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Atlantic Richfield Company v. Christian

United States District Court, D. Montana, Butte Division

February 15, 2017

ATLANTIC RICHFIELD COMPANY, Plaintiff,
v.
GREGORY A. CHRISTIAN, et al., Defendants.

          ORDER

          Brian Morris United States District Court Judge

         INTRODUCTION

         Plaintiff Atlantic Richfield Company (ARCO) filed this action for declaratory and injunctive relief on December 22, 2015. ARCO seeks a determination that an environmental restoration plan proposed by the Defendant landowners (Landowners) in a pending state court action is prohibited by Section 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9613(h). Presently before the Court are the Landowners' motion to dismiss ARCO's complaint, and the parties' cross-motions for summary judgment.

         United States Magistrate Judge Jeremiah C. Lynch issued Findings and Recommendations in this matter on July 8, 2016. (Doc. 49). Judge Lynch recommended that the Landowners' motion to dismiss be granted, and that all other pending motions be denied as moot. (Doc. 49 at 16).

         ARCO filed objections to Judge Lynch's Findings and Recommendations on July 20, 2016. (Doc. 51). The Landowners filed a response to ARCO's objections on August 3, 2016.

         STANDARD OF REVIEW

         The Court reviews de novo findings and recommendations to which objections are made. 28 U.S.C. § 636(b)(1). No review is required of proposed findings and recommendations to which no objection is made. Thomas v. Arn, 474 U.S. 140, 149-152 (1986).

         BACKGROUND

         For decades ARCO and its predecessors processed copper ore at the Anaconda Smelter located near Anaconda, Montana. The smelter's stack emmitted arsenic and lead during the smelting process. The arsenic and lead emissions settled on the surrounding landscape. The Anaconda Smelter closed in 1980. The area surrounding the Anaconda Smelter was declared a CERCLA Superfund site in 1983.

         The Landowners own property near the former Anaconda Smelter in Opportunity and Crackerville, Montana. The Landowners' properties are located within the exterior boundaries of the Anaconda Smelter Superfund Site. The Anaconda Smelter Superfund Site has been the subject of a lengthy environmental cleanup effort directed by the United States Environmental Protection Agency (EPA).

         The EPA has divided the Anaconda Smelter Superfund Site into five major sections called operable units. Each operable unit relates to a different medium or geographical area for cleanup. Each operable unit has its own record of decision setting forth the EPA's chosen cleanup remedy for that operable unit. Two of the operable units and their records of decision directly affect property owned by the Landowners. The Community Soils Operable Unit encompasses the cleanup of the Landowners' residential yards. The Anaconda Regional, Water, Waste, and Soils Operable Unit encompasses the cleanup of the Landowners' domestic wells and pasture properties.

         ARCO, under the EPA's direction, has been responsible for implementing the cleanup efforts within the Anaconda Smelter Superfund Site. ARCO has sampled soil for arsenic in approximately 1, 740 residential yards within the Anaconda Smelter Superfund Site. ARCO has found arsenic at levels that exceed the EPA-established action level in approximately 350 residential yards. ARCO has remediated these 350 residential yards by removing the top 18 inches of soil and replacing it with clean soil and sod. ARCO has conducted soil tests in Opportunity and Crackerville. ARCO has performed soil remediation work on two properties owned by the Landowners. ARCO has conducted tests on domestic wells in Opportunity and Crackerville. ARCO has determined that two wells owned by the Landowners contain elevated levels of arsenic. ARCO replaced both wells.

         The Landowners filed an action against ARCO in the Montana Second Judicial District Court on April 17, 2008. That action seeks compensation for property damage caused by pollution from the Anaconda Smelter. The Landowners have asserted state law claims against ARCO for negligence, nuisance, trespass, constructive fraud, unjust enrichment, and wrongful occupation of real property. The Landowners' damage claims include claims for restoration damages that seek to recover the costs required to restore the soil and groundwater on their properties. (Doc. 15-10 at 16).

         The Landowners have submitted a proposed restoration plan in support of their claims for restoration damages. The proposed restoration plan describes the restoration work the Landowners believe is necessary to properly restore their properties. The proposed restoration plan includes soil and groundwater restoration work not contemplated by the EPA's cleanup plan. The Landowners estimate that ...


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