Free Motion to Supplement - 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-01263-PSF-MEH ROBERT M. FRIEDLAND, Plaintiff, v. TIC ­ THE INDUSTRIAL COMPANY and GEOSYNTEC CONSULTANTS INC., f/k/a GEOSERVICES, INC. Defendants. ROBERT M. FRIEDLAND'S SUPPLEMENT TO HIS RESPONSE IN OPPOSITION TO DEFENDANT TIC ­ THE INDUSTRIAL COMPANY'S MOTION FOR SUMMARY JUDGMENT Plaintiff, Robert M. Friedland, by his undersigned counsel hereby submits the following Supplement to his Response in Opposition to Defendant TIC ­ The Industrial Company's ("TIC") Motion for Summary Judgment. INTRODUCTION TIC moved for summary judgment in this action in February 2006, prior to completion of most of the discovery relevant to TIC's motion. Specifically, TIC contends it is entitled to summary judgment because Bechtel had oversight responsibility and, accordingly, TIC did not have the requisite level of control for operator liability and arranger liability to be imposed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. § 9607. To be liable as an operator, a party must

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"manage, direct, or conduct operations specifically related to pollution, that is [manage, direct, or conduct] operations having to do with the leakage or disposal of hazardous waste, or [manage, direct, or conduct] decisions about compliance with environmental regulations." United States v. Bestfoods, 524 U.S. 51, 66-67 (1998); Kaiser Aluminum & Chemical Corp. et al., v. Catellus Dev. Corp., 976 F.2d 1338, 1342 (9th Cir. 1992). Similarly, a company's involvement in and control over the activities that cause the disposal of another's waste, such as TIC's dispersal of acid rock drainage at the Summitville Mine ("Mine"), suffices to establish arranger liability. United States v. Northeastern Pharmaceutical & Chemical Corp., 810 F.2d 726, 743-744 (8th Cir. 1987); Burlington Northern Railroad, Co. v. Woods Indus., Inc., 815 F. Supp. 1384, 1392 (E.D. Wash. 1993). Determining liability under CERCLA is a fact intensive inquiry that ultimately depends on the extent of TIC's involvement in the release of hazardous substances at the Mine site. BP Amoco Chemical Co. v. Sun Oil Co., et al., 200 F.Supp.2d 429, 435-36 (D. Del. 2002). The facts relevant to this inquiry are sufficiently in dispute to preclude the entry of summary judgment. Since the filing of Plaintiff's Response in Opposition to TIC's Motion for Summary Judgment in late March, the parties have deposed James Chiaro and Edward Vanderwall of TIC, Donald L. Hotaling, formerly of Bechtel, and Clifford Overton, a former employee of Galactic Resources, Inc. Each of these deponents provided testimony related to TIC's role at the Mine. The following evidentiary items that came to light in those depositions strengthen Plaintiff's opposition to the Motion for Summary Judgment and support the conclusion that there are genuine issues of material fact to be tried in this case.

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1. Bechtel.

TIC was involved in the planning of the Mine prior to any involvement by

·

Deposition of Edward Vanderwall ("Vanderwall"), 11:8-15; 11:24-12:10;

16:21-25; 18:2-6; 28:2-11, Exhibit 1 hereto. 2. The plans for the Mine were virtually completed by the time Bechtel had any

involvement with the Mine. · · 3. Deposition of Donald L. Hotaling ("Hotaling"), 22:9-22, Exhibit 2 hereto; Vanderwall, 20:3-10; 24:25-25:9, Ex. 1.

Bechtel's involvement at the Mine was at the request of the Bank of America as

further support for its financing decision. · Exhibit 3 hereto; · 4. Vanderwall, 17:19-18:1, Ex. 1. Deposition of Clifford Overton ("Overton"), 35:17-36:19; 38:13-40:1,

TIC's scope of work was exactly the same after Bechtel became involved with the

Mine as it had been in the joint proposal submitted to the Summitville Consolidated Mining Company, Inc. ("SCMCI") prior to Bechtel's involvement with the Mine. In fact, the scope of work attached to the TIC construction contract for its work at the Mine was the exact same scope of work originally proposed by TIC. · · · Overton, 34:12-35:2, Ex. 3; Vanderwall, 29:10-15; 33:12-34:10, Ex. 1; Vanderwall, 26:9-11; 28:2-11; see also Overton Deposition Exhibit 155, a

letter from Conveyor Engineering, Inc. to SCMCI dated May 20, 1985, Exhibit 4 hereto,

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indicating that "TIC will provide the erection and installation of the mechanical, civil, structural, and electrical work and will have general site responsibility." 5. Bechtel's role was to coordinate the various contractors to make sure the job was

completed in a timely fashion. · 6. Hotaling, 21:3-13; 23:22 ­ 24:8; 132:22-133:12, Ex. 2.

SCMCI used contractors as opposed to a direct-hire workforce. As a result,

Bechtel had much less direct interaction with the workforce. · Hotaling, 12:15-14:3; 32:16-23, Ex. 2 ("Bechtel didn't employ any

craftsmen for this project."); · Hotaling, 32:24-33:10; 34:17-25, Ex. 2 ("...[T]he bulk of the work was

done by TIC, and they provided the workforce. They provided the craftsmen that performed the work, and they provided the equipment that was needed to perform the work for the work they were doing.") 7. Bechtel relied on TIC as a company with a great deal of mining construction

experience to control their own employees and to get their portion of the job done. · 8. Hotaling, 60:19-23; 221:9-222:6; 222:11-223:16; 223:20-226:1, Ex. 2.

Bechtel did not control the details of TIC's work. · Hotaling, 62:23-63:4; 65:23-66:13, Ex. 2.

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9.

TIC had an extensive and comprehensive chain of command at the Mine. That

chain of command was designed to control the TIC workforce in the conduct of the Mine construction operations. · Deposition of James Chiaro ("Chiaro"), 21:9-23:8; 42:9-43:3; 44:4-10;

56:18-57:2, Exhibit 5 hereto ("You know, there is a very specific set of checks and balances that occurs when you are excavating for foundations, if that's the case, placing materials and compacting those materials and verifying their compactions. Ultimately, I have a responsibility to make sure that we install things according to the drawings and in correspondence with the specifications, but there is a system of checks and balances that starts with my front line guy doing it like the drawings, me verifying that's it [sic] like the drawings and the specs, and you know, ultimately the customer signing off on those things as well.") (emphasis added); · Chiaro, 87:10-19, Ex. 5 ("But you can see there is a system of checks and

balances typically that accompanies this kind of work to where my guys do install work or prepare the sub-grade. They have compacted. It's verified. There's typically documents that verify that the work has been installed and tested by whatever industry standard is specified. And then that is a secondary or tertiary check. I, as the supervisor for that area, come in and in most cases will verify that the sub-grade has been accommodated, that the forms have been installed and they are aligned and straight and meet industry standards.") (emphasis added); · Hotaling, 64:18-65:22, Ex. 2.

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10.

TIC employed a project manager, area superintendents, general foremen, craft

foremen, leadmen, journeymen, operators, helpers, and laborers at the Mine. Each level of the chain of command had a different responsibility. · Chiaro, 22:15-23:8, Ex. 5 ("Q: So would the craft foremen be basically

running the crews on sort of a moment by moment basis, I guess? A: Very hands on in their directing, in this particular case, concrete and carpenter-type people forming and placing foundation work."); · Chiaro, 42:9-43:3, Ex. 5 ("It's kind of a terraced sort of organization.");

see also Chiaro Deposition Exhibit 88, TIC's employee and supervisory roster, Exhibit 6 hereto. 11. TIC was responsible for hiring and firing its workforce at the Mine. · · 12. Chiaro, 20: 18-23, Ex. 5; Vanderwall, 35:2-5, Ex. 1.

During the construction phase at the Mine, TIC consistently had the most

employees on site of any contractor and conducted most of the construction on site. · Chiaro, 71:8-12, Ex. 5; see also Chiaro Deposition Exhibit 97, a Weekly

Construction Activities Report, dated December 10, 1985, Exhibit 7 hereto, indicating that TIC had 279 employees on site; · · · TIC's employee and supervisory roster, Ex. 6; Hotaling, 33:5-10, Ex. 2; Hotaling Deposition Exhibit 191, Exhibit 8 hereto, a weekly report for the

week ending March 15, 1986 depicting the number of TIC man hours for, among other

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construction activities, mass earthworks, road maintenance, snow removal, crusher area drainage, structural excavation, structural backfilling, and concrete work at the site; · Hotaling Deposition Exhibit 201, Exhibit 9 hereto, TIC's weekly invoices

for the week ending February 15, 1986. These invoices provide a sample of the man hours and type of labor TIC was providing at the site; · Hotaling Deposition Exhibit 203, Exhibit 10 hereto, a SCMCI inter-office

memorandum dated January 20, 1986, indicating that TIC will be "performing about 85% of the construction at Summitville." 13. Mine. · 14. TIC's employee and supervisory roster, Ex. 6. TIC had an extensive administrative and supervisory office staff on site at the

TIC had a variety of heavy equipment on site at the Mine including bull dozers,

front end loaders, backhoes, trenching equipment and other types of earth moving equipment as well as the workforce to operate that machinery. · · Chiaro, 33:19-37:24; 47:10-48:1, Ex. 5; Chiaro Deposition Exhibit 87 (only Bates Nos. RMFried 003603 and

003666 of the contract are included here), Exhibit 11 hereto documents the earthmoving and excavating equipment TIC provided on site; · Hotaling, 99:18-23, Ex. 2.

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15.

TIC was responsible for all of the finish grading, excavation for foundations and

trenching for underground piping at the process building site, the conveyor site, the crusher site, the generator site, the pump house site, the Iowa drainage culvert and at the office trailer site. · 80:19-21, Ex. 5; · Chiaro Deposition Exhibit 110, Exhibit 12 hereto, includes TIC daily Chiaro, 20:18-23; 28:3-28:11; 47:10-48:1; 69:3-7; 75:11-15; 78:16-23;

timesheets from August 1985 and other correspondence related to Field Memorandum of Change ("FMOC") No. 1 for earthwork activities related to the Iowa drainage culvert; · Chiaro Deposition Exhibit 113, Exhibit 13 hereto, is a TIC document

dated November 1, 1985, listing TIC's work items related to the crusher site; · Chiaro Deposition Exhibit 90, Bechtel's July 1985 Progress Report,

Exhibit 14 hereto, documenting TIC's general earthmoving tasks on site; · Chiaro 63:25-64:11; see also Chiaro Deposition Exhibit 91, Exhibit 15

hereto, a Weekly Construction Activities Report, dated August 17, 1985 documenting TIC's trenching for underground pipe installations at the site; · Chiaro 64:13-64:18; see also Ex. 15, documenting TIC's excavation work

for the surge bin foundation and the crusher foundation; · Chiaro 67:10-14; see also Chiaro Deposition Exhibit 94, Exhibit 16

hereto, a Weekly Construction Activities Report, dated October 26, 1985 documenting TIC's completion of backfill around Nos. 1 and 2 Transfer Towers; · the site; Chiaro 68:6-19; see also Ex. 16, documenting TIC's road maintenance at

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·

Chiaro 69:3-7; see also Chiaro Deposition Exhibit 95, a Weekly

Construction Activities Report, dated November 2, 1985, Exhibit 17 hereto, documenting TIC's excavation for the pump house foundations; · Chiaro 74:15-22; see also Chiaro Deposition Exhibit 98, a Weekly

Construction Activities Report, dated December 21, 1985, Exhibit 18 hereto, indicating that TIC had completed excavation for the conveyor bent footings; · Chiaro, 78:16-23; see also Chiaro Deposition Exhibit 99, a Weekly

Construction Activities Report, dated January 3, 1986, Exhibit 19 hereto, indicating that TIC resumed excavation between the barren pond and generator building for underground pipe installations in the area; · Chiaro, 80:15-81:11; see also Chiaro Deposition Exhibit 100, a Weekly

Construction Activities Report, dated January 4, 1986, Exhibit 20 hereto, indicating that TIC resumed excavation for the installation of high voltage cable from the barren pond to the generator building; · · Hotaling, 39:24-40:18; 81:10-12; 91:7-92:6, Ex. 2; Hotaling, 37:20-38:11; 38:24-39:11; 41:15-20; 41:21-42:4; 42:25-43:16;

50:13-24; 51:2-10, Ex. 2 ("From the ground up. Under the ground they [TIC] ­ they built the foundations for that. You know they did the foundation work, so they would cut out for the foundation. And it's according to what we were founding as to how deep they would have to excavate the foundation. And then the other underground work they did was for the underground utilities. So that was the kind of excavation they ­ foundation and trenching for utilities.");

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· Ex. 2; ·

Hotaling, 52:17-53:12; 79:2-16; 104:6-14; 122:21-123:2; 135:13-24,

Hotaling Deposition Exhibit 193, Exhibit 21 hereto, documenting TIC's

equipment and labor required to implement FMOCs for installation of culverts (Bates No. BECRMF 027987); installation of the power supply and monitoring system (Bates No. BEC-RMF 027988; BEC-RMF 027991); and pole installation for the gas/fuel station (Bates No. BEC-RMF 027989). 16. Bechtel had no excavation capability at the Summitville Mine. · Chiaro; 71:8-10, Ex. 4; Hotaling Deposition Exhibit 192, Exhibit 22

hereto, demonstrating that TIC's equipment used to upgrade plant access road between the batch plant and the North Cropsy haul road. 17. corridor. · Weekly Construction Activities Report, dated August 17, 1985, Ex. 15, TIC was responsible for the trenching, construction and backfilling of the utility

documenting TIC's trenching for the utility corridor; · 18. Hotaling, 39:24-40:18; 81:10-12; 91:7-92:6, Ex. 2.

TIC was responsible for all earthwork required in the construction of the retaining

wall at the crusher. · · Chiaro, 54:24-55:11, Ex. 5; Weekly Construction Activities Report, Ex. 15, dated August 17, 1985,

documenting TIC's excavation for the retaining wall; · Hotaling, 48:12-14; 49:7-50:12, Ex. 5.

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19.

TIC conducted blasting operations at the Mine. · · Hotaling, 88:2-23; 89:6-20; 89:25-91:4, 171:24-172:6, Ex. 2; Hotaling Deposition Exhibits 189 and 190, Exhibits 23 and 24 hereto,

correspondence and invoices documenting TIC's materials and labor for blasting work at the site. 20. TIC was responsible for pouring the well can foundations in the heap leach pad. · · Chiaro, 53:14-53:18, Ex. 5; Chiaro Deposition Exhibits 107, 106, and 105, the Concrete Placement

Records for December 19, 1985, December 21, 1985 and January 15, 1986, Exhibits 25, 26, and 27 hereto, document where TIC was placing concrete foundations at the heap leach pad and elsewhere on site. 21. pad area. · Hotaling Deposition Exhibit 198 (only Bates Nos. RM Fried 000032-34; TIC was responsible for installing the water infiltration gallery at the heap leach

Bates Nos. RM Fried 000039-46 are included here), Exhibit 28 hereto, includes TIC daily timesheets from October 1986 and other correspondence related to FMOC No. 10 and the water infiltration gallery at the heap leach pad. 22. TIC was responsible for building and maintaining roads at the Mine. · · · Chiaro, 68:6-23; 78:24-79:10; 106:22-107:13, Ex. 5; Hotaling, 97:20-98:6; 107:2-12; 111:20-112:8, Ex. 2; Ex. 21, documenting TIC's equipment and labor required to implement

FMOCs for road maintenance and upgrading (Bates Nos. BEC-RMF 027995, 027997, 028005, 028007), and site grading (Bates Nos. BEC-RMF 028008, 028012);

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·

Hotaling Deposition Exhibit 195, Bates Nos. RMFried 000001 to 000005

attached as Exhibit 29 hereto (the remainder of the deposition exhibit is at Exhibit 14 to Mr. Friedland's Response in Opposition to TIC's Motion for Summary Judgment), documents TIC's foreman's daily time report for repairs to the "road to Del Norte;" · Hotaling Deposition Exhibit 200, Exhibit 30 hereto, documents TIC's site

grading between SCMCI's office trailer to the pump house. 23. TIC was responsible for snow removal in their work areas at the Mine; · Hotaling, 54:13-21; 54:25-55:10, Ex. 2. CONCLUSION TIC was an active and integral participant in the planning and construction of the Summitville Mine facilities. As part of their role at the Mine, TIC performed a substantial amount of excavation, trenching, and grading that disturbed mineralized soils and led to acid rock drainage at the Mine site that had to be addressed in the remediation of the site. To perform their work at the Mine, TIC had a large, well-organized workforce that included several levels of management and control. The foregoing testimony underscores the factual nature of these issues and precludes the entry of summary judgment in this case. Accordingly, Plaintiff Robert M. Friedland respectfully requests that the Court deny TIC's Motion for Summary Judgment.

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DATED this 27th day of October 2006. s/ Perry L. Glantz John D. Fognani, Esq. R. Kirk Mueller, Esq. Perry L. Glantz, Esq. Fognani & Faught, PLLC 1700 Lincoln Street, Suite 2222 Denver, CO 80203 Attorneys for Plaintiff

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