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Colorado v. Idarado Mining Co.

Citation: 19 ELR 20794
No. No. 83-C-2385, 707 F. Supp. 1227/29 ERC 1348/(D. Colo., 02/22/1989) Liability

The court holds that defendant mining companies and mine operators are jointly and severally liable under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for the state of Colorado's past and future response costs in connection with its cleanup of hazardous wastes in the vicinity of defendants' mine and milling facilities in Colorado, and defendants must implement remedial actions to address the contamination. Various sites in the area, as well as the nearby San Miguel River, are contaminated with metals, and the three main sources of contamination are mill tailings, mine drainage, and waste rock. The state of Colorado sued for declaratory judgment pursuant to 28 U.S.C. §2201 as to defendants' CERCLA liability, as well as to recover response costs under CERCLA §107 and to obtain an injunction under CERCLA §121(e)(2) requiring defendants to implement remedial plans developed by the state. Addressing issues that relate to particular contamination sources and affected areas, the court holds that the state's remedial plan for the Telluride waste piles goes too far in requiring the moving and consolidation of the tailings piles and the use of a six-foot multilayer cap. On the other hand, the court holds that the remedial plan suggested by defendants does not go far enough to protect human health and the environment, since the proposed method of stabilizing the waste in place is neither practical nor likely to succeed. The court holds that a second, alternate plan offered by the state, which calls for stabilizing the wastes in place and constructing a multilayered cover on each pile, satisfies CERCLA's aims. With regard to tailings in the Society Turn area, the court holds that defendants are liable for the area's hazardous waste contamination both as generators of hazardous waste and as past owners. Although defendants do not presently own property in the Society Turn area, much of the contamination in the area is the result of dumping carried out by their predecessor mining companies, for whom defendants assumed all debts, liabilities, and obligations upon acquiring the companies in the 1950s. Moreover, defendants, through their subsidiary, previously owned property at Society Turn where tailings piles have eroded and continue to erode into the San Miguel River. The court modifies the state's remedial plan for the Society Turn contamination in one respect, and orders that a consolidation site be selected that would not involve hauling tailings through the nearby town of Telluride.

Concerning miscellaneous tailings along the San Miguel River, the court holds that defendant's contention that their stream bank tailings contribute a de minimis amount of hazardous substances to the San Miguel does not preclude their liability. The court holds that the state's remedial plan for the miscellaneous tailings, although generally acceptable, is not specific enough in several respects, and the court orders the state to produce a more specific plan. With regard to contamination of soils in the town of Telluride, the court holds that lead levels in the town's soils are not presently endangering the lives of its residents, and that there is inadequate proof that the contamination that does exist is attributable to defendant's activities to warrant imposition of the state's proposed remedial plan. However, the court holds that defendants shall be responsible for implementation of a five-year monitoring plan. Addressing tailings piles in the Red Mountain Creek area, the court concludes that the state's cleanup plan should be adopted, but that construction should be designed to withstand flooding. In addition, the court holds that, as with the Telluride piles, the state's proposed six-foot multilayer cap is excessive and unnecessary. Turning to defendants' discharge of contaminated waters from mine portals and through waste rock piles, the court rejects defendants' proposal only to plug mine portals located on their own property, but declines to order defendants to plug mine portals or diver water around waste rock on property in which defendants do not own an interest. Instead, the court generally adopts the state's plan to divert water away from contamination sources and to treat contaminated water. The court holds that certain trailer homes in the area should be relocated as part of the state's remedial plan, and that a presidential order under CERCLA §101(24) is not necessary since the relocation is not designed to protect residents from toxic exposure. The court also holds that the Colorado Mined Land Reclamation Act contemplates the restoration of all land that has been disturbed by mining processes, not just those areas disturbed by restoration or remedial activities. The court orders defendants to establish permanent, and self-sustaining vegetation on all areas affected by their activities, including millyard areas that have not been covered with vegetation for some time. In addition, the court holds that defendants must comply with the provisions in the state's remedial plan requiring defendants to stock the San Miguel River with species of fish that are not native to the area. Mitigation as a response action does not require replication of the exact conditions that existed before the land and water were despoiled.

The court holds that overall, the state's remedial plan is consistent with the National Contingency Plan and CERCLA, and is not arbitrary or capricious. The court further holds that defendants are jointly and severally liable for Colorado's response costs. The court enters declaratory judgment holding defendants responsible for cleanup of the sites, and orders defendants to carry out the remedial plan crafted by the state in its record of decision, with the modifications identified by the court.

[A previous decision in this case is published at 18 ELR 20578.]

Counsel for Plaintiff
Kent E. Hanson, Adam Babich, Carolyn L. Buchholz, Ass't Attorneys General
1525 Sherman St., Third Fl., Denver CO 80203
(303) 866-3611

Counsel for Defendants
Christopher Lane, Cassandra G. Sasso, Alan J. Gilbert
Sherman & Howard
633 17th St., Ste. 3000, Denver CO 80202
(303) 297-2900

Ralph J. Moore Jr., Nancy C. Shea, James R. Bieke
Shea & Gardner
1800 Massachusetts Ave. NW, Washington DC 20036
(202) 828-2000