Free Brief in Opposition 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, v. TIC-- THE INDUSTRIAL COMPANY and GEOSYNTEC CONSULTANTS, INC. f/k/a GEOSERVICES, INC Defendants. __________________________________________________________________________ DEFENDANTS' JOINT RESPONSE IN OPPOSITION TO PLAINTIFF ROBERT M. FRIEDLAND' MOTION FOR PARTIAL SUMMARY JUDGMENT THAT MR. S FRIEDLAND' CERCLA RESPONSE COSTS FOR GOVERNMENT DIRECTED S REMEDIATION WERE CONSISTENT WITH THE NATIONAL CONTINGENCY PLAN __________________________________________________________________________ Defendants TIC ­The Industrial Company and Geosyntec Consultants, Inc., by and through their undersigned counsel, respectfully submit this Response in Opposition to Plaintiff Robert M. Friedland' Motion for Partial Summary Judgment that Mr. Friedland' s s CERCLA Response Costs for Government Directed Remediation were Consistent with the National Contingency Plan (the " Motion" and in support thereof, states as follows. ), INTRODUCTION Although it is undisputed that Mr. Friedland has the prima facie burden of proving that any alleged response costs he incurred were consistent with the National Contingency

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Plan (" NCP" and although there is clearly a factual dispute concerning that issue,1 ), Friedland attempts to avoid that burden altogether by misconstruing a regulatory provision that was never intended to apply to his situation in the first place. The regulatory presumption Friedland relies on, 40 C.F.R. § 300.700(c)(3)(ii) (herein after referred to as the " Rule" was intended to protect parties who undertake extensive and substantive clean-up ), actions, as mandated by the EPA, from claims that such actions were inconsistent with the NCP. It was never intended to protect a party, like Friedland, who simply wrote a settlement check to the Government. The language of the Rule itself makes it clear that it does not apply to Friedland' s settlement payment. First, the Consent Decree Friedland entered into with the Government is not a " response action"to remedy specific environmental issues at the Summitville Mine. At most, the Consent Decree establishes funds to defray a small portion of the Government' s costs for future response actions and future site monitoring, as well as NRD recovery. Second, the Consent Decree is not consistent with Section 122 of CERCLA, as required by the Rule. As a result, Plaintiff must meet his burden of proving that his payment to the Government was consistent with the NCP, and must produce evidence at trial to support that burden. Similarly, Defendants are entitled to offer contrary evidence (including the testimony of Friedland' own expert witnesses) that the Government' response action was s s not consistent with the NCP.
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In fact, Mr. Friedland' own experts argued in the underlying litigation that the government' response costs were s s not consistent with the NCP. See Statement of Additional Material Facts ¶¶ 5-8, infra.

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STATEMENT OF ADDITIONAL MATERIAL FACTS Contrary to Friedland' Statement of Undisputed Material Facts, s Friedland was involved in operating the Summitville Mine long after January 1987. 1. Given the limited relevance of this fact to the issue raised by Friedland in the

present Motion, Defendants direct the Court to the Statement of Additional Material Facts in Defendants'Response in Opposition to Plaintiff Robert Friedland' Motion for Summary s Judgment Regarding Plaintiff' CERCLA Liability at 3-7, for additional statements of s material fact related to this issue. The Consent Decree does not provide for response action undertaken by Friedland or for past cost recovery. 2. The Consent Decree required Friedland to pay $4,000,000 within 30 days of

its entry and another $1,250,000 after the resolution of certain matters related to litigation in Canada. Friedland was then to pay $2,500,000 per year for a total of nine years. Of the $5,250,000 to be paid up front, $2,500,000 was to be allocated to the State of Colorado to " restore, replace, or acquire natural resources in the Alamosa River Watershed,"$2,500,000 to the United States for similar NRD restoration purposes, $125,000 to the EPA to " conduct or finance response actions,"and $125,000 to the State of Colorado to cover " Colorado' s future obligations associated with the Summitville Mine site." Of the annual payments of $2,500,000, half was to go to the EPA to " conduct or finance response actions,"and the other half to Colorado to cover future site obligations. Memorandum of Understanding, attached as Ex. 1, at 5.

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3.

According to the terms of the Consent Decree between Friedland and the

Government, " Payments received by the State of Colorado under this Settlement Agreement and Consent Decree shall be placed solely in three accounts maintained in the Colorado Treasury... . The monies in the first account shall be used for the sole purpose of contributing to Colorado' matching share requirement for future response actions at the s Site under... 42 U.S.C. § 9604(b)(3)(C). The monies in the second Colorado account shall be used for the sole purpose of contributing to Colorado' future operations and s maintenance obligations at the Site under... 42 U.S.C. § 9604(b)(3) and (6). The monies in the third Colorado account are for natural resource damages, and shall be held in trust for both the United States and the State of Colorado, and shall be used only at the discretion of the Natural Resource Trustees."Settlement Agreement and Consent Decree, Ex. 1 to Pl. Mot. for Partial Summ. J. filed 10/30/06 (emphasis added). 4. Nowhere in the Consent Decree does Friedland agree to undertake specific

response actions or agree to reimburse the United States or the State of Colorado for costs previously incurred for the clean-up of the Summitville Mine. Id. Friedland' own experts critiqued the past response actions of the EPA at s the Summitville Mine, claiming that the EPA actions were inconsistent with the NCP. 5. Andy Davis, one of Friedland' experts in the underlying litigation, critiqued s

the EPA' past response actions at the Summitville Mine, including the back-filling of pits, s adit plugging, examination of water quality in the upper Alamosa Basin, and the EPA' s transition to a remedial plan. Expert Report of Andy Davis, Ph.D., attached as Ex. 2, at 29-

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30, 33, and 36. Davis stated, " Given these long standing and well documented chronic conditions, EPA should have transitioned from an emergency ` removal'action as soon as the heap leach pad issues had been addressed (EPA, 1994) and formulated an effective ARD ` remedial'plan through public comment and review. Its failure to conduct an appropriate removal action is inconsistent with the National Contingency Plan (NCP)."Id. at 30. 6. In a Supplemental Expert Report, Andy Davis also critiqued the efficacy of

the Cropsy Waste Pile Removal, " EPA implemented extremely expensive removal actions without first properly characterizing the materials being removed, or the fracture-controlled flow system... EPA' lack of understanding of the complex flow system (EPA, 1993b) s resulted in the premature and unnecessary removal of the [Cropsy Waste Pile]." Supplemental Expert Report of Andy Davis, Ph.D., attached as Ex. 3, at 47-48. 7. The expert report of Walter J. Shields, prepared for Friedland in the

underlying litigation, argued that the EPA' emergency response actions at the Mine were s unwarranted, " EPA' conclusion in its screening risk assessment (Charter and Henry 1993) s that ` releasing water untreated would have catastrophic results in the Wightman Fork and ... the Alamosa River'is not supported by the facts and should not have been used to justify the emergency actions."Expert Report of Walter J. Shields, Ph.D., attached as Ex. 4, at 63. 8. The expert report of Dale Jensen, prepared for Friedland in the underlying

litigation, concluded that the EPA' cost claims for the period through December 31, 1998 s were " accurate, properly accounted for, nor adequately documented under generally not accepted accounting standards and practices, related EPA guidance documents, nor under

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the section of the NCP relating to documentation and cost recovery (i.e., §300.160 of the March 8, 1990 NCP)."Expert Report of Dale R. Jensen, CPA, attached as Ex. 5, at 115. ARGUMENT I. As part of his prima facie case, Friedland has the burden to prove that his response action or clean-up was consistent with the NCP. As a threshold matter, a CERCLA contribution plaintiff must establish a prima facie case that a defendant is liable for costs under § 107 of CERCLA. Morrison Enters. v. McShares, Inc., 302 F.3d 1127, 1135 (10th Cir. 2002); County Line Inv. Co. v. Tinney, 933 F.2d 1508, 1517 (10th Cir. 1991). To establish a prima facie case under § 107(a), a plaintiff must allege that " defendant is a ` (1) covered person'within the meaning of CERCLA; (2) a ` release'or ` threatened release'of any ` hazardous substance'from the site has occurred; (3) the release or threatened release caused plaintiff to incur response costs; (4) plaintiff' costs s are ` necessary'costs of response; and (5) plaintiff' response action or clean-up was s consistent with the NCP."Morrison Enters., 302 F.3d at 1135-1136. Thus, consistency with the NCP is not only an essential element of proof under § 9607(a), but also " becomes the lynchpin for § 9613(f) contribution." Public Serv. Co. of Colo. v. Gates Rubber Co., 175 F.3d 1177, 1181 (10th Cir. 1999). Accordingly, in this contribution action, Friedland has the burden to establish that his response action or clean-up was consistent with the NCP.2

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Friedland has a different prima facie burden regarding NRD-related costs that do not involve consistency with the NCP. Our of the approximately $20 million Friedland paid under the Consent Decree, $5 million was to be used for NRD costs. To establish a prima facie case for NRD damages under § 107 of CERCLA, a plaintiff must show that " each mining-related property owned and operated by a defendant is a ` 1) facility;'2) a ` release'or ` threatened release'of a ` hazardous substance'from the facility has occurred; 3) Defendants fall within at least one of the four classes of responsible parties described in § 9607(a); 4) natural resources within the trusteeship of the Plaintiffs have been injured; and 5) that the injury to natural resources ` resulted from'a release of a hazardous substance." Coeur D'Alene Tribe v. Asarco Inc., 280 F. Supp. 2d 1094, 1102-1103 (D. Idaho 2003). The elements listed

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Friedland has never produced any factual evidence to suggest that his payment of money to the Government for future response and monitoring costs was consistent with the NCP. In fact, Friedland has not produced any evidence to suggest that this money was actually paid to the Government under the terms of the Consent Decree, whether the source of any payment made was Friedland or his company, Ivanhoe Capital, or ultimately, how the Government used any funds paid under the Consent Decree. To make up for a lack of evidence, Friedland is now attempting to circumvent this prima facie element of his claim by alleging a presumption of consistency under the Rule that is not applicable in the present case. Given the lack of any factual foundation that Friedland' expenses were consistent s with the NCP, partial summary judgment on this issue is not appropriate. II. The Rule is not applicable in the present case and Friedland must prove that his alleged response costs were consistent with the NCP. The Rule at issue does not apply to the type of consent decree entered into by Friedland. The Rule states, " Any response action carried out in compliance with the terms of an order issued by EPA pursuant to section 106 of CERCLA, or a consent decree entered into pursuant to section 122 of CERCLA, will be considered ` consistent with the NCP.' " 40 C.F.R. 300.700(c)(3)(ii) (emphasis added). Friedland alleges that this Rule applies to the

establish that while Friedland has a host of prima facie elements to prove in relation to NRD-related expenses, NCP compliance is not one of them. The application of the Rule is therefore irrelevant to the portions of Friedland' s payment under the Consent Decree that relate to NRD recovery. It should be noted that Friedland has never alleged, and has yet to provide any evidence that natural resources within the trusteeship of the Trustees identified in the Consent Decree have been injured or that the injury to natural resources resulted from a release of a hazardous substance.

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Consent Decree and that this Court should presume that Friedland' payment of s approximately $20 million is consistent with the NCP. Friedland cannot take advantage of this Rule in the present case, however, because Friedland' payment to the Government does s not constitute a " response action"and the Consent Decree in question was not entered pursuant to, nor is it consistent with, section 122 of CERCLA, codified at 42 U.S.C. § 9622. a. Friedland' settlement with the Government does not constitute a s response action.

By its explicit terms, the Rule only applies to " response actions,"when a plaintiff in a CERCLA contribution action has undertaken response actions himself as agreed to under a consent decree. The Rule does not apply, as here, where Friedland has merely paid cash to government agencies in order to cover a portion of future costs or for NRD recovery. The definition of " response action"does not include the payment of money for future response actions or NRD recovery. Rather, the term refers to " cleanup actions taken in response to a release of hazardous substances into the environment." Bancamerica Commer. Corp. v. Mosher Steel, 100 F.3d 792, 796 (10th Cir. 1996). This definition is supported by CERCLA, which defines " response"as: [R]emove, removal, remedy, and remedial action[;], all such terms (including the terms "removal" and "remedial action") include enforcement activities related thereto. 42 U.S.C. § 9601(25); See also Ambrogi v. Gould, Inc., 750 F. Supp. 1233, 1244 (D. Pa. 1990) (" definitions of [42 U.S.C. § 9601(25)] clearly contemplate only the cleanup of the toxic substances from the environment." (quotations omitted). The statute goes on to define ) " remove"and " removal"in terms of a clean-up action:

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[T]he cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. 42 U.S.C. § 9601(23). Similarly, " remedy"and " remedial"action is defined as: [T]hose actions consistent with [a] permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. 42 U.S.C. § 9601(24). None of these definitions include, explicitly or implicitly, payment for a share of potential future response actions and future monitoring and maintenance obligations at the Site, as well as NRD recovery. CERCLA also lists a series of examples of actions that meet the definition of these terms. 3 All of these examples involve substantive action taken by a party to either remove or

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" term [remove or removal] includes, in addition, without being limited to, security fencing or other The measures to limit access, provision of alternative water supplies, temporary evacuation and housing of threatened individuals not otherwise provided for, action taken under section 104(b) of this Act [42 USCS § 9604(b)], and any emergency assistance which may be provided under the Disaster Relief Act and Emergency Assistance Act."42 U.S.C. § 9601(23).

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remedy a release of hazardous substances into the environment. Nowhere do these definitions include the payment of cash by a third party to the Government for potential future costs and NRD recovery. Under the principle of ejusdem generis, " [w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-115 (2001) (quoting 2A N. Singer, Sutherland on Statutes and Statutory Construction §47.17 (1991)). The doctrine applies equally where specific words follow general ones. See 2A N. Singer, Sutherland on Statutes and Statutory Construction §47.17 (1991). See also Horton v. Southwestern Bell, 936 F.2d 823, 828 (5th Cir. 1991). Because there is no evidence that the payments made by Friedland under his Consent Decree with the Government are related to the enumerated lists provided for in the statute, such payments cannot logically be considered a " response action." See Daigle v. Shell Oil Co., 972 F.2d 1527, 1535 (10th Cir. 1992) (in interpreting the reach of the phrase " may otherwise be necessary to protect the public health or welfare"in 42 U.S.C. § or
" term [remedy or remedial action] includes, but is not limited to, such actions at the location of the The release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment. The term includes the costs of permanent relocation of residents and businesses and community facilities where the President determines that, alone or in combination with other measures, such relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous substances, or may otherwise be necessary to protect the public health or welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials." 42 U.S.C. § 9601(24).

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9601(23), the 10th Circuit stated that the phrase " must be interpreted consistently with the specific examples of ` removal costs'enumerated in the definition." Ambrogi, 750 F. Supp. ); at 1247. Friedland has not cited any authority in his Motion that supports applying the Rule to his Consent Decree. The only case he cited, Central Maine Power Co. v. F.J. O'Connor Co., 838 F. Supp. 641, 644 (D. Me. 1993), did not involve a consent decree under which the plaintiff merely paid money, but one under which the plaintiff specifically assumed responsibility for undertaking clean-up actions at the site. Friedland has not provided any case law to support application of the Rule in situations where the party seeking contribution was not required by the terms of a consent decree to undertake any clean-up action. Friedland' Consent Decree is also not the type of agreement the EPA envisioned s would be covered under the Rule. During the public comment period after the 1990 NCP was introduced, a commenter noted that the Rule would create a non-rebuttable presumption that would disadvantage defendants in private cost recovery actions involving a section 106 order or section 122 consent decree. National Oil and Hazardous Substances Pollution Contingency Plan, EPA' Response to Comments on Each Subpart, 55 Fed. Reg. 8,797 s (March 8, 1990). To alleviate fears about whether response actions pursuant to such orders or consent decrees would need to meet as high of an NCP burden as other private response actions (e.g. extensive technical and public participation requirements), the EPA stated in its introduction to the final NCP, " to section 106/122 orders or decrees, those documents ... As contain the cleanup standards necessary for consistency with the NCP."Id.

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As opposed to the consent decree envisioned by the EPA under the Rule, Friedland' s Consent Decree does not outline clean-up standards because Friedland was not required to undertake any response actions under the decree. Because clean-up standards are not part of Friedland' Consent Decree, his obligations under the Consent Decree cannot be considered s a response action and he is not entitled to exemption from judicial review under the Rule. b. Friedland' settlement with the United States and Colorado is not s pursuant to Section 122 of CERCLA.

The Consent Decree entered into between Friedland and the Government was not authorized by Section 122 of CERCLA, as required by the express language of the Rule. Under Section 122 of CERCLA, the EPA is allowed to enter into consent decrees with parties undertaking remedial actions or to recover costs from potential responsible parties (" PRPs" for past costs incurred by the United States. 42 U.S.C. § 9622; see also 114 A.L.R. ) Fed. 1, 2 (" Under § 122, the United States generally may enter into a consent decree that provides for the PRPs to reimburse the United States for response costs incurred, or under which the PRPs agree to undertake response activities themselves." In contrast, ). Friedland' Consent Decree, pursuant to which he paid money to the Government for future s response actions and for NRD-related expenses, represents neither of these. Simply put, Friedland' Consent Decree does not provide for a " s remedial action." Section 122 of CERCLA, codified at 42 U.S.C. § 9622, allows the United States to enter into agreements with a PRP " perform any response action... if the President determines that to such action will be done properly by such person."42 U.S.C. § 9622(a). As discussed

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above, Friedland' payment of money to the Government cannot legitimately be called a s response action because he did not undertake any clean-up actions at the Summitville Mine. The Rule, by its own explicit reference to " response actions" does not apply to other , types of consent decrees under Section 122 of CERCLA, such as cost recovery settlements. Section 122 of CERCLA does authorize the United States to enter into cost recovery settlements. 42 U.S.C. § 9622(h). But, past cost recovery under Section 122 is covered by a separate section of the statute, and does not involve remedial action. See United States v. Hercules, Inc., 961 F.2d 796, 799 (8th Cir. 1992) (" provisions limiting remedial action The cleanup settlements, CERCLA § 122(a)-(f), are separate from those addressing cost recovery settlements, CERCLA § 122(g)-(i)." (rev' on other grounds, 247 F.3d 706 (8th Cir. 2001)). ) d Since Section 122(h) cost recovery consent decrees do not involve " response actions,"the Rule, by its plain language, does not cover these types of consent decrees. Moreover, even if the Rule reached Section 122(h) cost recovery consent decrees, the Consent Decree at issue here cannot properly be called a Section 122(h) consent decree because Friedland' settlement is not for the recovery of past costs incurred by the United s States Government, but rather for payment of a portion of the Government' future share of s alleged response costs and site monitoring, as well as NRD related costs. c. Friedland' reading of the Rule would lead to the absurd result of making s it more difficult for the government to claim § 107 recovery than it would be for a private party in Friedland' position. s

Under CERCLA § 107, removal and remedial actions by the Government receive a presumption of consistency with the NCP. 42 U.S.C. § 9607(a)(4)(A); United States v.

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Hardage, 982 F.2d 1436, 1442 (10th Cir. 1992) (" burden of proof of inconsistency with the the NCP rests with the defendant when the government seeks recovery of its costs." In his ). Motion, Friedland argues that his claim for CERCLA contribution should receive an irrebuttable presumption of NCP compliance based upon his payment of money to the Government under a Consent Decree for future costs. Friedland suggests that when a private party enters into any type of settlement consent decree with the Government, regardless of the terms of that agreement, it should be given greater deference of NCP compliance by the courts than claims for CERCLA recovery by the Government itself. In establishing CERCLA, Congress could not have intended for a private party such as Friedland to have an easier burden than the Government in pursuing recovery for alleged response costs. Courts do have an important role to play, even when the Rule is invoked, to act as the " ultimate arbiter of whether and to what extent the NCP compliance requirement has been met." Morrison Enter., 302 F.3d 1127, 1137; See also National Oil and Hazardous Substances Pollution Contingency Plan, EPA' Response to Comments on Each Subpart, 55 s Fed. Reg. 8,795 (March 8, 1990) (" final rule provides a standard against which to the measure ` consistency with the NCP,'but does not eliminate the very important role of the courts in deciding, on a case-specific basis, what costs should be awarded to the party that has undertaken the cleanup." Given the peculiarity of the terms of the Consent Decree at ). issue in the present case, Friedland should be required to prove to the Court how his payment of money to the Government was consistent with the NCP.

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IV. CONCLUSION Accordingly, for all the reasons set forth above, Friedland' Motion for Partial s Summary Judgment that Mr. Friedland' CERCLA Response Costs for Government s Directed Remediation were Consistent with the National Contingency Plan should be denied. Respectfully submitted on this 29th day of November 2006.

___________________________ 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 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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Terrence M. Ridley, Esq. Marian L. Carlson, Esq. Wheeler Trigg Kennedy, LLP 1801 California Street, Suite 3600 Denver, CO 80202-2617 Attorneys for Defendant Geosyntec Consultants, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 29th day of November 2006, a true and correct copy of the foregoing DEFENDANTS' JOINT RESPONSE IN OPPOSITION TO PLAINTIFF ROBERT M. FRIEDLAND' MOTION FOR PARTIAL SUMMARY JUDGMENT S THAT MR. FRIEDLAND' CERCLA RESPONSE COSTS FOR GOVERNMENT S DIRECTED REMEDIATION WERE CONSISTENT WITH THE NATIONAL CONTINGENCY PLAN 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. Perry L. Glantz, Esq. Fognani & Faught, PLLC 1700 Lincoln Street, Suite 2222 Denver, Colorado 80203 Terence M. Ridley, Esq. Marian L. Carlson, 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

fb.us.1686786.04

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