State of Colo. v. Idarado Min. Co.

• Citation: 916 F.2d 1486
• Decision Date: 11 October 1990
• Docket Number: 89-1326,Nos. 89-1077,89-1344 and 90-1129,s. 89-1077
• Parties: , 59 USLW 2251, 21 Envtl. L. Rep. 20,270 STATE OF COLORADO, Plaintiff-Appellee, v. IDARADO MINING COMPANY, et al., Defendants-Appellants and Third-Party Plaintiffs, v. BAUMGARTNER OIL COMPANY, et al., Third-Party Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1486

916 F.2d 1486

32 ERC 1001, 59 USLW 2251, 21 Envtl.

L. Rep. 20,270

STATE OF COLORADO, Plaintiff-Appellee, v. IDARADO MINING COMPANY, et al., Defendants-Appellants and Third-Party Plaintiffs, v. BAUMGARTNER OIL COMPANY, et al., Third-Party Defendants.

Nos. 89-1077, 89-1326, 89-1344 and 90-1129.

United States Court of Appeals Tenth Circuit.

Oct. 11, 1990.

James D. Ellman, Asst. Atty. Gen., CERCLA Litigation Section (Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., & Michael R. Hope, Deputy Atty. Gen., CERCLA Litigation Section, with him on the brief), State of Colo., Denver, Colo., for plaintiff-appellee.

Nancy C. Shea, Shea & Gardner, Washington, D.C. (James R. Bieke, Michael S. Giannotto & Paula A. Sweeney, Shea & Gardner, Washington, D.C. and Christopher

Lane & Cassandra G. Sasso, Sherman & Howard, Denver, Colo., with her on the brief), for defendants-appellants and third-party plaintiffs.

Richard B. Stewart, Asst. Atty. Gen., David C. Shilton & Dirk D. Snel, Attys., Land and Natural Resources Div. Appellate Section, Dept. of Justice, and Charles Openchowski, Office of the General Counsel & Nancy Mangone, Office of Enforcement and Compliance Monitoring, U.S.E.P.A., Washington, D.C., for the U.S., amicus curiae.

Before McKAY, ANDERSON and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Defendants-appellants Idarado Mining Company, Newmont Mining Corporation, and Newmont Services Limited appeal from a mandatory injunction issued by the district court on February 22, 1989. Plaintiff-appellee State of Colorado (State) is the beneficiary of the injunction, issued on the authority of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. Secs. 9601-9626, as amended by the 1986 Superfund Amendments and Reauthorization Act (SARA), Pub.L. No. 99-499, 100 Stat. 1613 (1986). Subsequent to the issuance of the injunction, the district court entered judgment in favor of the State for past response costs plus prejudgment interest. State of Colorado v. Idarado Mining Co., 735 F.Supp. 368 (D.Colo.1990). That interlocutory order is not the subject of this appeal. See Appellants' Motion for Consolidation at 3 (filed May 10, 1990).

The injunction issued on the authority of Sec. 121(e)(2) of CERCLA, 42 U.S.C. Sec. 9621(e)(2), directs appellants to carry out an extensive environmental cleanup plan proposed by the State and adopted, with various modifications, by the district court. See Colorado v. Idarado Mining Co. 707 F.Supp. 1227, 1232, 1261-63 (D.Colo.1989), amended in part, 735 F.Supp. 368 (1990). In December 1989, a three-judge panel of this court stayed the injunction pending appeal. See Fed.R.App.P. 8(a); 10th Cir.R. 8.1. The district court's jurisdiction arose under 28 U.S.C. Sec. 2201 and Sec. 113(b) of CERCLA, 42 U.S.C. 9613(b); our jurisdiction to consider the appeal from the district court's grant of an injunction arises under 28 U.S.C. 1292(a)(1).

I.

As enacted in 1980 and amended in 1986, CERCLA was designed to facilitate cleanup of environmental contamination caused by releases of hazardous substances. The act sets forth several mechanisms for responding to such releases and delineates the respective powers of the federal government, the states, Indian Tribes and private parties. Section 111 of CERCLA provides for the creation of a Hazardous Substance Superfund to finance cleanup actions at sites affected by releases or threatened releases of hazardous substances. 42 U.S.C. Sec. 9611. Section 104(a) authorizes the federal government to take necessary cleanup actions financed by the Superfund to respond to such releases or threatened releases. 42 U.S.C. Sec. 9604(a). Alternatively, under Sec. 104(d), the federal government may enter into cooperative agreements with states, political subdivisions or Indian Tribes to conduct cleanup actions using the Superfund. 42 U.S.C. Sec. 9604(d).

To shift the financial burden of a cleanup to the parties responsible for the releases, a governmental entity may sue these parties for the costs incurred in responding to a release. CERCLA Sec. 107(a); 42 U.S.C. Sec. 9607(a). In such a cost recovery action, responsible parties include, among others, the "owner or operator" of the facility from which the release occurred. Id. Even when no cooperative agreement exists permitting use of Superfund money for cleanup, CERCLA Sec. 114(a) preserves the right of a state or other party to proceed under applicable state law to conduct a cleanup of a site affected by hazardous substances. 42 U.S.C. Sec. 9614(a). States or other parties which incur response costs not financed by the Superfund may bring a cost recovery action against the responsible parties. 42 U.S.C. Sec. 9607(a).

When a cost recovery action is brought by the federal government, a state, an Indian Tribe or a private party, Sec. 107(a)(4) imposes liability on responsible parties for response costs "not inconsistent with the national contingency plan [NCP]." 42 U.S.C. Sec. 9607(a)(4). The NCP consists of procedural and substantive guidelines issued by the Environmental Protection Agency (EPA) governing CERCLA cleanup actions. See 40 C.F.R. pt. 300 (1989). Liability among responsible parties is joint and several, O'Neill v. Picillo, 883 F.2d 176, 178-79 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1115, 107 L.Ed.2d 1022 (1990), and one responsible party may seek contribution from other responsible parties, 42 U.S.C. 9613(f).

In addition to the authority to finance cleanups from the Superfund and to recover costs from responsible parties, CERCLA provides the federal government with additional power to deal with releases of hazardous substances by bringing an abatement action in federal district court. See generally Koppers Indus., Inc. v. United States EPA, 902 F.2d 756, 757 n. 1 (9th Cir.1990) (discussing federal options); United States Fidelity & Guar. Co. v. Morrison Grain Co., 734 F.Supp. 437, 441 (D.Kan.1990) (same). If the President determines that a release or threatened release may pose "an imminent and substantial endangerment to the public health or welfare or the environment," Sec. 106(a) provides that the federal government may seek "such relief as the public interest and the equities of the case may require." 42 U.S.C. Sec. 9606(a). Such relief may include a mandatory injunction compelling responsible parties to perform a cleanup. See, e.g., United States v. Conservation Chem. Co., 619 F.Supp. 162, 192 (W.D.Mo.1985). However, Sec. 106(a) does not allow a state, with or without a cooperative agreement, to seek injunctive relief against responsible parties. See 42 U.S.C. Sec. 9606(a). Whether that authorization is found elsewhere in CERCLA is the subject of this appeal.

II.

This action relates to a cleanup of a highly mineralized area that has been prospected and mined extensively throughout the century. Idarado, 707 F.Supp. at 1234. According to the State, Idarado and its codefendants are responsible for various metallic releases in certain rivers and creeks located between the towns of Teluride and Ouray in southwestern Colorado. The sources of these releases are tailings piles, mine portals and waste rock piles. Tailings essentially are finely ground ore from which most of the valuable metal has been removed by the milling process. Because some metal remains, however, tailings piles release metal when water flows over or seeps through them. Portals are mine openings originally used for access to underground mines. Water entering a mine by seepage from the surface or by groundwater movement can pick up metals while flowing through mineralized materials underground and then exiting through the mine portals. Waste rock is material removed from a mine lacking sufficient metal content to warrant further processing. Like tailings, waste rock can release metals upon contact with water flows.

Idarado's properties are located in three areas. Two are in the Telluride and Red Mountain valleys, separated by the mountains in which Idarado's mine is located. The Telluride Valley property contains six tailings piles and two mine portals. Id. at 1233. The San Miguel River flows through Idarado's property, down the valley, and past the town of Telluride. The Red Mountain Valley property contains five tailings piles and several portals and waste rock piles. Id. Red Mountain Creek flows through the valley past Idarado's property and empties into the Uncompahgre River above the town of Ouray. The third property is known as the High Country, consisting of the mountain basins between the Telluride and Red Mountain Valleys. The parties have agreed in large part upon remediation for the High Country.

The State of Colorado initiated this action against Idarado, its parent company, Newmont Mining Corporation, and a subsidiary of the parent which had provided services to Idarado, Newmont Services Limited. The State's complaint, as amended sought to hold the defendants liable for cleanup costs associated with the Idarado mining properties. ¹ Following the enactment of SARA in 1986, the state further supplemented its pleadings to seek an injunction directing Idarado to cleanup the sites.

In March 1987, the State issued a Record of Decision (ROD) which contained its proposed plan for remedial activities to be undertaken at the sites. Thereafter, the district court ruled that Newmont Mining was an "owner and operator" of the Idarado facilities and that Newmont Services was an "operator" of those facilities because both entities "were involved directly in day-to-day operations of Idarado Mining Company and the sites here in dispute." See Colorado v. Idarado Mining Co., 18 Envtl.L.Rep. (Envtl.L.Inst.) 20,578, 20,579 (D.Colo.1987); see also United States v. Kayser-Roth Corp., 724 F.Supp. 15, 22 (D.R.I.), aff'd, 910 F.2d 24, 27 (1st Cir.1990). Accordingly, Newmont Mining and Newmont Services, as well as Idarado Mining, were...