768 F. Supp. 2d 1082
D. Idaho2011Background
- Nu-West seeks CERCLA cost recovery from the United States for selenium contamination at four Caribou-Targhee National Forest mine sites.
- The mines originated from 1949 mining leases in which the government retained property rights but allowed lessees to mine phosphate and related minerals, with Special Use Permits for adjacent waste dumps.
- From the 1960s to the 1990s, the government monitored environmental conditions and required reclamation, including covering waste dumps with middle waste shale.
- Selenium from middle waste shale leached into water, particularly from CVF dumps with french drains that carried contaminants beneath the dumps.
- Nu-West spent about $10 million on remediation and brings a CERCLA suit seeking recovery; the government has admitted ownership for CERCLA purposes and Nu-West seeks arranger and operator liability, which the court partially resolves.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the United States an arranger under CERCLA §9607(a)(3)? | Government owned the middle waste shale; controlled disposal; directed disposal via reclamation requirements. | Government acted in a regulatory capacity, not as an arranger. | Yes; government is arranger. |
| Is the United States an operator under CERCLA §9607(a)(3)? | Government actively designed, located, and supervised waste dumps and inspections. | Government was merely regulatory with limited direction. | Yes; government is operator. |
Key Cases Cited
- Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001) (CERCLA strict liability for owners/operators of facilities)
- Burlington Northern & Santa Fe Ry. Co. v. U.S., 129 S. Ct. 1870 (S. Ct. 2009) (defined arranger liability as deliberate steps to dispose of waste)
- U.S. v. Shell Oil Co., 294 F.3d 1045 (9th Cir. 2002) (governmental/regulatory role cannot defeat arranger liability; sovereign immunity waiver applies)
- Bestfoods v. Kaiser Aluminum & Chem. Corp., 524 U.S. 51 (U.S. 1998) (operator liability requires management/control over pollution-related decisions)
- Kaiser Aluminum & Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338 (9th Cir. 1992) (control over the cause of contamination essential for operator liability)
- U.S. v. United States Steel Corp., — (—) (not cited in opinion text for this summary)