cir.

1998). See also Wyoming v. United States, 279 F.3d

1214, 1234 (10th Cir. 2002) (quoting Geier v. Am. Honda

Motor Co., 529 U.S. 861, 864, 120 S. Ct. 1913, 1916

(2000), for the proposition that “[t]he Supreme Court

has ‘repeatedly declined to give broad effect to savings

clauses where doing so would upset the careful regulatory scheme established by federal law’”). “CERCLA’s

savings clause must not be used to gut provisions of

CERCLA.” PMC, 151 F.3d at 618. Moreover, CERCLA

does not establish a “new font of law on which private

parties could base claims for personal and property

injuries.” Artesian Water Co. v. Gov’t of New Castle

Cnty., 659 F. Supp. 1269, 1286 (D. Del. 1987), aff’d,

851 F.2d 643 (3d Cir. 1988) (internal quotations and

citations omitted). The purpose of a savings clause “is

merely to nix an inference that the statute in which it

appears is intended to be the exclusive remedy for

harms caused by the violation of the statute.” PMC,

151 F.3d at 618. Thus, CERCLA’s savings clause was

enacted because Congress did not want to “wipe out

people’s rights inadvertently, with the possible consequence of making the intended beneficiaries of the

legislation worse off than before it was enacted.

For examples of state courts dismissing state law claims

under § 113(h) of CERCLA, see O’Neal v. Department of the Army,

742 A.2d 1095, 1100 (Pa. Super. Ct. 1999), and Aztec Minerals

Corp. v. Romer, 940 P.2d 1025, 1032-33 (Colo. Ct. App. 1996).

34a

The passage of federal environmental laws was not

intended to wipe out the common law of nuisance.”

PMC, 151 F.3d at 618.

¶48 Any state law claim raised pursuant to

CERCLA’s savings clause which challenges the remediation efforts of the EPA must wait until after the

response actions are completed because CERCLA

“protects the execution of a CERCLA plan during its

pendency from lawsuits that might interfere with the

expeditious cleanup effort.” New Mexico, 467 F.3d at

1249 (quoting MESS, 47 F.3d at 329) (emphasis in

original). When the EPA selects a remedy, no challenge to the cleanup may occur prior to completion of

the remedy. This is true even if the claim is made

pursuant to state law and attempts to invoke the state

court’s jurisdiction through CERCLA’s savings clause.

Federal courts have exclusive and original jurisdiction

over any CERCLA-related activity. As explained in

Fort Ord, 189 F.3d at 831, Congress made federal

subject-matter jurisdiction broad, enacting a bar to

jurisdiction through the provisions of § 113(h) during

the pendency of a CERCLA cleanup effort. See also

Cannon v. Gates, 538 F.3d 1328, 1336 (10th Cir. 2008).

Accordingly, if the state claims call “into question the

EPA’s remedial response plan, it is related to the goals

of the cleanup, and thus constitutes a ‘challenge’ to the

cleanup under [§ 113(h)].” New Mexico, 467 F.3d at

1249.

¶49 Neither a federal court considering CERCLArelated activity nor a state court considering a state

claim pursuant to CERCLA’s savings clause has

subject-matter jurisdiction to consider the claim when

the claim constitutes a challenge to CERCLA’s cleanup

effort. It makes little difference that the claim originated in state court when the relief sought constitutes

a challenge. In New Mexico, 467 F.3d at 1252, the

35a

Tenth Circuit dismissed state claims of public nuisance and negligence for lack of subject-matter jurisdiction under § 113(h). In Cannon, 538 F.3d at 133436, the Tenth Circuit affirmed the trial court’s

dismissal of landowners’ claims under the Solid Waste

Disposal Act, 42 U.S.C. §§ 6901-81, concluding that

§ 113(h) stripped subject-matter jurisdiction from the

trial court to consider the claims. In Broward Gardens,

311 F.3d at 1076, the Eleventh Circuit affirmed the

trial court’s dismissal of landowners’ claims because

the court lacked subject-matter jurisdiction over the

case because of § 113(h). In Hanford Downwinders, 71

F.3d at 1484, the Ninth Circuit affirmed the district

court’s dismissal of claims for lack of subject-matter

jurisdiction and for failure to state a claim because of

§ 113(h). Given the substantial weight of authority

which establishes the matter as being one of subjectmatter jurisdiction, I am at a loss to understand how

this Court can suggest, without any authority, that we

“simply” allow “a jury of twelve Montanans” to “assess

the merits of [the Property Owners’ restoration] plan”

and then instruct any resulting damages “be placed in

a trust for the express purpose of effectuating the

Property Owners’ restoration plan.” Opinion, ¶ 17.

Most respectfully, the Property Owners should not be

permitted to proceed to a jury trial when the District

Court clearly lacks subject-matter jurisdiction over

the controversy. Indeed, any order denying ARCO’s

motion would be reviewable as an interlocutory order

pursuant to M. R. App. P. 6(3)(c).

¶50 Property Owners seek monetary damages for:

(1) “Injury to and loss of use and enjoyment of real

and personal property”; (2) “Loss of the value of real

property . . . “; (3) “Incidental and consequential damages, including relocation expenses and loss of rental

income and/or value”; (4) “Annoyance, inconvenience,

36a

and discomfort over the loss and prospective loss of

property value . . . “; and (5) “Expenses for and cost of

investigation and restoration of real property” pursuant to Property Owners’ restoration plan. ARCO does

not dispute that Property Owners may proceed on the

first four types of damages, which are being made pursuant to nuisance, trespass and strict liability.5 ARCO

does dispute that Property Owners may proceed on

the fifth type of damage, contending that the District

Court lacks subject-matter jurisdiction because of the

ongoing CERCLA cleanup effort and the provisions of

§ 113(h). Accordingly, pursuant to the aforementioned

authority, the District Court’s grant of summary judgment to Property Owners on their claim for restoration

damages must be reversed if Property Owners’ restoration plan constitutes a challenge to the CERCLA

cleanup effort at the Smelter Site. If Property Owners’

proposed restoration plan “relate[s] to the goals of

the cleanup,” Razore, 66 F.3d at 239, it constitutes

a challenge to the CERCLA cleanup effort and the

District Court is divested of jurisdiction.

¶51 Property Owners assert claims based on

contamination to properties located within the legally

defined boundaries of a federal Superfund site. The

EPA issued its first administrative order to ARCO in

1984, which required ARCO to perform a site-wide

RI/FS. Following completion of the study in 1987, the

EPA divided the Smelter Site into five major sections

called Operable Units, each relating to different

cleanup remedies. Property Owners seek to restore

Given the requirement that damages not be speculative,

remote or conjectural, Sebena, 280 Mont. at 309, 930 P.2d at 53,

it is difficult to comprehend how damages can be calculated prior

to completion of CERCLA remedial efforts for those areas of

compensation ARCO does not contest. See New Mexico, 467 F.3d

at 1250. That issue, however, is not before the Court.

37a

land contained within several of these sections. The

EPA continues its cleanup efforts in the designated

area consistent with its selected remedies. The EPA

estimates that active remediation of the Smelter Site

will not be completed until 2025. ARCO filed affidavits

and reports from its expert, Richard E. Bartlett, supporting its position that cleanup is ongoing and that as

recently as 2016 residential soils and pasture were

being cleaned to remove arsenic. ARCO also filed an

Administrative Order on Consent, entered pursuant to

CERCLA, that set forth how the cleanup effort was to

proceed. As a result of monitoring and reexamination,

the EPA has made amendments to its cleanup plan,

primarily to incorporate the federal drinking water

standard for arsenic from 18 ppb to 10 ppb. The EPA

also added the action level for lead in 2013. The

EPA asserts that it continues to monitor, modify, and

reexamine remedies since the remedial plan was first

implemented, which may result in additional amendments. Once the EPA remedy is completed on the

Property Owners’ land, the soil will be capped or backfilled with clean soil, vegetation, or other protective

barrier. ARCO and the EPA maintain that tearing up

the protective cap or layer of soil could increase dust

transfer, bioavailability of lead, and soil ingestion—all

of which were concerns addressed by the EPA when it

initially designed the cleanup plan. ARCO has filed

affidavits and expert reports in support of its position.

ARCO, the State, and local governments are currently

negotiating a final site-wide consent decree that will

encompass all remaining remedies and cleanup work

to be conducted at the Smelter Site.

¶52 Property Owners propose a different cleanup or

restoration plan. Property Owners do not dispute that

their properties are located within the boundaries of

38a

the Superfund site. Nor do Property Owners dispute

that they seek “full restoration” of their property,

which is different from that selected by the EPA.

Although Property Owners and this Court conclude,

without any analysis, that Property Owners are not

seeking to “stop, delay, or change the work EPA is

doing,” Opinion, ¶ 15, the Property Owners’ plan is

plainly contrary to the EPA’s remediation plan. See,

e.g., New Mexico, 467 F.3d at 1249-50; MESS, 47 F.3d

at 329. Property Owners’ experts, Richard Plaus and

John Kane, advocate a lower level of arsenic in the soil

than that proposed by the EPA. Property Owners

propose excavating the soil to a deeper level and

suggest the excavated soil be transported to Spokane,

rather than local depositories. Property Owners also

propose that a series of underground trenches and

barriers be constructed to capture and treat shallow

groundwater. The reactive barriers proposed by Property Owners would be 8,000 feet long, 15 feet deep,

3 feet wide, and situated upgradient of the town. The

barriers would contain enzymes designed to remove

arsenic in the water, which the EPA maintains could

unintentionally contaminate both ground and surface

water.

¶53 A district court must determine whether the

complaint states facts that, if true, would vest the

court with subject-matter jurisdiction. Meagher v.

Butte-Silver Bow City-County, 2007 MT 129, ¶ 13, 337

Mont. 339, 160 P.3d 552. Summary judgment should

be granted “‘if the pleadings, depositions, answers to

interrogatories, and admissions on file,’ together with

any affidavits demonstrate that no genuine issue exists

as to any material fact and that the party moving for

summary judgment is entitled to judgment as a matter

of law.” Stipe v. First Interstate Bank-Polson, 2008

MT 239, ¶ 10, 344 Mont. 435, 188 P.3d 1063 (quoting

39a

M. R. Civ. P. 56(c)). A defending party may be entitled

to summary judgment on a certain type or category

of damages. See Corporate Air v. Edwards Jet Ctr.

Mont., Inc., 2008 MT 283, ¶ 54, 345 Mont. 336, 190

P.3d 1111. Here, at the risk of stating the obvious,

Property Owners request in their Third Amended

Complaint “full restoration” of their properties while a

restoration-based remedial plan selected by the EPA

is being implemented. In addition, the affidavits and

reports of each party’s expert witnesses establish as a

matter of law that Property Owners’ claim for restoration damages challenges the EPA’s selected remedial

action and that the cleanup is still ongoing. Indeed,

the undisputed evidence shows the EPA rejected the

soil and groundwater remedies proposed by Property

Owners during the course of the EPA’s regulatory

deliberations at the Smelter Site. In my opinion, the

District Court erred, as a matter of law, in concluding

that Property Owners’ claim for restoration damages

did not constitute a challenge to the remedial action

plan chosen by the EPA.

¶54 I dissent from the Court’s conclusion that

Property Owners’ claim for restoration damages is

not barred pursuant to the provisions of § 113(h). The

issue before this Court is one of subject-matter

jurisdiction which, if lacking, bars Property Owners

from proceeding to trial on their claim for restoration

damages. I would reverse because there is no genuine

dispute of fact that Property Owners’ restoration claim

conflicts with the ongoing EPA investigation and

40a

CERCLA cleanup. The District Court, as a matter of

federal law, lacks subject-matter jurisdiction to consider Property Owners’ claim for restoration damages.

/S/ LAURIE McKINNON

The question of whether Property Owners’ claim for restoration damages constitutes a challenge to CERCLA cleanup efforts

is pivotal to resolution of many issues in this case. For example,

in New Mexico, 467 F.3d at 1250, the Tenth Circuit, having found

that CERCLA’s cleanup efforts were ongoing, determined that

damages for common law public nuisance and negligence must be

addressed at the conclusion of the EPA-ordered remediation.

“Only then will we know the effectiveness of the cleanup and the

precise extent of residual damage.” New Mexico, 467 F.3d at 1250.

Accordingly, I would not address ARCO’s contention, at this

juncture, that Property Owners are PRPs under 42 U.S.C.

§ 9622(e)(6) (CERCLA § 122(e)(6)) and therefore precluded from

proceeding with their chosen remedy.

41a

APPENDIX B

MONTANA SECOND JUDICIAL

DISTRICT COURT SILVER BOW COUNTY

Katherine M. Bidegaray

Seventh Judicial District Court

Department No. 2

300 12th Ave. NW, Suite #2

Sidney, Montana 59270

Telephone: (406) 433-5939

Facsimile: (406) 433-6879

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CAUSE NO. DV-08-173 BN

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GREGORY A. CHRISTIAN; et al.,

Plaintiffs,

ATLANTIC RICHFIELD COMPANY,

Defendant.

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ORDER DENYING ARCO’S MOTION FOR

SUMMARY JUDGMENT ON PLAINTIFFS’

CLAIM FOR RESTORATION DAMAGES

AS BARRED BY CERCLA and GRANTING

PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT ON ARCO’S CERCLA PREEMPTION

AFFIRMATIVE DEFENSES (11TH - 13TH)

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INTRODUCTION

On May 17, 2013, Defendant Atlantic Richfield Company (“ARCO”) filed a Motion for Summary Judgment

on Plaintiffs’ Claim for Restoration Damages as Barred

by CERCLA. On June 10, 2013, Plaintiffs have filed

a Cross-Motion for Summary Judgment on ARCO’s

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CERCLA Preemption Affirmative Defenses (11th 13th). The Court heard oral argument on both motions

on June 20, 2016.

For the reasons set forth below:

1. ARCO’s Motion for Summary Judgment on

Plaintiffs’ Claim for Restoration Damages as

Barred by CERCLA is DENIED; and

2. Plaintiffs Motion for Summary Judgment on

ARCO’s CERCLA Preemption Affirmative

Defenses (11th -13th) is GRANTED.

BACKGROUND

CERCLA was enacted in 1980 to ensure the cleanup

of contaminated sites and eliminate threats to human

health and the environment posed by uncontrolled

hazardous waste sites. CERCLA sets forth a mechanism to clean up hazardous waste sites under a

remediation-based approach. United States v. Bestfoods,

524 U.S. 51, 55 (1998). CERCLA’s principle aims are

to effectuate the cleanup of hazardous waste sites and

impose cleanup costs on responsible parties. Meghrig

v. KFC Western, Inc., 516 U.S. 479, 483 (1996).

CERCLA’s overall objective is to “promptly remediate

polluted sites to bring land back to its original

uncontaminated condition.” Johnson Controls, Inc. v.

Employers Ins. of Wausau, 665 N.W.2d 257, 273 (Wisc.

2003).

The Anaconda Smelter Site (“Site”) became a federal

Superfund Site in 1983. See 48 Fed. Reg. 40,658 (Sept.

8, 1983). Plaintiffs’ properties are encompassed within

the Site. Plaintiffs allege that Atlantic Richfield and

its predecessors damaged their property while conducting “a milling and smelting operation located near

the towns of Anaconda and Opportunity ... from 1884

to 1980.”

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Plaintiffs have pursued damages allowed under

Montana tort law for Defendant’s alleged trespass and

nuisance, including restoration damages. Plaintiffs’

have testified in depositions that the primary goal

of this lawsuit is to have their properties restored.

Plaintiffs have also disclosed expert CPA Thomas

Copley, who has been retained to serve as a controller

to oversee funds that are recovered by the Plaintiffs in

this litigation for restoration damages and ensure that

they be used for the cleanup of property.

LEGAL STANDARD

Summary judgment is an extreme remedy and

should never be substituted for a trial if a material

factual controversy exists. Hajenga v. Schwein, 2007

MT 80, & 11, 226 Mont. 507, 155 P.3d 1241. The party

moving for summary judgment must demonstrate the

absence of genuine issues of material fact. Only then,

must the opposing party establish factual issues. First

Sec. Bank v. Jones, 243 Mont. 301, 302, 794 P.2d 679,

681 (1990). All evidence must be viewed in the light

most favorable to the party opposing summary judgment and all reasonable inferences drawn in their

favor. Oliver v. Stimson Lumber, 1999 MT 328, & 22,

297 Mont. 336, 342, 993 P.2d 11, 16.

RATIONALE

ARCO seeks a ruling that CERCLA’s timing of review

provision (Section 113(h)) and CERCLA’s inconsistent

remedy provision (Section122 (e)(6)) bar Plaintiffs’

claim for restoration damages. To bar Plaintiffs’ claim,

however, the Federal CERCLA provisions must preempt Plaintiffs’ state common law for trespass and

nuisance, which allows Plaintiffs to recover restoration damages. As recognized by the Montana Supreme

Court in the context of a trespass and nuisance claim,

like the one here:

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If a plaintiff wants to use the damaged

property, instead of selling it, restoration of

the property constitutes the only remedy that

affords a plaintiff full compensation.

Sunburst School Dist. No. 2 v. Texaco, 2007 MT 183

¶34, 338 Mont. 259, 165 P.3d 1079 (citing Roman

Catholic Church v. Louisiana Gas, 618 So.2d 874, 877

(La. 1993).

Preemption is the only way a federal law may bar

recovery pursuant to state common law. Pritchard

Petroleum v. Farmers Co-Op. Oil & Sup. Co., 121

Mont. 1, 15, 190 P.2d 55, 63 (1948) (“A statute does not

take away common law claims except to the extent

that the statute expressly or by necessary implication

declares.”).

1. CERCLA Does Not Preempt Plaintiffs’ Right to

Recover Restoration Damages Pursuant to

Montana’s Common Law.

CERCLA does not expressly preempt Montana’s

common law, which allows for the recovery of restoration damages. See New Mexico v. General Electric Co.,

467 F.3d 1223, 1244 (10th Cir.2006) (“[w]e may safely

say Congress did not intend CERCLA to completely

preempt state laws related to hazardous waste

contamination.”).

In fact, CERCLA contains three separate savings

provisions preserving the right to impose additional

liability for the release of a hazardous substance, one

of which provides:

Nothing in this chapter shall affect or modify

in any way the obligations or liabilities of any

person under other Federal or State law,

including common law, with respect to

releases of hazardous substances or other

pollutants or contaminants. The provisions of

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this chapter shall not be considered, interpreted, or construed in any way as reflecting

a determination, in part or whole, of policy

regarding the inapplicability of strict liability, or strict liability doctrines, to activities

relating to hazardous substances, pollutants,

or contaminants or other such activities.

42 U.S.C. § 9652(d) (emphasis added). The principle

purpose of § 9652(d) “is to preserve to victims of toxic

waste the other remedies they may have under federal

or state law.” PMC, Inc. v. Sherwin-Williams Co., 151

F.3d 610, 617 (7th Cir. 1998) (citing Beck v. Atlantic

Richfield Co., 62 F.3d 1240, 1243 n. 8 (9th Cir. 1995)).

Inclusion of these CERCLA savings provisions makes

clear that Congress did not intend to preempt state

causes of action. Franchise Tax Board v. Construction

Laborers Vacation Trust, 463 U.S. 1, 25 (1983).

In the absence of express preemption, which is not

present here, a federal statute may impliedly preempt

a state law in two ways. First, if Congress intends

that federal law should entirely occupy a particular

field, state laws in that field (such as the common law

right to recover restoration damages) are preempted.

California v. ARC America Corp., 490 U.S. 93, 100,

(1989).

As stated above, Congress had no intention of

occupying the fields of property law or environmental

clean-up by passing CERCLA. Nor did Congress

intend to preclude state law claims or damages such

as those at issue in this case. Various courts have

found that Congress did not preempt state laws

related to hazardous waste contamination. Fireman’s

Fund Ins. v. City of Lodi, 302 F.3d 928, 941-43 (9th

Cir.2002) (“Congress clearly expressed its intent that

CERCLA should work in conjunction with other

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federal and state hazardous waste laws in order to

solve this country’s hazardous waste cleanup problem.”); United States v. Colorado, 990 F.2d 1565, 1575

(10th Cir.1993); accord Manor Care, Inc. v. Yaskin,

950 F.2d 122, 125-26 (3d Cir.1991) (Alito, J.).

Second, if Congress does not intend to occupy the

field, a state law may be preempted by federal law to

the extent that it actually conflicts with federal law.

California v. ARC America Corp., 490 U.S. 93, 100,

(1989). Allowing Plaintiffs to pursue restoration damages as allowed by Montana’s common law would not

conflict with CERCLA §113(h) or §122(e)(6). Actual

conflict between state and federal law occurs “where

it is impossible for a private party to comply with

both state and federal requirements, or where state

law stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of

Congress.” Choate v. Champion Home Builders Co.,

222 F.3d 788, 792 (10th Cir.2000). For conflict preemption to apply, the common law remedy must be a

“material impediment to the federal action, or thwart

[ ] the federal policy in a material way.” Id. at 796

(quoting Mount Olivet Cemetery Assoc. v. Salt Lake

City, 164 F.3d 480, 489 (10th Cir.1998)).

In this case, recovery of restoration damages by the

Plaintiffs would not stand as an obstacle to Congress’s

objectives in passing CERCLA or to the CERCLA

cleanup underway. The EPA has required ARCO to

remove soil containing more than 250 ppm of arsenic

or 400 ppm lead from all residential property within

the Superfund site and to remove soil exceeding 1,000

ppm of arsenic from all pasture property. The EPA

has not required ARCO take any action with respect

to arsenic, lead or any other contaminant in

groundwater.

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Plaintiffs intend to remove all of the arsenic and

other heavy metal contaminants left in their groundwater and from the upper two feet of the soil on their

properties. Plaintiffs’ common law property damage

claims do not make it “impossible” for ARCO to comply

with the EPA’s requirement. Nor do Plaintiffs’ common law claims impede the CERCLA framework or

EPA’s requirements on site. While ARCO is currently

remediating portions of a minority of Plaintiffs’ residential yards due to the results of testing performed in

the course of this litigation, ARCO represented at oral

argument that this cleanup will be finished before

the trial scheduled on November 1, 2016. No further

cleanup is contemplated by ARCO. Plaintiffs’ restoration plan as to these properties, therefore, will not

interfere with any ongoing or proposed CERCLA mandated cleanup.

2. Plaintiffs’ Common Law Claim is Not a

Proscribed “Challenge” to the EPA-Selected

Remedy.

ARCO argues next that, regardless of whether

CERCLA preempts Montana’s common law right to

recover restoration damages, this Court does not have

jurisdiction over Plaintiffs’ claim for restoration damages because Plaintiffs’ restoration plan is a prohibited “challenge” to the remedial action selected by the

EPA, citing CERCLA’s “timing of review provision,”

§113(h).

Section 113(h) states:

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

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standards) to review any challenges to

removal or remedial action selected under

section 9606(a) of this title[.]1

42 U.S.C. § 9613(h).

In order to invoke the timing of review provision to

block Plaintiffs’ state law claim for restoration damages, ARCO is required to demonstrate that Plaintiffs’

common law suit for trespass and nuisance is a

“challenge” to the remedial action selected by the EPA,

which is set forth in the Record of Decision (“ROD”).

ARCO cannot satisfy this requirement. Claims are

interpreted as a “challenge” pursuant to § 113(h) only

if the relief sought alters the ROD or terminates or

delays the EPA-mandated cleanup. ARCO Environmental Remediation, LLP (AERL) v. Dept. of Health

and Environmental Quality of Montana, 213 F.3d

1108, 115 (9th Cir. 2000).

In this case, Plaintiffs do not seek to alter the ROD

or change any of the requirements that the EPA has

imposed upon ARCO. Instead, Plaintiff seeks to

recover restoration damages and perform the cleanup

themselves.

ARCO cites several extra-jurisdictional cases which

it contends compel a determination that Plaintiffs’

common law claims are a challenge to the EPAselected remedy. However, all of the cases cited by

ARCO are distinguishable in that none involve a

private landowner whose common law claim for restoration damages was considered a proscribed challenge

to the EPA selected remedy. For example, ARCO cites

New Mexico v. General Electric Co., 467 F.3d 1223

(10th Cir.2006). In that case, the plaintiff was not a

Plaintiffs admit that exceptions 1-5 to §113(h) are

inapplicable.

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private landowner but instead represented the state’s

broader sovereign and public trust. Further, and

unlike the Plaintiffs’ claim here, the claim was pled

and characterized by New Mexico not as a common law

claim, but instead as “residual to a CERCLA remedy.”

Id. at 1249. New Mexico brought suit because the EPA

“abandoned the ROD and required remediation of only

the shallowest portion of the total plume.” Id. New

Mexico’s claim was, in essence, a CERCLA NRD claim,

which is created by the CERCLA statutory scheme

and which is affected by the CERCLA timing of review

provision. In dismissing New Mexico’s claim, the Gen.

Elec. court stated, “[t]his is not to say the State’s public

nuisance and negligence theories of recovery are

completely preempted... Rather, the remedy the state

seeks to obtain through such causes of action – an

unrestricted award of money damages – cannot

withstand CERCLA’s comprehensive NRD scheme.”

Id at 1248.

ARCO also relies on Razore v. Tulalip Tribes of

Wash., 66 F.3d. 236 (9th Cir. 1995). In Razore, the

plaintiff formerly operated a landfill on property owned

by the defendant tribe. Id at 238. The landfill was

declared a CERCLA site and Razore was a principal

Potentially Responsible Party (PRP) required to pay

for the EPA cleanup. Id. Prior to the EPA initiating

cleanup, Razore sued the tribe, attempting to require

the tribe to take immediate remedial action that

would, in turn, limit the cost Razore would ultimately

be required to pay. Id. at 239.

Section 113(h) barred Razore’s claim as a challenge

to the CERCLA remedy. Because it was not a property

owner and was, in fact, responsible for the pollution in

the first place, Razore could not sue the tribe under

Washington’s common law. Id. Instead, Razore alleged

the tribe’s landfill was in violation of the federal

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Resource Conservation and Recovery Act (RCRA) and

the federal Clean Water Act (CWA). Id. Neither RCRA

nor CWA could be enforced in that manner by a

private party such as Razore. Id. Therefore, Razore did

not have a cognizable claim that could be preserved by

CERCLA’s savings provision. Id at 240.

ARCO also relies on McClellan Ecological Seepage

Situation v. Perry, 47 F.3d 325 (9th Cir. 1995).

McClellan is distinguishable because that case involved

a public interest group’s suit in federal court seeking

to enforce federal environmental regulations. The

public interest group alleged that RCRA and CWA

were not being complied with during the CERCLA

mandated cleanup. Id. at 326. The court found that the

management plan effectuated by the EPA required

compliance with both RCRA and CWA. Id. Therefore,

a suit alleging that those federal regulations were not

being complied with was a challenge to the CERCLA

cleanup. Id.

The Court does not find ARCO’s reliance on these

cases persuasive. Further, ARCO’s interpretation of

§113(h) conflicts with the plain language of the

CERCLA savings provision, which states:

Nothing in this chapter shall affect or modify

in any way the obligations or liabilities of

any person under other Federal or State

law, including common law, with respect to

releases of hazardous substances or other

pollutants or contaminants...

42 U.S.C. § 9652(d).

The CERCLA statute must be interpreted as a

whole. Montana Sports Shooting Ass’n, Inc. v. State,

Montana Dept. of Fish, Wildlife, and Parks, 2008 MT

190, ¶ 11, 344 Mont. 1, 185 P.3d 1003, 1006. If the

statutory language is not clear and unambiguous,

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courts look to legislative effect and give effect to the

legislative will. Id.

The language of §113(h) does not clearly and

unambiguously prohibit common law trespass and

nuisance claims where the plaintiff seeks restoration

damages. Further, to read §113(h) as a prohibition

on common law claims for restoration damages creates

a possible incongruity with the savings provision,

42 U.S.C. § 9652(d). The legislative history, however,

describes the legislative will and intent behind

§113(h).

The Congressional Committee of Conference that

drafted the 1986 amendments to CERCLA explained

that the “[n]ew 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. Conf. Rep. No. 99-962,

at 224). The Senate agreed to this Committee of Conference Report. Bernice Samples v. Conoco, Inc., 165

F.Supp.2d 1303, 1312 (N.D. Florida, 2001) citing 132

CONG. REC. 28, 406, 28, 456 (1986). Senator Stafford

“who insisted upon stating expressly what all had

agreed was their intent,” provided additional explanation of the “purpose and meaning” of the provisions in

§ 113:

The time of review of judicial challenges to

cleanups is governed by

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