State of Idaho v. Howmet Turbine Component Corp.

• Decision Date: 30 January 1986
• Docket Number: Civ. No. 83-4179.
• Citation: 627 F. Supp. 1274
• Parties: The STATE OF IDAHO, Plaintiff, v. HOWMET TURBINE COMPONENT CORPORATION, Hanna Mining Company, Noranda Mines Limited, a Delaware corporation, Noranda Exploration, Inc., a Delaware corporation, and John Does 1 to 100, Defendants.
• Court: U.S. District Court — District of Idaho

627 F. Supp. 1274

The STATE OF IDAHO, Plaintiff, v. HOWMET TURBINE COMPONENT CORPORATION, Hanna Mining Company, Noranda Mines Limited, a Delaware corporation, Noranda Exploration, Inc., a Delaware corporation, and John Does 1 to 100, Defendants.

Civ. No. 83-4179.

United States District Court, D. Idaho.

January 30, 1986.

John J. Hockberger, Jr., Patrick J. Kole, Cheryl P. Koshuta, Deputy Attys. Gen., Div. of Environment, Dept. of Health & Welfare, State of Idaho, Cline J. Strong, Chief, Natural Resources Div., State of Idaho, Boise, Idaho, for plaintiff.

Robert Monte MacConnell, Boise, Idaho, Anthony O. Garvin, Robert R. Klotz, Deborah Schmall, Amy B. Slater, San Francisco, Cal., for Noranda Exploration and Noranda Min H. Edward Dunkelberger, Theodore L. Garrett, Steven J. Rosenbaum, Washington, D.C., Carl P. Burke, Boise, Idaho, for Howmet Turbine Components.

Gary D. Babbitt, Don A. Olowinski, Boise, Idaho, Wesley F. Merrill, Kim B. Loveland, Pocatello, Idaho, for Hanna Min. Co.

MEMORANDUM DECISION

CALLISTER, Chief Judge.

Before the Court are the motions to dismiss and for summary judgment of defendants Hanna Mining Company, Noranda Mines Limited, and Noranda Exploration, Inc. Counsel presented oral argument on these matters in a hearing held January 17, 1986. The Court has reviewed the memoranda filed by the parties as well as all other materials on file in the case.

This is an environmental law action brought for injunctive and monetary relief by the State of Idaho against Hanna Mining Company (Hanna), Noranda Mines Limited and Noranda Exploration, Inc. (collectively, Noranda), Howmet Turbine Component Corporation (Howmet) and John Does 1 to 100. Defendant Howmet has now been voluntarily dismissed from the action by the plaintiff. Jurisdiction is based on federal question and pendent jurisdiction.

In its complaint, plaintiff alleges that the defendants disposed of large quantities of mining wastes and hazardous chemical wastes in and around five creek drainages located in Lemhi County approximately 21 miles west of Salmon, Idaho. Plaintiff alleges that these wastes have all been produced from the operation of the Blackbird Mine, beginning about 1917. Plaintiff alleges that these wastes have contaminated ground and surface waters and have damaged aquatic life and wildlife in the area. The complaint alleges that the harmful effects of the waste disposal began to evidence themselves in the 1950's and continue to the present date.

Plaintiff's complaint contains four causes of action:

1. Strict liability under 42 U.S.C. § 9601 et seq., part of the so-called "Superfund Act" known officially as the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).

2. Strict liability under the common-law theory of abnormally dangerous activity.

3. Nuisance—negligent creation of a continuing public nuisance.

4. Nuisance—negligent maintenance of a continuing public nuisance.

The parties have submitted statements of undisputed facts along with their motions for summary judgment from which the Court has sifted out the following undisputed facts.

The Blackbird Mining District is located in east central Idaho approximately 21 miles west of Salmon, Idaho. The Blackbird Mine, initially discovered in 1893, was the principal mine in the district. Cobalt and copper sulfides were mined and milled by various companies at the Blackbird Mine from 1917 to 1967, with the main period of extraction from 1949 to 1967. Since 1967 little or no commercial mining operations have been conducted at the mine, although the defendants have run two small pilot programs to test the feasibility of reopening mining operations. These pilot programs were implemented long after the main period of commercial mining operations ceased in 1967.

Blackbird Mine has been mined by both underground and open pit mining. The open pit mining that occurred in the late 1950's left a 10.3 acre unreclaimed pit and approximately 3.8 million tons of waste rock deposited on 45.8 acres in the headwaters of the Blackbird and Bucktail Creeks. The underground mine has resulted in the development of at least 10 miles of underground workings. Approximately one million tons of waste rock have been removed from the underground workings and deposited in the drainage of Blackbird, Meadow and Bucktail Creeks.

Between the 1890's and 1967, ore tailings were disposed of throughout the Blackbird Creek Drainage system. During the early period of operation, the tailings were deposited directly into Blackbird Creek for disposal. In 1950, a tailings dam was constructed to collect the tailings which washed downstream. This dam currently contains approximately 2 million tons of tailings. In 1967, defendant Hanna, through a subsidiary company, acquired the Blackbird Mine and/or surrounding properties in the Blackbird Mining District. Hanna maintained only minimum crews at the mine and conducted no commercial mining activities.

Defendant Noranda Exploration, Inc., conducted limited exploration activities at the Blackbird Mine between 1978 and 1982. In August 1980, Hanna transferred its Blackbird properties to the Blackbird Mining Company, a limited partnership composed of defendant Hanna as the limited partner, and defendant Noranda as the general partner.

Defendant Noranda conducted limited mining activities at the Blackbird Mine between December 1979 and May 1982 as a general partner of the Blackbird Mining Co. During this period, Noranda removed approximately 2500 tons of ore from the mine as part of a pilot project to determine the feasibility of full-scale operation of the mine.

On September 25, 1980, Noranda and the State of Idaho entered into a stipulation for entry of compliance schedule order regarding operation of the Blackbird Mine. On that same date, the United States Environmental Protection Agency (EPA) issued a National Pollution Discharge Elimination System (NPDES) permit to Noranda regarding the Blackbird Mine. The State of Idaho certified to the EPA pursuant to § 401 of the Federal Water Pollution Control Act that issuance of the NPDES permit to Noranda was in compliance with Idaho water quality standards.

In accordance with the compliance order and NPDES permit, defendant Noranda constructed a waste water treatment plant at the Blackbird Mine to treat mine drainage from the mine at a capital cost of approximately $1.5 million. The waste water treatment plant was completed in November 1980 and has been operated since that date in compliance with standards established by the NPDES permit. The total cost of all environmental work by Noranda mining is approximately $3 million.

Noranda's plan for a pilot mining program was approved by the United States Forest Service on September 8, 1980. The Environmental Assessment prepared by the U.S. Forest Service stated that the pilot program would have no significant impact upon the environment. Following issuance of its decision notice, the Forest Service issued a use permit to Noranda for use of Forest Service lands. The Forest Service also approved Noranda's proposal for fullscale operation of a 1200-ton per day operation in February 1982, after issuance of a final Environmental Impact Statement. This Environmental Impact Statement identified that past mining practices had had an adverse effect upon fisheries and natural resources in the Panther Creek drainage and that Noranda would not be required to correct past damages to natural resources.

Noranda ceased all mining operations at the Blackbird Mine in 1981 and ceased all underground activities in May 1982 at the completion of the pilot program and prior to the initiation of any full-scale operation of the mine. No further activities have been conducted at the mine by defendants. Noranda has continued to maintain and operate the wastewater treatment plant for collection and treatment of drainage since that time in compliance with the standards established in the NPDES permit issued by the EPA. Following closure of the mine, all employees of Noranda were terminated with the exception of a caretaker crew of three individuals. Discharges of pollutants continue on the properties owned by the defendants.

On September 28, 1984, the EPA reissued a second NPDES permit to Noranda for the Blackbird Mine which established treatment requirements during the period that the mine is closed.

The Idaho Department of Health and Welfare and Idaho Department of Fish and

Game have been involved in the regulation and monitoring of water quality from the Blackbird Mine for several decades.

CERCLA was enacted December 11, 1980. This suit was filed December 12, 1983. Notices of claims were mailed to the defendants on December 12, 1985.

The defendants' motions raise the following issues:

1. Does the three-year statute of limitations in § 112(d) of CERCLA, 42 U.S.C. § 9612(d), bar this action?

2. Did the State's failure to present a notice of claim sixty days before the commencement of this action preclude this suit under CERCLA § 112(a), 42 U.S.C. § 9612(a)?

3. Were the discharges of wastes in the present case federally-permitted releases within the meaning of CERCLA, i.e., were they authorized by federal and/or state permits?

4. Did the environmental impact statement identify the alleged damages to natural resources as irreversible and irretrievable commitments of natural resources under CERCLA?

5. Are mining wastes excluded from coverage of CERCLA?

6. Are the state causes of action barred by the four-year statute of limitations contained in Idaho Code § 5-224?

7. Are nuisance actions for the protection of water quality pre-empted by the Idaho Environmental Protection Act?

CERCLA THREE-YEAR STATUTE OF LIMITATIONS

The Court agrees with the plaintiffs that this action is not barred by the three-year statute of limitations contained in § 112(d) of CERCLA, 42 U.S.C. § 9612(d). Section 112(d) states:

No claim may be presented, nor may an action

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