467 F.3d 1223 (10th Cir. 2006), 04-2191, New Mexico v. General Elec. Co.

Docket Nº:04-2191.
Citation:467 F.3d 1223
Party Name:State of NEW MEXICO; State of New Mexico ex rel. Patricia A. Madrid, Attorney General of the State of New Mexico, Plaintiffs-Appellants, v. GENERAL ELECTRIC COMPANY, a New York corporation; ACF Industries, Inc., a New York corporation, Defendants-Appellees. States of Colorado, Kentucky, Maine, Montana, Nevada, New Jersey, Ohio, Oklahoma, Oregon, So
Case Date:October 31, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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467 F.3d 1223 (10th Cir. 2006)

State of NEW MEXICO; State of New Mexico ex rel. Patricia A. Madrid, Attorney General of the State of New Mexico, Plaintiffs-Appellants,

v.

GENERAL ELECTRIC COMPANY, a New York corporation; ACF Industries, Inc., a New York corporation, Defendants-Appellees.

States of Colorado, Kentucky, Maine, Montana, Nevada, New Jersey, Ohio, Oklahoma, Oregon, South Carolina, Utah, Wisconsin, and Wyoming, Amici Curiae in support of Plaintiffs-Appellants,

and

American Chemistry Council; American Petroleum Institute; National Mining Association; Chamber of Commerce of the United States of America; National Association of Manufacturers; United States Council for International Business; Independent Petroleum Association of America; National Petrochemical & Refiners Association; Rubber Manufacturers Association; American Gas Association, Amici Curiae in support of Defendants-Appellees.

No. 04-2191.

United States Court of Appeals, Tenth Circuit.

October 31, 2006

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO D.C. Nos. CIV-99-1118 BSJ/KBM; CIV-99-1254 BSJ/ACT.

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James D. Oliver, Special Assistant Attorney General (Caleb Stegall, with him on the briefs), of Foulston Siefkin, LLP, Overland Park, Kansas, for Plaintiffs-Appellants.

Donald W. Fowler, Spriggs & Hollingsworth, Washington, DC (Tami Lyn Azorsky of McKenna, Long & Aldridge, Washington, DC, Eric G. Lasker of Spriggs & Hollingsworth, Washington, DC; Maria O'Brien of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM; James A. Bruen and Peter S. Modlin of Farella, Braun & Martell, LLP, San Francisco, CA; Michael B. Campbell and Bradford C. Berge, Holland & Hart, LLP, Santa Fe, NM; Brackett B. Denniston, III, Vice

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President and General Counsel, Stephen D. Ramsey, Vice President, General Electric Company, Fairfield, CT; Williams V. Killoran, Jr., Senior Counsel, Environmental Affairs, G.E. Transportation, Cincinnati, OH, with him on the briefs), for Defendants-Appellees.

John W. Suthers, Interim Attorney General of Colorado, and Victoria L. Peters, Senior Assistant Attorney General, Natural Resources & Environment Section, State of Colorado, Denver, Colorado, filed an Amicus Curiae Brief in Support of Plaintiffs-Appellants.

Michael R. Thorp of Heller Ehrman LLP, Seattle, Washington, filed an Amicus Curiae Brief in Support of Defendants-Appellees.

Before, McCONNELL, ANDERSON, and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

This is a case in which the Attorney General for the State of New Mexico (AG) seeks unrestricted money damages exclusively under state law for groundwater contamination in Albuquerque's South Valley. The district court granted summary judgment to Defendants General Electric (GE) and ACF Industries (ACF) because the AG "failed to raise genuine issues of material fact on the essential elements of injury and damages." New Mexico v. General Elec. Co., 322 F.Supp.2d 1237, 1271 (D.N.M. 2004). We exercise jurisdiction under 28 U.S.C. § 1291, and affirm in part and dismiss in part.

I.

Because federal law, namely CERCLA, impacts the AG's damage claim in a myriad of ways, we first trace the course of federally-mandated remedial efforts over the past two decades to clean up the contamination.1 The South Valley is located in a largely industrial area east of the Rio Grande River and west of the Albuquerque International Sunport, near the intersection of Broadway and Woodward Avenues.2 The contaminated site encompasses approximately one square mile. A residential area with around 600 residents lies just north of the site. The contamination affects the city's San Jose well field, one of twenty-five well fields serving the city. The property from which the chemical contamination involved in this case originated is located on the western portion of the site. In 1951, the Atomic Energy Commission procured the property, and, through Defendant ACF, engaged in production activities related to the manufacture of nuclear weapons components. In 1967, the United States Air Force (USAF) converted the facility into an aircraft engine parts manufacturing plant. For the next sixteen years, Defendant GE operated Plant 83, as it is commonly known,

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under a series of contracts with the USAF. In 1983, GE purchased Plant 83 and operates it still today.

A.

The city first suspected groundwater contamination in the South Valley in 1978 when irregular tastes and odors appeared in water from private wells near the area's industrial facilities. Subsequent sampling revealed certain volatile organic compounds (VOCs) harmful to health and the environment in the area's municipal wells, including the San Jose No. 6 (SJ-6). In 1981, after further sampling, the Environmental Improvement Division of the New Mexico Health and Environment Department (NMEID) decommissioned SJ-6. Shutting down SJ-6 significantly impacted the San Jose well field's production. SJ-6 had been a productive and economical source of potable water for thousands of Albuquerque residents and played a key role in providing sufficient fire protection to the South Valley. As a result of SJ-6's pivotal role in providing water to the city, NMEID named the South Valley site as the State's top priority for environmental cleanup.3

The State, pursuant to CERCLA, requested the United States Environmental Protection Agency (EPA) to place the site on the "National Priorities List" (NPL). See 42 U.S.C. § 9605(a)(8)(B). The EPA placed the South Valley site on the NPL in 1983 and, at the State's request, began the remedial investigation and feasibility study the same year.4 The EPA's first task was to determine if initial remedial measures were necessary to mitigate potential threats to human health and/or the environment connected with the shutdown of SJ-6. In its March 1985 Record of Decision (ROD), the EPA noted certain contaminants detected during 1984 well sampling were suspected carcinogens with recommended maximum contaminant levels of zero in drinking water.5 Consequently,

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the EPA concluded the water quality of SJ-6 was unfit for human consumption. The EPA further concluded the lack of available water at the tap from SJ-6 adversely impacted available fire protection in the South Valley. Initial remedial measures, also termed "removal" measures, were therefore necessary to limit exposure to both health and environmental hazards in the South Valley.6

The EPA selected as an initial remedy the installation of a new well, the Burton No. 4 (B-4), to replace the capacity of the contaminated SJ-6. Specifically, the EPA–

determined that the installation of a new water supply well as an initial remedial measure at the South Valley Superfund Site is a cost effective, environmentally sound remedy and is necessary and feasible for protection of public health, welfare, and the environment from exposure or threat of exposure to a significant health or environmental hazard.

See 40 C.F.R. Pt. 300, App. D (listing the installation of "[n]ew wells in a new location or deeper wells" as an acceptable remedial response to groundwater contamination). The EPA labeled the work surrounding the replacement of SJ-6 with B-4 as Operable Unit (OU) 1.7 In its 1985 ROD on OU1, the EPA reported: "The State of New Mexico requested this measure and has been consulted and agrees with the approved remedy."

B.

The city placed B-4 into service in July 1988. Meanwhile, work continued on the remedial investigation and feasibility study at the South Valley site. The investigation surrounding SJ-6, i.e., OU2, first sought to identify the source and extent of contaminants in the groundwater that supplied the well. In September 1988, the EPA delivered an ROD which identified six industrial facilities in the South Valley as the likely sources of SJ-6's contamination. Potentially responsible parties (PRPs) included

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the USAF, GE, Chevron, Texaco, Whitfield Tank Lines, Univar Corporation, and Duke City Distributing. The ROD on OU2 identified Plant 83 and the Univar facility as the likely sources of chlorinated solvents found in the well. The ROD identified the remaining four facilities as the likely sources of petroleum contamination.8

Based on extended testing post 1984, the ROD noted "chlorinated solvents detected in SJ-6 most likely do not represent groundwater contamination, but contamination of sediments at the base of the well." Because of source control and remediation of contaminated plumes through other operable units in the South Valley, the EPA concluded "these [SJ-6] contaminants do not appear to pose a significant health threat." Because B-4 had replaced SJ-6's water supply, the EPA chose to clean and seal SJ-6 (along with at least one other municipal well and numerous private wells in the area), monitor the groundwater in the vicinity of SJ-6 for at least thirty years, and place access restrictions on new well construction in the vicinity of SJ-6. According to the ROD, the selected remedy would prevent SJ-6 from serving as a conduit for contaminant migration into the deep aquifers responsible for supplying municipal water.

To assure the permanence and effectiveness of the selected remedy, the EPA provided for a review of environmental conditions surrounding SJ-6 after five years. See 42 U.S.C. § 9621(c) (requiring review of remedial action "no less often than each 5 years after the initiation of such remedial action to assure that human health and the environment are being protected"); 40 C.F.R. § 300.430(f)(4)(ii) (same). The EPA also created a "Design Review Committee" consisting of representatives from the EPA, NMEID, the City of Albuquerque, and PRPs. Still today, the...

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