Colorado v. ASARCO, Inc.

No. 83-C-2383 (D. Colo. November 27, 1985)

The court holds that defendant is liable to the state under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act for response costs and natural resource damage. The state's evidence of seepage from unlined waste disposal areas and of materials blowing from a pile containing hazardous waste establishes that there has been a release of hazardous substances from defendant's facility, and that there is a threat of further releases that has caused the state to incur response costs. At this time the court declines to determine the extent of the damages and the scope of the state's right to recover for natural resource damage.

[An earlier opinion in this case appears at 16 ELR 20046.]

Counsel for Plaintiff
Robert A. Hykan, Ass't Attorney General
CERCLA Litigation Section
1 Civic Ctr. Plaza, 1560 Broadway, Suite 250, Denver CO 80203
(303) 866-3611

Counsel for Defendant
John Fognani
555 17th St., Suite 2900, Denver CO 80201
(303) 295-8000

[16 ELR 20561]

Carrigan, J.:

Order

In its first amended complaint, the State of Colorado ("State" or "plaintiff") alleges that ASARCO, Inc. is liable under § 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a) (1982) for damages for injury to natural resources and for response costs incurred and to be incurred by the State at ASARCO's Globe Plant site. Both parties have moved for partial summary judgment on the issue of liability. See Fed. R. Civ. P. 56(c). I have reviewed the briefs and have heard argument on the motions. I conclude that the State's motion should be granted and the defendant's denied.

Section 107 of CERCLA, 42 U.S.C. § 9607(a) (1982) states:

Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section —

(1) the owner and operator of . . . a facility . . . from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for —

(A) all costs of removal or remedial action incurred by . . . a State not inconsistent with the national contingency plan; [and]

(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release.

Section 107(f), 42 U.S.C. § 9607(f) (1982) further provides:

In the case of an injury to, destruction of, or loss of natural resources under subparagraph (C) of subsection (a) of this section, liability shall be to . . . any State for natural resources within the State or belonging to, managed by, controlled by, or appertaining to such State. . . . [T]he authorized representative of any State shall act on behalf of the public as trustee of such natural resources to recover for such damages.

To establish liability under CERCLA, the plaintiff must prove that: (1) the defendant is an owner or operator (2) of a facility (3) from which there has been a release of a hazardous substance or a threatened release of a hazardous substance which causes the incurrence of response costs. New York v. Shore Realty Corp., 759 F.2d 1032 [15 ELR 20358] (2d Cir. 1985); United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100 [12 ELR 20954] (D. Minn. 1982).

Defendant has admitted that it is the owner and operator of a facility within the meaning of § 107. It is undisputed that the State has incurred at least some response costs, as that term is defined in § 101(25), 42 U.S.C. § 9601(25) (1982). (See order of August 29, 1985, p. 13-15). Therefore, in order for liability to attach, the State must demonstrate that there has been a "release" of a "hazardous substance" from the defendant's Globeville plant, or a "threatened release" of a hazardous substance that has caused response costs.

Under § 101(22), 42 U.S.C. § 9601(22) (1982), a "release" is defined as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment." Under § 101(8), 42 U.S.C. § 9601(8) (1982),

"environment" means . . . (B) any . . . surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.

Section 101(14), 42 U.S.C. § 9601(14)(D) (1982) defines "hazardous substance" to include "any toxic pollutant listed under section 1317(a) of Title 33." The Environmental Protection Agency has published a list of substances that are hazardous under CERCLA, and that list includes arsenic, lead, cadmium, selenium, chromium, copper, and zinc as hazardous substances because they are listed under 33 U.S.C. § 1317(a) (1982). See 50 Fed. Reg. 13475-13513 (April 4, 1985).

The State has submitted affidavits, consistent in form with the requirements of Fed. R. Civ. P. 56 (e), establishing the following facts.Waste materials produced by ASARCO operations at the Globe site are placed in an unlined sludge pond. (Affidavit of Anthony D. Truschel, dated August 15, 1985, para. 5.) The waste slurryis allowed to settle while liquid either evaporates or seeps out. (Id.) As the sludge ponds fills, the solids are periodically dredged out and placed on the sides of the sludge pound. (Id.) An unlined interceptor trench was constructed adjacent to the waste pile to intercept runoff from the waste disposal area and runoff from soils contaminated by plant operations. (Id. at para. 6.)

The sludge pound and waste piles contain arsenic, cadmium, lead, and selenium. (Id. at para. 7a.) The interceptor trench contains cadmium, chromium, copper, sinc, and arsenic. (Id. at para. 7b.) Furthermore,

ASARCO's sludge pound and waste pile are designed and constructed in such a manner that seepage or leaching into ground water is inevitable. That is, no natural or installed barrier exists to prevent movement of contaminants from the disposal area into the ground water. Because the waste disposal area is unlined, water from the waste disposal area [16 ELR 20562] containing hazardous substances from the waste materials has seeped, is seeping, and will continue to seep downward into the ground water.

(Id. at para. 7c.)

The State has further established by affidavit that surface water runoff flowing from the Globe Plant site through a fence on the western border was tested and found to contain elevated levels of arsenic, cadmium, copper, and zinc. (Affidavit of John G. Carter, dated September 16, 1985.) Finally, the State has demonstrated that material from the waste pile contains hazardous substances, and that this material has been observed blowing from the waste pile. (Affidavit of Anthony D. Truschel, supra; Affidavit of Philip Stoffey, dated August 16, 1985.)

These affidavits, none of which is controverted by the defendant, clearly establish that there has been a release of a hazardous substance from the defendant's Globe plant, and that there is a continuing threat of further releases of hazardous substances that has caused response costs.

CERCLA § 107(a) imposes strict liability for costs of removal or remedial action. New York v. Shore Realty Corp., 759 F.2d 1032 [15 ELR 20358] (1985). Therefore, I find and conclude that the defendant is liable to the State for at least some costs of removal or remedial action incurred by the State at the site not inconsistent with the national contingency plan. I further find and conclude that the defendant is liable to the State for at least some damages for injury to, destruction of, and loss of natural resources, including the costs of assessing such injury, destruction, or loss resulting from the above releases or any other demonstrable releases.

I am making these rulings now in order to settle the threshold issue of liability without requiring an expensive and time-consuming liability trial whose ultimate conclusion seems obvious. I reserve for later decision the issues of the extent and scope of causation: that is what specific injuries have been caused to what particular resources and what damages have been incurred. Today's holding encompasses only the legal conclusion that there is some liability for at least some, as yet unmeasured, harm to the environment that has been caused by the defendant.

The parties in their briefs have urged me to rule on the scope or extent of the State's right to recoverfor natural resource damages. Such a ruling is not necessary for disposition of the instant motions. Therefore I will reserve ruling on the issue until I can rule in the context of particular claims for specific types of natural resource damages. Counsel are advised, however, that I am not satisfied with either party's approach. The parties are charged to attempt to formulate a workable theory to limit the State's ability to recover for natural resource damages to damages other than those suffered solely by private persons who have meaningful private remedies available.

Accordingly, it is ordered that the plaintiff's motion for partial summary judgment is granted on the issue of the defendant's liability under CERCLA. Defendant's motion for summary judgment is denied.