328 F.3d 1212 (10th Cir. 2003), 01-1197, Dodge v. Cotter Corp.

Docket Nº:01-1197
Citation:328 F.3d 1212
Party Name:Dodge v. Cotter Corp.
Case Date:April 22, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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328 F.3d 1212 (10th Cir. 2003)

Joseph DODGE, individually and as personal representative of the Estate of Thelma Dodge; Rocky Mountain Equestrian Center Inc.; Desiree Chrysler; Daniel Chrysler; August Chrysler; Clayton Chrysler, minors, by and through their parents and next friends, Desiree Chrysler and Daniel Chrysler; Patrick Shane Dodge; Connie Dodge; Nathan Dodge; Leslie Dodge; Bryan Dodge; Patrick Dodge, minors, by and through their parents and next friends, Patrick Shane Dodge and Connie Dodge; Yvonne Pegararo; Noah Welch, a minor by and through his mother and next friend Yvonne Pegararo; Jeremiah Welch; Rhonda Butson; Daniel Slanovich; Gus Slanovich; Chandler Creek Companies; Donald Luna; Sonja Luna; Brett Luna; Norman Platt, individually and as personal representative of the Estate of Dorothy Platt; James L. Treat; Aspen Trust; Bruce Hadley; Virginia Hadley; Jack Hadley; Shaylee Hadley; Kim Myers; Sid Myers; Casey Myers; Chad Myers; Tristan Dodge; Shaylee Dodge; Dolene Blue, individually and as personal representative of the Estate of James Blue, Plaintiffs-Appellees,

and

Russell Jewett; Bonita Jewett; Nard Claar; Sara Claar; Mike Hadley; Catherine Hadley; Linda Johnson; Alicia Johnson; Blaine Johnson, a minor by and through his mother and next friend Linda Johnson; Julie Ann Wright; Jennifer Wright; Nicole Wright, a minor by and through her mother Julie Ann Wright; Canon Farms Trust, Plaintiffs-Appellees/Cross-Appellants,

v.

COTTER CORPORATION, Defendant-Appellant/Cross-Appellee.

Joseph Dodge, individually and as personal representative of the Estate of Thelma Dodge; Desiree Chrysler; Daniel Chrysler; August Chrysler; Clayton Chrysler, minors, by and through their parents and next friends, Desiree Chrysler and Daniel Chrysler; Patrick Shane Dodge; Connie Dodge; Nathan Dodge; Leslie Dodge; Bryan Dodge; Patrick Dodge, minors, by and through their parents and next friends, Patrick Shane Dodge and Connie Dodge; Yvonne Pegararo; Noah Welch, a minor by and through his mother and next friend Yvonne Pegararo; Jeremiah Welch; Rhonda Butson; Daniel Slanovich; Gus Slanovich; Donald Luna; Sonja Luna; Brett Luna; Norman Platt, individually and as personal representative of the Estate of Dorothy Platt; James L. Treat; Aspen Trust; Bruce Hadley; Virginia Hadley; Jack Hadley; Kim Myers; Sid Myers; Casey Myers; Chad Myers; Tristan Dodge; Shaylee Dodge; Dolene Blue, individually and as personal representative of the Estate of James Blue; Shaylee Hadley, Plaintiffs-Appellees/Cross-Appellants,

and

Rocky Mountain Equestrian Center Inc.; Chandler Creek Companies; Russell Jewett; Bonita Jewett; Nard Claar; Sara Claar; Mike Hadley; Linda Johnson; Shirley Luna; Alicia Johnson; Crystal Dawn Threet; Blaine Johnson, a minor by and through his mother and next friend Linda Johnson; James Blue; Julie Ann Wright; Dorothy Platt; Jennifer Wright; Shirley Bickett; John Bickett; Nicole Wright, a minor by and through her mother Julie Ann Wright; Richard Janitell; Canon Farms Trust; John Pinell; Emma Pinell; Thelma Dodge; Edna Blue; Ralph Janitell; Katherine Hadley; Ruth Quick Johnson, Plaintiffs-Appellees,

v.

Cotter Corporation, Defendant-Appellant/Cross-Appellee.

Nos. 01-1197, 01-1236, 01-1591, 02-1008.

United States Court of Appeals, Tenth Circuit

April 22, 2003

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William A. VonHoene, Exelon Business Services Company, Chicago, IL (John L. Watson, Esq., Paul F. Lewis, Esq., Jerry N. Jones, Esq., Rebecca L. Crotty, Esq., Dianne M. Kueck, Esq., of Moye, Giles, O'Keefe, Vermeire & Gorrell LLP, Denver, CO, Barry Levenstam, Esq., Jenner & Block, LLC, Chicago, IL, on the briefs), for Defendant-Appellant/Cross-Appellee.

Don Howarth, Esq. (Suzelle M. Smith, Esq., Irene Viksman Flores, Esq., Darcy R. Harris, Esq., of Howarth & Smith, Los Angeles, CA, with him on the brief), for Plaintiffs-Appellees/Cross-Appellants.

Before KELLY and O'BRIEN, Circuit Judges, and EAGAN, [*] District Judge.

PAUL KELLY, JR., Circuit Judge.

Background

I. Factual Background

This appeal represents our fourth review of the contentious litigation springing from a uranium mill operated in south-central Colorado by the Cotter Corporation ("Cotter"). In light of our previous discussion of the background of these actions in Dodge v. Cotter Corp., 203 F.3d 1190 (10th Cir. 2000) ("Dodge I "), we present only the following factual summary.

Cotter's uranium mill ("the Mill"), which occupies a several hundred acre site in south-central Colorado, two and a half miles south of Cañon City, began operation in 1958. The Mill was operated for the extraction and concentration of uranium oxide from ore using both alkaline and acid leach processes that resulted in two types of waste: tailings, solid dust-like particles of ore, and raffinate, liquid recovered from the uranium extraction solutions. In accordance with the state of the art at the time, these wastes were originally deposited in a series of unlined ponds.

Lincoln Park, an unincorporated area, is a mile and a half north of the Mill. The Arkansas River borders Lincoln Park's northern rim while Sand Creek and the DeWeese Dye Ditch angle across its southern perimeters. During the Mill's years of operation crushing ore into "yellowcake," a form of concentrated uranium, dry tailings were carried off-site by winds and raffinate leached into groundwater beneath the Mill and flowed north toward Lincoln Park along the Sand Creek channel.

The Atomic Energy Commission ("AEC") regulated the Mill from 1958 to 1968. During this period of AEC regulatory oversight, the AEC cited Cotter for various violations of the conditions of its license at the Mill. The State of Colorado Department of Health ("the State") took over responsibility from the AEC for licensing radioactive materials in 1968 and thus assumed regulatory oversight of the Mill at that time. Cotter continued to receive a variety of citations from the State for violating the conditions of its license. The presence of off-site contamination was identified as early as 1968. Over time, as awareness of further contamination grew, so too did the State's concern about mitigating the problem.

In an effort to clean up the site, both the Environmental Protection Agency and the Colorado Department of Public Health and Environment ("the Department") targeted the Mill's unlined storage ponds as a primary source of the proliferation of such hazardous substances as uranium, molybdenum,

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thorium, radium, selenium, arsenic, and lead. By 1981, Cotter had closed eight unlined ponds and constructed two new tailings facilities sealed with a synthetic membrane liner and significant barriers of compacted clay. Later, Cotter added a clay barrier to the Sand Creek Dam to prevent water flow from the Mill into Lincoln Park. Despite these and various other efforts, state inspections would reveal tears in the ponds' linings and violations of air emissions standards.

II. Procedural Background

In 1983, the State of Colorado sued Cotter in federal court for damages to natural resources and clean-up of the contamination. State of Colorado v. Cotter Corp., Case. No. 83-C-2389. In 1988, the parties settled the matter by a Consent Decree which provided a Remedial Action Plan ("the Plan"). The Plan required the creation of the Human Health Risk Assessment Panel ("the Panel") which prepared a report in 1991 on the Lincoln Park Superfund Site evaluating the health risks to the surrounding populations from the Mill's off-site releases. The Panel quantified exposures to Mill-related substances in air, surface water, sediment, ground water, soil, and different types of locally raised food, measured the toxicity of the exposures, and assessed the possible health risks based on those evaluations. The Panel concluded "risks to humans were generally low, especially when judged in comparison to natural 'background' levels of mill-related metals in the environment." Aplt.App. at 027896. However, the Panel excepted from that conclusion a possible health concern in drinking ground water "because of the presence of molybdenum (and, to a lesser extent, uranium) in the water." Id.

A. The Boughton Trial and Dodge I

In 1991, a multitude of Lincoln Park residents filed an action under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675, the Price-Anderson Act, 42 U.S.C.§ 2210(n)(2), and Colorado law alleging that Cotter's negligent handling, maintenance, transportation and storage of hazardous materials used or produced at the Mill caused damage to their health and property. Residents who could not claim direct physical injury as a result of exposure sought instead to recover for the expense of medical monitoring that they claimed was necessitated by their increased health risks caused by the exposure.

After class certification was denied, representative plaintiffs selected for the first trial ("the Boughton group") convinced a jury that Cotter was negligent in operating the Mill but failed to establish that their alleged exposure to hazardous materials required future medical monitoring. The Boughton plaintiffs' appeal of the denial of class certification and other issues was rejected. See Boughton v. Cotter Corp., 65 F.3d 823 (10th Cir. 1995). In 1998, a second group of plaintiffs ("the Dodge group") brought their claims to trial, hoping to make use of the finding of negligence from the Boughton trial. After the district court ruled that it would allow the offensive use of collateral estoppel of the Boughton jury's finding of negligence, the Dodge group plaintiffs...

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