ELR Citation: ELR 20887
No(s). CIV 91-983 JC/WWD (D.N.M. Dec 28, 1992)

The court holds that a uranium processing company is liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs incurred by the U.S. Environmental Protection Agency (EPA) at the company's New Mexico facility, from which mine tailings seeped into local aquifers. The court notes that the parties agree that the site constitutes a "facility" for purposes of CERCLA and that the company is the owner of the site and therefore a responsible party as defined by CERCLA §107. The court holds that the mine tailings should be treated as hazardous substances, because the company admits that they contain substances that have been designated as hazardous for purposes of CERCLA. The court finds that EPA has expended funds at the site in response to the release of a hazardous substance, and holds that EPA was entitled to take action at the site. EPA established the statutory requirements necessary to place the site on the CERCLA national priorities list and twice defended its actions in the U.S. Court of Appeals for the D.C. Circuit.

The court next holds that the United States' action for response costs was timely filed. A three-year statute of limitations applies, because EPA was engaged in a removal, rather than a remedial action, at the site, and under a plain reading of CERCLA, the limitations period did not begin to run until after completion of the removal action. Courts have held that a removal action is not complete until EPA has issued a record of decision (ROD), and EPA issued its ROD for the site on September 30, 1988, exactly three years before it filed its cost recovery action. The court holds that the company may not rely on the federally authorized release defense in CERCLA §107(j), because the company failed to point to any part of the license governing the site that purports to permit the seepage of tailings into local aquifers. The court finds that the license is not ambiguous and that the court need not resort to extrinsic evidence to interpret it. The court finds that the New Mexico Environmental Improvement Division (NMEID), which issued the license, knew of the seepage problem, but did not authorize it. The documents contained in the license show that initially the NMEID contemplated seepage to be minimal, and that once seepage was found to be occurring, the NMEID ordered the company to take steps to minimize it.

[Prior decisions in this litigation are published at 15 ELR 20442 and 20443.]

Counsel for Plaintiff
John Zavitz, Ass't U.S. Attorney
U.S. Attorney's Office
625 Silver Ave. SW, 4th Fl., Albuquerque NM 87102
(505) 766-3341

Sean Carman, David Fishel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Michael W. Brennan, Stephen J. Lauer
Carpenter, Comeau, Maldegen, Brennan, Nixon & Templeman
Coronado Bldg., 141 E. Palace Ave., P.O. Box 669, Santa Fe NM 87504
(505) 982-4611

Ridgway M. Hall
Crowell & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 624-2500