United States District Court, D. Montana, Butte Division
Morris United States District Court Judge
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
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).
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.
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,
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.
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).
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.
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
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).
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 ...