Free Motion for Summary Judgment - 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- OES

ROBERT M. FRIEDLAND
Plaintiff,

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

DEFENDANT GEOSYNTEC' S MOTION FOR SUMMARY JUDGMENT
Defendant GeoSyntec Consultants Inc. , formerly GeoServices , Inc. (" GeoSyntec

through its counsel and pursuant to Rule 56(b), Fed. R. Civ. P. , moves the Court for an order

granting summary judgment in favor of GeoSyntec and against Plaintiff Robert M. Friedland on

all claims asserted in his Amended Complaint. In support of this Motion , GeoSyntec states:

INTRODUCTION
This CERCLA lawsuit represents a last-ditch and belated effort by Robert M. Friedland
Friedland" ), the former President of Summitville Consolidated Mining Company, Inc.
SCMCI" ), to recover contribution for costs paid in connection with the environmental

catastrophe that occurred under his watch at the Summitville Mine. Friedland paid these costs
pursuant 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

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In the EP A Action and subsequent lawsuits , Friedland sued numerous contractors who

worked at the site , the bank that financed the mine , prior owners of the site , and at least two

insurance companies. Having exhausted all reasonable avenues of recovery, Friedland is now
grasping at straws by filing this action against GeoSyntec , a subcontractor to an engineering
consultant that concluded its limited two- year engagement at the site
over eighteen years ago.

As discussed more fully below , GeoSyntec is entitled to summary judgment against Friedland'
claims on two grounds , because: (1) his belated attempt to pursue GeoSyntec is barred by the

doctrine of res judicata; and (2) GeoSyntec lacked the requisite control over any pollution-related
activities to be liable under CERCLA, which is the sole basis of his claims.

Engaged to observe and inspect the installation of one layer of a multi- layered lining
system for the site s leach pad , GeoSyntec s role at the site was so limited that it was not even
named in the EP A' s exhaustive report on " potentially responsible parties "
at the site

, upon which

the EP A relied in filing its action. Because it lacked control over any construction , operation or
waste disposal activities at the site , and in fact , could not even control the extent of its own
inspections , GeoSyntec cannot be deemed a "covered person" under CERCLA and is therefore

entitled to summary judgment.

II.
The Summitville Mine (the " Mine "

BACKGROUND
or the " Site

) is located in the southeastern San Juan

Mountains of southern Colorado , approximately 28 miles southwest of Del Norte. Miners first

discovered gold in the Summitville district in 1870. Since that time , the Site has been mined
intermittently by scores of different owners and operators who , through various techniques
removed thousands of tons of ore to extract gold , silver , and copper. The last private operator at

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the Site ,

SCMCI , operated the Mine as a large open pit mine and cyanide heap leach facility for

the recovery of gold and silver. (Plea Agreement and Statement of Facts , attached hereto as
Exhibit Aat 5.

SCMCI was wholly owned and controlled by Galactic Resources , Ltd. (" GRL" ), a

Canadian corporation headquartered in Vancouver , British Columbia. ( Id. )

After acquiring

mineral rights to the Site in 1984 , Friedland and other SCMCI executives assembled a group of contractors including Bechtel Civil & Minerals , Inc. (" Bechtel" ), Industrial Constructors Corp.
ICC" ), Gundle Lining Systems , Inc. (" Gundle ), Klohn Leonoff Consultants , Inc. (" Klohn

Leonoff' ), and others to perform various tasks in constructing and operating the Mine. The
majority of the Mine and plant complex was built by these contractors during the winter of 1985
and 1986. (Excerpts from EPA Report , attached hereto as

Exhibit A-

at 71.)

In

September

1985 , Klohn Leonoff retained GeoSyntec as a subcontractor, to provide quality assurance work

regarding the geomembrane liner installation for the heap leach pad at the Site.
SCMCI began mining and gold cyanide heap leaching in mid- 1986.
This process
pad" - a

involved the open pit mining of ore , which was then crushed and " heaped" on a " leach

lined , man-made basin covering approximately 43 acres and , in some places , 127 feet deep.

(Plea Agreement Ex. A-

at 6. )

Once the

ore was placed on the pad , a cyanide solution was

sprayed on the entire pile , which as a result of chemical processes, caused gold and silver to be

collected in the cyanide solution. ( Id. )

The solution

was then collected in one or more sumps or

wells at the bottom of the basin and piped to a processing plant , where the precious metals were
recovered. ( Id. at 6-

). (

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Even by design , SCMCI's mining and metal recovery operation involved large volumes
of contaminated by- product or process wastewater , which contained significant amounts of
cyanide and various heavy metals.

(Id.

at 7.

) Much of the Mine s contaminated water was

highly abrasive and acidic , to the extent that much of the Mine s equipment had to be regularly
replaced because of corrosion and other damage.

(Id. ) Although SCMCI represented in its

permit applications that it would not discharge pollutants to surface waters surrounding the Mine

its plans to control the wastewater failed. ( Id. )

In fact ,

SCMCI and its management knowingly

engaged in a number of illegal practices to dispose of the Mine s wastewaters , several of which
caused regular discharges to nearby bodies of surface water. ( Id. at 12.

From 1988 to 1992 , the financial condition of GRL and SCMCI deteriorated.

(Id.

at 13.

SCMCI stopped actively mining the Site in August 1992. (EP A Report Ex. A- at 73. )
November 1992 ,
December 4 ,

By

late
On

the leach pad was close to overflowing. (Plea Agreement Ex. A-

at 14. )

1992 , SCMCI filed for Chapter 7 bankruptcy protection , and GRL announced its
at 14. )

intention to abandon the mine on December 15. ( Id.
December 16 , 1992. (EP

The

EPA took control of the site on

A Report Ex. A-

at 2.

On November 4 , 1993 , the EP A Report was issued after an exhaustive study of the Site

its long history, and the roles of all persons and entities that might qualify as " potentially
responsible parties " under CERCLA. The EP A Report named 30 parties potentially liable as
owners " and 11 parties potentially responsible as " operators " based on CERCLA 9 101(20)

(defining operator as a " person who has control over source of contamination

Id. at ii- iii.

The EP A Report also named over 50 additional parties as either unconfirmed or non-viable

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PRP' s. ( Id. at v-vi. Nowhere in this extensive report was GeoSyntec listed as a PRP, under
any category.

(Id. at ii-vi.

On May 23 , 1996 , the EPA and the State of Colorado brought the EPA Action in this

Court , No. 96-

1213 , seeking to recover costs incurred in responding to environmental

contamination at the Site. Friedland then joined the major contractors at the Site as third party
defendants , including Bechtel , ICC , Gundle , Columbia Reservoir Systems , Inc. (" Columbia

and Klohn Leonoff. (Amended Third- Party Complaint , attached hereto as
Notably, Friedland did not even attempt to join GeoSyntec as a defendant.

Exhibit A(Id. ) Nor did

Friedland assert any claim against GeoSyntec after Third- Party Defendant ICC filed claims
against GeoSyntec and other previously unnamed parties , which were subsequently dismissed.
(See

Courtroom Minutes dated 5/26/00 , attached hereto as

Exhibit A- ) On December 22 2000

Friedland entered into a Consent Decree that resolved the claims against him in the EP A Action.

(Am. Compl. ~ 4. )

Pursuant to the

Consent Decree , which was approved by the Court on June

, 2001 , Friedland paid approximately $20 million to the United States and the State of

Colorado. ( Id.
On June 18 ,

2004 , nearly

seventeen years

after GeoSyntec concluded its two- year

consulting engagement at the Site , Friedland filed this action to recover contribution from

GeoSyntec and five other contractors , three of whom have since been dismissed from the case. As the basis for his claims against GeoSyntec, Friedland alleges that GeoSyntec was an

operator" under CERCLA Section 107(a)(2) and/or an " arranger" as defined by Section
107(a)(3). (Am. Compl. ~~ 39 46.

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As discussed more fully below , undisputed facts establish that as a consultant on the Site

whose recommendations could be accepted or rejected by Klohn Leonoff and SCMCI
GeoSyntec lacked the necessary control over any activities to be deemed an " operator.
Similarly, GeoSyntec neither transported nor owned hazardous substances so as to render it
liable as an " arranger. "
Because Friedland cannot

establish the necessary elements to support

GeoSyntec s liability under either category, GeoSyntec is entitled to judgment as a matter of law.

III.

S T A

TEMENT

OF

UNDISPUTED FACTS

Mining activity began in the Summit Mining District in Rio Grande County as
early as 1873. United States v. Friedland,

173 F. Supp.2d 1077 , 1081 (D. Colo. 2001) (citing

undisputed fact admitted by Friedland).

Between 1870 and 1984 , the site was mined intermittently by various operators
using a variety of techniques. (EPAReport Ex. Aat 2.

After acquiring mineral rights to the Mine in 1984 , a group of SCMCI executives

including Friedland assembled a group of professionals , contractors and consultants who would

be involved in the construction of a mine and heap leach facility at the Site. (Excerpt from
Deposition of Edward Roper dated May 9 , 1989 , attached hereto as
79:477.

Exhibit A-

at 78:476-

In August 1985 , SCMCI engaged Klohn Leonoff as its " Geotechnical Engineer

to provide services related to geotechnical investigation and design for the heap containment
dike , and to provide geotechnical on-site construction supervision. (Client Agreement for
Geotechnical Services dated 8/1/85 , attached hereto as

Exhibit A- at 9 1.1 and Schedule A)

" (

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By letter agreement dated September 23 , 1985 (the " Klohn

LeonoffContract"

Klohn Leonoff engaged GeoSyntec to act as a sub-consultant by providing " quality assurance

work for the synthetic (geomembrane) liner to be placed at the Summitville heap leach project."
(Affidavit of Joseph E. Fluet , attached hereto as
attached hereto as

Exhibit A- 7

~~ 5- 7; Klohn Leonoff Contract

Exhibit A- 7-

Between June and September of 1987 , GeoSyntec contracted directly with

SCMCI to provide these same services. (Quality Assurance Contract dated June 1 , 1987 (the
SCMCI Contract" ), attached hereto as
Exhibit A- 7-

) GeoSyntec
at ~ 19.

s work at the Site

concluded in September 1987. (Fluet Aff. Ex. A-

From 1984 through 1990 , the day to day operations of the Summitville Mine were

directed by a Mine manager employed by SCMCI. (Mfidavit of Robert M. Friedland submitted
in EP A Action , attached hereto as

Exhibit A- at ~ 25.

SCMCI controlled the staffing of all functions related to Mine operations , and

issued directives on the chain of command at the Site. Such directives made clear that the
contractors , including Columbia , Klohn Leonoff and GeoServices inspectors , and the ICC leach
pad crew , all reported to Glen Holley of SCMCI.
dated 8/19/86 , attached hereto as
(See

Interoffice Memo from Roger Leonard

Exhibit A-

SCMCI hired Clifford Overton as Manager of Heap Leach Pad Construction in
October 1985. (Excerpts from Deposition of Clifford Overton dated May 3 , 1989, attached
hereto as

Exhibit A- I 0 at 441: 1862. )

Mr. Overton

reported to GRL' s Chief Operating Officer
Id.

Edward Roper , who assigned him the task of " get (ting) the leach pad. . . up and running.
413:1750.

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10.

SCMCI coordinated all leach pad construction activities and conducted regular

meetings pertaining specifically to leach pad progress. ( Id. at 458: 1941- 459: 1946.
11.

All decisions regarding the size of the Mine , the decision in the summer of 1985

to proceed with winter construction , whether to continue with winter construction in
December/January 1985- 1986 , the speed ofleak repair efforts in May and June 1986 , the

NPDES permit strategy, the approach to the State of Colorado following the cyanide discovery,
and the continued operations of the Mine were all made by operating management at the Mine in
consultation with Edward Roper. (Friedland Aff. Ex. A12.
at ~ 7.

Friedland represented to state regulators such as the Colorado Mined Land

Reclamation Division (" MLRD" ) that SCMCI controlled the disposal of hazardous waste from

and operation of, the Mine. For example , in response to concerns expressed by MLRD regarding
possible permit violations , Friedland stated:

In our view the maintenance of environmental integrity and on site compliance is crucial to the success of the project and (SCMCI's) company policy accords the highest priority to such compliance.
In furtherance of this policy I have directed management

immediately proceed to add a senior management level compliance to oversee every aspect of the project and ensure officer on site compliance with all permit terms and applicable regulations.

(Letter from Robert M. Friedland to Colorado Mined Land Reclamation Board dated 7/23/86
attached hereto as

Exhibit A-

at 1 (emphasis added).

13.

In neither that correspondence nor a related MLRD board meeting did SCMCI

suggest that it lacked control over any aspect of the Mine s operations or the disposal of
hazardous waste therefrom.

(Id.

see also

Minutes ofMLRD Board Meeting dated 7/24/86

attached hereto as

Exhibit A-

at 7- 10 (listing steps taken by SCMCI to deal with pollution

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problems. )

While

SCMCI officials acknowledged that they had received " suggestions " from

their consultants and staff, they never claimed that those consultants - or any other entities
were in control of the Mine operations or the disposal of hazardous substances arising from these
operations. (MLRD Board Minutes Ex. A14.
the Site
at 10.

At no time did GeoSyntec ever own any portion of the Site , any of the material at
Ex. A- 7

, or any interest in SCMCI or related entities. (Fluet Aff.
15.

at ~ 23.

Edward C. Roper , the Chief Operating Officer of SCMCI during the GeoSyntec

involvement at the Site, viewed Klohn Leonoff as a " watchguard" over the work of GeoSyntec

and specifically that of its primary inspector, Laurin Drake. (Excerpt from Deposition of Edward
C. Roper dated June 1 ,

1989 , attached hereto as

Exhibit A-

at 604:2770- 605:2772.

16.

Roger Leonard , SCMCI's Plant Manager at the Site , testified similarly in the EP A

action , that " GeoServices reported to Klohn Leonoff." (Excerpts from Deposition of Roger

Leonard dated November 16 , 1999 , attached hereto as
17.

Exhibit 14

at 369:23- 370:6.

Pursuant to its contract with Klohn Leonoff, GeoSyntec was engaged to " provide

quality assurance for the placement and seaming of the synthetic liner in addition to , and as an
independent check on testing to be done by the liner installer. "
Ex. A- 7at 2.

(Klohn LeonoffContract

18.

As described in its contract with SCMCI , GeoSyntec was engaged to " (0 )bserve

monitor , inspect and record all fabrication, procurement , delivery, deployment and testing of
approximately 850 000 square feet of 60 mil. LLDPE synthetic membrane " for the leach pad at
the Site. (SCMCI Contract
Ex. A- 7at 9 1.0.

).
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19.

GeoSyntec s quality assurance work pertained only to the geomembrane portion
GeoSyntec

of the lining system installed by Columbia Reservoir Systems Ltd. (" Columbia

did not provide quality assurance regarding the installation or repair of the subgrade , clay lining
system , sand detection system, geotextile cushion material , or any other aspects of the SCMCI

facility. (Final Report dated 21 May 1986 , attached as
20.

Exhibit A- 7 -

at 9 1.2.

Because of the size of the areas where the geomembrane was being installed and

the fact that GeoSyntec was only authorized to provide one quality assurance manager or
monitor at the Site during installation and repairs to the geomembrane , GeoSyntec was not able

to monitor all of the contractor s installation procedures. ( Id. at 992.2 , 3. 1.)
21.

Given its limited capability, GeoSyntec only monitored those installation and

repair operations which were deemed to be the most critical, and field reports and logs were
submitted to reflect pertinent observations. ( Id. at 9 2.2. ) Any observed non-conforming or

questionable practices were noted and reported by GeoSyntec to Klohn Leonoff. Id.
22.
GeoSyntec made recommendations at the Site based on its observations.

However , the final decision on whether to implement those recommendations belonged to

SCMCI. For example , on December 3 , 1985 , Don Colbourne of GeoSyntec advised Mr. Overton
of SCMCI that liner installation process should stop because under the adverse weather
conditions that existed , it was not possible to assure that all problems , such as potential leaks
would be found. (Overton Dep.

Ex. A-

at 461: 1963- 462: 1964. ) Mr. Overton could not recall

whether work stopped on that particular day, but testified that when weather was questionable
Overton " made (his) own assessment" of whether work would proceed the following day. Id.

462: 1965- 1966.

,"

" (

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23.

At dinner on December 3 , 1985 , Ted Falloon of Klohn Leonoff and Don

Colbourne of GeoSyntec expressed to Mr. Overton their concerns that a particular slope at the leach pad was not backfilled properly, creating the risk that the weight of snow would pull the

geotextile out of the anchor trench and cause substantial damage to the liner. Id. at 466: 19741975. )
Mr. Overton

testified he was " sure that this was taken care of, that their

comment

was

taken to heart

and that the work was performed in the next couple of days.

Id. at 467:1981

(emphasis added).
24.

While Mr. Overton initially testified he understood that Mr. Colbourne would

supervise " the work of Gundle Liner Systems , the first contractor installing the geotextile liner

he corrected that testimony to state that Mr. Colbourne was going to " inspect" the work that the
plastic installer was going to do.

(Id. at 452: 1914- 1915. ) Mr. Overton further testified that after

Mr. Colbourne inspected the work , he would make recommendations and Overton " would

(conclude) whether Summitville was doing it or Gundle was doing it. . . .
453:1917.
25.

(Id. at 452:1916-

As reflected by its inspectors ' reports , GeoSyntec could not compel SCMCI to

undertake a particular course of action. As a consultant , GeoSyntec simply " observed" existing
conditions , such as leaks under the geomembrane liner

suggested" remedial action , and
(See

discussed" such matters with representatives ofKlohn Leonoff and SCMCI.
Report dated 5/26/86 , attached hereto as
26.
Exhibit A- 7-

GeoServices

On several occasions , SCMCI proceeded in a manner contrary to GeoSyntec
1986 , Laurin Drake recommended that SCMCI

recommendations. For example , on June 3 ,

cease operations for the day due to inclement weather. He stated in his report that in his opinion

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any mousing or extruding performed in this environment could not be warrantied.
Nonetheless , SCMCI elected to proceed. (GeoServices Report dated 6/3/86 , attached hereto as
Exhibit A- 7-

27.

Several times , Klohn Leonoff warned SCMCI not to proceed with construction of

the heap leach pad at all during the cold winter months, because it would be difficult to assure
the quality of the work being done. (Excerpts from Deposition of Clifford Overton dated
January

2000

attached hereto as

Exhibit A-

at 102:11- 103:10. )

Nevertheless ,

SCMCI

chose to proceed. ( Id.
28.

at 103: 11- 15.

GeoSyntec had no control over the availability of human resources and equipment

necessary to accomplish the liner testing and repair process. For example , on September 19
1986 , contractor ICC (which provided site preparation , heavy construction , surface mining and
earthmoving functions at the Site) " borrowed" all but one laborer from the liner placement and

repair function , and liner testing could not continue. (Excerpts from Deposition of Glen Holley
dated June 27 1989 , attached hereto as

Exhibit A-

at 188:1040- 1042.

29.

On occasion , liner repairs requested by GeoSyntec were delayed because other

contractors diverted not only labor , but also necessary equipment from liner testing and repair
work to other construction and mining activities at the Site. ( Id. at 188: 1043- 189: 1044.
30.

Because he lacked control over the personnel and equipment necessary to assure

proper testing, Laurin Drake of GeoServices complained to SCMCI multiple times , and
ultimately declared that he would no longer be responsible for vacuum testing. Id. at 191: 1057-

192:1059. )

The only action

SCMCI took in response to Mr. Drake s complaints was to " talk to

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Industrial Contractors ' people and request( ed) we try to keep the same individuals in the vacuum
testing " to improve the integrity of the testing process. ( Id. at 192: 1060- 61.)
31.

Not only did GeoSyntec lack control over the resources available for liner testing,

it could not even control the scope of its testing. GeoSyntec s Final Report of May 21 , 1986 (the
1986 Report" )

contained significant qualifications reflecting this lack of control , stating:

As a result of inclement weather and ice and snow covering, panels 13 through 42 inclusive , located on the east slope of the Leach Pad between Dike 1 and Dike 2 , were installed and seamed but not visually observed or tested. Accordingly, this area is excluded from the certification. This exclusion applies equally to the backfilling and compaction of the anchor trench in this area.
(1986 Report
Ex. A- 7at 10 ,

~7. 1.)

Further , as stated in ~7.2:

The East Slope and the bottom of the Leach Pads were exposed to several major slides , consisting of snow , ice and frozen earth. These slides caused the geotextile to be pulled from the Anchor Trench and to slide to the toe of the slope. As there was already considerable snow on the bottom of the Leach Pad in this area , no observations could be made by GeoServices to determine if any damage had occurred to the geomembrane. These areas are therefore also excluded from the Certification.
Id.
at 10 ,

~7.2.

32.

GeoSyntec s Final Report of April 1987 (the " 1987

Report" )

also contained

significant qualifications:

qualified observer was at the Summitville . . . leach pad site between 23 May 1986 and 22 December 1986 . . . . Field seams and repairs were either vacuum or visually observed by the Owner for continuity and tested whenever workmanship. GeoServices monitored these procedures possible. Forty-nine (49) seam samples were destructively tested by an independent testing laboratory, Precision Laboratories. The manufactured geomembrane rolls were tested by the manufacturer and conformance tests were also performed. . . on three (3)
GeoServices . . . hereby certifies that one

geomembrane samples. Flaws or weaknesses which were

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identified as not conforming to generally accepted industry practices and/or the plans and specifications were repaired by tested by the Owner (Columbia Geosystems) and except as noted in this report.
(1987 Report
33.
Ex. A- 7at 14 ,

~ 6 (emphasis added).

As perhaps one of the clearest examples of GeoSyntec ' s lack of control , SCMCI

circumvented GeoSyntec s liner approval process altogether on some occasions. Glen Holley,

SCMCI's General Foreman for construction of the heap leach pad , approved sections of installed

geomembrane liner himself when GeoSyntec was reluctant or unable to approve particular
sections. (Holley Dep. Ex. Aat 200: 1093- 201: 1094.

IV.

ARGUMENT

Legal Standards Governing This Motion.

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure , the court may grant
summary judgment where " the pleadings , depositions , answers to interrogatories , and admissions
on file , together with the affidavits , if any, show that there is no genuine issue as to any material
fact and. . . the moving party is entitled to judgment as a matter oflaw. "
see Anderson v.

Fed. R. Civ. P.

56(c);

Liberty Lobby, Inc. 477 US. 242

247 (1986);

Concrete Works of Colo. , Inc.

City

County of Denver 36F. 3d 1513 , 1517 (10thCir. 1994). Themovingpartybearsthe
s case.

initial burden of showing an absence of evidence to support the nonmoving party
Corp. v.

Celotex

Catrett 477 US. 317 325 (1986).
Once the moving party meets this burden , the burden shifts to the nonmoving party to

demonstrate a genuine issue for trial on a material matter.

Concrete Works, Inc. 36 F. 3d at 1518

(citing

Celotex Corp.

477 US. at 325). The nonmoving party may not rest solely on the

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allegations in the pleadings , but must instead designate " specific facts showing that there is a
genuine issue for trial."

Celotex Corp.

477 US. at

324;

see

Fed. R. Civ. P. 56(e). " 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 v.

Denver Pub. Schs. 164 F.
In reviewing a

527 , 531 (10th Cir. 1998)(quoting
judgment motion ,
party.

Anderson 477 US. at 248).

summary

the factual record must be viewed in the light most favorable to the nonmoving
Applied Genetics Int'
, Inc. v.

Concrete Works, Inc. 36 F. 3d at 1517 (citing

First

Affiliated Sec. ,

Inc.

912 F.2d 1238 ,

1241 (10th Cir. 1990)).

Friedland' s Claims Against GeoSyntec Are Barred by the Doctrine of Res Judicata.
The very same claims that Friedland asserts here -- that GeoSyntec is liable under
CERCLA as an " operator"
and/or an " arranger "

with regard to the Site -- were asserted against
(See

GeoSyntec in the EP A Action , by Third- Party Defendant ICC.

Industrial Contractors

Corp. ' s Third Party Complaint Against Previously Unnamed Parties dated 1/6/00 , attached
hereto as

Exhibit 17

at ~~ 25- 47).

In response ,

GeoSyntec and several other " previously

unnamed parties " filed motions to strike , arguing that ICC' s claims were filed well beyond the
joinder deadline established by Judge Nottingham in the scheduling order. (See

GeoSyntec

Motion to Strike Third- Party Complaint , attached hereto as

Exhibit A-

On May 26 , 2000 , Judge Nottingham granted these motions and dismissed the claims as

untimely filed. (Excerpts from Reporter s Transcript of Motion Hearing, attached hereto as
Exhibit Aat 9: 17- 10:21.)

Based on this ruling, the Court entered a final judgment in favor of
(See

GeoSyntec and against ICC in the EPA Action.

Amended Final Judgment dated 3/27/03

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attached hereto as

Exhibit A-

at 7). GeoSyntec was awarded its costs in the judgment.

Id.

Under these circumstances , Friedland' s failure to assert claims against GeoSyntec in the EP A
Action bars his " new" claims based on the same facts , the same Site , and the same theories of
recovery.

Res judicata constitutes an absolute bar to a subsequent action when both the prior and
subsequent suits have identity of subject matter, identity of cause of action , and identity of
capacity in the persons for which or against whom the claim was made. Wilkinson v.

Pitkin
v.

County Ed of County Comm '

142 F. 3d 1319 ,

1322 (10th Cir. 1998);

State Engineer

Smith

Cattle , Inc. 780 P.2d 546 549 (Colo. 1989). Where a judgment on the merits is rendered in

favor of a defendant in an action in which the plaintiff had alternative remedies , res judicata bars maintenance of a subsequent action to enforce a remedy the plaintiff did not seek in the former
action.

Wilkinson 142 F. 3d at 1322. Thus , res judicata bars the litigation of " all issues actually
might have been

decided and all issues that

decided.

, citing Klein

v.

Zavaras 80 F. 3d 432

434 (10th Cir. 1996) (emphasis added).
In this case , there is an identity of subject matter between the EP A Action and this action.
Both are based on the EP A' s

cleanup of the Site , and the substantial costs incurred in those

efforts. There is also an identity of the causes of action , as both lawsuits involve determinations
of "

operator"

and " arranger"

liability at the Site under CERCLA. The capacity of both parties

Friedland as an individual and GeoSyntec as a corporate entity, is the same in both actions.
Therefore , res judicata bars Friedland' s claims against GeoSyntec.

It is noteworthy that despite exhaustive discovery into the history of the Mine , the causes
of the environmental contamination , and the roles of all potentially responsible parties , Friedland

,"

g.,

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rejected the earlier opportunity to sue GeoSyntec. With every incentive to join as many
potentially liable parties as possible , and with full knowledge of GeoSyntec ' s role at the Site
Friedland chose not

to pursue GeoSyntec. The only logical explanation for this decision is that

the evidence did not support a viable claim against GeoSyntec , that the major contractors were the only solvent parties potentially liable as " operators "
or "

arrangers " at the Site , and that

Friedland' s current action is nothing more than an afterthought. Regardless , having failed to

bring claims against GeoSyntec which " might have been brought" in the EP A Action , Friedland
is now precluded from asserting them here.

Friedland may argue that GeoSyntec s dismissal was based on a procedural ground , and
therefore was not a "judgment on the merits " for res judicata purposes. However , as expressly

provided by Rule 41(b), Fed. R. Civ. P.

(uJnless 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. "

Therefore

because Judge Nottingham did not state otherwise, his order entering judgment in GeoSyntec ' s
favor was an adjudication on the merits , and has res judicata effect in this case.
Murphy v.

See , e.

Klein Tools,

Inc. 935 F.2d 1127 , 1128- 29 (10th Cir. 1991) (dismissal for failure to
LeBeau v.

comply with statute oflimitations);

Taco Bell,

Inc. 892 F.2d 605 , 608 (7th Cir. 1989)
Huey v.

(dismissal for want of prosecution held adjudication on merits);

Teledyne , Inc. 608 F.2d
prejudice

1234 , 1237 (9th Cir. 1979) (unless specifically designated to be " without
adjudication on the merits).

" dismissal is

Res judicata is largely a matter of common law , and recognizes the impropriety of
allowing parties to have " two bites at the apple.
Kenmen Eng
v.

City of Union 314 F. 3 d 468

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479 (10th Cir. 2002). The doctrine protects litigants from the burden ofre- litigating an identical
issue with the same party or his privy, and promotes judicial economy by preventing needless
litigation. Id

at n. 11

citing Parklane Hosiery

v.

Shore 439 US. 322 326 (1979). Those

considerations are particularly compelling in the instant case.
The EP A Action was pending for over five years , between 1996 and 2001. All of the key

contractors at the Site were involved , and their roles were examined in detail. Had Friedland chosen to pursue GeoSyntec , it could have participated in the extensive discovery process in the
EP A Action by attending depositions , issuing written discovery, reviewing documents , and

deposing experts as the case developed. Now , in order to defend the same claims Friedland
could have brought in the EPA Action , GeoSyntec must duplicate much of the work already performed in those proceedings , and attempt to reconstruct and absorb the wealth of information

generated by the parties through cold documents and depositions. GeoSyntec must attempt to
locate those surviving witnesses who have scattered in intervening years , and exhaust memories
that can only have faded over time.

Friedland' s failure to assert his present claims in the EP A Action not only increased

GeoSyntec s burden and expense in defending the claims , but deprived GeoSyntec of one of its

key witnesses. GeoSyntec s work at the Site was performed primarily by Donald Colbourne
during the first six months of its engagement , and by Laurin Drake for the remaining 18 months.

In attempting to locate Mr. Colbourne for possible testimony in this case , GeoSyntec s counsel

learned through public records that he passed away in February 2003. Thus , a critical witness
who could have been available to testify, had Friedland timely named GeoSyntec in the EP
Action , will now be unavailable to testify for GeoSyntec in this action.

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Permitting Friedland to proceed with his claims will give him "two bites at the apple
require the re- litigation of a complex , document- intensive case involving decades of history and

hundreds of witnesses , and thwart the interests of judicial economy. Indeed , the same
considerations that motivated the Court to dismiss ICC' s " operator" and " arranger" claims

against GeoSyntec in May 2000 apply with equal , or greater force to Friedland' s current attempt.

Friedland should not be allowed to accomplish , through this belated new action , what ICC was
expressly prohibited

from doing in January 2000. Friedland has had his day in court as to all

potentially liable parties who appeared in the EP A Action. Under the doctrine of res judicata , all
of his present claims against GeoSyntec should be dismissed.

See Wilkinson 142 F. 3d at 1322.

GeoSyntec is Not a " Covered Person " Subject to CERCLA Liability.
Additionally, GeoSyntec is entitled to summary judgment because it is not a " covered
person" subject to liability under the Comprehensive Environmental Response , Compensation

and Liability Act (" CERCLA" ).

Friedland' s

claims against GeoSyntec are based upon Section

113 ofCERCLA, 42 US. C.

99613. (Am. Compl. ~ 1.) The elements that must be proven to

recover contribution under Section 9613 are the same as those required to recover response costs
under Section 9607. See County Line Inv. Co. v. Tinney,

933F.2d 1508 ,

1517 (10thCir. 1991).

In order to establish liability under Section 9607 or Section 9613 , a plaintiff must prove:
(1) that the defendant is a "covered person" under CERCLA; (2) that a " release "
release " of any " hazardous
substance "
or "

threatened

at the site in question has occurred; (3) that the release or

threatened release caused plaintiff to incur costs; (4) that plaintiff s costs are " necessary " costs of

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response; and (5) that plaintiffs response action or cleanup was consistent with the National
Contingency Plan. Morrison Ent. v.

McShares, Inc. 302 F. 3d

1127 , 1135- 36

(10th Cir. 2002).

GeoSyntec does not dispute that a release of hazardous substances occurred at the Mine
or that Friedland incurred costs related to such release. For purposes of this Motion only, it may

be assumed that the costs incurred by Friedland were " necessary " costs of response , and that the

applicable response action or cleanup was consistent with the NCP. However, GeoSyntec is
nonetheless entitled to summary judgment because it is not a " covered person" under CERCLA.
The term " covered
persons "

includes four categories of potentially responsible parties:

(1) current owners and operators , (2) owners and operators at the time the disposal of hazardous

waste occurred at the facility, (3) arrangers or generators of hazardous substances , and (4) certain
transporters of hazardous substances. 42 US. C. 99607(a). In this case , Friedland alleges that
GeoSyntec is an " Operator"
Complaint ~~ 26
and/or an " Arranger"

with regard to the Mine. (Amended

43. )

The undisputed

facts prove otherwise.

1. GeoSyntec Cannot be

Liable as an Operator Because it Lacked Control Over Any Construction , Operational , or Waste Disposal Activities at the Site.

To be liable as an " operator" under CERCLA, a person must " manage , direct , or conduct

operations specifically related to pollution, that is , operations having to do with the leakage or
disposal of hazardous waste , or decisions about compliance with environmental regulations.
United States v.

Bestfoods

524 US. 51

66- 67 (1998). Judge Nottingham applied this standard
Smith ,

in the EP A Action , granting summary judgment in favor of A. O.

the parent company of a

former Mine operator , because its activities regarding the Site were largely unrelated to pollution
control management or decisions. United States v. Friedland,

173 F. Supp.2d 1077 , 1097- 98 (D.

Colo. 2001).

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Liability as an operator " clearly requires actual participation , not merely the potential to
do so.
City of Wichita v.

Trustees of Apco Oil Corp. Liquidating Trust 306 F. Supp.2d 1040

1054 (D. Kan. 2003). Because all of GeoSyntec ' s recommendations were subject to the approval
of SCMCI , and because for most of the engagement , its activities were also subject to the

supervision and approval ofKlohn Leonoff, GeoSyntec neither controlled nor had the ability to
control the construction, operation or disposal of hazardous substances at the Mine.
For example , SCMCI was responsible for applying for and complying with all permit
conditions , laws and regulations governing construction , operation or disposal of hazardous

substances at the Mine. (Facts , ~~ 11- 13). SCMCI and GRL controlled all decisions regarding
personnel and contractors hired at the Site. (Facts , ~~ 3 , 7 ,
8.

SCMCI directed the day to day

operations of the Mine. (Facts , ~ 7.

SCMCI coordinated all leach pad construction activities.

(Facts , ~ 10. ) SCMCI determined the pace at which liner installation , repair and inspection

would proceed , and whether such activities would proceed under adverse weather conditions
(Facts , ~~ 10 ,
11

22.

In contrast to SCMCI , which was ultimately responsible for all aspects of construction
operation and waste disposal at the Site , GeoSyntec was engaged only to provide quality

assurance work for the placement and seaming of the synthetic geomembrane liner for the leach
pad. (Facts ,

~ 17. ) Although the leach pad lining system was comprised of several layers

including a clay lining system , a sand leak detection system , the synthetic geomembrane , and
geotextile cushion material , GeoSyntec s quality assurance work pertained only to the

geomembrane portion. (Facts , ~ 19. )

Even with regard

to that portion of the liner system

GeoSyntec s capabilities were limited. Because of the size of the geomembrane liner installation

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and its inability to use more than one quality assurance representative at a time , GeoSyntec was

not able to monitor all of the liner installation procedures. (Facts , ~ 20. )

Instead ,

the GeoSyntec

inspector monitored only those installation and repair procedures which were deemed to be the
most critical , and reported non-conforming or questionable practices to Klohn Leonoff and/or

SCMCI. (Facts , ~ 21.)
For all but the last four months of its engagement at the Site , GeoSyntec served as a
subcontractor to SCMCI's engineering consultant , Klohn Leonoff. (Facts , ~~ 5 , 6 ,
GeoSyntec , which at any given time was represented by a
single individual

15 , 16.

at the Site , could not

compel SCMCI or Klohn Leonoffto undertake a particular course of action. Rather , the
GeoSyntec representative could only make recommendations and suggestions based on his
observations. (Facts ,

~ 25.

SCMCI was free to accept or reject these recommendations , many

of which affected the quality of the liner installation and consequently, the potential for leakage.
(Facts , ~~ 2225- 29. ) Clifford Overton , SCMCI's Manager of Leach Pad Construction

summarized Klohn Leonoff s authority as a consultant , which was analogous to (and in many
instances , greater than) that of GeoSyntec , as follows:

Klohn Leonoff s representatives did not tell the contractor what to should we , they told us what the contractor , and told the contractor what to do.
(Excerpt from Deposition of Clifford Overton dated 3/23/89 , attached hereto as
248: 1001- 02 (emphasis added).

Exhibit A-

On several occasions , SCMCI proceeded in a manner contrary to GeoSyntec

recommendations. (Facts , ~~ 26 27. )

Due

largely to SCMCI's decisions , including those to

proceed in adverse weather, to allow only one GeoSyntec inspector at the Site at any given time

,"

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and to allow human and mechanical resources to be diverted away from liner installation and
repair work to perform other tasks at the Site , GeoSyntec was not able to inspect or provide

assurance on many portions of the geomembrane liner installation. (Facts , ~~ 20
In

, 30 , 31).

some instances , SCMCI " overrode " GeoSyntec s function entirely, by approving portions of

liner installation that GeoSyntec was reluctant or unable to approve. (Facts , ~ 32.
Courts have declined to impose " operator" liability on contractors whose activities were

far more central to the operation of a facility than those of GeoSyntec. For example , in Edward
Hines Lumber Co. v.

Vulcan Materials Co.

861 F.2d 155 ,

157 (7th Cir. 1988), the court affirmed

judgment in favor of a defendant-contractor who designed and built the plaintiff s plant
furnished the toxic chemical at issue , trained the plaintiff s employees , and even reserved a right
to inspect ongoing operations. Id

at 157.

In

rejecting the plaintiff-owner s claim against the contractor, the court emphasized that
not

CERCLA was

created to impose negligence liability on architects , engineers , construction
Id

contractors and instructors.

Rather , it was designed to place liability on owners and

operators.

Id

In

turn , the desire of operators (such as SCMCI) to minimize their own liability
Id

should lead them to pay close attention to their designers and suppliers.

at 158. When they

lack the expertise to supervise closely, they can induce their contracting partners to take care by
insisting on warranties and indemnification. Id

Thus , the court held

architects , engineers

construction contractors ,

and instructors must chip in only to the extent they have agreed to do so

by contract."

Edward Hines 861 F.2d at 157. Such contractual liabilities are outside of

CERCLA and are not alleged in this action.

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Likewise , in

City of North Miami

v.

Berger 828 F. Supp. 401 , 413 (E. D. Va. 1993), the
its reasonable limits " by imposing " operator

court declined to stretch CERCLA'

s net " beyond

liability on a contractor who provided technical and engineering services in connection with the
operation of a landfill. Id

Because the engineering firm was an independent contractor that , like

GeoSyntec , provided consultation and advice to the operator of the site , the court found that the

firm had no actual control , nor the authority to control , its operations.
In

Id

at 412- 13.

reaching its conclusion , the court focused on the fact that the engineering consultant
Id

had no authority to make final operational decisions.

at 413. Like GeoSyntec , the consultant

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 (the operators who engaged
them)." Id

The court went on to state that " imposing CERCLA liability on independent

contractors such as (the engineering consultant) 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.

The court also pointed out that if the engineering firm gave bad advice to the operator of
the landfill , it might give rise to a cause of action in tort or contract against the firm.

However , absent " authority to control" the project , such actions do not justify the imposition of
operator liability. Id

at 413 ,

n. 20. Thus , even if Friedland' s allegations had been true , that
HLP

GeoSyntec " contributed to the ultimate failure of the

liner system by failing to properly

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oversee and control the liner installation and repair processes " (Am. Compl. ~ 29), they would

provide no basis for a claim of " operator" liability under CERCLA.
GeoSyntec was engaged to observe , monitor and inspect the geomembrane liner installation at the leach pad , which was one layer of a multi- layered lining system for just one

component of the vast mining operations undertaken at the Site - a site that had been mined
periodically for over 100 years , and which involved or directly affected over 1 200 acres ofland.
(Plea Agreement Ex. Aat 5. )

Moreover ,

GeoSyntec s quality assurance did not extend to the

installation or repair of the heap leach pad subgrade , clay lining system , sand detection system
geotextile cushion material , any other material lining the Heap Leach Pad , or any other aspects

of the SCMCI facility. (1987 Report Ex. A-

at 2 , ~ 1.2. )

While in the course of its work

GeoSyntec made several recommendations that might have improved the quality of the
geomembrane liner installation , many such recommendations were rejected by SCMCI.
The mere activities of " inspecting " and " approving " certain aspects of an installation
process are insufficient to render GeoSyntec an operator under CERCLA.

See , e. g., United

States

v.

Rohm

Haas Co. 939 F. Supp. 1157 , 1160 (D.

I. 1996) (state environmental

department not liable as operator where only acts were to approve use of site as landfill , inspect

its operations periodically, and ultimately shut it down). Given the limited scope of GeoSyntec ' s
engagement , the restrictions on its activities and the vast scope of SCMCI' s control and authority
over every aspect of the Site , GeoSyntec lacked the requisite control to be liable as an " operator

fact , SCMCI raised similar allegations in a 1988 negligence action against Klohn Leonoff and GeoSyntec in Vancouver , B. C. The case was ultimately settled and dismissed.

1 In

--

--

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under CERCLA. Therefore , GeoSyntec is entitled to summary judgment on Friedland' s First
Claim for Relief.

Even if GeoSyntec had controlled the liner installation , it would not be liable as an operator because that activity was not " specifically related to the disposal of hazardous substances at the time of disposal."
It is fundamental that to be liable under CERCLA, an operator must control an operation
that is specifically related to pollution " at the time of the disposal." 42 US. e.A.
United States v.

99607(a)(2);

Bestfoods

524 US. 51

66- 67

(1998). Indeed ,

the most commonly adopted

yardstick for determining whether a party is an operator under CERCLA is the degree of control
that party is able to exert " over the activity causing the pollution.
General Corp. 731 F. Supp. 783 ,

CPC Int '

, Inc.

v.

Aerojet-

788 (W. D. Mich. 1989). Thus , even if GeoSyntec had

controlled the activity that was the subject of its observations and reports

the geomembrane

liner installation

it would not be liable as an " operator" because this work necessarily occurred

before

any leaching activity on a particular section of liner took place , and therefore did not

relate to the disposal of hazardous substances at the time of disposal.

The few cases in which independent contractors have been held liable as " operators "

are

consistent with this principle. For example , in
Dev. Corp. 976 F.2d 1338 ,

Kaiser Aluminum

Chemical Corp.

v.

Catellus

1341 (9th Cir. 1992), " operator" status was upheld as to an

excavating contractor who had spread contaminated soil around the site in question , directly
disposing of the soil in previously uncontaminated areas. Id

at 1341. Although its work

involved preparation of the site , rather than its operation , the contractor was held liable because
the disposal of contamination occurred during the preparation

activities. Thus , the contractor

was in control of the operation that directly produced the disposal , at the time the disposal

--

--

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occurred.

Id

In

this case , there is no dispute that leaching operations at the Site began on June
after

, 1986 , or that cyanide leakage was detected only
June 17 ,

these operations began , on or around

1986. (EPA Report Ex. A- at 73. )

There

is no dispute that the heap leaching

operation produced the leachate that leaked into the subsurface geology. It is further
indisputable that GeoSyntec s quality assurance services were performed as part of the site

preparation activities for the heap leaching operation , and that GeoSyntec had no involvement in

the heap leaching operation itself. (Facts ~~ 5- 6;

17- 18.

GeoSyntec s work with regard to the geomembrane liner installation necessarily
concluded , as to a particular section of liner , before leaching on that particular section could
begin. Because
GeoSyntec had no involvement in let alone control over

the heap leaching

process through which the leakage occurred , it could not have controlled an operation
specifically related to pollution at the time of the disposal." Therefore , it cannot be held liable
as an operator.

See City of Wichita 306 F. Supp.2d at 1054 (defendants who were not involved
s operations during time of disposal held not liable under CERCLA).

in facility
Mfg. Co. v.

See also Joslyn

TL. James

Co. 836 F. Supp. 1264 , 1270 (W. D. La. 1993) (no liability where no

hazardous discharges occurred during defendant's period of involvement).

Because GeoSyntec did not own , possess, or arrange for the transport of hazardous substances, it cannot be deemed an "Arranger " under CERCLA.
Arranger liability applies to " any person who by contract. . . arranged for disposal or
treatment , or arranged with a transporter for transport for disposal or treatment , of hazardous

substances owned or possessed by such person. . .. " 42 US. C.

99607(a)(3). To be

liable under

CERCLA as an arranger , a party must: (1) be a " person" under CERCLA; (2) " own" or
possess " the hazardous substance at issue; and (3) by contract , agreement or otherwise , arrange

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for the transport or disposal of such hazardous substances.

Raytheon Constructors, Inc.

Asarco, Inc. 368 F. 3d
In

1214 ,

1219 (10th Cir. 2003).

his Complaint , Friedland did not allege that GeoSyntec owned or possessed any
In

hazardous substances found at the Site. (Am. Compl. ~~40- 48.

a cursory fashion, Friedland

alleged only that " Defendants through contract , agreement , or otherwise , arranged for the

disposal or treatment of hazardous substances at the Site. " (Am. Compl. ~ 43. )

At

the time

these allegations were made , additional defendants were named that have since settled out of the
action , Conveyor Engineering and Doyon Brothers (Am. Compl. at 1) Perhaps Friedland had

a basis for asserting that those defendants " arranged for the disposal or treatment of hazardous
substances at the Site. " However , there is no basis for that allegation with respect to GeoSyntec

an engineering consulting firm that , for a relatively brief period of time , merely observed and

reported on the geomembrane liner installation. (Facts ~~ 5 , 6 , 17 ,

18.

Although occasionally, arranger liability may attach to parties that do not have active involvement with the timing, manner or location of hazardous waste disposal , there must

nonetheless be some nexus between the potentially responsible party and the disposal of the
hazardous substance. General Electric Co. v.

Aamco Transmissions, Inc.

962 F.2d 281

286 (2d

Cir. 1992);

Hassayampa Steering Comm.

v.

State of Arizona 768 F. Supp. 697 , 699- 700 (D.

Ariz. 1991). This nexus is premised upon the potentially liable party s conduct with respect to
the disposal or transport of hazardous wastes.

General Electric 962 F.2d at 286. Accordingly, it

is the obligation to exercise control over hazardous waste disposal , and not the mere ability or

opportunity to control the disposal of hazardous substances that makes an entity an arranger
under CERCLA'
s liability provision.

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In

this case , neither GeoSyntec ' s contract with Klohn Leonoff nor its contract with
Ex. A- 7

SCMCI related to the disposal or treatment of hazardous waste. (Fluet Aff.

at ~ 24.

GeoSyntec had no active involvement in such disposal or treatment , nor any obligation to
exercise control over hazardous waste disposal at the Site.

(Id. )

Given that

GeoSyntec did not

own or possess hazardous substances , and given the lack of any nexus between GeoSyntec and

the disposal of hazardous waste at the Site , GeoSyntec cannot be liable as an arranger as a matter
oflaw.

See General Electric 962 F.2d at 287- 88.

Therefore ,

GeoSyntec is also entitled to

summary judgment on Friedland' s Second Claim for Relief.

CONCLUSION
For all of the foregoing reasons , Defendant 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 18th day of November , 2005.

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 I. 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 November 18 , 2005 , I electronically filed the foregoing

Defendant GeoSyntec s Motion for Summary Judgment with the Clerk of Court using the
CM/ECF system which will send notification of such filing to the following email addresses:

Colin Christopher Deihl
cdeihl~faegre. com j sullivan~faegre. com

Richard Kirk Mueller

rmueller~fognanilaw. com cvega~fognanilaw. com
Terence M. Ridley

Michael Stephen Freeman
mfreeman~faegre. com cdaniels~faegre. com dcopeland~faegre. com

ridley~wtklaw. com norris~wtklaw. com

Steven Matthew Kelso kelso~wtklaw. com hand~wtklaw. com
and I hereby certify that a copy of the document has been served to the following non- CM/ECF
participant in the manner indicated by the non- participant's name:

Paul J. Sanner Hanson, Bridgett , Marcus , Vlahos & Rudy, LLP 333 Market Street , #2100 San Francisco , CA 94105- 2122

Mail Hand Delivery Facsimile Overnight Delivery (X) E- Mail
( ) First Class

s/

Marian L. Carlson by Cindy Carpenter

Marian L. Carlson
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

Attorney for Defendant GeoSyntec Consultants , Inc.