In re Gold King Mine Release in San Juan Cnty.

• Decision Date: 20 March 2019
• Docket Number: No. 1:18-md-02824-WJ,1:18-md-02824-WJ
• Parties: IN RE: GOLD KING MINE RELEASE IN SAN JUAN COUNTY, COLORADO, ON AUGUST 5, 2015 This Document Relates to: No. 1:16-cv-00465-WJ-LF No. 1:16-cv-00931-WJ-LF No. 1:17-cv-00710-WJ-SCY No. 1:18-cv-00319-WJ
• Court: U.S. District Court — District of New Mexico

IN RE: GOLD KING MINE RELEASE IN SAN JUAN COUNTY, COLORADO, ON AUGUST 5, 2015 This Document Relates to: No. 1:16-cv-00465-WJ-LF No. 1:16-cv-00931-WJ-LF No. 1:17-cv-00710-WJ-SCY No. 1:18-cv-00319-WJ

No. 1:18-md-02824-WJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

March 20, 2019

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on EPA Contractor Defendants' Motion to Dismiss and Motion to Strike, Doc. 45, filed July 25, 2018. For the reasons stated below, the Motion is GRANTED in part and DENIED in part.

Jurisdiction over State Law Claims

The EPA Contractor Defendants, Weston Solutions, Inc. ("Weston") and Environmental Restoration, LLCC ("ER"), "move to dismiss Plaintiffs' state law claims for lack of subject matter jurisdiction pursuant to Section 113(h) of CERCLA, which revokes federal court jurisdiction over challenges to ongoing EPA response actions, like the ongoing remediation at the BPMD [Bonita Peak Mining District] Site." Doc. 46 at 25. CERCLA provides, in relevant part: "No Federal court shall have jurisdiction . . . under State law . . . to review any challenges to removal or remedial action selected under section 9604 of this title." 42 U.S.C. § 9613(h). See Cannon v. Gates, 538 F.3d 1328, 1334-35 (10th Cir. 2008) ("The statutory definition of a removal action dictates that a removal action is ongoing and thus, § 9613(h)'s jurisdiction strip applies, even if the Government has only begun to 'monitor, assess, and evaluate the release or threat of release of hazardous substances;" "a suit challenges a removal action if it 'interferes with the implementation of a CERCLA remedy' because 'the relief requested will impact the [removal] action selected").

The EPA Contractor Defendants assert that "EPA's response actions at the BPMD Site are sufficient to trigger Section 113(h)" and support their assertion with the Declaration of Rebecca J. Thomas, the lead Remedial Project Manager for EPA's Region 8 Superfund Remedial Program at the Bonita Peak Mining District Superfund Site. See Doc. 46 at 27-28. The Declaration of Rebecca J. Thomas states that the boundaries of the BPMD site have not been determined, may "potentially [extend] to wherever contamination from these sources comes to be located," and "will be determined based on investigation regarding the extent of the release and the risks posed by the release." Doc. 46-3 at 2, ¶ 6.

New Mexico and Utah have alleged that EPA has not commenced, and has not decided whether it will ever commence, any remedial actions in the Sovereign Plaintiffs' territories. See NM FAC ¶ 119 ("EPA's site boundary entirely excludes the Animas River"); UT FAC ¶ 63 ("EPA is not and has not engaged in a removal action in the State of Utah"). At the June 19, 2018, Initial Conference counsel for the Navajo Nation and Utah suggested jurisdictional discovery might be needed. Transcript at 34:6-12, 35:4-13, Doc. 35, filed June 26, 2018.

The Court denies the EPA Contractors' motion to dismiss Plaintiffs' state law claims for lack of subject matter jurisdiction pursuant to Section 113(h) of CERCLA because the EPA Contractor Defendants have factually challenged Plaintiffs' assertion of subject-matter jurisdiction using facts that are disputed by the Sovereign Plaintiffs. See Doc. 164 at 14-15, filed February 28, 2019 (denying the Federal Defendants' motion to dismiss pursuant to 42 U.S.C. § 9613(h), which "prevents a court from interfering with an ongoing removal action," to allow for jurisdictional discovery). The EPA Contractor Defendants may file a motion regarding jurisdiction over the Sovereign Plaintiffs' state law claims after jurisdictional discovery.

CERCLA Preemption of State Law Claims

The EPA Contractor Defendants assert the "Court should dismiss each of Plaintiffs' state law tort claims on the grounds that their state law claims for damages are preempted by CERCLA's comprehensive remedial scheme." Doc. 46 at 31. The EPA Contractor Defendants state that "conflict preemption acts as a bar to claims seeking the same recovery as allowed by CERCLA's comprehensive framework," that "CERCLA preempts Plaintiffs' claims requesting an unrestricted award of money damages," and that " CERCLA's savings clause does not permit liability for lawful removal actions at the Gold King Mine, thus Plaintiffs' common law claims must be dismissed." Doc. 46 at 31-34.

The Court will not dismiss Plaintiffs' common law claims at this time. As discussed above, it is not clear at this point what the remedial scheme is for the Sovereign Plaintiffs' territories. While CERCLA's savings clauses may not permit liability for "lawful" removal actions, it does not appear that CERCLA completely preempts liability for response contractors. See New Mexico v. General Elec. Co., 467 F.3d 1223, 1244 (10th Cir. 2006) ("Given these saving clauses,¹ as well as the spirit of cooperative federalism running throughout CERCLA and its regulations, we may safely say Congress did not intend CERCLA to completely preempt state laws related to hazardous waste contamination"). Furthermore, a "district court cannot dismiss a claim solely because a plaintiff seeks excessive or otherwise inappropriate relief." EEOC v. CollegeAmerica Denver, Inc., 869 F.3d 1171, 1175 (10th Cir. 2017).

Cost Recovery and Declaratory Judgment Under CERCLA

The EPA Contractor Defendants seek dismissal of the claims for cost recovery damages under CERCLA on the grounds that Plaintiffs' allegations fail to state a claim for relief under CERCLA because they have not adequately alleged that the EPA Contractor Defendants are liable as an "operator," "arranger," or "transporter."

CERCLA Liability

Section 9607 establishes that owners or operators of a facility, arrangers of waste disposal or treatment, and persons who accepts waste for transport to disposal or treatment facilities:

shall be liable for—

(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;

(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and

(D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.

42 U.S.C. § 9607(a).

Operator Liability

The Supreme Court of the United States noted the "uselessness of CERCLA's definition of a facility's 'operator' as 'any person ... operating' the facility," and gave the term "operator" its "ordinary or natural meaning:"

[U]nder CERCLA, an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility. To sharpen the definition for purposes of CERCLA's concern with environmental contamination, an operator must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.

United States v. Bestfoods, 524 U.S. 51, 66-67 (1998); Raytheon Constructors, Inc. v. Asarco Inc., 368 F.3d 1214, 1217 (10th Cir. 2003) (noting that in Bestfoods, the Supreme Court sharpened the definition of "operator" for purposes of CERCLA's concern with environmental contamination, and quoting the sharpened definition in Bestfoods).

The Sovereign Plaintiffs' Complaints state claims for operator liability because they allege that the EPA Contractor Defendants managed, directed, or conducted operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations:

(i) ER and Weston "had authority to control reclamation and remediation activities at the site," "had authority to control and did control, manage, direct, and implement the conduct of those working on-site," and "had independent authority and control to perform their duties and take the necessary actions to perform their work." NM FAC ¶ 127; NN FAC ¶ 153; UT FAC ¶ 36.

(ii) ER's Statement of Work stated: ER "will conduct operations in management of surface and underground work activities to include construction & maintenance of repository, retention pond & water treatment." NM FAC ¶ 78; NN FAC ¶ 73.

(iii) Weston "was "responsible for overseeing [and managing] the water treatment operations." NN FAC ¶ 78.

(iv) Weston's "anticipated tasks" included "prepar[ing] water treatment plans for managing water impounded behind the adit portal" and "document[ing] activities during the portal opening and construction." NN FAC ¶ 87; NM FAC ¶ 88.

Arranger Liability "Because CERCLA does not specifically define what it means to 'arrang[e] for' disposal of a hazardous substance," the Supreme Court of the United States "give[s] the phrase its ordinary meaning:" "under the plain language of the statute, an entity may qualify as an arranger under § 9607(a)(3) when it takes intentional steps to dispose of a hazardous substance." Burlington Northern v. Santa Fe Ry. Co. v. United States, 556 U.S. 599, 611 (2009).

The Sovereign Plaintiffs' Complaints state claims for arranger liability because they allege that the EPA Contractor Defendants took intentional steps to dispose of a hazardous substance:

(i) ER "submitted an 'Action/Work Plan,' which included sub-contracting with Harrison Western to excavate the mine. NN FAC ¶ 88.

(ii) ER "subcontracted with Defendant Harrison Western for mining services at the Gold King Mine," and "[o]nly from this higher level could Harrison Western safely pump water out of the mine without triggering a blowout." UT FAC ¶ 36; NN FAC ¶ 86.

(iii) EPA, ER, Weston, and Harrison Western "discussed a plan to install a sump basin to treat water that would be pumped out of the mine during the adit excavation

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