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 GEOSYNTEC CONSULTANTS INC., f/k/a GEOSERVICES, INC.'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 GeoSyntec Consultants Inc., f/k/a Geoservices, Inc.'s (referred hereinafter as "GeoSyntec") Motion for Summary Judgment. INTRODUCTION GeoSyntec moved for summary judgment in this action in November 2005, prior to the completion of significant discovery relevant to GeoSyntec's motion. GeoSyntec bases its motion for summary judgment on the contention that despite its two year role as the quality assurance manager over the installation of the geomembrane liner at the heap leach pad the Summitville Mine site ("Mine"), it merely observed the installation of the liner and is not liable as an operator or arranger under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. § 9607.

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A party is liable as an operator under CERCLA if it "manage[s], direct[s], or conduct[s] 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, 6667 (1998). This standard also applies to arranger liability. Carter-Jones Lumber Co. v. Dixie Distrib. Co., 166 F.3d 840, 846 (6th Cir. 1998). A quality assurance contractor such as GeoSyntec "can be liable in his own right due to his intimate participation in the arrangement for disposal." Id. Determining liability under CERCLA is a fact intensive inquiry that depends on the extent of GeoSyntec'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 GeoSyntec's Motion for Summary Judgment ("Response in Opposition"), the parties have deposed Joseph Fluet of GeoSyntec, Lauren Drake and Linda Drake, formerly of GeoSyntec, Thomas Krasovec, formerly of Klohn Leonoff, Neil McLeod, formerly of Columbia Reservoir Systems Inc. ("Columbia"), and Clifford Overton, a former employee of Galactic Resources, Inc. Each of these deponents provided testimony related to GeoSyntec's role as a professional engineering company to inspect and authorize the methods of installation, repair, and "release" of the liner for ore placement. The following evidentiary items that came to light in those depositions strengthen Plaintiff's Response in Opposition and support the conclusion that genuine issues of material fact remain for trial.

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1. systems.

GeoSyntec was the pioneer in the field of quality assurance for geosynthetic liner

·

Deposition of Joseph Fluet ("Fluet") 10:13-20 ("Q: What specific

background ­ just if you can give me a list or a description of what your background was in geosynthetics in forming GeoSyntec as a specialty. A: The word geosynthetics didn't exist then. I coined it a few years later. But the whole notion of plastics in civil engineering was just evolving at the time.") Exhibit 1 hereto; · Fluet; 11:3-12; 12:11-13:3, Ex. 1 ("Q: Now, when you formed

GeoSyntec, I would assume that you used your expertise and Dr. Giroud's expertise in marketing as experts in this ­ it sounds like a new field at the time. A: Yes."); · Society); · Fluet; 126:1-127:6, Ex. 1 (GeoSyntec developed the technology of quality Fluet; 13:4-18, Ex. 1 (founding member of North American Geosynthetics

assurance in the context of geomembrane installation); · Deposition of Thomas Krasovec; 114:13-23, Exhibit 2 hereto (GeoSyntec

was hired for "their expertise on the polyethylene liner," expertise that other contractors on the Mine site did not possess). 2. GeoSyntec provided quality assurance, an essential part of a liner installation. · Fluet Deposition Exhibit 34, Correspondence from Klohn Leonoff to Mr.

Fluet dated September 23, 1985, Exhibit 3 hereto, indicating that "Geoservices will 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." See also Fluet 93:23-94: 5, Ex. 1

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and Deposition Exhibit 40, Exhibit 4 hereto, listing the quality assurance work GeoSyntec would provide on site and costs; · Deposition of Laurin Drake ("Drake"); 23:5-21, Exhibit 5 hereto ("Q: In

your experience with quality assurance and ­ not really quality assurance itself, but in your experience with the liner installation that we've been discussing, was this quality assurance a standard part of the installation? A: Yes. Q: Well, in your opinion was it an important part, the liner installation? A: Absolutely. Q: Why? A: Because you're never dealing in a sterile environment, you couldn't really rely on a particular mouse performing exactly the same way every day the same way because of the conditions in which it has to operate. It's the kind of liner it is with, so I believe that quality assurance is essential with that.") (emphasis added); · Fluet; 24:7-21, Ex. 1 ("A good working definition of quality assurance is it

is what an entity ­ I'll say you. It's what you do to assure, ensure, that you're receiving a good product."); · Deposition of Neil McLeod ("McLeod"); 104:2-105:1, Exhibit 6 hereto

("Quality assurance is a further level of monitoring to ensure that what happened to that product is done properly."); · Fluet; 127:4-6, Ex. 1 ("But just the act of construction quality assurance

greatly improves the quality, and that's what the record has shown.") 3. It was GeoSyntec's responsibility to determine the method of quality assurance to

be followed on the heap leach pad at the Mine. · Fluet; 46:11-47:8; 57:20-58:22, Ex. 1;

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·

Krasovec; 116:18-117:6, Ex. 2 ("I would imagine [GeoSyntec] put that

into their part ­ a portion of the specifications as this is what they would expect as far as how it's to be done, how ­ the number of sheer and peel samples that should be done, how to qualify a machine each morning, as well as how to test a patch or a seam once they were completed in the field.") 4. GeoSyntec provided experience in quality assurance and liner installation that the

liner installation company did not possess. · · Drake; 112:9-14, Ex. 5; Krasovec; 115:10-17, Ex. 2 (GeoSyntec was hired to "oversee the

construction" to ensure that the "liner was built correctly.") 5. GeoSyntec provided annual reports and drawings that were stamped by Joseph

Fluet with his seal as a professional engineer. · Fluet; 15:1-10, Ex. 1. (According to Mr. Fluet, "[t]he seal is the public's

way of knowing that this structure was designed by someone with the requisite education, training, and experience to do this work."); · Drake; 99:7- 100:20, Ex. 5, wherein Mr. Drake confirms that GeoSyntec

took measurements and prepared as-built drawings, monitored all destructive seam testing, reviewed all monitor daily reports and logs, prepared daily reports, and worked with the managing engineer on the final report. See also Drake Deposition Exhibit 221, Exhibit 7 hereto, correspondence from Klohn Leonoff documenting the role of the quality assurance manager, GeoSyntec.

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6.

GeoSyntec's daily reports are business records that document GeoSyntec's

observations and daily activities at the Mine site. · Drake; 37:15-38:16, Ex. 5; Fluet; 112:8-113:8, Ex. 1 (GeoSyntec's daily

reports were prepared by individuals with knowledge of the information contained in those reports in the ordinary course of business at or about the time of the events described in those reports). 7. Pursuant to GeoSyntec's daily reports, GeoSyntec was involved in determining

the proper placement of material beneath the geomembrane liner. · Fluet; 119:23-120:18, Ex. 1; see also Fluet Deposition Exhibit 45, Exhibit

8 hereto, daily report dated October 11, 1985, documenting GeoSyntec's observations and discussions regarding the proper placement of material below the liner early in the Mine project. 8. Pursuant to GeoSyntec's daily reports, GeoSyntec was involved in determining

the placement of the geomembrane liner itself. · Fluet Deposition Exhibit 43, Exhibit 9 hereto, daily report dated October

30, 1985, indicating that GeoSyntec personnel "discuss[ed] alternatives re: installation of liner;" · Fluet Deposition Exhibit 49, Exhibit 10 hereto, daily report dated January

13, 1986, documenting GeoSyntec's discussions with Columbia regarding "planning for placement" of the liner; · Fluet Deposition Exhibit 51, Exhibit 11 hereto, daily report documenting

GeoSyntec personnel's recommendation that "bolts used to secure HDPE liner be seal welded as opposed to tack welded in two spots."

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9.

Pursuant to GeoSyntec's daily reports, GeoSyntec was involved in problem

solving decisions to obtain a proper seal around pipe installations, well cans, and other "bottom penetrations" to the liner. · · · Drake; 110:22-111:11; 111:14-24, Ex. 5; Fluet; 143:17-145:11, Ex. 1; Fluet Deposition Exhibit 55, Exhibit 12 hereto, daily report where

GeoSyntec personnel notes that "construction appeared satisfactory in my opinion." Pursuant to Mr. Fluet's testimony, the "construction" referenced in this daily report relates to pipe, or "bottom penetrations" to the liner. Fluet; 126:15-127:3, Ex. 1; · Fluet Deposition Exhibit 56, Exhibit 13 hereto, daily report dated March

19, 2006 wherein Mr. Drake details the method used on site for installing "boots," or manufactured additions to the liner, to accommodate pipes, well cans, or other "bottom penetrations" for GeoSyntec's as-built drawings. See also, Fluet Deposition Exhibit 75, Exhibit 14 hereto, as-built drawing of "Typ. Liner to Well Connection," signed and sealed by GeoSyntec. 10. Pursuant to GeoSyntec's daily reports, GeoSyntec provided input and was

involved with the installation of the anchor trench. · Fluet; 113:12-114:3, Ex. 1; see also Fluet Deposition Exhibit 42, Exhibit

15 hereto, a daily report dated October 29, 1985, documenting that GeoSyntec personnel "indicated anchor trench should be compacted." 11. Pursuant to GeoSyntec's daily reports, GeoSyntec provided input and was

involved with the staffing for the liner installation.

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· ·

Fluet; 115:10-19, Ex. 1; Fluet Deposition Exhibit 46, Exhibit 16 hereto, daily report dated

December 1985, documenting GeoServices recommendation of Columbia to install the liner. 12. Pursuant to GeoSyntec's daily reports, GeoSyntec provided input and was

involved with determining whether the clay portion of the liner was adequate for installation of the geosynthetic liner. · Fluet; 118:24-119:10, Ex. 1; see also Fluet Deposition Exhibit 44, Exhibit

17 hereto, daily report dated October 23, 1985, documenting Geosyntec's observations of what constitutes adequate clay conditions for liner installation; · Fluet Deposition Exhibit 54, Exhibit 18 hereto, daily report dated March

1986 indicating that GeoSyntec personnel "advised mine to cut tails of liner at wells to facilitate clay compaction." 13. Pursuant to GeoSyntec's daily reports, GeoSyntec would advise Columbia as to

how to address damage to the liner. · Fluet Deposition Exhibit 65, Exhibit 19 hereto, daily report dated August

11, 1986, documenting GeoSyntec's discussion with a Columbia foreman regarding GeoSyntec's directive that a hole in the liner be "patched" rather than "extruded." 14. ore. · · · Drake; 121:5-14, Ex. 5; Fluet; 146:3-18, Ex. 1; McLeod; 27:16-29:1; 119:20-120:1, Ex. 6; GeoSyntec would "release" or approve sections of the liner to be covered with

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·

McLeod Deposition Exhibit 127, Exhibit 20 hereto, Columbia daily report

dated September 15, 1986, indicating "both areas approved for covering with ore by Laurin Drake [of GeoSyntec]." 15. Pursuant to GeoSyntec's daily reports, GeoSyntec provided input on the proper

method of the placement of ore on the liner. · · Drake; 141:10-142:5, Ex. 5; Fluet Deposition Exhibit 68, Exhibit 21 hereto, daily report dated

September 18, 1986 documenting GeoSyntec's discussion with ICC "regarding placing first 18inch lift of ore with D-9. Recommend going with 24-inch lift and caution to lift blade at end of push." 16. Pursuant to GeoSyntec's daily reports, GeoSyntec designed the method of

securing the liner to protect it for the winter so that work could resume in the spring. · 17. Drake 148:6-149:20, Ex. 5.

GeoSyntec recommended Columbia as a liner installer to replace Gundle Lining

Systems, Inc. at the Mine. · 22 hereto. 18. GeoSyntec made the first contact with Columbia regarding performing the liner Deposition of Clifford Overton ("Overton"); 63:23-64:5; 73:8-14, Exhibit

installation at the Mine. · McLeod; 11:1-13, Ex. 6.

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19.

Columbia's daily job reports were prepared by individuals with knowledge of the

information contained in those reports in the ordinary course of business at or about the time of the events described in those reports. · 20. McLeod 24:1-25:19, Ex. 6.

Columbia's contract required it to perform its liner installation work to the

satisfaction of GeoSyntec. · McLeod; 19:24-20:16; 29:24-30:12, Ex. 6 (". . . [T]hey were the

representative of the owner, as I understand it, or the engineer that was working for the owner, that they were the inspection people who approved or disapproved our work. Q: They being Geoservices? A: Right."); · McLeod; 70:3-8; 71:15-21; 77:15-22; 180:22-181:9, Ex. 6 (payments to

Columbia could be withheld if GeoSyntec determined the liner installation was not done properly); see also McLeod Deposition Exhibit 144, Exhibit 23 hereto, legal correspondence regarding Columbia's amendments to the contract between SCMCI and Columbia dated April 11, 1986 and documenting that SCMCI retained the right to withhold payment of any invoice to Columbia if GeoSyntec determined that Columbia's work on the liner was not performed in accordance with the contract; · McLeod Deposition Exhibit 128, Exhibit 24 hereto, Columbia daily report

dated September 14, 1986, indicating that Columbia was "working on area east slope adjacent to one approved yesterday - south - approved by Laurin Drake;" · McLeod Deposition Exhibit 129, Exhibit 25 hereto, Columbia daily report

dated September 7, 1986, noting that "main body along east slope approved by Lynne

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Drake of Geoservices;" · McLeod Deposition Exhibit 130, Exhibit 26 hereto, Columbia daily report

dated September 2, 1986, noting "the two small areas opened by Tom were completed and airtested. Approved by Laurin Drake [of GeoSyntec];" · McLeod Deposition Exhibit 131, Exhibit 27 hereto, Columbia daily report

dated August 29, 1986, noting "Lorne [Laurin] Drake requests opening a section previously APPR [approved] where runoff has caused a new channel." 21. Columbia, the liner installer, believed GeoSyntec had the authority to shut down

seaming operations on the liner. · · McLeod; 20:18-24; 24:2-8; 26:11-27:1, Ex. 6; McLeod Deposition Exhibit 126, Exhibit 28 hereto, Columbia daily job

report, dated October 23, 1986, indicating that "Laurin Drake [GeoSyntec] has authority to shut crew down if weather conditions compromise seam quality;" · McLeod Deposition Exhibit 132, Exhibit 29 hereto, Columbia daily job

report, dated August 28, 1986, noting that "rain starts 2 p.m. - no sign of let up - shut down by Geoservices rep 3:00 p.m." 22. leak. · Overton; 67:25-68:21, Ex. 22 ("Q: What was your understanding of SCMCI relied on GeoSyntec to ensure the liner was properly installed and did not

Geoservices' role in the heap leach pad at Summitville? A: They were supposed to assure that the material that was used as a geomembrane was suitable and was seamed so that there was no holes in it is allow material ­ when there was liquid on top of it no material would pass through

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into the leach detecting system. Q: Was this an area, geomembrane and seaming of geomembrane, was this an area that you personally brought expertise to the Summitville mine? A: None. Q: So were you relying upon Mr. Colbourne [GeoSyntec] in that regard? A: Yes."); · 23. Overton; 78:13-79:6; 81:13-82:10; 85:15-24; 185:11-18; 302:8-16, Ex. 22.

An inspector with the Colorado Mined Land Reclamation Division ("CMLRD")

conferred with GeoSyntec in June 1986 regarding the "techniques used in HDPE liner sealing and the quality control practices of Geoservices." · Drake Deposition Exhibit 227, Exhibit 30 hereto, CMLRD Notice of

Inspection and Inspection Report, dated June 23, 1986. 24. GeoSyntec required repairs to be made to the liner and in the event the repairs

were not done to GeoSyntec's satisfaction, GeoSyntec would require that the repairs be re-done. · · · · Drake; 132:24-134:14; 136:24-137:9, Ex.5; McLeod; 19:17-23; 23:15-24:1; 31:6-11; 187:14-188:13, Ex. 6; Overton; 78:13-79:6; 83:1-20; 84:2-85:7; 95:1-6, Ex. 22; Drake Deposition Exhibit 218, Exhibit 31 hereto, GeoSyntec's Trial Weld

Results for seaming on the liner, documenting when a seaming procedure on the liner would "pass" or "fail." 25. of the liner. · McLeod; 185:15-24; 185:24-186:4, Ex. 6; GeoSyntec was the "policeman" at the Mine with respect to installation and repair

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·

Krasovec; 116:1-13, Ex. 2 (GeoSyntec would observe the installation,

repair, and testing of the liner and "make sure that they basically ­ the material failed and that the weld didn't fail."); · Krasovec; 117:14-120:19, Ex. 2 (Geosyntec marked areas to be repaired

on the liner and Columbia would patch or extrude repair areas as instructed by Geosyntec); · Krasovec; 121:10-122:1, Ex. 2 (Only GeoSyntec, and not Klohn Leonoff,

had authority to provide quality assurance regarding the liner ­ (Q: If Mr. Drake [of GeoSyntec] didn't show up one day and you wanted to go out and look at a panel and decide that it was okay and you could go to town, did you have authority to do that? Could you have said, "I approve this panel for use? A: No. My bosses would have killed me. I kind of liked my job.") 26. GeoSyntec would threaten to "reject" sections of the liner if the installation was

not acceptable to the quality assurance monitor. · 27. Drake; 114:11-115:22, Ex. 5.

Pursuant to GeoSyntec's Final Report in April 1988, GeoSyntec judged that the

expanded liner installation in 1987 was "conducted in accordance with sound construction practices." · Fluet Deposition Exhibit 76, Exhibit 32 hereto, GeoSyntec's Final Report

and Appendix A, dated April 1988; see also Fluet; 166:19-167:5, Ex. 1. 28. The liner leaked the first night cyanide leaching began in June 1986. By the time

GeoSyntec's first final report was issued in April 1987, the sections of the liner that were the subject of those reports were buried under ore.

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·

Fluet Deposition Exhibit 60, Exhibit 33 hereto, GeoSyntec daily report

dated June 4, 1986, documenting leak in liner and flow of leachate under the liner; · Drake; 120:18-21, Ex. 5; Fluet; 110:12-15, Ex. 1. CONCLUSION As demonstrated by the facts identified in Plaintiff's Response in Opposition and supplemented above, SCMCI relied on GeoSyntec's engineering expertise in the placement of geomembrane liners to provide quality assurance over the installation of the liner at the Mine. In this role, GeoSyntec conducted inspections, directed Columbia regarding placement and repairs, rejected or approved sections of the liner for ore placement, consulted with the CMLRD, and at times, shut down the job. Additionally, GeoSyntec provided as-built drawings and provided final reports on the project, signed and approved by its managing engineer on the project. These facts indicate GeoSyntec's intimacy with ­ and authority over ­ the operations related to the installation of the liner at the heap leach pad and ultimately, the arrangement of hazardous waste at the site due to leaks in the liner. For these reasons, Plaintiff Robert M. Friedland respectfully requests that the Court deny GeoSyntec's Motion for Summary Judgment. 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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