New Mexico v. General Elec. Co., 04-2191.
| Citation | 467 F.3d 1223 |
| Decision Date | 31 October 2006 |
| Docket Number | No. 04-2191.,04-2191. |
| Parties | 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. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
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, CO, filed an Amicus Curiae Brief in Support of Plaintiffs-Appellants.
Michael R. Thorp of Heller Ehrman LLP, Seattle, WA, filed an Amicus Curiae Brief in Support of Defendants-Appellees.
Before, McCONNELL, ANDERSON, and BALDOCK, Circuit Judges.
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.
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 under a series of contracts with the USAF. In 1983, GE purchased Plant 83 and operates it still today.
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 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."
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 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) (); 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 committee's responsibility is to coordinate the various remedial actions implemented at the South Valley Superfund site to ensure site cleanup. In a letter to the EPA, NMEID concurred in the proposed remedy for SJ-6 "conditional on the timely implementation of the remedy selected in the GE/USAF [Plant 83] Record of Decision." NMEID explained: ...
To continue reading
Request your trial
-
Commonwealth v. Monsanto Co.
...seeking relief for the invasion of its citizens’ possessory interests by MTBE in an action for trespass. See New Mexico v. Gen. Elec. Co. , 467 F.3d 1223, 1243 n.30 (10th Cir. 2006) (noting that the parens patriae doctrine provides "a state with standing to sue for damages to a broader rang......
-
Atl. Richfield Co. v. Christian
... ... , an ongoing energy crisis, and the nationalization of Anaconda's copper mines in Chile and Mexico squeezed Anaconda. But what others saw as an ailing relic, Atlantic Richfield saw as a turnaround ... Cf. NLRB v. SW General , Inc. , 580 U. S. , , 137 S.Ct. 929, 939940, 197 L.Ed.2d 263 (2017) (explaining the same ... General Elec. Co. , 467 F.3d 1223, 1244 (CA10 2006). As a last ditch effort, the landowners contend that, even ... ...
-
New Mexico ex rel. Balderas v. Monsanto Co.
...however) by the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), citing New Mexico v. Gen. Elec. Co. , which held that CERCLA's comprehensive scheme for natural resource damages preempts any state remedy. 467 F.3d 1223, 1247–48 (10th Cir. 2006......
-
The Quapaw Tribe of Oklahoma v. Blue Tee Corp.
... ... business matters through the QTBC while maintaining its traditional government through a General Council. Id., Ex. 24, at 3. At a General Council meeting on March 17, 1984, Tribal leaders ... Page 1177 ... no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ... of NRD in this type of case but the Tenth Circuit's description of the NRD available in New Mexico v. General Electric Co., 467 F.3d 1223 (10th Cir. 2006), shows that NRD are limited to only those ... ...
-
The Supreme Court Opens a Door in ARCO v. Christian, Part Two
...preemption is misleading, for CERCLA sets only a loor, not a ceiling, for environmental protection.”); New Mexico v. General Elec. Co., 467 F.3d 1223, 1246, 36 ELR 20219 (10th Cir. 2006) (“CERCLA sets a loor, not a ceiling.”). In New Mexico v. General Electric Co. , the Tenth Circuit found ......
-
The Site Cleanup Processes
...jurisdiction to review an order issued under §9606(a) when a party seeks to enforce the order.”). 215. New Mexico v. Gen. Elec. Co., 467 F.3d 1223, 1249 (10th Cir. 2006) (CERCLA “protects the execution of a CERCLA plan during its pendency from lawsuits that might interfere with the expediti......
-
Chapter 24 ENVIRONMENTAL RESTORATION DAMAGES: A NEW TREND OF REGULATING CLEANUPS THROUGH PRIVATE LAWSUITS
...interfere with ... [EPA's] selected cleanup plan" because the plaintiffs' claim nonetheless "related to the goals of the cleanup"). [148] 467 F.3d 1223 (10th Cir. 2006). [149] Id. at 1250. [150] The court found that the state would be required to use the proceeds of any restoration damages ......
-
A Decade of Natural Resource Damage Liability: Key Federal Decisions 2004-2014
...v. Century Alumina Co., Civil Action No. 05-62 (D.V.I. July 13, 2010) (slip op. at 14). 18. Id . 19. New Mexico v. General Elec. Co., 467 F.3d 1223, 1247 (10th Cir. 2006). 20. Id . 21. New Jersey Dep’t of Envtl. Prot. v. Minnesota Mining & Mfg. Co., 2007 U.S. Dist. LEXIS 49613, 37 ELR 20189......