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ARCO Envtl. Remediation, L.L.C. v. Department of Health & Envtl. Quality of Mont.

ELR Citation: 30 ELR 20574
Nos. No. 99-36033, 213 F.3d 1108/(9th Cir., 05/24/2000)

The court holds that a state court action brought by a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) potentially responsible party (PRP) to obtain from state documents pertaining to an environmental cleanup cannot be removed to federal court. In state court, the PRP sought to obtain access to public documents and records of proceedings related to the environmental cleanup for which it is a PRP. The state environmental agency removed the case to federal court and joined the U.S. Environmental Protection Agency as a defendant. The court first holds that because the PRP's claims do not arise under any federal law, the case does not fall within either the federal courts' federal question jurisdiction or the federal courts' exclusive original jurisdiction over controversies arising under CERCLA. The fact that the PRP's complaint makes repeated references to CERCLA does not mean that CERCLA creates the cause of action under which the PRP sues. Moreover, the state cannot remove the action to federal court based on preemption. Preempted state-law claims may be removed to federal court only where Congress has chosen to regulate the entire field, but CERCLA does not completely occupy the field of environmental regulation. Congress expressly declared that it had no intent to do so. In addition, federal EPA regulations clearly mandate that state law can provide a right of access to CERCLA records. Furthermore, the PRP's claims do not constitute a challenge to the CERCLA cleanup at issue, and the relief sought does not alter cleanup requirements or environmental standards. Therefore, the claims are not federal claims under CERCLA §113(b). Similarly, the PRP's right to relief is not predicated on federal law. Rather, the propriety of the PRP's claims must be determined according to state law alone. The court next holds that the state environmental agency may not argue alternative bases for removal jurisdiction because more than 30 days have elapsed since the action was filed in state court.

Counsel for Plaintiff
Kyle A. Gray
Holland & Hart
First Interstate Center
401 N. 31st St., Ste. 1500, Billings MT 59101
(406) 252-2166

Counsel for Defendants
Timothy R. Baker, Ass't Attorney General
Attorney General's Office
Justice Bldg.
P.O. Box 201401, Helena MT 59620
(406) 444-2026

Before Nelson and Moskowitz,1 JJ.