Atlantic Richfield v. 2nd Jud. Dist
2017 MT 324
| Mont. | 2017Background
- The Anaconda Smelter site (now ARCO-owned) was designated a CERCLA Superfund site; EPA selected a remedial plan and has overseen remediation since the 1980s.
- Ninety-eight private landowners ("Property Owners") sued ARCO (2008) for trespass, nuisance, and strict liability, seeking restoration damages to fully restore their properties beyond EPA standards; restoration funds would be held in trust and used by owners.
- Property Owners’ expert plan called for deeper soil excavation (top two feet) and permeable reactive barriers for groundwater—exceeding EPA’s selected remedy.
- District Court denied ARCO’s summary-judgment motion that CERCLA preempted the restoration claim; Montana Supreme Court accepted limited supervisory review of that denial.
- The Montana Supreme Court considered three issues: (1) whether the restoration claim is a prohibited §113(h) challenge to EPA’s remedy; (2) whether Property Owners are PRPs under CERCLA §122(e)(6); and (3) whether the claim is otherwise conflict-preempted by CERCLA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Does the restoration claim constitute a §113(h) challenge to EPA's selected remedy (timing-of-review)? | Property Owners: claim is a state common-law damages action to restore private property and does not seek to enjoin, alter, or delay EPA work. | ARCO: the claim effectively challenges EPA's remedy because it seeks a different, more extensive cleanup; §113(h) bars such challenges while EPA remedy is ongoing. | Held: Not a §113(h) challenge. Court: §113(h) bars actions that would stop, delay, or change EPA work; this private restoration-damages claim, with funds placed in trust for owners’ private restoration, does not interfere with EPA’s remedy. |
| 2. Are Property Owners "Potentially Responsible Parties" (PRPs) under §122(e)(6) and thus barred from acting without EPA approval? | Property Owners: they were never designated PRPs by EPA, never settled, and statutory limitations/preclusive mechanisms prevent ARCO from retroactively treating them as PRPs. | ARCO: current owners of property within a Superfund site fall within PRP definitions and §122(e)(6) restricts their independent remedial actions. | Held: Not treated as PRPs for this purpose. Court declines to judicially declare them PRPs now to bar their claim; PRP designation requires settlement, judicial determination, or prior CERCLA adjudication which did not occur here. |
| 3. Does the restoration claim otherwise conflict-preempt CERCLA? | Property Owners: CERCLA’s savings clauses preserve state common-law remedies; tension alone does not create preemption. | ARCO: allowing differing state-law-based remedies undermines CERCLA’s remedial scheme and incentives for coordinated cleanup. | Held: No conflict preemption as a matter of law. Court: CERCLA savings clauses protect complementary state common-law claims; hypothetical tensions do not establish preemption. |
Key Cases Cited
- Sunburst Sch. Dist. No. 2 v. Texaco, 165 P.3d 1079 (Mont. 2007) (Montana precedent on restoration damages and "reasons personal" requirement)
- Lampi v. Speed, 261 P.3d 1000 (Mont. 2011) (standards for recovery of restoration damages under Montana law)
- ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d 1108 (9th Cir. 2000) (Ninth Circuit interpretation of §113(h) and what constitutes a "challenge")
- McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325 (9th Cir. 1995) (timing-of-review/§113(h) rationale protecting ongoing CERCLA response from interference)
- New Mexico v. Gen. Elec. Co., 467 F.3d 1223 (10th Cir. 2006) (conflict-preemption analysis and limits on state suits that impede CERCLA objectives)
- United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409 (6th Cir. 1991) (preservation of certain state-law challenges to remedy adequacy under §113(h) savings interpretation)