Free Motion for Summary Judgment - District Court of Colorado - Colorado

Case 1:04-cv-01263-REB-KLM

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Filed 02/08/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1263-PSF-OES ROBERT M. FRIEDLAND, Plaintiff, v. TIC--THE INDUSTRIAL COMPANY and GEOSYNTEC CONSULTANTS, INC. f/k/a GEOSERVICES, INC Defendants. ________________________________________________________________________ DEFENDANT TIC ­ THE INDUSTRIAL COMPANY'S MOTION FOR SUMMARY JUDGMENT ________________________________________________________________________

Pursuant to F.R.C.P. 56(b), Defendant TIC ­ The Industrial Company ("TIC"), through its undersigned counsel, moves this Court for an order granting summary judgment in favor of TIC and against Plaintiff Robert M. Friedland on all claims asserted against TIC in his Amended Complaint. As grounds for its Motion, TIC states as follows: 1) To the extent that Friedland's claim for contribution under Section 113 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9613 ("CERCLA") is predicated on the theory that TIC "operated" the Summitville Mine Site ("Site"), that claim fails because TIC does not meet the legal definition of an "operator." TIC was a construction subcontractor under the direction, control, and supervision of Bechtel Civil & Minerals, Inc. ("Bechtel"). TIC did not

Case 1:04-cv-01263-REB-KLM

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direct, manage, or conduct Mine operations, operations specifically related to pollution, or decisions about compliance with environmental regulations. 2) To the extent that Friedland's claim for contribution under Section 113 of CERCLA is predicated on the theory that TIC "arranged for the disposal or treatment of hazardous substances at the Site," that claim fails because TIC does not meet the legal definition of an "arranger." TIC was a construction subcontractor under the direction, control, and supervision of Bechtel. TIC did not own, possess, dispose, or intend to dispose of cyanide or any hazardous substance released or threatened to be released from the heap leach pad, nor did TIC own, possess, dispose, or intend to dispose of any earthen materials allegedly resulting in the release or threatened release of hazardous substances in the form of acid rock drainage ("ARD"). In addition, TIC did not arrange for the disposal of or participate in any decision to dispose of cyanide or any hazardous substance released or threatened to be released from the heap leach pad nor did TIC arrange for the disposal of or participate in any decision to dispose of any earthen materials allegedly resulting in the release or threatened release of hazardous substances in the form of ARD. 3) As further grounds for this Motion, TIC incorporates herein by reference the points and authorities of law included in the Brief in Support of Its Motion for Summary Judgment, filed contemporaneously herewith.

WHEREFORE, based on the points and authorities above, TIC respectfully requests that this Court enter summary judgment in favor of TIC and dismiss all of Plaintiff Robert M. Friedland's claims against TIC with prejudice.

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Respectfully submitted this 8th day of February, 2006.

s/ Colin C. Deihl Colin C. Deihl, Esq. Faegre & Benson LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203 Telephone: (303) 607-3651 FAX: (303) 607-3600 E-mail: [email protected] Delmar R. Ehrich, Esq. Faegre & Benson LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, Minnesota 55402 Attorneys for Defendant The Industrial Company

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Case 1:04-cv-01263-REB-KLM

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CERTIFICATE OF MAILING

I hereby certify that on this 8th day of February, 2006, a true and correct copy of the foregoing DEFENDANT TIC ­ THE INDUSTRIAL COMPANY'S MOTION FOR SUMMARY JUDGMENT was electronically filed via Electronic Case Filing (ECF) with the United States District Court for the District of Colorado and served electronically on the following:

John D. Fognani, Esq. R. Kirk Mueller, Esq. Lauren C. Buehler, Esq. Fognani Guibord & Homsy LLP 1700 Lincoln Street, Suite 2222 Denver, Colorado 80203 Terence M. Ridley, Esq. Wheeler Trigg Kennedy LLP 1801 California St., Suite 3600 Denver, Colorado 80202-2617 Paul J. Sanner, Esq. Hanson, Bridgett, Marcus, Vlahos & Rudy, LLP 333 Market Street, Suite 2100 San Francisco, California 94105-2173

s/ Jan Sullivan

DNVR1:60333004.01

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