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United States v. Doe Run Resources Corp.

United States District Court, N.D. Oklahoma

September 26, 2017

UNITED STATES OF AMERICA and STATE OF OKLAHOMA, Plaintiffs,
v.
THE DOE RUN RESOURCES CORPORATION and NL INDUSTRIES, INC., Defendants. ASARCO LLC, Plaintiff-Intervenor,
v.
UNITED STATES OF AMERICA, STATE OF OKLAHOMA, THE DOE RUN RESOURCES CORPORATION, AND NL INDUSTRIES, INC. Defendants.

          OPINION AND ORDER

          CLAIRE V, EAGAN, UNITED STATES DISTRICT JUDGE

         Now before the Court is plaintiffs' Motion to Enter Consent Decree and Memorandum in Support (Dkt. # 35). Plaintiffs United States of America (United States) and State of Oklahoma (the State) request that the Court approve a proposed consent decree (Dkt. # 3-1) resolving plaintiffs' claims under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (CERCLA) against defendants The Doe Run Resources Corporation (Doe Run) and NL Industries, Inc. (NL). Plaintiff-Intervenor ASARCO LLC (ASARCO) objects to the proposed consent decree, and it asks the Court to deny plaintiffs' motion to approve consent decree. Dkt. # 42.

         I.

         Early in the twentieth century, significant deposits of lead and zinc were discovered in southeastern Kansas and northeastern Oklahoma, and mining for these minerals followed shortly after this discovery. This area became known as the Tri-State Mining District (TSMD). Originally, mining activities were relatively small operations, but in the 1920s larger mining companies operated in the TSMD. The peak years of mining production occurred during the 1920s, but mining continued until the 1970s. Mining companies removed ore from the ground, stripped the ore of any valuable metals, and deposited waste material on the surface. Millions of tons of waste were left in the area in the form of chat piles and tailings ponds. Chat was created when mining companies stripped material of its useful ore and the remaining byproduct, chat, was stored on the surface in the form of chat piles. Tailings, another byproduct of mining activity, was left in unlined flotation ponds on the surface. Many of the chat piles and or former chat piles, known as chat bases, still remain; an inventory conducted in 2005 showed that there were still 83 chat piles and 243 chat bases. Dkt. # 35-12, at 8.

         In 1980, Congress passed CERCLA due to the “serious environmental and health risks posed by industrial pollution.” United States v. Bestfoods, 524 U.S. 51 (1998). As part of the effort to clean up hazardous waste sites, Congress created the National Priorities List (NPL), which is a “list of sites where releases have occurred that have the highest national priority for remediation efforts.” Morrison Enterprises v. McShares, Inc., 302 F.3d 1127, 1132 (10th Cir. 2002). Once a site is designated as a Superfund site, the Environmental Protection Agency (EPA)[1] must conduct a remedial investigation and feasibility study (RI/FS). Federal regulations define an RI as:

a process undertaken by the lead agency to determine the nature and extent of the problem presented by the release. The RI emphasizes data collection and site characterization, and is generally performed concurrently and in an interactive fashion with the [FS]. The RI includes sampling and monitoring, as necessary, and includes the gathering of sufficient information to determine the necessity for remedial action and to support the evaluation of remedial alternatives.

40 C.F.R. § 300.5. An FS more closely concerns the evaluation of possible remedies rather than the broad investigation of a possible environmental hazard. Regulations define an FS as a:

study undertaken by the lead agency to develop and evaluate options for remedial action. The FS emphasizes data analysis and is generally performed concurrently and in an interactive fashion with the [RI], using data gathered during the RI. The RI data are used to define the objectives of the response action, to develop remedial action alternatives, and to undertake an initial screening and detailed analysis of the alternatives. The term also refers to a report that describes the results of the study.

Id. Following the completion of an FS, the EPA must follow a two-step process to select a final remedy. First, the EPA selects the preferred remedy and presents the proposed plan to the public for “review and comment.” 40 C.F.R. § 300.430(f)(ii). Second, the EPA must review the public comments and consult with the state (or Indian tribe) to determine if the selected remedy is appropriate. Id. The final remedy is documented in a record of decision (ROD) showing “all facts, analyses of facts, and site-specific policy determinations considered in the course of carrying out activities.” Id. at § 300.430(f)(5)(i). The EPA may work toward a comprehensive resolution of the environmental hazards at a complex site by dividing its remedial action into operable units. Id.

         In 1983, the EPA placed approximately 40 square miles of northeastern Oklahoma on the NPL and designated the area as the Tar Creek Superfund Site (Tar Creek). Dkt. # 35-12, at 8. The EPA estimates that there is a total of 4, 481 “waste acres”[2] within Tar Creek. Dkt. # 35-2, at 4. The EPA's initial investigation identified two risks associated with contamination of groundwater and surface water caused by pollutants in mine shafts. Dkt. # 35-12, at 9. The EPA was concerned about the discharge of acid mine water into Tar Creek and the threat of contamination to the Roubidoux Aquifer, a source of drinking water. Id. The EPA initially determined that chat piles and tailings ponds did not pose a health risk to humans or the environment.

         The cleanup of groundwater and surface water was designated as Operable Unit 1 (OU1) and a ROD was issued in selecting a remedy for OU1. Id. The remedy included surface water diversion, construction of dikes, and plugging wells to prevent acid mine water migration. Id. In 1994, the EPA received a report from Indian Health Services that Indian children living in the former TSMD had elevated levels of lead in their blood, and the EPA began to conduct soil sampling at areas where children would congregate, such as schools, parks, and day care centers. Id. In 1995, the EPA began to excavate soil at high access areas using its removal action authority, and the EPA also opened an RI/FS to study soil contamination within residential areas. Id. The soil removal action was officially designated as Operable Unit 2 (OU2) and was converted from a removal action into a remedial action.[3] Id. In 1997, the EPA issued a ROD for OU2 choosing soil removal and backfilling of residential yards as a permanent remedy and, to date, the EPA has cleaned up 2, 940 residential yards as part of OU2. Dkt. # 35-4, at 3. Of these 2, 940 residential yards, 443 of the residential yards were owned by members of the Quapaw Tribe of Oklahoma (the Tribe) and almost of this land was held in restricted status. Id. at 3. The EPA represents that the cleanup work for OU2 is nearly complete. Id.

         On March 23, 1999, the Tribe notified the EPA that it had discovered drums of mining chemicals in an abandoned building. See Quapaw Tribe of Oklahoma v. Blue Tee Corp., 2008 WL 2704482, *3 (N.D. Okla. July 7, 2008). The EPA designated the cleanup of these chemicals as Operative Unit 3 (OU3), and the chemicals were quickly removed. Dkt. # 35-12, at 9.

         In 2008, the EPA issued its ROD for Operative Unit 4 (OU4), which targeted the cleanup of mill and mining waste left within Tar Creek by historical mining activities. Dkt. # 35-6, at 2-3; Dkt. # 35-12, at 3-6. The selected remedy will be completed in two phases and the EPA originally estimated that the work would cost $167, 288, 000. Dkt. # 35-12, at 4-5. Phase 1 of the cleanup will “address voluntary relocation of residents, chat sales, and address source materials in a manner that will reduce the overall footprint of contamination and reduce the need for land use restrictions . . . .” Id. at 4. Chat piles and bases will be cleared and the soil underneath the chat piles and bases will be excavated. Id. Marketable chat will be sold for certain uses and non-marketable chat and mining waste will be disposed of in an on-site repository or mine workings. Id. Interim measures will be taken to prevent further contamination of waterways, and waterways will be excavated or a flexible membrane liner will be installed. Id. Phase 2 will address any chat bases, chat piles, and unmarketable chat that remain after the completion of Phase 1, and the selected remedy will be reviewed at least every five years. Id. at 5. As of December 31, 2015, the EPA had incurred almost $170 million in response costs for OU4. Dkt .# 35-13, at 4.

         The State and Indian tribes had expressed concern about sediment and surface water contamination downstream of the central mining area in Tar Creek, and the EPA established Operable Unit 5 (OU5) to address these concerns. Dkt. # 35-3, at 3. OU5 is still in the RI/FS stage and no remedy has been selected, but the EPA will examine the nature and extent of contamination in the following bodies of water:

• Four Mile Creek (an upstream background or reference location unaffected by historical mining activites)
• Elm Creek
• Tar Creek (including Lytle Creek)
• Neosho River
• Beaver Creek
• Lost Creek
• Lower Spring River (portion of Spring River downstream of Empire Lake in Kansas, and ending at the headwaters of ...

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