United States District Court, D. New Mexico
IN RE GOLD KING MINE RELEASE IN SAN JUAN COUNTY, COLORADO, ON AUGUST 5, 2015 This Document Relates to: Nos. 1:16-cv-00465- WJ-LF, 1:16-cv-00931-WJ-LF, 1:17-cv-00710-WJ-SCY, 1:18-cv-00319-WJ
MEMORANDUM OPINION AND ORDER
WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on EPA Contractor
Defendants' Motion to Dismiss and Motion to Strike, Doc.
45, filed July 25, 2018. For the reasons stated below, the
Motion is GRANTED in part and DENIED
over State Law Claims
Contractor Defendants, Weston Solutions, Inc.
("Weston") and Environmental Restoration, LLCC
("ER"), "move to dismiss Plaintiffs' state
law claims for lack of subject matter jurisdiction pursuant
to Section 113(h) of CERCLA, which revokes federal court
jurisdiction over challenges to ongoing EPA response actions,
like the ongoing remediation at the BPMD [Bonita Peak Mining
District] Site." Doc. 46 at 25. CERCLA provides, in
relevant part: "No Federal court shall have jurisdiction
. . . under State law ... to review any challenges to removal
or remedial action selected under section 9604 of this
title." 42 U.S.C. § 9613(h). See Cannon v.
Gates, 538 F.3d 1328, 1334-35 (10th Cir. 2008)
("The statutory definition of a removal action dictates
that a removal action is ongoing and thus, §
9613(h)'s jurisdiction strip applies, even if the
Government has only begun to 'monitor, assess, and
evaluate the release or threat of release of hazardous
substances;" "a suit challenges a removal action if
it 'interferes with the implementation of a CERCLA
remedy' because 'the relief requested will impact the
[removal] action selected").
Contractor Defendants assert that "EPA's response
actions at the BPMD Site are sufficient to trigger Section
113(h)" and support their assertion with the Declaration
of Rebecca J. Thomas, the lead Remedial Project Manager for
EPA's Region 8 Superfund Remedial Program at the Bonita
Peak Mining District Superfund Site. See Doc. 46 at
27-28. The Declaration of Rebecca J. Thomas states that the
boundaries of the BPMD site have not been determined, may
"potentially [extend] to wherever contamination from
these sources comes to be located," and "will be
determined based on investigation regarding the extent of the
release and the risks posed by the release." Doc. 46-3
at 2, ¶ 6.
Mexico and Utah have alleged that EPA has not commenced, and
has not decided whether it will ever commence, any remedial
actions in the Sovereign Plaintiffs' territories.
See NM FAC ¶ 119 ("EPA's site boundary
entirely excludes the Animas River"); UT FAC ¶ 63
("EPA is not and has not engaged in a removal action in
the State of Utah"). At the June 19, 2018, Initial
Conference counsel for the Navajo Nation and Utah suggested
jurisdictional discovery might be needed. Transcript at
34:6-12, 35:4-13, Doc. 35, filed June 26, 2018.
Court denies the EPA Contractors' motion to dismiss
Plaintiffs' state law claims for lack of subject matter
jurisdiction pursuant to Section 113(h) of CERCLA because the
EPA Contractor Defendants have factually challenged
Plaintiffs' assertion of subject-matter jurisdiction
using facts that are disputed by the Sovereign Plaintiffs.
See Doc. 164 at 14-15, filed February 28, 2019
(denying the Federal Defendants' motion to dismiss
pursuant to 42 U.S.C. § 9613(h), which "prevents a
court from interfering with an ongoing removal action,"
to allow for jurisdictional discovery). The EPA Contractor
Defendants may file a motion regarding jurisdiction over the
Sovereign Plaintiffs' state law claims after
Preemption of State Law Claims
Contractor Defendants assert the "Court should dismiss
each of Plaintiffs' state law tort claims on the grounds
that their state law claims for damages are preempted by
CERCLA's comprehensive remedial scheme." Doc. 46 at
31. The EPA Contractor Defendants state that "conflict
preemption acts as a bar to claims seeking the same recovery
as allowed by CERCLA's comprehensive framework,"
that "CERCLA preempts Plaintiffs' claims requesting
an unrestricted award of money damages," and that"
CERCLA's savings clause does not permit liability for
lawful removal actions at the Gold King Mine, thus
Plaintiffs' common law claims must be dismissed."
Doc. 46 at 31-34.
Court will not dismiss Plaintiffs' common law claims at
this time. As discussed above, it is not clear at this point
what the remedial scheme is for the Sovereign Plaintiffs'
territories. While CERCLA's savings clauses may not
permit liability for "lawful" removal actions, it
does not appear that CERCLA completely preempts liability for
response contractors. See New Mexico v. General Elec.
Co., 467 F.3d 1223, 1244 (10th Cir. 2006) ("Given
these saving clauses,  as well as the spirit of cooperative
federalism running throughout CERCLA and its regulations, we
may safely say Congress did not intend CERCLA to completely
preempt state laws related to hazardous waste
contamination"). Furthermore, a "district court
cannot dismiss a claim solely because a plaintiff seeks
excessive or otherwise inappropriate relief." EEOC
v. CollegeAmerica Denver, Inc., 869 F.3d 1171, 1175
(10th Cir. 2017).
Recovery and Declaratory Judgment Under
Contractor Defendants seek dismissal of the claims for cost
recovery damages under CERCLA on the grounds that
Plaintiffs' allegations fail to state a claim for relief
under CERCLA because they have not adequately alleged that
the EPA Contractor Defendants are liable as an
"operator," "arranger," or
Liability Section 9607 establishes that owners or
operators of a facility, arrangers of waste disposal or
treatment, and persons who accepts waste for transport to
disposal or treatment facilities:
shall be liable for-
(A) all costs of removal or remedial action incurred by the
United States Government or a State or an Indian tribe not
inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any
other person consistent with the national contingency plan;
(C) damages for injury to, destruction of, or loss of natural
resources, including the reasonable costs of assessing such
injury, destruction, or loss resulting from such a release;
(D) the costs of any health assessment or health effects
study carried out under section 9604(i) of this title.
42 U.S.C. § 9607(a).
Supreme Court of the United States noted the
"uselessness of CERCLA's definition of a
facility's 'operator' as 'any person ...
operating' the facility," and gave the term
"operator" its "ordinary or natural
[U]nder CERCLA, an operator is simply someone who directs the
workings of, manages, or conducts the affairs of a facility.
To sharpen the definition for purposes of CERCLA's
concern with environmental contamination, an operator 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 U.S. 51, 66-67
(1998); Raytheon Constructors, Inc. v. Asarco Inc.,
368 F.3d 1214, 1217 (10th Cir. 2003) (noting that in
Bestfoods, the Supreme Court sharpened the
definition of "operator" for purposes of
CERCLA's concern with environmental contamination, and
quoting the sharpened definition in Bestfoods).
Sovereign Plaintiffs' Complaints state claims for
operator liability because they allege that the EPA
Contractor Defendants managed, directed, or conducted
operations specifically related to pollution, that is,
operations having to do with the leakage or disposal of
hazardous waste, or decisions about compliance with
(i) ER and Weston "had authority to control reclamation
and remediation activities at the site," "had
authority to control and did control, manage, direct, and
implement the conduct of those working on-site," and
"had independent authority and control to perform their
duties and take the necessary actions to perform their
work." NM FAC ¶ 127; NN FAC ¶ 153; UT FAC
(ii) ER's Statement of Work stated: ER "will conduct
operations in management of surface and underground work
activities to include construction & maintenance of
repository, retention pond & water treatment." NM
FAC ¶ 78; NN FAC ¶ 73.
(iii) Weston "was "responsible for overseeing [and
managing] the water treatment operations." NN FAC ¶
(iv) Weston's "anticipated tasks" included
"preparing] water treatment plans for managing water
impounded behind the adit portal" and "documenting]
activities during the portal opening and construction."
NN FAC ¶ 87; NM FAC ¶ 88.
CERCLA does not specifically define what it means to
'arrang[e] for' disposal of a hazardous
substance," the Supreme Court of the United States
"give[s] the phrase its ordinary meaning:"
"under the plain language of the statute, an entity may
qualify as an arranger under § 9607(a)(3) when it takes
intentional steps to dispose of a hazardous substance."
Burlington Northern v. Santa Fe Ry. Co. v. United
States, 556 U.S. 599, 611 (2009).
Sovereign Plaintiffs' Complaints state claims for
arranger liability because they allege that the EPA
Contractor Defendants took intentional steps to dispose of a
(i) ER "submitted an' Action/Work Plan,' which
included sub-contracting with Harrison Western to excavate
the mine. NN FAC ¶ 88.
(ii) ER "subcontracted with Defendant Harrison Western
for mining services at the Gold King Mine," and
"[o]nly from this higher level could Harrison Western
safely pump water out of the mine without triggering a
blowout." UT FAC ¶ 36; NN FAC ¶ 86.
(iii) EPA, ER, Weston, and Harrison Western "discussed a
plan to install a sump basin to treat water that would be
pumped out of the mine during the adit excavation ...