State of Colo. v. Idarado Min. Co.

• Decision Date: 22 February 1989
• Docket Number: No. 83-C-2385.,83-C-2385.
• Citation: 707 F. Supp. 1227
• Parties: STATE OF COLORADO, Plaintiff, v. IDARADO MINING COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Colorado

707 F. Supp. 1227

STATE OF COLORADO, Plaintiff, v. IDARADO MINING COMPANY, et al., Defendants.

No. 83-C-2385.

United States District Court, D. Colorado.

February 22, 1989.

COPYRIGHT MATERIAL OMITTED

Kent E. Hanson, Adam Babich, and Carolyn L. Bucholz, Asst. Attys. Gen., Denver, Colo., for plaintiff.

Christopher Lane, Cassandra G. Sasso, Alan J. Gilbert of Sherman & Howard, Denver, Colo., and Ralph J. Moore, Jr., Nancy C. Shea, and James R. Bieke of Shea & Gardner, Washington, D.C., for defendants.

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

Plaintiff State of Colorado instituted this declaratory judgment action pursuant to 28 U.S.C. § 2201 asserting claims under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 "SARA", Pub.L. No. 99-499, 100 Stat. 1615 (1986) (collectively "CERCLA") and under the Toxic Substance Control Act, 15 U.S.C. §§ 2601 et seq., ("the TSCA"). Plaintiff seeks to impose liability against the defendants for the cleanup of hazardous wastes and for natural resources damage at and near the defendants' mine and milling facilities located between Ouray and Telluride, Colorado. Defendants are Idarado Mining Company, Newmont Mining Corporation ("Newmont Mining") and Newmont Services Limited ("Newmont Services"), all owners and operators of the Idarado Mine. (For convenience only, these defendants may be referred to collectively as "Idarado" in this opinion. Maps of the area at issue are appended as Exhibits A, B and C.)

Pursuant to CERCLA § 107(a)(1)-(4)(A) and (D), 42 U.S.C. § 9607(a)(1)-(4)(A) and (D), the State has sued to recover its response costs incurred and to be incurred in the cleanup of past and ongoing releases of hazardous wastes at the mining site. Plaintiff state also seeks an injunction under CERCLA § 121(e)(2), 42 U.S.C. § 9621(e)(2) to implement certain remedial actions it proposes to effectuate the cleanup process. In addition, pursuant to CERCLA § 107(a)(4)(C), 42 U.S.C. § 9607(a)(4)(C), the State has sued for damages for destruction of natural resources. Finally, the State seeks an injunction under the TSCA compelling the defendants to remedy the adverse environmental consequences caused by their allegedly illegal mishandling of polychlorinated biphenyls ("PCB's") at the site.

I earlier granted the State's motion to bifurcate trial on the claim for natural resources damage. The State's claims under the TSCA and the CERCLA response costs were tried to the court over twenty-six trial days. This opinion constitutes my findings of fact, conclusions of law and order as to the matters tried, pursuant to Rule 52, Fed.R.Civ.P.

I. Scope of Liability Under CERCLA § 107(a), 42 U.S.C. § 9607(a).

To establish liability under CERCLA, the State must prove that (1) the defendants are owners or operators (2) of a facility (3) from which there has been a release or a threatened release, of a hazardous substance that causes response costs to be incurred. State of Colorado v. ASARCO, Inc., Civil Action No. 83-C-2383, Slip Op. at 2 (D.Colo. Nov. 27, 1985). Defendant Idarado Mining Company has admitted that it is an owner and operator of the Idarado Mine. In a previous order, I ruled that, for purposes of CERCLA liability, Newmont Mining was both an owner and an operator, and that Newmont Services was an operator, of the Idarado property and sites at issue.

Moreover, I have previously determined that the defendant Idarado Mining Company is liable to the State under CERCLA § 107(a), 42 U.S.C. § 9607(a) for the release, or threatened release of a hazardous substance from a facility that has caused the State to incur response costs. That holding applies equally to the liability of Newmont Services and Newmont Mining.

Generally, CERCLA authorizes the United States Environmental Protection Agency ("USEPA") to undertake pollution abatement and cleanup efforts and then seek reimbursement for cleanup costs from responsible parties. The National Contingency Plan ("the NCP"), 40 C.F.R. Part 300 (1986), prepared by the USEPA, outlines the administrative process that governs these cleanup efforts by establishing procedures and standards applicable to the response actions.

Like the USEPA, states can sue responsible parties to recover remedial and removal costs. To prevail, a State's response efforts must be "not inconsistent with the NCP." United States v. Northeastern Pharmaceutical and Chem. Co., 810 F.2d 726, 747 (8th Cir.1986); State of New York v. Shore Realty Corp., 759 F.2d 1032, 1041 (2d Cir.1985); State ex rel. Brown v. Georgeoff, 562 F.Supp. 1300, 1315 (N.D.Ohio 1983). CERCLA § 121(d)(1), 42 U.S.C. § 9621(d)(1), provides that:

"Remedial actions selected under this section ... shall attain a degree of clean-up of hazardous substances, pollutants, and contaminants released into the environment and of control of further release at a minimum which assures protection of human health and the environment. Such remedial actions shall be relevant and appropriate under the circumstances presented by the release or threatened release of such substance, pollutant, or contaminant."

Pursuant to the NCP, a detailed environmental investigation of the area is performed and the feasibility of various remedial alternatives is analyzed. The Remedial Investigation ("RI"), or first component, determines the nature and extent of the harm caused or threatened by the release of hazardous substances into the environment at a site. The Feasibility Study ("FS"), or second component, is the evaluation of proposed remedies. These two components are interdependent and may be conducted concurrently.

CERCLA § 121(d)(2)(A), 42 U.S.C. § 9621(d)(2)(A) requires that applicable or relevant and appropriate federal and state environmental and public health requirements be identified and applied to the response action undertaken at the site. Under the NCP, "applicable requirements" mean "those Federal requirements that would be legally applicable, whether directly, or as incorporated by a Federally authorized State program, if the response actions were not undertaken pursuant to CERCLA section 104 or 106." 40 C.F.R. § 300.6. Also, pursuant to 40 C.F.R. § 300.6,

"relevant and appropriate requirements are those Federal requirements that, while not `applicable,' are designed to apply to problems sufficiently similar to those encountered at CERCLA sites that their application is appropriate. Requirements may be relevant and appropriate if they would be `applicable' but for jurisdictional restrictions associated with the requirement."

After notice and an opportunity for public comment, a comprehensive remedial action plan appropriate for the site as a whole is selected utilizing the data gathered from the RI/FS activities. The final remedy selected for the site is issued as the Record of Decision ("ROD"). CERCLA § 121(d)(2)(A)(ii), 42 U.S.C. § 9621(d)(2)(A)(ii); 40 C.F.R. §§ 300.68(i)(1), 300.71(a)(2)(ii)(B) and 300.71(a)(4).

CERCLA § 121(a), 42 U.S.C. § 9621(a), requires that the governmental response be "cost-effective," taking into consideration total long and short term costs, including costs of operation and maintenance. Pursuant to 40 C.F.R. § 300.68(i), the NCP provides that:

"(1) The appropriate extent of the remedy shall be determined by the ... selection of a cost-effective remedial alternative that effectively mitigates and minimizes threats to and provides adequate protection of public health and welfare and the environment.... This will require selection of a remedy that attains or exceeds applicable or relevant and appropriate Federal public health and environmental requirements that have been identified for the specific site."

"(2) In selecting the appropriate extent of the remedy from among the alternatives that will achieve adequate protection of public health and welfare and the environment in accordance with § 300.68(i)(1), the lead agency will consider cost, technology, reliability, administrative and other concerns, and their relevant effects on public health and welfare and the environment."

"(3) If there are no applicable or relevant and appropriate Federal public health or environmental requirements, the lead agency will select that cost-effective alternative that effectively mitigates and minimizes the threats to and provides adequate protection of public health and welfare and the environment, considering cost, technology, and the reliability of the remedy."

"(4) Pertinent other Federal criteria, advisories, and guidance and State standards will be considered and may be used in developing alternatives, with adjustments for site-specific circumstances."

* * * * * *

Determining the appropriate removal and remedial action involves specialized knowledge and expertise. Where the federal government has sued polluters, the courts have recognized that the choice of a particular cleanup method is within the USEPA's discretion, and the applicable standard of judicial review is whether the agency's decision is arbitrary and capricious. United States v. Northeastern Pharmaceutical and Chem. Co., 810 F.2d at 748; United States v. Ward, 618 F.Supp. 884, 900 (E.D. N.Car.1985). See also, CERCLA § 113(j)(2), 42 U.S.C. § 9613(j)(2). By analogy, this reasoning would seem to apply to actions initiated by the states, at least after a threshold showing of expertise in the state lead agency. Nevertheless, at a pretrial hearing, I indicated that I also would review the State's response plan on the merits.

Pursuant to CERCLA § 113(j)(3), 42 U.S.C. § 9613(j)(3), if the court determines that the selected response action was arbitrary, capricious, or otherwise not in accordance with the law, "the court shall award (A) only the response costs or damages that are not inconsistent with the National Contingency Plan, and (B) such other relief as is consistent with the National Contingency Plan."...