Friends of Santa Fe County v. LAC Minerals, Inc.

• Decision Date: 12 July 1995
• Docket Number: Civ. No. 94-0569 JB/LH/DJS.
• Citation: 892 F. Supp. 1333
• Parties: FRIENDS OF SANTA FE COUNTY and Jeanie Cragin, Plaintiffs, v. LAC MINERALS, INC., Pegasus Gold Corp., and Gold Fields Mining Corp., Defendants.
• Court: U.S. District Court — District of New Mexico

892 F. Supp. 1333

FRIENDS OF SANTA FE COUNTY and Jeanie Cragin, Plaintiffs, v. LAC MINERALS, INC., Pegasus Gold Corp., and Gold Fields Mining Corp., Defendants.

Civ. No. 94-0569 JB/LH/DJS.

United States District Court, D. New Mexico.

July 12, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Douglas Meiklejohn, Douglas W. Wolf, New Mexico Environmental Law Center, Santa Fe, NM, Daniel G. Cooper, San Francisco, CA, Michael R. Lozeau, San Francisco BayKeeper, San Francisco, CA, for plaintiffs.

Sarah M. Singleton, John B. Draper, R. Bruce Frederick, Montgomery & Andrews, Santa Fe, NM, Richard E. Schwartz, R. Timothy McCrum, Crowell & Moring, Washington, DC, for LAC Minerals, Inc. and Gold Fields Corp.

Larry P. Ausherman, John R. Cooney, Walter E. Stern, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, NM, for Pegasus Gold Corp.

MEMORANDUM OPINION

HANSEN, District Judge.

THIS MATTER comes before the Court¹ on Defendant Gold Fields Mining Corp.'s motion to dismiss counts 1-4, filed August 15, 1994 (Docket No. 12), Defendants' motion to dismiss counts 3 and 4, filed September 23, 1994 (Docket No. 23), Defendants' motion for partial summary judgment on count 1, filed November 7, 1994 (Docket No. 31), Plaintiffs' motion to strike affirmative defenses, filed November 21, 1994 (Docket No. 37), Defendants' motion for summary judgment on count 2, filed March 7, 1995 (Docket No. 145), Defendants' motion for summary judgment on count 5, filed March 7, 1995 (Docket No. 147), Defendants' (second) motion for partial summary judgment on count 1, filed March 20, 1995 (Docket No. 151), Plaintiffs' motion to strike portions of Defendants' Vandersluis Affidavit, filed May 12, 1995 (Docket No. 176), Plaintiffs' motion for partial summary judgment on counts 1 and 2 against Defendants LAC Minerals, Inc. and Pegasus Gold Corp., filed March 20, 1995 (Docket No. 153), and Plaintiffs' motion for partial summary judgment on count 3 against Defendants LAC Minerals, Inc. and Pegasus Gold Corp., filed March 20, 1995 (Docket No. 154).

Having reviewed the submissions and arguments of the parties, and having thoroughly considered the applicable law in this matter, the Court concludes, as explained below, that Defendant Gold Fields Mining Corp.'s motion to dismiss counts 1-4 is well taken and is granted; that Defendants' motion to dismiss counts 3 and 4 is granted; that Defendants' (first) motion for partial summary judgment is granted; that Plaintiffs' motion to strike Defendants' affirmative defenses is not well taken and is denied; that Defendants' motion for summary judgment on count 2 is denied; that Defendants' motion for summary judgment on count 5 is granted; that Defendants' (second) motion for partial summary judgment on count 1 is moot; that Plaintiffs' motion to strike portions of the Vandersluis affidavit is denied; that Plaintiffs' motion for partial summary judgment on counts 1 and 2 is granted in part and denied in part; and that Plaintiffs' motion for partial summary judgment on count 3 is moot.

Plaintiffs are a local environmental advocacy group and an individual member of that group. On May 25, 1994, they brought a citizen suit under the Federal Water Pollution Control Act, 33 U.S.C. ?? 1251-1387 (1988 & Supp.1994) ("Clean Water Act" or "CWA"), and the Resource Conservation and Recovery Act, 42 U.S.C. ?? 6901-6992k (1988 & Supp.1994) ("RCRA"), against the past and present operators of the Cunningham Hill gold mine in the Ortiz mountains south of Santa Fe. Defendant Gold Fields Mining Corporation ("Gold Fields") owned and operated the mine until June of 1990. Defendants LAC Minerals, Incorporated ("LAC") and Pegasus Gold Corporation ("Pegasus") have owned and operated the mine through a joint venture since that time.

Plaintiffs allege that Defendants' waste pile, a byproduct of mining operations Defendants deposited in the Dolores Arroyo ("Arroyo") of Dolores Gulch, is the source of "acid mine drainage," or "AMD." See Pls.' 1st Am. Compl. at 1 ("When exposed to air and water, minerals in this waste oxidize and wash from the pile, creating acid mine drainage ..., a liquid of very low pH, and containing ... high concentrations of manganese, aluminum, sulfates, cadmium, copper, nickel, zinc, lead, chromium, and total dissolved solids."). The waste pile is technically known as "overburden." Overburden is the worthless layer of soil and rock which must be removed to gain access to the ores or minerals below. In this case, the overburden measures approximately 15 million cubic yards. Plaintiffs seek an order requiring Defendants to obtain appropriate CWA and RCRA permits, to prevent acid mine drainages posing an imminent and substantial endangerment to human health and the environment, to return the overburden (i.e., to "reclaim" the mine by replacing the top layer of rock and soil), and to pay civil penalties to the United States and attorney's fees and costs.

Acid mine drainage, also referred to as acid rain discharge,

results from the chemical reaction of sulfide minerals with oxygen in the presence of water. The principal environmental impact of AMD is the acidification of stream water to a point at which the water becomes too acidic to support most aquatic life and, unless treated, renders water unsuitable for use in municipal or industrial water supplies.

Dorinda G. Dallmeyer, A New Legislative Approach for the Control of Acid Mine Drainage, 17 Ga.L.Rev. 969, 969-70 (1983) (footnotes omitted). AMD is also associated with "an increase in the concentration of metals in the water." Id. at 970 (footnote omitted).

For the purposes of a motion to dismiss, the material allegations of the complaint must be accepted as true. Franklin v. Meredith, 386 F.2d 958, 959 (10th Cir.1967). Dismissal is appropriate only if "it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claims which would entitle them to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The Court must construe the pleadings liberally and if any possibility of relief exists, the claims should not be dismissed. Gas-A-Car, Inc. v. American Petrofina, Inc., 484 F.2d 1102, 1107 (10th Cir.1973).

This Court will grant summary judgment when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The movant carries the burden of establishing that there are no genuine issues of material fact but may discharge its burden by showing there is an absence of evidence to support the nonmovant's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Once the movant meets its burden, the burden shifts to the nonmovant to demonstrate a genuine issue for trial on a material matter. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). In making its summary judgment determination, the Court looks at the pleadings and documentary evidence in the light most favorable to the nonmovant, Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991), and the movant must show beyond a reasonable doubt that it is entitled to summary judgment, Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). However, once the burden shifts to the nonmovant, that party may not rest on its pleadings but must set forth specific facts showing there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof. Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553. If the nonmovant cannot make such a showing after adequate time for discovery, summary judgment is mandated. Id. at 322, 106 S.Ct. at 2552.

I. DEFENDANT GOLD FIELDS' MOTION TO DISMISS COUNTS 1-4

Plaintiffs do not contest the proposition that the permitting and regulatory provisions of RCRA and the Clean Water Act apply only to present owners or operators. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 59, 108 S.Ct. 376, 382, 98 L.Ed.2d 306 (1987) (wholly past violations not redressable under the CWA's citizen suit provision); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1159 (9th Cir. 1989) (same in RCRA context). As Gold Fields transferred its interest in the Cunningham Hill mine in 1990 to Defendants LAC and Pegasus, counts 1 through 4 should be dismissed against it.²

Plaintiffs argue, however, that Gold Fields might retain a present interest in the mine. Their own allegations in the complaint state otherwise: "Gold Fields owned and operated the Cunningham Hill mine ... until June of 1990...." Pls.' 1st Am.Compl. ? 26; "In June of 1990, Gold Fields transferred the property and mining rights ... to Pegasus Gold Corporation and/or the joint venture." Id. at ? 27. The Court will dismiss counts 1 through 4 against Gold Fields, but grant leave to amend their complaint should Plaintiffs discover some evidence demonstrating that Gold Fields retains any present ownership interest in the mine.³

II. DEFENDANTS' MOTION TO DISMISS COUNTS 3 AND 4

Count 3 alleges, in salient part, that Defendants are handling or disposing of hazardous waste without a permit in violation of section 3005 of RCRA, 42 U.S.C. ? 6925. Plaintiffs specifically aver that Defendants' "deposition and maintenance of the mine waste pile at the Cunningham Hill mine causes the generation and discharge to the environment of AMD. AMD is an (sic) hazardous waste." Pls.' 1st Am.Compl. ? 52. Count 4 states procedural and substantive violations of section 3004 of RCRA, 42 U.S.C. ? 6924, and is similarly dependent upon AMD's characterization as hazardous waste. Both section 6924 and 6925 are part of subtitle C of RCRA, 42 U.S.C. ?? 6921-6939e, a cradle-to-grave regulatory regime imposing command-and-control rules for the handling of hazardous substances. Defendants move to dismiss counts 3 and 4 on the grounds that AMD and the overburden pile, as wastes...