BPMD COMMUNITY ADVISORY GROUP

Presented by Anthony D. Edwards Anthony@ShollerEdwards.comt. 1.855.649.5884

mailto:Anthony@ShollerEdwards.com

“Simple can be harder than complex: You have to work hard to get your thinking clean to make it simple. But it’s worth it in the end because once you get there, you can move mountains.”― Steve Jobs

http://www.goodreads.com/author/show/5255891.Steve_Jobs

THE PRESENT: CURRENT DEVELOPMENTS PROBLEM OF NATURAL BACKGROUND

Bonita Peak Mining District located within a highly mineralized area and “natural background” is a significant factor in metal loading in streams−Extent is variable depending upon

stream segment, season, and year (drought v. wet year)

Superfund states at 42 U.S.C. § 9604(a)(3):“The President shall not provide for a removal or remedial action under this section to a release or threat of release –(A) of a naturally occurring substance in its

unaltered form, or altered solely through naturally occurring processes or phenomenon, from a location where it is naturally found…”

Clean Water Act states at 33 U.S.C. § 1251 that its goal is:

“…to restore and maintain the chemical physical and biological integrity of the Nation’s waters.” In Sierra Club v. Leavitt 488 F.3rd 904 (2007), the Federal Court of Appeals for the 11th Circuit stated: “The phrase “restore and maintain”indicates that Congress sought to return waterbodies to their natural conditions, not modify waterbodies’ natural conditions.”

A. Anatomy of a Mining DistrictB. Review of the Bonita Peak Mining DistrictC. The 10th Circuit Chevron DecisionD. The White House's Reform Plan and Reorganization Recommendations for Abandoned MinesE. The Gold King Mine LitigationF. Closing Remarks

Issues and information presented have been tailored to the SWCBA luncheon and therefore are not all inclusive.

LEGAL UPDATE ON THE SAN JUAN’SGOLD KING AND BONITA PEAK

SUPERFUND

PATENTEDUNPATENTED

UNDERGROUND TUNNELADIT

WASTE ROCKSTREAM

U.S. LANDS

A Claim is Established1876 “Claim 1/Owner

1”

PATENTEDUNPATENTED

UNDERGROUND TUNNELADIT

WASTE ROCKSTREAM

U.S. LANDS

Another Claim Established1882 “Claim 2/Owner 2”

A TUNNEL IS STARTED

ADIT DRAINS INTO THE RIVER

6 Additional Claims Established1904 “Claim 3/Owner 3”

PATENTEDUNPATENTED

UNDERGROUND TUNNELADIT

WASTE ROCKSTREAM

U.S. LANDS

WASTE ROCK PILE IN THE STREAM FROM THE DRAINING ADIT

PATENTEDUNPATENTED

UNDERGROUND TUNNELADIT

WASTE ROCKSTREAM

U.S. LANDS

PATENTEDUNPATENTED

UNDERGROUND TUNNELADIT

WASTE ROCKSTREAM

U.S. LANDS

Who is Responsible

for this Contaminated

Waste Stream?

We will be going where no one has gone before!

• The Gold King Spill • The Bonita Peak Mining

District• The Chevron Decision

BPMD SUPERFUND: THE ANOMALY

GKI: State Law Claims

GKI:SUPERFUND CLAIMS

GKI: FEDERAL TORT CLAIMS

REPRESENTATION OF THE CURRENT AND ANTICIPATED LITIGATION/LEGAL NEGOTIATIONS RELATED TO THE GOLD KING SPILL AND BONITA PEAK MINING DISTRICT

5:1

$4.1 BILLION

CERCLA (Superfund) Background

CERCLA was established to promote the “timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.”

CERCLA casts a wide liability net and allows plaintiffs to recover cleanup costs from potentially responsible parties (“PRPs”), so as to ensure hazardous waste cleanup. PRPs include “owners,” “operators,” “arrangers,” and “transporters.”

Chevron Mining v. United StatesBackground

Chevron Mining and its corporate predecessors mined molybdenum on unpatented mining claims ($1 Billion Dollar Liability)

Chevron filed suit against the United States, claiming that the federal government was liable under CERCLA as an “owner” of portions of the site

On cross motions for summary judgment, the district court heavily relying on U.S. v. Friedland determined that the government’s ownership interest was insufficient to establish “owner” liability. APPEALED

United States v. Friedland, 152 F. Supp. 2d 1234 (D. Colo. 2001), found the government did not qualify as an “owner” for CERCLA purposes when it merely held bare legal title.

Established an “Indicia of Ownership” Standard

More than 85% of San Juan County is owned by the U.S. Department of Interior (Bureau of Land Management) and the U.S. Department of Agriculture (Forest Service)

CHEVRON MINING INC. V. U.S. (10TH CIRCUIT COURT OF APPEALS)JULY 19, 2017

CERCLA (SUPERFUND) LIABILITY• [T]he term 'owner' covers fee title holders for purposes of

CERCLA liability.

• Recognizing CERCLA's broad definition of facility, noting it reaches “'any site or area' (i.e., land)” The Court found where U.S. Government lands are within the mining area the U.S. retains facility liability

• Fee Title of Unpatented Lands belongs to the U.S.

In sum, the U.S. is a Potential Responsible Party (PRP)

CHEVRON MINING INC. V. U.S.(10TH CIRCUIT COURT OF APPEALS)JULY 19, 2017

The opinion in Chevron Mining Inc. v. United States, No. 15-2209, 2017 U.S. App. LEXIS 12959, at *1 (10th Cir. July 19, 2017) puts to rest a defense often asserted, primarily by governmental entities, that “bare legal title” is insufficient for CERCLA liability to attach and instead that some other and additional “indicia of ownership” is required.

Gold King Mine SpillNew Mexico v. Colorado (US Supreme Court)

Whether Colorado is liable to New Mexico under: • CERCLA• RCRA• Common Law Ruling: Motion to file a bill of Complaint Denied (June 26, 2017)

GENERAL ISSUES:

GOLD KING MINE SPILL (CONSOLIDATED CASES)

NEW M EXICO V. EPA ET AL. (D.N.M ) & NAVAJO NATION V. EPA ET AL. UTAH V. EPA ET AL. & (CLASS ACTION OF PRIVATE PARTIES)

• Whether EPA can be held accountable for the Gold King Mine spill?

• Whether EPA Contractors can be held responsible for response actions?

• Whether former owners can be held accountable for events transpiring subsequent to ownership?

• Whether private entities owning properties adjacent to a property, the Gold King Mine, can be held liable for the damages incurred from the Gold King Mine Spill?

GENERAL:

INITIALLY DEFENDANTS SEPARATELY FILED MOTIONS TO DISMISS

EPA: • Sovereign Immunity Prevents Plaintiffs’ claims against the EPA• EPA is not an “Operator”, “Transporter”, or “Arranger” under

CERCLA• The Court Lacks Jurisdiction over the Navajo Nation’s Tort Claims

Because the FTCA’s Discretionary Function Exception Preserves Sovereign Immunity for Such Claims.

GOLD KING MINE SPILL (CONSOLIDATED CASES)

NEW M EXICO V. EPA ET AL. (D.N.M ) & NAVAJO NATION V. EPA ET AL. UTAH V. EPA ET AL. & (CLASS ACTION OF PRIVATE PARTIES)

CURRENT STATUS (Continued):

CONSOLIDATED (MDL) DEFENDANTS ORDERED TO REFILE MOTIONS TO DISMISSKINROSS/SUNNYSIDE/GOLD KING MINE CORPORATION

• Plaintiffs lack PERSONAL JURISDICTION over the Defendants• Colorado is an INDISPENSABLE PARTY that cannot be joined in

the matter• CERCLA PREEMPTS state law claims other than the restoration,

replacement, or acquisition of the equivalent of a contaminated natural resource.” General Electric, 467 F.3d at 1247

CURRENT STATUS:

EPA is investigating the “commingled release of metals from numerous mines and mine-related activities in the Animas River watershed.” Id. In other words, the scope of the listing (and the future potential remedy) is as broad as the watershed. New Mexico’s argument that it can maintain its CWA claim as to (unnamed) mines not subject to the NPL listing thus fails—simply put, there are no such mines within the relevant watershed. [EPA Response Dkt 148, P.8]

BOUNDARY ISSUE:

BOUNDARY ISSUE: “…COME TO BE LOCATED.”

GOLD KING MINE SPILLNEW MEXICO V. EPA ET AL. (D.N.M) & NAVAJO NATION V. EPA ET AL.

…BPMD Site describes the Site as being centered within headwaters of the Animas River watershed in the San Juan and Silverton calderas in southwestern Colorado and potentially extending to wherever contamination from these sources comes to be located…

…contamination from the Gold King Mine release has come to be located in Lake Powell.

EPA Decl. (Sept. 28, 2017)

ISSUE:

BONITA PEAK SUPERFUND SITESUNNYSIDE VS. EPA (U.S. COURT OF APPEALS, D.C.)

THE HAZARD RANKING SYSTEM (HRS) PROTOCOL WAS NOT APPLIED TO 27 SITES INCLUDED IN THE SUPERFUND LISTING

Argument:

BONITA PEAK SUPERFUND SITESUNNYSIDE VS. EPA (U.S. COURT OF APPEALS, D.C.)

The HRS “process is relatively objective; the data is collected, then scored.” An owner then has the opportunity to evaluate the findings and present objections. An owner does not have this opportunity when property is not scored before listing it on the NPL—resulting in the harmful effects of the listing without the objective criteria to justify the harm. SCA Services of Indiana, Inc. v. Thomas, 634 F. Supp. 1355, 1364–65 (N.D. Ind. 1986).

FINAL RULING:

BONITA PEAK SUPERFUND SITESUNNYSIDE VS. EPA (U.S. COURT OF APPEALS, D.C.)

On

BONITA PEAK MINING DISTRICT NATIONAL PRIORITY LISTING

CURRENTLY • AOC with Sunnyside Mining on the Tailings Ponds

adjacent to the Town of Silverton.• AOC’s are in a negotiation status with a few

landowners.ON THE HORIZON• Potential Federal District Court Litigation• Natural Resources Damages

QUESTIONS TO CONSIDER

• Will U.S. liability impact the CERCLA decision making process?

• If remediation activities extend to Lake Powell, how will the resources available for cleanup in the Upper Animas Watershed be impacted?

• If the “Site” extends to Lake Powell, how will downstream communities and landowners adjacent to the Animas/San Juan Rivers be impacted?

Slide Number 1Slide Number 2Slide Number 3Slide Number 4Slide Number 5Slide Number 6The Present: current developments �problem of natural backgroundSlide Number 8Slide Number 9Slide Number 10Slide Number 11Slide Number 12Slide Number 13Slide Number 14Slide Number 15Slide Number 16Slide Number 17Slide Number 18Slide Number 19Slide Number 20Chevron Mining Inc. v. U.S. �(10th Circuit Court of Appeals)�July 19, 2017 Chevron Mining Inc. v. U.S.�(10th Circuit Court of Appeals)�July 19, 2017 Slide Number 23Slide Number 24Slide Number 25Slide Number 26Slide Number 27Gold King Mine Spill (CONSOLIDATED CASES)��New Mexico v. EPA et al. (D.N.M) & Navajo Nation v. EPA et al. Utah v. EPA Et Al. & (Class Action of Private Parties) Slide Number 29Slide Number 30Slide Number 31Slide Number 32Gold King Mine Spill�New Mexico v. EPA et al. (D.N.M) & Navajo Nation v. EPA et al. Bonita Peak Superfund Site�Sunnyside vs. EPA (U.S. Court of Appeals, D.C.)Bonita Peak Superfund Site�Sunnyside vs. EPA (U.S. Court of Appeals, D.C.)Bonita Peak Superfund Site�Sunnyside vs. EPA (U.S. Court of Appeals, D.C.)Slide Number 37BONITA PEAK MINING DISTRICT National Priority ListingQuestions to Consider