Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv- 1263- PSF- MEH

ROBERT M. FRIEDLAND
Plaintiff,

TIC - THE INDUSTRIAL COMPANY and GEOSYNTEC CONSULTANTS , INC. f/k/a GEOSERVICES , INc.
Defendants.

DEFENDANT GEOSYNTEC' S REPLY TO PLAINTIFF' S RESPONSE IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
Defendant GeoSyntec Consultants Inc. , formerly GeoServices , Inc. (" GeoSyntec

submits the following Reply to Plaintiff s Response in Opposition to GeoSyntec s Motion for
Summary Judgment.

INTRODUCTION
Robert M. Friedland (" Friedland" ), the former President of Summitville Consolidated Mining Company, Inc. (" SCMCI" ), brought this action to recover contribution for costs paid in connection with the environmental catastrophe that occurred under his watch at the Summitville

Mine (hereinafter referred to as the " Mine "

or the " Site

l Friedland paid these costs pursuant

that the massive discharge of hazardous materials at the Mine EPA $100 million in cleanup costs , was a " catastrophe. " In his which caused the to incur over mind , the only " catastrophe " was " the number of trees that had to die to generate the paperwork"
for the ensuing litigation. attached hereto as (See Excerpts from Deposition of Robert M. Friedland dated

1 Friedland disagrees

1/27/06

Exhibit A-

at 118: 16- 119: 12.

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to a consent decree resolving a cost recovery action brought against him by the United States and
the State of Colorado in 1996 (the " EPA Action
In the EP A Action , Friedland asserted third- party complaints against the major

contractors who worked at the Site and prior owners , all of whom had been named in an EP Report as parties " potentially responsible " for cleanup costs at the Site under CERCLA.
EP A Report

(See

Ex. A- to Motion. )

Significantly,

Friedland brought no claims against GeoSyntec

a firm that was engaged as a subcontractor to SCMCI's geotechnical engineering consultant , and
which was not

named in the EP A Report as a potentially responsible party, under any category.

Id. )

A consent decree ,

resolving the governments ' claims against Friedland in exchange for a
$20

payment of approximately

million , was entered in the EP A Action on June 20 2001.

(Am. Compl. ~ 4.
On June

2004 Friedland filed this action to recover contribution from GeoSyntec

TIC , and two other contractors who have since been dismissed from the case. Friedland seeks

contribution from both Defendants based on allegations that they were " operators " under
CERCLA Section 107(a)(2) and/or " arrangers " as defined by Section 107(a)(3). (Am. Compl.
~~ 39 46.
On November 18 2005

GeoSyntec filed a Motion for Summary Judgment (the

Motion ), establishing that GeoSyntec lacked the necessary control over pollution-causing
activities to render it liable as an " operator"
GeoSyntec also argued that claims are barred by the doctrine of

or "

arranger" under CERCLA. (Motion at 20- 29.
res judicata

because a judgment

was entered in favor of GeoSyntec on identical claims brought by another defendant in the EP
Action. ( Id.
at 15- 19.

).
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In response to the Motion, Friedland compiled a hefty stack of largely inadmissible
exhibits 2 and made unsupported assertions disputing the " undisputed facts " set forth in the

Motion. In addition , he implied an entirely new theory of " control" for purposes of CERCLA
liability. (See

Plaintiff s Response in Opposition to GeoSyntec s Motion for Summary Judgment
Under Friedland' s theory, any type of amorphous , undefined

(the "

Response

involvement"

in discussions regarding construction or design - regardless of who made the ultimate decision
on the subject matter of the discussion - is

evidence of " control" over the source of

contamination at a site , rendering the participant liable under CERCLA. As discussed more fully
below , such a theory finds no support in the law.

Having completely ignored GeoSyntec in his earlier , sweeping efforts to shift liability in
the EP A Action , Friedland now portrays GeoSyntec as having " managed , directed and conducted
the primary

operation at the Mine having to do with the leakage or disposal of hazardous waste
critical

(Response at 31), and as having played a

role in key decisions at the Mine. (Response at

, ~ 11.) GeoSyntec s rise to prominence on Friedland' s radar screen occurred not because any
new facts were discovered about GeoSyntec between 1999 and 2004 , but because Friedland has

now exhausted most other avenues of recovery and the engineering firm to which GeoSyntec
was a subcontractor , Klohn Leonoff, Inc. (" Klohn ), is bankrupt.

Unable to collect his default judgment against Klohn , the company Friedland alleged
oversaw , directed , managed and controlled all construction activities with respect to the (heap

Motion to Strike Exhibits , filed contemporaneously with this Reply. 3 In response to questions as to why he did not pursue GeoSyntec earlier , Friedland
See

sarcastically speculated that perhaps his lawyers wanted to " save the best for last " and make 1/27/06 Ex. 11- 20. GeoSyntec the " dessert" in his buffet oflawsuits. (Friedland Dep. at 35:

g.,

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leach pad at the Mine J, " and " provided daily or regular direction to all contractors performing

construction or other work on the HLP" (Third- Party Complaint Ex. A- to Motion at 27 , ~ 77),

Friedland now portrays GeoSyntec as having been responsible for virtually all design and
construction of the leach pad.

(See, e.

Response at 12- 15. )

This position is

astounding, given

that during all of his years as an officer of SCMCI, and as the individual responsible for
negotiations with " the major contractors at the (Mine J facility " (Excerpts from Deposition of
Edward C. Roper dated 12/13/99 , attached hereto as
Friedland never heard of GeoSyntec.

Exhibit A-

at 73:11- 22;

136:7- 12),

(Excerpts from Deposition of Robert M. Friedland dated
Exhibit Aat 1107:7- 17; 1116:24- 1117:7. )
In fact ,

1/21/00 , attached hereto as

Friedland did

not even know the purported factual basis for his claims against GeoSyntec until August 2005 over a year after

filing this lawsuit - when he was asked to review and sign an interrogatory
at 37: 11 - 39:23.

response drafted for him by his counsel. (Friedland Dep. 1/27/06 Ex. A-

As demonstrated below , Friedland' s voluminous Response is nothing more than a
smokescreen , intended to create the illusion that a multitude of factual issues preclude summary

judgment. When his unsupported assertions are cast aside and the focus placed where it belongs
on the legal standards for CERCLA liability, it becomes clear that Friedland cannot prove his
case. Friedland has failed to come forward with any evidence that GeoSyntec exercised control

over the leaching activities through which cyanide leakage allegedly occurred at the Mine , or
that it " owned or possessed" any hazardous substances.

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II. LEGAL STANDARDS GOVERNING THIS MOTION
Standard for Defeatin2 a Motion for Summary Jud2ment.
Summary judgment is appropriate where " there is no genuine issue as to any material

fact
Partnership

Celotex Corp.

v.

Catrett 477 US. 317 , 322 (1986);

Windon Third Oil

Gas Drilling
cert. denied,

v.

Federal Deposit Ins. Corp. 805 F.2d 342

345 (10th Cir. 1986),

480

US. 947 (1987), and " the moving party is entitled to judgment as a matter oflaw. "
P. 56(c). In

Fed. R. Civ.

Celotex

the Supreme Court stated: " The

plain language of Rule 56(c) mandates the

entry of summary judgment , after adequate time for discovery and upon motion , against a party

who fails to make a showing sufficient to establish the existence of an element essential to that
party s case , and on which that party will bear the burden of proof at trial.
at 322.

Celotex 477 U S.

A party opposing a properly supported motion for summary judgment must offer

admissible evidence of specific facts sufficient to raise a genuine issue for trial. Fed. R. Civ. P.
56(e); Anderson v.

Liberty Lobby, Inc. 477 US. 242 , 247- 48 (1986). Unsupported allegations
Kirkland

without significant probative evidence are insufficient to defeat summary judgment.

United States

930 F. Supp. 1443 ,

1445 (D. Colo. 1996). Moreover , the mere existence of some

alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment.

Anderson 477 US. at 248. Factual disputes that are irrelevant

or unnecessary will not be counted; only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary judgment. Sanchez

Denver Pub. Schs. 164 F. 3d

527 ,

531 (10th Cir. 1998) (quoting

Anderson 477 US. at 248).

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Standard for " Operator " Liabilitv Under CERCLA.
In

order to be liable as an operator under CERCLA , a party must " manage , direct , or
United States v.

conduct operations specifically related to pollution.

Bestfoods 524 U S. 51

66- 67 (1998). The most commonly adopted yardstick for determining whether a party is an

owner-operator under CERCLA is the degree of control that party is able to exert " over the
activity causing the pollution.
(W. D. Mich. 1989).
CPC Int '
, Inc. v.

Aerojet- General

Corp. 731 F. Supp. 783 ,
Sons Co.

788

See also Nurad, Inc.

v.

William E. Hooper

966 F.2d 837 842

(4th Cir. 1992) (authority to control the source of the contamination is the definition of' operator
that most courts have adopted).

Accordingly, construction of a facility where leakage subsequently occurs does not , in
and of itself, create CERCLA liability. See Kaiser Aluminum Chem. Corp. v.

Catellus Dev.

Corp.

976 F.2d 1338 ,

1340- 42 (9th Cir. 1992). Operator liability only attaches if the defendant
cause of the contamination at the time

had authority to control the

the hazardous substances

were released into the environment.

Id

at 1341. Thus , the proper inquiry is not the extent of the

party s involvement with the hazardous waste site , but whether the disposal occurred during the

involvement and whether the person disposing of hazardous waste had " authority to determine

whether and how hazardous waste would be disposed of and exercised that authority during its
involvement at the site.
(W. D. Mo. 1998).
In KC 1986 Ltd Partnership v. Reade Mfg.,

33 F. Supp. 2d 1143 , 1153

this case , the facts necessary to make this determination are not in dispute. GeoSyntec

has presented undisputed evidence that it did not possess the requisite control over pollution-

causing activities to be liable as an operator. Friedland' s arguments in opposition to the Motion

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are misdirected , focusing on irrelevant and ill-supported factual controversies which confuse

CERCLA liability with notions of negligence and breach of contract. Such notions are wholly
irrelevant to the resolution of GeoSyntec ' s Motion. Rather than cast CERCLA' s net so broadly

as to ensnare virtually all consultants and contractors - a result which other courts have rejected
- the Court should follow the established case law

under CERCLA, which was intended to

impose liability on " those persons who profit or benefit" from the disposal of hazardous
substances.

See Brookfield-North Riverside Water Comm '
(N. D.

v.

Martin Oil Marketing, Ltd 1992

WL 63274 *10- 11

Ill. Mar. 12 , 1992). Because the law does not place GeoSyntec into any

such class of persons , its Motion should be granted.

III.

MATERIAL FACTS THAT REMAIN UNDISPUTED

Although Friedland attempts to defeat GeoSyntec s Motion by arguing with the facts
cited by GeoSyntec and by asserting " additional disputed facts " the material facts entitling

GeoSyntec to summary judgment remain undisputed. Those facts include the following:

The cyanide leakage at issue occurred through heap leaching operations.
Friedland' s claims against GeoSyntec are based on cyanide leakage from the leach pad at
the Site.

(See

g., Response at 41 (" GeoSyntec s actions and inactions compromised the

integrity of the geomembrane liner , causing the release of cyanide into the environment" ); Expert
Report of Kenneth Myers
at the Mine was not Ex.

to Response. ) However , the dominant environmental concern

cyanide leakage , but extreme acid rock drainage or " acid mine drainage

which resulted from open- pit mining operations at the Site (USGS Open File Report No. 95attached hereto as

Exhibit A-

at 8. )

In fact ,

according to studies by the US. Geological

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Survey, most cyanide species that were accidentally leaked into the Wightman Fork of the

Alamosa River probably degraded rather rapidly, due to mixing with the Site s acid drainage.
(USGS Report Ex. Aat 5. )

Friedland himself denies that cyanide solution

was discharged

from the Site , contending that the used , diluted cyanide detected in the underdrain was actually

captured and re-circulated for ongoing leaching operations. (Friedland Dep. 1/27/06 Ex. A122:7- 123
:21.)

Nevertheless , as to cyanide leakage at the Mine , nowhere in his Response does
Friedland dispute that heap leaching operations produced this leakage. (See

Motion at 26- 27;

Response at 4- 5 (leaks were detected almost immediately after leaching operations began on
June 4 ,

1986).

All of the " activities " attributed to GeoSyntec involve the construction and

installation process, not heap leaching operations.
The entire focus of Friedland' s argument sounds in negligence , resting on the notion that

the cyanide leakage at issue was attributable to GeoSyntec s " activities " at the Mine.
Response at 5. )

(See

Friedland contends that these activities included not only quality assurance work

on the geomembrane liner , but also an unspecified degree of " involvement" in " virtually every
aspect of the

HLP construction and installation.

(Response at 2 (emphasis added). ) More

specifically, Friedland alleges that GeoSyntec was " involved in " activities such as assisting in
design of the leach pad , recommending a liner installer , recommending material for the lining,

discussions about how the liner would connect to the well cans , discussions about anchor trench
construction and design , construction supervision of the anchor trenches , recommendations

regarding staffing, approving the sand layer , giving instructions to the liner installer , and

" (

g.,

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discussions about placement ofgeotextile liner.

(See , e.

Response at 12-

, ~~ 1 ,

5, 8

, 18 and 19. )

However ,

Friedland confuses the ability to " suggest" or " recommend" with the
no

ability to control the decisions ultimately made. There is

legal support for the notion that

mere " involvement" in discussions leading to decisions gives rise to operator liability under
CERCLA.

See , e. g., Grand Trunk Western RR Co.

v.

Acme Belt Recoating, Inc.

859 F. Supp.

1125 , 1131- 32 (W. D. Mich. 1994) (key issue affecting operator liability is authority
operational decisions

to control

at a facility).

The following is an example of the faulty logic relied upon by Friedland to create issues
of fact regarding GeoSyntec s control: On page 19 of the Response , Friedland states that

GeoSyntec controlled how often seams should be tested to ensure that they were not leaking.
On January 29 1985 (sic), GeoSyntec reduced the frequency of seam sampling by 75% . . . .
(Response at 19-

, ~ 16. ) Yet , in the very next sentence , Friedland contradicts his own

assertion by acknowledging that GeoSyntec did not unilaterally reduce the sampling rate , it
merely " recommended" the reduction through inspector Glen Gau , and " Klohn Leonoff, SCMCI
and Columbia jointly

signed off on this suggestion.

Id. at 20 (emphasis added).

Friedland also alleges more direct activity on the part of GeoSyntec , such as " stopping
work" at the heap leach pad. (See

Response at 15 , ~ 9. ) However , this assertion , like several

others made by Friedland , lacks any factual support in the exhibits attached to the Response.

While many of the unsupported assertions are immaterial , and do not warrant an item- by- item
review , a few of the more egregious examples are described in the table attached hereto as
Exhibit A- 46.

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Nevertheless , even assuming for purposes of GeoSyntec

s Motion that it engaged in

all of

the activities alleged by Friedland , none of them evidence control over leaching operations. The

only GeoSyntec activity alleged by Friedland that even relates to actual leaching operations is
that GeoSyntec was " involved in efforts to prevent or stop leaking after leaching began.
(Response at 20 , ~ 20.
In

support of this vague and ambiguous assertion , Friedland submits a

single piece of evidence - a GeoServices Field Report prepared by Laurin Drake on June 4 , 1986

reflecting that he arrived at work to find that leaching operations had begun without his
knowledge , and that cyanide solution had leaked through a hole in the geomembrane liner.
Ex. 5

to Response. )

The report

reflects efforts to divert leachate away from the liner. Id.

Laurin Drake did , in fact , assist the crew in this instance to place sand bags over leakage areas in

what was clearly an emergency situation. (Affidavit of Laurin Drake , attached hereto as
Exhibit A, ~ 3. ) However , as is true of all the other activities cited by Friedland , this single

act of emergency assistance provides no evidence that GeoSyntec had any meaningful role in, let
alone " controlled

" leaching operations at the Site.

The only contracts governing GeoSyntec s work at the Site were its 19-month

subcontract with contractor Klohn , who engaged GeoSyntec to perform " quality assurance
work for the synthetic liner " and its three-month contract with SCMCI, engaging
GeoSyntec to " observe, monitor , inspect and record" the fabrication , procurement,
delivery, deployment and testing of the liner.

It is undisputed that there are only two contracts governing GeoSyntec s work at the Site:
(1) A two- page letter agreement dated September 23 ,

1985 , in which Klohn Leonoff engaged
Ex. A- 7-

GeoSyntec as a subcontractor (the " Klohn Leonoff Contract

to Motion), and (2) a

,"

g.,

" (

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four- page Quality Assurance Contract between GeoSyntec and SCMCI (the " SCMCI Contract
Ex. A- 7-

to Motion). Pursuant to the Klohn LeonoffContract , which governed GeoSyntec

work between September 1985 and May 1987, GeoSyntec was engaged to perform " quality
assurance work for the synthetic liner" at the Site s leach pad. (Ex.
A- 7-

at 1.) GeoSyntec

detailed the nature and scope of its " quality assurance work" in its annual Final Reports , in terms
similar to those used in the SCMCI Contract: to observe

delivered geomembrane panels

monitor

panel placement and seaming,

to record

observations through narrative reports and "

built" drawings , and certify its observations of the work through periodic reports to Klohn and
SCMCI.

(See , e.

Ex. A-

at 492;

Ex. A-

at 592;

Ex. A-

at 3- 493.2. ) The Klohn

Leonoff Contract expressly provided that Mr. Colbourne , GeoSyntec s quality assurance
manager will report to the Klohn Leonoffresident engineer Ted Falloon.
Ex. A- 7at 1.)

Under the SCMCI Contract , which governed its work at the Site between June and
September 1987 ,
(r)ecord" GeoSyntec was similarly engaged to

(o)bserve, (m)onitor , (i)nspect and

the fabrication , procurement , delivery, deployment and testing of the liner.

Ex. A-

, 9 1.0 (emphasis added). )

The

SCMCI Contract further provided that " (tJhis Contract

. . . sets forth the entire agreement between the Company and the Contractor with respect to the

subject matter hereof and supersedes all prior negotiations and dealings. . . .

(Id.

at 9

described in Friedland' s own Response , the work GeoSyntec was engaged to perform necessarily
occurred before

SCMCI placed ore on a particular section of liner , and of course , before SCMCI
(See

introduced cyanide to the leach pad by spraying the ore.

Response at 32 (" (wJithout

GeoSyntec s approval , nothing further could be done and no ore could be placed on the HLP"

g.,

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As part of its quality assurance work , GeoSyntec reviewed " (a)ll available specifications
and design drawings "
for "

clarity and completeness.

(See

1988 Final Report Ex. A-

at 3

93.2. 1.) GeoSyntec also prepared " as- built" drawings reflecting its observations.
1986 Final Report Ex. A-

(See , e.

at 492. 3; 1987 Final Report Ex. A-

at 692. 3 (referring to

record drawings; " 1988 Final Report Ex A-

at 493.2. ) Like all of the other activities

attributed to GeoSyntec , these activities pertain only to construction and installation of the leach
pad liner , not to leaching operations. GeoSyntec had no contract to oversee leaching operations

or to make decisions regarding leaching operations at the Site. GeoSyntec had no authority to
implement the heap leaching process or to direct the manner in which leaching operations would
be performed. GeoSyntec had no

authority or input regarding the times at which leaching would

occur , the hiring or firing of any personnel who performed the leaching work , or regarding any

other aspect of the leaching process. (Drake Aff. Ex. A-

at ~ 6.

The only certifications GeoSyntec generated were those specified in its daily

and final reports, which were directed to Klohn and SCMCI. Friedland has produced no
evidence of any other certifications, warranties, guarantees or promises.
Just as he would like to re-write the contractual obligations undertaken by GeoSyntec

Friedland would also like to expand the qualified certifications provided by GeoSyntec into
guarantees of the entire geomembrane liner installation , or for that matter , the entire leach pad

against all leakage. There is no evidence to support such a suggestion.
The only evidence of GeoSyntec ' s representations regarding the quality of the liner

installation is contained in its daily reports and annual " final reports. "

The

daily reports advised
example:

Klohn and SCMCI of particular areas ofliner that were approved or not approved. For

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On January 27 , 1986 , GeoSyntec inspector Glen Gau reported that he had

notified that vac. tester located factory seam on panellA, Top of Dike 2 , which failed vac test." (GeoServices Report dated 1/27/86 , attached hereto as Exhibit
On April 6 , 1986 at 3:00 p. , Drake approved specified panels ofliner. (GeoServices Report dated 4/6/86 Ex. 69 to Response.
1986 , Drake noted that certain trial welding tests had been performed and specified which panels of liner had passed and failed. (GeoServices Report dated 8/5/86 Ex. 57 to Response.
On August 5 ,

The daily reports also informed Klohn and SCMCI of observations by GeoSyntec that could
affect the quality of the liner installation. For example:

Drake reported that there was " water under liner" and recommended that trapped water be removed prior to placement of ore. (GeoServices Report dated 3/6/86 Ex. 36 to Response (emphasis added).
Drake observed a " massive under- clay erosion tunnel" on the east slope of dike
#1. (GeoServices Report dated 5/24/86 Ex. 37

to Response (emphasis added).

On May 26 , 1986 , nine days before SCMCI began leaching operations , Drake observed many areas of leaks under the liner due to improper backfilling, suggest(edJ that the entire east slope.. . be reanchored with compacted clay, and warned that the " entire leach pad needs to be reexamined due to the thousands ' of holes and dents caused by the slides. " (GeoServices Report dated 5/26/86 Ex. 38 to Response (emphasis added).
1986 , GeoSyntec s report contained a supplement prepared by RB. Wallace , a GeoSyntec Managing Engineer who visited the Site on one occasion , warning Klohn and SCMCI that " (e)rosion appears to be universal and is not localized at all " that the " geomembrane has pulled right out of the trench" because " (b Jackfill was end- dumped and not compacted " that " the vacuum testing being carried out. . . is of no apparent value " and that
(r)ecommendations by GeoServices '
On September 18 ,

on-site representative are being

disregarded. Recommendations related to trench backfill , which would inhibit or prohibit recurrence of water erosion below the liner have received no action
in spite of having been submitted both orally and in writing. " (GeoServices Report dated 9/18/86 , attached hereto as Exhibit A- at pp. 2- 4 (emphasis added).

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The final reports provide a detailed explanation of the quality assurance work GeoSyntec
performed at the Site , and clearly described the qualifications and limitations on its certifications.
For example:

In its 1986 Final Report , GeoSyntec did not claim to have observed , and therefore would not certify, all of the installation work that occurred. Rather , GeoSyntec monitored those installation operations which were deemed to be most critical"
and pointed out that as many as seven operations were conducted simultaneously,

such that " it was impossible for a single quality assurance person to continuously observe all these operations. Ex. A- 7- to Motion at 4 , 992.2 1 (emphasis added). ) In addition , GeoSyntec completely excluded several areas of liner installation from its certification. GeoSyntec refused to certify areas it was unable to inspect , and therefore could not have known whether the installation was acceptably completed , nor could it have " controlled" whether
leakage occurred in those areas.

(Id. at 9 7 (emphasis added).

In its 1987 Final Report , GeoSyntec again made clear that it could not monitor all repair operations , and only monitored those operations which were deemed " most critical." (Ex. A- 7- to Motion at 5 , 92. ) It certified only that " (fJield seams and repairs were either vacuum tested or visually observed by the Owner for continuity and workmanship, " and that the 1986 liner installation was " conducted in substantial accordance with available plans and specifications and with construction practices agreed to by the owner. Id. at 14 , 96 (emphasis added). In its 1988 Final Report , GeoSyntec again cautioned that it only monitored those operations which were deemed " most critical." (Ex. Aat 4 93.2.2. However , as to the work performed between , 1987 and September 26 June 1987 , the period addressed by this particular report , GeoSyntec was able to certify that the liner installation activities it was able to observe during this period were conducted in accordance with sound construction practices. Id. at 15 (emphasis added).
As these reports reflect , as well as its daily reports , GeoSyntec repeatedly reminded

SCMCI and Klohn that it did not have sufficient personnel to monitor all sections of liner
installation and that its " certifications "
were limited in scope. Contrary to Friedland'

characterization of GeoSyntec ' s role , as somehow intended to " ensure " that no leakage would

pp.

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occur (Response at 31), GeoSyntec never represented that it observed or supervised all of the
liner installation at the leach pad , nor did it provide any guarantees against leakage.

Both Klohn and SCMCI knew of the limitations and qualifications on
GeoSyntec s certifications, as they were reflected in its daily and final reports.
A fundamental problem with Friedland' s theory is that it assumes GeoSyntec operated in
a vacuum , purporting to " ensure "
a leak-

proofliner installation while unbeknownst to SCMCI
(See

GeoSyntec was failing to implement adequate quality control measures.

Response at 14

~ 6. ) However , both Klohn and SCMCI were fully apprised of the problems GeoSyntec

observed and the limited nature of its certifications , through its continuous stream of daily and
final reports.

The daily reports described above , reflecting GeoSyntec s observations and concerns

were distributed to representatives of Klohn and SCMCI each morning. (Drake Mf.
at ~ 7.

Ex.

) Each of GeoSyntec ' s annual reports was distributed to Klohn promptly after its
attached hereto as

preparation. (Supplemental Affidavit of Joseph E. Fluet Jr.
at ~ 4. )

Exhibit A-

Klohn was then

responsible for combining GeoSyntec s report with its own , and

distributing the combined reports to SCMCI and any regulatory authorities that requested them.
Id. ) Thus , both Klohn and SCMCI knew that there were many areas of liner installation that

were not approved or certified by GeoSyntec , that GeoSyntec did not observe the entire
installation process , and that many problems reported by GeoSyntec were not corrected.
18(See

infra.

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Columbia assumed contractual responsibility for installation and repair of
the liner , and for ensuring the quality of the liner material , installation and repair.
In his Response , Friedland suggests that it was the duty of GeoSyntec ' s lone employee at

the Site - who was neither an engineer nor a construction supervisor - to manage and ensure the
quality of all work performed by crews of Columbia Reservoir Systems , Ltd. (" Columbia
(Response at 31- 33. ) Under its contract with SCMCI, Columbia was engaged to " (fJabricate

procure , deliver , deploy and inspect approximately 1 000 000 square feet of 60 mil HDPE
synthetic membrane " at the Site s leach pad (Contract , Ex. 33 to Response at 9 1.0.

As purported evidence of GeoSyntec ' s control over Columbia s work , Friedland cites a

provision in the Columbia contract requiring it to " use its best efforts to complete the Work to

the satisfaction of. . . (GeoSyntec. )" (Construction Contract Excerpt

Ex. 33

to Response at

92. 0). However , this provision , requiring only " best efforts " to obtain GeoSyntec s approval
clearly negates the implication that GeoSyntec s approval was essential to the progress of construction. Nor is that implication supported by the mere fact that Columbia s crews often
followed the advice of Geosyntec ' s inspector
(see

Response at 21- 22.

To the contrary, the contract provided that Columbia would retain control of its crews
and assume full responsibility for their supervision , as follows:

The Work shall be performed by (Columbia) as an independent contractor, and its employees shall at all times be under its supervision , direction and control. Contractor shall have full power and authority to select the means , manner and methods of performing the Work without supervision , direction or control by the Company. Contractor will receive instructions from the Company and the Company s Representative as to the end results
to be accomplished , and the Contractor shall be responsible for

directing its employees as to the means, manner and methods of accomplishing the Work.

" (

" (

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(Construction Contract , attached hereto as

Exhibit A-

at 69 8. 0 (emphasis added). ) Thus , in

contrast to the obligations undertaken by GeoSyntec , to " observe , monitor , inspect and record"
the fabrication and installation of the geomembrane liner (see

SCMCI Contract

Ex. A- 7-

Motion at 1 9 1.0), Columbia expressly assumed the obligation to exert " supervision , direction

and control" over its employees who performed these activities.
Indeed , it was only by retaining such control that Columbia could have warranted , as it
did , both the quality of the geomembrane liner and " the integrity of the welds , installed with the

technical assistance of Columbia representatives and/or under Columbia s control , to be free
from defects in materials and workmanship, and to be able to withstand normal weathering from

the date of sale for a period often years.

Id.

at 7 9 10.

) The contract provided a

detailed

process through which SCMCI was required to report defects , and required Columbia to repair

correct or replace nonconforming or defective work. Id.

at 9 9 10.

) The contract

further

provided that Columbia " shall have a competent representative at the Property at all times who

shall have absolute authority to act, in all respects , on behalf and for the Contractor.
9 14.2. )

Id.

at 14

Thus ,

there is no dispute that Columbia had hands-on control over the liner installation

and repair , that its own supervisors were expected to supervise its crews , and that Columbia

assumed contractual responsibility for the quality of the installation and repair work performed
by its personnel.

g.,

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SCMCI had the authority to, and did in fact, disregard GeoSyntec s advice
as a consultant.
As reflected by its own exhibits to the Motion , GeoSyntec made suggestions and

recommendations regarding a variety of matters related to the leach pad liner system, other than
solely as to whether an area ofliner was approved or not approved.

(See , e.

Ex. A- 7-

Motion (" suggest that" the entire east slope and portions of west slope be re-anchored with
compacted clay);

Ex. A- 7-

to Motion (" recommend to owners agent that operations should

cease for the day

) However ,

it is undisputed that SCMCI had the authority to disregard

GeoSyntec s recommendations , and in fact , did so on multiple occasions. In addition to the

instances cited in the Motion (pp. 10-

, ~~ 22- 27), the following are further examples of

SCMCI's authority to disregard GeoSyntec s recommendations:
On May 26 , 1986 , Laurin Drake suggested that " the entire east slope and approximately one third or 180 yards of west slope be reanchored with compacted clay " in a conversation with Tom Krasovec of Klohn Leonoff and Terral Young of SCMCI , after observing " many areas of leaks " under the liner due to improper backfilling of these trenches. (Ex. Ato Motion. ) Mr. Young ofSCMCI elected not to take this action , but instead performed only " spot repairs " of the anchor trench , based on his priorities in allocating men and equipment. (Excerpts from Deposition of Terral Young dated 7/7/89 , attached hereto as Exhibit A82:429- 84:436 (emphasis added).
1986 , Linda Drake , who sometimes assisted Laurin Drake with his work at the Site , advised SCMCI of the need of a folded wrinkle to be uncovered and repaired. According to her report , Mr. Young made the decision not to do this " and therefore , the area at issue was released with that exception. Exhibit A- (emphasis (GeoServices Report dated 8/10/86 , attached hereto as added).
On August 10 ,

Laurin Drake noted that it was snowing heavily and the wind chill factor was approximately - 15 degrees. He recommended to the
owner , SCMCI that the contractor not try installing panels that day, as there would be " marginal ability to attain proper seams " under the existing conditions.
Drake noted that despite his recommendation , the owner was " proceeding

On November 7 , 1986 ,

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anyway. " Only after further failed attempts at seaming did the owner finally agree with Drake s repeated recommendation , that no more seaming be attempted. (Field Report dated 11/7/86 , attached hereto as Exhibit A- 33.
In other instances , Columbia disregarded GeoSyntec s recommendations:
On July 11 , 1986 , Laurin Drake " suggested contractor pull out major wrinkles while seaming bottom panels " but reported that the " contractor elected not to Exhibit Ado so. " (GeoServices Report dated 7/11/86 , attached hereto as (emphasis added).

On October 28 , 1986 , Laurin Drake recommended to Doug Knight of Columbia that he replace a particular seam , which had previously failed; Drake noted that as of this date , contractor declined to replace seam - but rather patch the areas he determined failed. " Drake further noted that as QA inspector, he was

concerned that total failure area has not been repaired. "
Report dated 10/28/86 ,
attached hereto as

(GeoServices

Exhibit A-

(emphasis added).

On September 20 , 1986 , Linda Drake noted that there was " (sJome question regarding subgrade approval by KL. on requested west slope area. Info and Data as to what subgrade area is approved or not is coming from 3 directions. Request that KL. alone advise GeoServices as to what area ofliner needs to be Q. Exhibit Aobserved. " (GeoServices Report dated 9/20/86 , attached hereto as (emphasis added).

SCMCI had the authority to, and in fact did, place ore on sections of
geomembrane liner which had

not

been approved by GeoSyntec.

Perhaps the greatest overstatement without support in the Response is that " ( w Jithout
GeoSyntec s approval , nothing further could be done and no ore could be placed on the HLP.
(Response at 32; see also

p. 16 ,

~ 11.) The exhibits attached to the Motion established that , to

the contrary, SCMCI could approve a section of liner on its own , and proceed to place ore on the
area without GeoSyntec s approval. (Motion at 13- 14. )
The

field report of Columbia supervisor

Doug Knight confirms the incident cited in the Motion , that " Laurin Drake didn t have final walk
so wouldn t approve area. Glen Holley approves area and has night crew cover area with ore.

(Columbia Report dated 10/13/86 , attached hereto as

Exhibit A-

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The following are additional examples of instances when ore was placed on liner that
was not approved by GeoSyntec or Klohn:

On October 22 , 1986 , Doug Knight of Columbia noted that Laurin Drake was not around to watch a particular seam test , so the area was " approved by Glenn Holley " of SCMCI. (Columbia Report dated 10/22/86 , attached hereto as Exhibit

Drake noted that " owner had placed contractor and GeoServices on standby for Nov. 9 yet owner approved and covered several panels (see final report) without inspection. " (GeoServices Field Report dated 11/10/86 , attached hereto as Exhibit A- 39.
1986 , Drake noted that although he had released several designated panels ofliner for ore placement owner covered (several identified panels) without GeoServices observation for rocks or repair. " (GeoServices Field Report dated 11/13/86 , attached hereto as Exhibit AOn November 13 ,

On November 10 , 1986 ,

On September 5 , 1986 , Doug Knight of Columbia noted that " Kevin Ryan (of

SCMCI) approves area without approval ofKlone (sic)-Leonoffrepresentative. Exhibit A- 41. (Columbia Field Report dated 9/5/86 , attached hereto as
As these examples reflect , while GeoSyntec s approval may have been desirable , it was

by no means essential in order for SCMCI to proceed with the placement of ore on a particular
panelofliner. As the owner-operator of

the Site and the entity that was requesting GeoSyntec

input (either directly or through Klohn) in the first place , SCMCI had the power to " waive " or
dispense with GeoSyntec s approval if it chose to do so.
IV.

LEGAL ARGUMENT

GeoSvntec is not liable as an " operator " because even if Friedland' s alle2ations were true. the liner installation was not a " pollution causin2 activitv " 2ivin2 rise to CERCLA liabilitv.
Unable to show that GeoSyntec was involved in activities through which cyanide was
released from the Site , Friedland argues that GeoSyntec is liable as an " operator" because

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defective construction of the leach pad liner " led to " the release of hazardous substances at the
Mine. (Response at 35. )
the "

However , Friedland confuses a " negligent

construction "

standard with

control over disposal activities " standard imposed by CERCLA. Under Friedland' s broad
every

interpretation of " pollution-causing " activity, virtually

construction contractor at a site

could be liable under CERCLA. Such a theory finds no support in the law , and in fact , has been
rejected by numerous courts.

See , e. g., City of North Miami

v.

Berger 828 F. Supp. 401 , 413

(E.D. Va. 1993) (noting that imposing CERCLA liability on independent engineering contractors

would mean that operator liability " could be extended to ensnare virtually all consultants and
contractors who provide advice relating to the operation of a waste site
In Edward Hines Lumber Co. v.

Vulcan Materials Co.

861 F.2d 155 (7thCir. 1988), the

owner/operator of a wood treatment facility ("Hines ) sought contribution from Osmose Wood Preserving, Inc. (" Osmose ), which served as both its chemical supplier and construction
contractor. Id

at 155- 56. Osmose not only provided chemicals to the facility, but also designed

and built a plant for the company s use , trained the company s employees to operate machinery,
and licensed the company to use its trademark in connection with treated wood. Id

at 156. In

addition , Osmose had full access to the plant , and to all chemical process and products located

thereon , for the purposes of insuring quality control of the company

s products.

Id

However

just as the day- to- day operations of the Mine were directed by SCMCI (Friedland Aff. Ex. Ato Motion), Hines directed the day- to- day operations of the wood processing plant.
The district court granted summary judgment in favor of Osmose. Id

at 158.

Reviewing the case on appeal , the Seventh Circuit assumed the plaintiff s allegations -

which are similar to those made by Friedland against GeoSyntec - to be true , stating:

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(W)e must assume that Osmose came up with a defective design did not build the plant to standard , trained Hines s employees poorly in how to control the toxic chemicals , and hid all of this
from the management at Hines and its successor. . . so that they

omitted steps that could have rectified the problem sooner.
Id

at 157. Nonetheless ,

the court affirmed the judgment in favor of Osmose.

Id

at 159. In

doing so ,

the court squarely rejected the notion that control over negligently- performed

construction activities , even those that ultimately " lead to " a hazardous discharge , is sufficient to
impose " operator" liability on a contractor.
Similarly, in

Lincoln Properties,

Ltd

v.

Higgins 823 F. Supp. 1528 (E.D. Ca. 1992), the

court granted summary judgment in favor of a county which had performed maintenance and
repair work on sewer lines that ultimately leaked hazardous chemicals. Id

at 1534. In granting

summary judgment , the court relied on the " well-settled

rule "

that operator liability under section

9607(a)(2) only attaches if the defendant had authority to control the source of the contamination
at the time the hazardous substances were released into the environment. citing

Kaiser

Aluminum

Chem. Corp.

v.

Catellus Dev. Corp. 976 F.2d 1338 , 1341 (9th Cir. 1992).
v.

And , in Brookfield-North Riverside Water Comm '

Martin Oil Marketing, Ltd 1992

WL 63274 (N. D. Ill. 1992), the court granted a motion to dismiss an " operator" claim brought

against a construction contractor that installed a water main from which hazardous materials
were ultimately released. Id

at * 11. As these cases demonstrate , CERCLA responsibility

requires a clear focus on the activity which controls the hazardous substances at the time of their
release. The relationship between an " operation" for CERCLA purposes and a release or

discharge of hazardous waste must be immediate, and is analyzed under a much stricter standard than is applied to determine causation in a negligence or breach of contract case.

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In his Response , Friedland argues that the cases relied on by GeoSyntec , including
Lumber and

Hines

City of North Miami have been superseded by the Supreme Court' s decision in
v.

United States

Bestfoods 524 U S. 51 (1998). As an initial matter , Friedland mischaracterizes

the proposition for which these cases were cited. Nowhere in its Motion did GeoSyntec argue

that a contractor can never be held liable as an operator under CERCLA. Rather, the cases were
cited to illustrate that " ( c )ourts have declined to impose operator liability on contractors whose

activities were far more central to the operation of a facility than those of GeoSyntec. "
at 23- 25.

(Motion

More importantly, however , Friedland offers no explanation as to how or why the
Bestfoods

decision superseded the cases relied upon by GeoSyntec. Contrary to Friedland'
Bestfoods

assertion

is entirely consistent with the cases relied upon by GeoSyntec. In fact , the

cases relied upon by GeoSyntec continue to be cited with approval in decisions subsequent to
Bestfoods including at least one decision by Judge Nottingham in the EP A Action.
(See

Order

and Memorandum of Decision dated 1/12/01 , Docket No. 1253 (" Gundle Order ), attached
hereto as

Exhibit ATo the extent that

at 17.

Bestfoods

changed the law , it was plainly in the context of parent-

subsidiary relationships , holding that a parent company s authority to control a subsidiary is not
in and of itself sufficient to establish the parent's liability under CERCLA.

Bestfoods 524 U S.

at 70- 71. The cases relied upon by GeoSyntec did not involve the parent-subsidiary issue dealt
with in

Bestfoods nor did they turn on a distinction between " active participation" and " authority
it applies here , however
Bestfoods would support the

to control." To the extent

rejection of
ability to

Friedland'

s argument that GeoSyntec is liable as an operator by virtue of its alleged

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control" operations through approval or non-approval of sections of the liner , even those sections

it did not actually control or was unable to inspect. (Response at 16 (emphasis added).
Bestfoods

does not in any way supersede or impair the validity of the cases relied upon by

GeoSyntec. Under those cases , it is clear that participation in preparatory activities , even if such
participation amounts to " control" over certain aspects of the construction or preparation, does not render a party liable as an " operator" under CERCLA if the party does not have control over

the activity which results in the release or discharge of contamination at the time it occurs.
See Edward Hines Lumber Co.
Interstate Power Co. v. 861 F.2d at 158;

City of North Miami 828 F. Supp. at 412- 13;

Kansas City Power

Light 909 F. Supp. 1284 , 1289 (D. Iowa 1994).

As GeoSyntec acknowledged in its Motion , CERCLA liability may be imposed on thirdparty contractors in certain cases. However , every case in which this has occurred involved a

contractor who exercised physical control over the wastes that were discharged. For example
the contractor in Kaiser Aluminum

had physical control over the contaminated soil at issue , and

was in charge of the earth-moving activity that spread the contamination around the site.

Kaiser

Aluminum 976 F. 2d at 1338 , 1342.
In

Geraghty and Miller, Inc.

v.

Conoco Inc. 234 F. 3d 917 (5th Cir. 2000), the third- party

contractor had designed and installed monitoring wells which directly transmitted hazardous

waste to groundwater below. Similarly, in
Supp.2d 1143 (W.

KC

1986

Limited Partnership

v.

Reade Mfg.,

Mo. 1998), summary judgment was denied to an environmental consultant

which had installed monitoring wells at the site in question because a factual dispute existed as to
whether the wells exacerbated contamination of an aquifer beneath the site. Id

at 1147. In other

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words , it was the process of installing the monitoring wells that allegedly caused a disposal of
hazardous waste. Id

at 1154.

Thus , in Kaiser, Geraghty and Miller
themselves which directly introduced and released the hazardous

and

K.

C 1986, it was the contractor s operations

waste. In contrast , in the

Hines

and

City of North Miami

cases , the activities of the contractors were preparatory to the

activity that introduced the hazardous waste , just as GeoSyntec s activities were preparatory to
the leaching process at the Mine in this case.

This distinction between control over preparatory activities and control over the activity

that results in the release or discharge is fundamental to the proper application of CERCLA; an

operator" must have control over an operation that effects leakage

at the time of the leakage.

In the instant case , the liner installation did not introduce the hazardous waste to the Site.

Rather , the liner installation was a preparatory activity which allegedly, failed to prevent the contamination when the heap leaching operations were subsequently commenced on installed

liner areas. (Response at 31.) Consequently, even assuming all of Friedland' s allegations to be
true , the activities engaged in by GeoSyntec fall squarely within the holdings of the
City of North Miami Hines

and

cases , and are readily distinguishable from those that led to liability in the
and Geraghty and Miller

Kaiser Aluminum

cases.

In his Response , Friedland argues that this Court should deny summary judgment on
grounds similar to those articulated by Judge Nottingham in the EP A Case , in an order granting

summary judgment to Columbia on " arranger" liability, but denying summary judgment as to

operator" liability. (Response at 37; Order and Memorandum of Decision dated 6/12/01
Columbia Order ), Docket No. 1256 ,
attached to Response as

Ex. 87 ) However ,

Judge

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Nottingham issued another order on the same date in which he

granted

summary judgment to

Gundle Lining Systems , Inc. (" Gundle ), a geosynthetic installation contractor that performed

work at the Site prior to Columbia , on both " operator" and " arranger" liability. (Gundle Order
Ex. Aat 20- 21.)

In granting summary judgment to Gundle on " operator" liability, Judge Nottingham

based his decision on the same CERCLA principles advocated by GeoSyntec here , finding that:
Friedland offers absolutely no evidence that Gundle exercised , or even had the ability to exercise, control over the sodium cyanide or the acidmine drainage at the time they were released into the environment. . . . As the plain language of (CERCLA) indicates , the timing of the disposal of the hazardous substance is critical to an operator s liability, finding liable ' any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.'
Id. at 16 (emphasis in original). )
Judge

Nottingham went on to explain that:

Gundle s faulty design and shoddy workmanship with respect to the liner installation , however egregious , will not trigger operator liability absence evidence demonstrating that it exercised control over the cause of the contamination - either the acid mine drainage or the cyanide releases - at the time the hazardous substances were released into the environment.
Id.
at 17 ,
citing

Interstate Power Co.

909 F. Supp. at 1289;

City of North Miami

828 F. Supp.

at 412- 13; and

Brookfield-North Riverside 1992 WL 63274 at *7).

In denying Columbia s motion for summary judgment as to "operator" liability, Judge

Nottingham recited some of the same legal standards , but found that material questions of fact
existed with respect to Columbia
Ex. 87
s role at the site during heap leaching. (See

Columbia Order

to Response at 10. ) Of course , the determination of whether factual issues preclude

summary judgment is case-specific. This Court does not have before it all of the facts presented

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in opposition to Columbia s motion , and it is not entirely clear which facts Judge Nottingham

relied on in treating Columbia differently from Gundle with respect to " operator"

liability.

Perhaps one major distinction was that unlike Gundle , Columbia was still working at the

Site when leaching operations (and cyanide leakage) began in June 1986. (Gundle Order
Ex. Aat 16. )

However , the mere presence or involvement in activities at the Site during heap

leaching operations is not sufficient to raise an issue of material fact in this case. As stated by
the court in

City of North Miami:

Admittedly, (the engineering contractor s) situation differs somewhat from Hines insofar as PBS&J rendered assistance after that faced by Osmose in the initial inception of the landfill and during the time wastes were being disposed of on the site. But this is not a crucial distinction. The crucial point is that PBS&J had no authority to make the final operational decisions. It could inspect the site , render advice relating to the placement of wastes , and the like but the ultimate authority whether to implement such advice resided with Haddad and Kaufman. Accordingly, PBS&J's role as an independent engineering contractor for the Munisport site does
not render it an operator under CERCLA.

City of North Miami 828 F. Supp. at 413.

In opposing Columbia s motion , Friedland had alleged not only that Gundle s faulty

design and workmanship contributed to the cyanide leakage , but that Gundle was responsible for
releases of hazardous substances that occurred during its work

on the heap leach pad. ( Id.

16- 17. ) Nonetheless , Judge Nottingham granted summary judgment , finding no evidence to

suggest that Gundle had exercised control over hazardous substances at the time they were

released into the environment. ( Id.
upon by Judge Nottingham and cited by GeoSyntec

at 18. )

Based on

this rationale, under the case law relied

supra GeoSyntec is similarly entitled to

summary judgment. Friedland has failed to come forth with evidence that GeoSyntec exercised
control over cyanide releases at the time the cyanide was released into the environment.

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GeoSvntec is not liable as an " arran2er " under CERCLA because it possessed no discretionary authoritv with respect to the disposal of waste rock or cvanide
In

his Response , Friedland argues that " GeoSyntec s control over the installation of the
HLP

liner and its day- to- day involvement in the design , construction and repair of the

prove that

at a minimum , GeoSyntec maintained constructive possession of the hazardous substances
generated at the Mine. "
(Response , at 40. ) However ,

Judge Nottingham flatly rejected this same

argument - articulated by Friedland in the very same words quoted above - in granting summary
judgment to both Gundle and

Columbia on " arranger" liability.
Ex. 87

(See

Gundle Order Ex. A-

hereto at 20; Columbia Order

to Response at 13.

In

reaching his conclusion , Judge

Nottingham noted that most courts that have held defendants liable as arrangers have found that
the responsible party had some " actual involvement in the decision to dispose of the waste.
(Gundle Order Ex. A-

at 20 (citing cases); Columbia Order

Ex 87 to Response at 11- 12.

Applying this standard , the court noted that both Columbia and Gundle were hired "

install one component at the Summitville Mine s heap leach facility: the synthetic liner " and
held that even " (a)ssuming
arguendo

that (Columbia) (Gundle) retained complete control over

the installation of the synthetic liner , such control simply does not establish that (Columbia)

(Gundle) constructively owned or possessed the hazardous substances. "
to Response at 13; Gundle Order Ex. Ahereto at 20. )

(Columbia Order

Ex.

Finding that neither entity

possessed discretionary authority with respect to disposal of the waste rock, he concluded that
neither Gundle nor Columbia had " owned nor possessed" (either directly or constructively) the

Mine waste , a required element of " arranger"

liability. ( Id.

Judge Nottingham granted summary judgment on similar grounds to Southway
Construction Company on " arranger" liability. (Order and Memorandum of Decision dated

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3/31/01 (" Southway Order ), Docket No. 1232 , attached hereto as

Exhibit A-

at 9- 10.

Because Southway had no discretionary authority with respect to disposal of the waste rock , the
court found that it neither owned nor possessed , either directly or constructively, Summitville
Mine waste. ( Id.
at 10.

The same logic applies here. Assuming Friedland' s allegations to be true , GeoSyntec
was a step removed from the actual liner installation , let alone the disposal of waste , as its only
control" was allegedly derived from its ability to approve or disapprove sections of liner.
(Response at 16 , ~ 11.) Thus , even assuming that Columbia could not disregard GeoSyntec
recommendations (although this is disproven by the facts cited in Section III

above), and even if

GeoSyntec had complete control over the liner installation , such " control"

did not give

GeoSyntec discretionary authority with regard to the disposal of waste rock or cyanide.

Friedland himself admits that GeoSyntec never owned any of the ore or cyanide solution

used at the Mine. (Friedland Dep. 1/27/06 Ex. A-

at 196:16- 22. )

Friedland has no

knowledge

of any instance in which GeoSyntec ever transported ore or waste at the Mine , nor of any instance in which GeoSyntec arranged for the disposal of any hazardous substances at the Site.
Id. at 196:23- 197:5. ) Nor is Friedland aware of any authority GeoSyntec had to determine

where hazardous substances would be stored or kept at the Site. Id. at 197:6-

) Because

GeoSyntec neither owned nor possessed hazardous substances at the Mine , either directly or
constructively, GeoSyntec is entitled to summary judgment on Friedland' s claim of arranger

liability.

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Friedland' s Claims A2ainst GeoSvntec Are Barred bv the Doctrine of Res Judicata
Finally, Friedland argues that his claims against GeoSyntec are not barred by the doctrine
of

res judicata as argued in its Motion , because there was no privity between Friedland and ICC

against whom the prior judgment in favor of GeoSyntec was entered , and because there was no

judgment on the merits " of the claim against GeoSyntec. (Response at 23- 26.
Arguing that there was no privity between himself and ICC , Friedland cites the case of
Louis Baptist Temple, Inc.
Cir. 1979). In v.

St.

Federal DepositInsurance Corp. 605 F.2d 1169 ,

1174- 75 (10th

that case , the court discussed the concept of privity as follows:
(P)rivity denotes mutual or successive relationship to the same right of property, so that a privy is one who , after the commencement of the action , has acquired an interest in the subject matter affected by the judgment through or under one of the parties , as by inheritance . . . This is in harmony with succession , purchase or assignment. the view that a judgment is binding on privies because they are identified in interest, by their mutual or successive relationship to
the

same rights of property which were involved in the original litigation.

Id

at 1175 (emphasis added). Friedland omitted to point out that on September 26 2001 , he

settled all of his claims related to ICC and in that process , took an assignment from ICC of " all
of its pending third- party claims in this action with the exception of its claims against United
States and the State of Colorado. "
(Motion of Robert M. Friedland ,

as assignee ofIndustrial

Constructors Corp. for Entry of Default Judgment (" Default Motion ), attached hereto as
Exhibit Aat 2 , ~(A)(I). ) Under the principles described in his own case law , Friedland

acquired by assignment the same rights that were adjudicated in the judgment against ICC
and was therefore in privity with ICC during the relevant time period. (See

Default Motion

Ex. A-

hereto (noting assignment effective 9/26/01); Final Judgment in favor of

g., ,"

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GeoSyntec and against ICC , attached hereto as

Exhibit AEx. A-

(entered on 3/29/02); Amended
) Thus ,

Final Judgment dated 3/27/03 , attached to Motion as

at the time both the

Final Judgment and the Amended Final Judgment were entered , Friedland held ICC' s claims
against GeoSyntec by assignment , and is therefore bound by those judgments.
Simon v.

See , e.

Allstate Employee Group Medical Plan 263 F. 3d 656 658 (7th Cir. 2001) (assignee

barred from relitigating claims that " should have been brought" in prior action by assignor);
Tivoli Ventures, Inc.
v.

Bumann

870 P.2d 1244

1248- 49 (Colo. 1994) (assignee of claim has

no better rights than assignor in determining whether claim is barred by statute of limitations).

Friedland also argues that GeoSyntec s dismissal was not a "judgment on the merits "

for

res judicata purposes. However , as expressly provided by Rule 41(b), Fed. R. Civ. P.

(u)nless

the court in its order for dismissal otherwise specifies , a dismissal. . . other than a dismissal for
lack of jurisdiction , for improper venue , or for failure to join a party under Rule 19 , operates as
an adjudication on the merits. "
Accordingly, because Judge

Nottingham did not state otherwise

his order entering judgment in GeoSyntec s favor was an adjudication on the merits , and has
judicata effect in this case.

res

See , e. g., Murphy

v.

Klein Tools,

Inc.

935 F.2d 1127 ,
LeBeau v.

1128- 29 (10th
Taco Bell,

Cir. 1991) (dismissal for failure to comply with statute oflimitations);

Inc.

892 F.2d 605 608 (7th Cir. 1989) (dismissal for want of prosecution held adjudication on
merits); Huey v.

Teledyne , Inc.

608 F.2d 1234 ,

1237 (9th Cir. 1979) (unless specifically

designated to be " without

prejudice

" dismissal is adjudication on the merits).

Friedland was an active participant in the EP A Action and the assignee ofICC' s third-

party claims when the judgment was entered against ICC and in favor of GeoSyntec. If he
wanted to preserve the right to sue GeoSyntec at a later date , he should have requested that the

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court expressly designate the judgment as " without prejudice.

See LeBeau 892 F.2d at 608

(burden is on plaintiff to persuade court to specify a dismissal is without prejudice , if he wants to

preserve his claim). Because Friedland took no such action , he is bound by the result.
Friedland Dep. 1/27/06

(See

Ex. A-

at 35: 11- 36:2;

39: 10-

23 (acknowledging complete reliance on

his counsel in EP A Action.

CONCLUSION
For the last decade , Friedland has been embroiled in litigation related to the Mine.
Despite his active participation in the EP A Action , in which he engaged three prominent law

firms to represent him and a team of experts to analyze the potential liability of other parties

Friedland ignored GeoSyntec. Despite his access to over 1000 boxes of documents that were
produced and over 60 depositions taken in that action (see

Response at 27), Friedland lacks the

necessary evidence to prove essential elements of his claims - that GeoSyntec controlled the
activity that discharged hazardous waste , or that GeoSyntec " owned or possessed" any hazardous

substances at the Mine. It is time to put an end to this litigation.
GeoSyntec respectfully requests that the Court enter summary judgment in its favor and
against Plaintiff Robert M. Friedland on all claims for relief in Plaintiff s Amended Complaint
and that it grant such other and further relief as the Court deems just and reasonable.

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Respectfully submitted this 22nd day of February, 2006.

s/

Marian L. Carlson

Marian L. Carlson
Terence M. Ridley Wheeler Trigg Kennedy LLP 1801 California Street , Suite 3600 Denver , CO 80202- 2617 Telephone No. : 303- 292- 2525 Telecopier No. : 303- 294- 1879 Mail: carlson~wtklaw. com
Paul 1. Sanner Hanson, Bridgett , Marcus , Vlahos & Rudy LLP 333 Market Street , Suite 2100 San Francisco , CA 94105- 2122 Telephone No. : 415- 995- 0517 Telecopier No. : 415- 541- 9366 Mail: psanner~hansonbridgett. com

Attorneys for Defendant GeoSyntec Consultants , Inc

()
( )

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CERTIFICA TE OF SERVICE
I hereby certify that on Febru