State Ex Rel. Department of Environmental Quality v. BNSF Railway Co.
2010 MT 267
| Mont. | 2010Background
- DEQ sued BNSF under CECRA to abate contamination at the Kalispell Pole and Timber and Reliance Refining sites, with Yale not at issue here.
- District Court found BNSF jointly and severally liable as owner, past owner/operator, and arranger under CECRA and ordered abatement.
- DEQ issued a Record of Decision (ROD) and sought abatement guided by it, but the ROD was on appeal and not yet approved.
- District Court declined to incorporate the ROD into its order, directing abatement while the ROD's fate remained pending in a separate proceeding.
- DEQ appeals and BNSF cross-appeals; issues include ROD compliance, apportionment, nuisance claim, expert testimony, and arranger liability.
- Consent decrees were entered with other defendants; the court approved them and addressed offsets and apportionment questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ROD compliance pending approval | DEQ argues BNSF must follow the ROD, which should be given deference and finality once approved. | BNSF contends CECRA allows equitable relief without waiting for ROD approval and that the court can require abatement now. | District court did not err; abatement required now, ROD not required to govern abatement pending appeal. |
| Apportionment as a CECRA defense | DEQ contends CECRA imposes joint and several liability with no apportionment defense. | BNSF argues apportionment is available as a defense under CECRA. | Court declined to decide on apportionment; issue not justiciable, but DEQ prevailed below. |
| Public nuisance claim | DEQ asserted a public nuisance due to imminent and substantial endangerment to health and environment. | BNSF contends evidence failed to show nuisance affecting a considerable number of people. | Court affirmed dismissal for failure to prove nuisance as to a large or identifiable community. |
| Expert testimony by Pat Keim | Keim's qualifications supported expert testimony on releases at the Reliance site. | Keim's testimony not proper expert testimony under M.R. Evid. 702. | Court declined to address merits as DEQ prevailed; standard abuse of discretion review applied. |
| Arranger liability under CECRA | BNSF liable as an arranger based on moving materials for dumping at Reliance. | No basis to expand arranger liability beyond intent-based CERCLA standard from Burlington II. | Montana adopts a broad arranger liability under CECRA without requiring intent to dispose. |
Key Cases Cited
- Burlington Northern & Santa Fe Ry. Co. v. United States, 520 F.3d 918 (9th Cir. 2008) (broad arranger liability under CERCLA cited by district court)
- Burlington N. & Santa Fe Ry. Co. v. United States, 129 S. Ct. 1870 (Supreme Court, 2009) (reversed; requires fact-intensive inquiry and intent to dispose for arranger liability in CERCLA)
- In re Charles M. Bair Family Trust, 343 Mont. 138, 183 P.3d 61 (2008 MT) (clear error/standard of review for findings of fact)
- Clark v. Roosevelt County, 336 Mont. 118, 154 P.3d 48 (2007 MT) (justiciability and contours of Montana judicial review)
- Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 338 Mont. 259, 165 P.3d 1079 (2007 MT) (Montana public nuisance/CECRA context in environmental cases)