ELR Citation: ELR 21130
No(s). Civ-S-91-768 DFL JFM (E.D. Cal. Sep 30, 1997)

The court holds that the law of the case precludes a mine owner's Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §104(a)(3)(A) challenge of U.S. Environmental Protection Agency (EPA)-selected remedies for releases from a mine. CERCLA §104(a)(3)(A) prohibits EPA remedial actions in response to naturally occurring substances. The court first holds that a 1992 decision in the litigation precludes the mine owner from relitigating the issue of whether the EPA-selected remedies violate CERCLA §104(a)(3)(A). The prior decision concluded that CERCLA §104(a)(3)(A) permits response to releases of any natural substance released in altered form, or to a release of a substance not altered by natural process. The prior decision also concluded that mining constitutes an artificial alteration rather than a naturally occurring process. And all of the EPA-selected remedies have specifically targeted contamination from the mine workings and mining waste piles.

The court next rejects the mine owner's argument that the law of the case doctrine should yield in light of additional evidence, which indicates that the percentage of natural background metals in the creeks surrounding the mine far exceeds U.S. informal estimates. Even though the EPA-selected remedies may have some effect on naturally occurring metals, CERCLA §104(a)(3)(A) is not implicated merely because a response to mining activity will also have the side benefit of catching naturally occurring substances. The court then holds that the mine owner bears the burden of demonstrating that EPA has responded to naturally occurring substances and that the mine owner must discharge this burden by pointing to evidence in the administrative record. Therefore, the new evidence offered by the mine owner, which was not part of the record for the EPA-selected remedies, may not be considered at this juncture. In addition, the United States has satisfied any burden it might have of showing that its responses were not directed to naturally occurring substances. The burden now falls on the mine owner, and it points to no evidence in the administrative record that would meet its burden of demonstrating that any of the EPA-selected remedies were in any measure in response to naturally occurring substances.

[Prior decisions in this litigation are published at 23 ELR 20651 and 20661, 25 ELR 21275, 27 ELR 20924, and 28 ELR 21055, 21059, 21064, and 21133.]

Counsel for Plaintiff
David B. Glazer, Martin F. McDermott
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Paul B. Galvani, James W. Matthews
Ropes & Gray
One International Pl., Boston MA 02110
(617) 951-7000