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
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)
OPINION AND ORDER
James
Jeremiah Shea Justice
¶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 ...