U.S. v. Iron Mountain Mines, Inc.
| Decision Date | 28 October 1997 |
| Docket Number | No. Civ-S-91-768 DFL JFM.,Civ-S-91-768 DFL JFM. |
| Citation | 987 F.Supp. 1263 |
| Court | U.S. District Court — Eastern District of California |
| Parties | UNITED STATES of America, Plaintiff, v. IRON MOUNTAIN MINES, INC., et al., Defendants. STATE OF CALIFORNIA, Plaintiff, v. IRON MOUNTAIN MINES, INC., et al., Defendants. And Related Cross-, Counter-, and Third-Party Claims. |
Paul B. Galvani, Ropes and Gray, Boston, MA, for Rhône-Poulenc Inc.
Thomas H. Hannigan Jr., Ropes and Gray, Boston, MA, for Rhône-Poulenc Basic Chemicals Co.
James W. Matthews, Ropes and Gray, Boston, MA, for Rhône-Poulenc Inc.
Michael Brian Hingerty, Thomas Bloomfield, U.S. Environmental Protection Agency, Regional Counsel, San Francisco, CA, for U.S.
David B Glazer, U.S. Dept. of Justice, Environmental & Natural Resources Div., Environmental Enforcement Section, San Francisco, CA, (Counsel for United States, plaintiff).
Yoshinori H.T. Himel, U.S. Atty., Sacramento, CA, for U.S.
Martin F. McDermott, Mark A. Rigau, David L. Weigert, U.S. Dept. of Justice, Environment & Natural Resources Div., Environmental Defense Section, Washington, DC, for U.S.
Thomas G. Redmon, Wilke Fleury Hoffelt Gould and Birney, Sacramento, CA, for Rhône-Poulenc Basic Chemicals Co. Margarita Padilla, California State Attorney General, Oakland, CA, for State of Cal.
Sara J. Russell, Attorney General's Office of the State of California, Oakland, CA, for State of Cal.
This is a CERCLA cost recovery action concerning Iron Mountain Mine, a copper, zinc, and pyrite mine located in Northern California.1 For over a decade, the Environmental Protection Agency ("EPA") has been studying Iron Mountain Mine to determine how best to remediate the acid mine drainage — referred to as "AMD" — that is created at the Mine when rain and groundwater react with exposed sulfide deposits. The AMD from Iron Mountain Mine is viewed by the EPA as a particular threat to the nearby Sacramento River. The AMD from Iron Mountain Mine runs into Boulder Creek and Slickrock Creek, both of which flow into Spring Creek. Spring Creek terminates in the Spring Creek Reservoir formed by the Spring Creek Debris Dam. The Spring Creek Debris Dam is located just to the west of an arm of the Keswick Reservoir. Water from Spring Creek flows into the Keswick Reservoir where it mixes with the water of three great rivers — the Sacramento, McCloud, and Pit Rivers — contained behind the Shasta Dam. In this way, AMD-tainted water makes its way from the Spring Creek Reservoir into the Keswick Reservoir from whence the Sacramento giver continues its journey to the San Francisco Bay.
Rhône-Poulenc is the successor of the Mountain Copper Company, Ltd., which mined Iron Mountain from 1896 until after World War II. The Mine is now inactive. Rhône-Poulenc has borne much of the expense of the EPA's cleanup efforts at the Mine. However, in various counterclaims, Rhône-Poulenc contends that the United States is also liable for some or all of the response costs associated with the release of AMD from the Mine.2
In this motion, Rhône-Poulenc advances three reasons for the somewhat surprising proposition that the United States should be held liable for the AMD created by Mountain Copper's fracturing of Iron Mountain. First, Rhône-Poulenc argues that the United States should bear its portion of the response costs because of the United States' construction, ownership, and operation of Central Valley Project facilities in the West Shasta Mining District ("CVP facilities") where Iron Mountain Mine is located. In the 1930's, Congress authorized the construction of the Central Valley Project, a vast water project consisting of twenty dams and reservoirs, eight powerplants, and approximately 500 miles of canals and aqueducts located throughout California's Central Valley Basin. All of these facilities are owned by the United States and are operated by the United States Bureau of Reclamation.3 Rhône-Poulenc identifies three CVP facilities along the Sacramento River, which it alleges have contributed and continue to contribute to the environmental contamination around Iron Mountain Mine. Those facilities are the Shasta Dam and Lake; the Keswick Dam and Reservoir; and the Spring Creek Debris Dam, Reservoir, and Power Plant.4
Rhône-Poulenc's CVP facilities counterclaim rests on the notion that Iron Mountain Mine is just one of many sources of AMD and the metals found in AMD flowing into the Keswick Reservoir. According to Rhône-Poulenc, EPA has designated Keswick Dam as the point of compliance to determine whether the concentration of metals present in the water accords with State Basin Plan standards.5 Rhône-Poulenc argues that water passing through the CVP facilities — such as the Shasta Dam and the Whiskeytown Reservoir — contains metals and AMD, not generated by the mining activities at Iron Mountain Mine, and that those metals "collect and commingle in Spring Creek and Keswick Reservoir with discharges of metals from Iron Mountain." As a result, Rhône-Poulenc contends, the overall concentration of metals at Keswick Dam is elevated beyond what it would have been had only metals generated at Iron Mountain Mine flowed there, leading EPA to develop more stringent standards for Iron Mountain Mine than warranted by drainage from the Mine alone and causing Rhône-Poulenc to incur response costs beyond its fair share.
Rhône-Poulenc also makes a second argument with regard to the CVP facilities: Had the United States not dammed the Sacramento River and Spring Creek, the natural flow of the water would have diluted the AMD released from Iron Mountain Mine. According to Rhône-Poulenc, without the dams, the Sacramento River would flow at much greater volume during precisely those times of the year when drainage from Iron Mountain also would be at its peak. Rhône-Poulenc contends that with greater water flows and thus dilution, the metal concentrations in the Sacramento River would be lowered, such that there would have been few, if any, response costs associated with the Mine.
Second, Rhône-Poulenc argues that the United States should be liable because of its ownership of the Golinsky Mine. Like the CVP facilities, the Golinsky Mine is located in the West Shasta Mining District, north of Shasta Dam and Lake. Rhône-Poulenc argues that AMD has been generated at the Golinsky Mine as a result of the mining activities there. According to Rhône-Poulenc, AMD from the Golinsky Mine flows into the Little Backbone Creek, which runs past Golinsky Mine and into Shasta Lake. Water from Shasta Lake, which allegedly is tainted with AMD from Golinsky Mine, then passes through the Shasta Dam into the Sacramento River which feeds into the Keswick Reservoir. There, that water mixes with water from Spring Creek, which contains the AMD from Iron Mountain Mine. According to Rhône-Poulenc, AMD from the Golinsky Mine elevates the overall concentration of metals at Keswick Dam, leading to distorted measurements of AMD from Iron Mountain Mine and overly stringent remedial measures.
Finally, Rhône-Poulenc argues that the United States should be liable for a portion of the response costs because it owns approximately twelve parcels, totaling some 120 acres, on the Iron Mountain Mine site.6 Of those twelve parcels, Rhône-Poulenc contends that two have generated releases of hazardous substances: a 1.1 acre parcel that lies directly above some of the Iron Mountain Mine workings — namely the Lawson Tunnel and the Richmond Tunnel — and a .18 parcel located above the Richmond Plant. Rhône-Poulenc contends that portions of the 1.1 parcel have subsided due to the parcels' location above the underground mine workings and that water seeps through these subsidence zones into the mine workings creating additional AMD. Rhône-Poulenc further asserts that the .18 acre parcel contains a waste pile which is leaching metals.7
Rhône-Poulenc and the United States have filed cross motions for partial summary judgment on the above counterclaims.8
To establish its claim for contribution from the United States, Rhône-Poulenc must show that:
(1) the site on which the hazardous substances are contained is a "facility" under CERCLA's definition of that term, 42 U.S.C. § 9601(9); (2) a "release" or "threatened release" of any "hazardous substance" from the facility has occurred, 42 U.S.C. § 9607(a)(4); (3) such "release" or "threatened release" has caused [Rhône-Poulenc] to incur response costs that were "necessary" and "consistent with the national contingency plan," 42 U.S.C. §§ 9607(a)(4) and (a)(4)(B); and (4) [the United States] is within one of the four classes of persons subject to the liability provisions of § 107(a).
3550 Stevens Creek Assoc. v. Barclays Bank, 915 F.2d 1355, 1358 (9th Cir.1990) (citing Ascon Properties, Inc. v. Mobil Oil Co. ., 866 F.2d 1149, 1152 (9th Cir.1989)). The four classes of persons subject to § 107(a) are operators, owners, arrangers, and transporters. See 42 U.S.C. § 9607(a).
Rhône-Poulenc argues that the United States is liable for contribution as the owner of both the CVP facilities and the Golinsky Mine.9 It is undisputed that the United States is the current owner of the CVP facilities and the Golinsky Mine. And for purposes of this motion, the court will assume that there have been releases of hazardous substances from the CVP facilities and the Golinsky Mine.10 However, for the United States to be liable Rhône-Poulenc also must show that the alleged releases caused Rhône-Poulenc to incur response costs that were necessary and consistent with the national contingency plan. See 42 U.S.C. §§ 9607(a)(4) and (a)(4)(B). Rhône-Poulenc has failed to make that showing, and as a result, the United States' motion for summary judgment will be granted with respect to the CVP facilities and the Golinsky Mine.11
To date, Rhône-Poulenc claims that it has incurred $...
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