U.S. Not Liable Under Superfund for WWII Mine Closure

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By Peter Hayes

Sept. 21 — The federal government is not liable as a Superfund “operator” based on its closure of a privately-owned gold mine to conserve resources during WWII, the Eastern District of California ruled ( United States v. Sterling Centrecorp Inc. , 2016 BL 309984, E.D. Cal., No. 08-cv-2556, 9/20/16 ).

The court rejected the argument that by closing the mine, the government controlled every decision related to it, including the failure to secure tailings that washed downstream.

Operator liability requires an active role in running the facility or decision making over waste disposal at the site—neither of which were shown here, the court said.

The Lava Cap gold mine in Nevada County, Calif. was opened during the gold rush of the 1860s.

In 1943, the War Production Board ordered the mine shut in order to redirect material and equipment to mining deemed essential for the war effort.

The mine was permitted to reopen in 1945, but never did.

Decades later, the Environmental Protection Agency found high levels of arsenic and lead at the site, and runoff that contaminated nearby water bodies.

The government filed a Superfund action against Sterling Centrecorp. Inc., the successor-in-interest to a prior owner of the mine.

Sterling counterclaimed against the government as an alleged operator of the site.

Dismissing the claim against the government, the court said the board didn’t control hazardous waste management decisions during the period the mine was closed.

“The Ninth Circuit has made it clear that ‘operator’ liability under CERCLA requires active management of the enterprise and/or decision-making authority over the facility’s waste disposal operations,” the court said.

In this case, the court said, there is “no evidence that the government was involved in any way with basic operations at the Lava Cap Mine.”

Judge Morrison C. England Jr. issued the opinion.

Beveridge & Diamond, PC represented Sterling.

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bna.com

To contact the editor responsible for this story: Nicholas Datlowe at nDatlowe@bna.com

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