Adams Jr. et al v. Teck Cominco Alaska Inc. et al
Filing
127
Order on Motion for Summary Judgment
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
ENOCH ADAMS, JR., LEROY ADAMS,
ANDREW KOENIG, JERRY NORTON,
DAVID SWAN, and JOSEPH SWAN,
Plaintiffs,
vs.
TECK COMINCO ALASKA, INC.,
Defendant.
NANA REGIONAL CORPORATION and
NORTHWEST ARCTIC BOROUGH,
Intervenors-Defendants.
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A04-49 CV (JWS)
ORDER FROM CHAMBERS
[RE: Motions at Docket
Nos. 44 and 54]
I. MOTIONS PRESENTED
At docket 44, defendant Teck Cominco Alaska, Inc. (“Teck”) moves for partial
summary judgment dismissing a portion of plaintiffs’ claims relating to monitoring and
reporting violations. At docket 54, plaintiffs Enoch Adams, Jr., Leroy Adams, Andrew
Koenig, Jerry Norton, and Joseph Swan oppose defendant’s motion and cross-move for
summary judgment on all claims relating to monitoring and reporting violations. The
motions are fully briefed. No party requested oral argument, and it would not assist the
court.
II. BACKGROUND
Except as otherwise noted, the facts in this section are those alleged in plaintiffs’
complaint1 which were not denied in defendant’s answer.2 Plaintiffs are residents of the
village of Kivalina located near the mouth of the Wulik River in northwestern Alaska.
The Wulik River is the primary source of drinking water for Kivalina residents. Plaintiffs
harvest fish from the Wulik River and its tributaries. Some of the plaintiffs also harvest
fish and marine mammals from the waters of the Chuckchi Sea near where the river
empties into the sea.
Defendant Teck operates the Red Dog Mine, which is located about fifty-five
miles from the Chuckchi Sea on land owned by the Northwest Arctic Native Association
(“NANA”). Ore removed from the open pit mine is milled to obtain zinc and lead
concentrates. Throughout the year, the concentrates are trucked over the DeLong
Mountain Road to storage buildings about a mile from tidewater. During the months
when the Chuckchi Sea is free of ice, the concentrates are loaded aboard ships for
transport to smelters outside Alaska. The tidewater storage facilities and other
infrastructure at the port site are on NANA land. Teck operates the mine and the port
sites under an agreement with NANA.
Cyanide is used in the milling process at the mine. Tailings and process
wastewater resulting from the milling operation are impounded in a tailings pond, from
which treated wastewater is discharged into the Middle Fork of Red Dog Creek through
Outfall 001. Mining takes place year-round, but wastewater is discharged only during
the warmer periods, generally from May until early October.
Federal law prohibits discharge of pollutants from point sources except in
compliance with the provisions of the Clean Water Act.3 The discharge of pollutants
1
Doc. 10.
2
Doc. 6.
3
33 U.S.C. § 1311(a). Section 1 of Pub. L. 95-217 indicates that a set of federal water
pollution control statutes - statutes that include those of great relevance to this litigation - may
be cited as the “Clean Water Act of 1977.” For simplicity and because there have been
subsequent amendments, the court uses the term “Clean Water Act” to refer to this statutory
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may be authorized in compliance with National Pollution Discharge Elimination System
(“NPDES”) permits.4 In Alaska, NPDES permits are issued by the federal
Environmental Protection Agency (“EPA”). EPA issued NPDES permit number AK03865-2 for the mine site in 1985, reissued the permit in 1998, modified the permit in
July 2003, and administratively extended it when the permit expired on August 28,
2003. The permit authorizes Teck to discharge 2.418 billion gallons of effluent from the
tailings pond via Outfall 001 each year. Eleven discharge parameters are found in the
permit which uses two limitation types–daily maximum discharge limits and monthly
average discharge limits. The permit also sets limits for total dissolved solids (“TDS”) in
the mine’s discharge.
EPA issued the current NPDES permit number AK004064-9 for the port site with
an effective date of January 29, 1999. The permit authorizes Teck to discharge treated
wastewater from a sewage treatment plant into the Chuckchi Sea via Outfall 001, and to
discharge drainage from the concentrate storage buildings into the Chuckchi Sea or
onto the tundra from Outfall 005.
Plaintiffs’ complaint alleges ten claims. The third, sixth, ninth, and tenth claims,
which allege violations of 33 U.S.C. § 1311(a), are pertinent to the motions presented
herein. The third claim asserts violations of Whole Effluent Toxicity (“WET”) testing
requirements set forth in the mine site NPDES permit. The sixth claim alleges selfmonitoring and reporting violations of the mine site NPDES permit. The ninth claim
asserts self-monitoring and reporting violations of the port site NPDES permit. The tenth
claim alleges that Teck violated the monitoring and reporting requirements of the Mine
Consent Order issued by the EPA on July 1, 1999, and modified on May 17, 2002. The
Mine Consent Order requires Teck to measure its compliance with TDS discharge limits
and to “monitor for certain parameters at the mine site and in streams near the mine
site, as well as report certain data and calculations.”5
scheme.
4
33 U.S.C. § 1342(a).
5
Revised Complaint at 26, doc. 26.
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III. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(c) provides that summary judgment should be
granted when there is no genuine issue as to any material fact and when the moving
party is entitled to judgment as a matter of law. The moving party has the burden to
show that material facts are not genuinely disputed.6 To meet this burden, the moving
party must point out the lack of evidence supporting the nonmoving party’s claim, but
need not produce evidence negating that claim.7 Once the moving party meets its
burden, the nonmoving party must demonstrate that a genuine issue of fact exists by
presenting evidence indicating that certain facts are disputed so that a fact-finder must
resolve the dispute at trial.8
IV. DISCUSSION
Defendant moves for summary judgment dismissing a portion of plaintiffs’ claims
relating to monitoring and reporting violations. Defendant argues that some of the
alleged violations do not constitute actual violations of the requirements of the NPDES
permits or the Mine Consent Order. Defendant further argues that some of the alleged
violations are wholly in the past and thus “[p]laintiffs have no standing to assert those
claims and this court does not have jurisdiction to hear them.”9
Plaintiffs cross-move for summary judgment on “359 of the monitoring and
reporting violations in their Revised Complaint: the 273 that [Teck] asserts are not
violations but which demonstrably are, the 73 which [Teck] admits in its Motion, and 13
additional violations which [Teck] has admitted in its Answer here or in the [Kivalina
Relocation Planning Committee (“KRPC”)] litigation.”10 However, plaintiffs acknowledge
6
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
7
Id. at 325.
8
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
9
Defendant’s Motion at 2, doc. 44.
10
Plaintiffs’ Opposition and Cross-Motion at 1, doc. 54.
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that discovery established that thirteen other alleged violations were not violations, so
plaintiffs concede that their claims as to those alleged violations should be dismissed.11
The court’s discussion of the parties’ cross-motions for partial summary judgment
is organized into three sections: Section One addresses the monitoring and reporting
violations which defendant denies, Section Two addresses the violations that defendant
argues are wholly in the past, and Section Three addresses the monitoring and
reporting violations defendant has admitted in this action or in the KRPC action.
Section One
Defendant moves the court to enter summary judgment on the monitoring and
reporting violations discussed in this section on the grounds that the alleged violations
did not occur. Plaintiffs have agreed to the dismissal of some of the alleged violations
and cross-move for summary judgment on the remaining violations. The court
considers each alleged violation in turn.
A.
Organic Priority Pollutant Scan in June 2000
Paragraph 118 of plaintiffs’ sixth claim alleges that Teck violated condition I(A)(1)
of its mine site NPDES permit by failing to take a sample for Organic Priority Pollutant
Scan (“OPPS”) in June 2000. Plaintiffs concede that the alleged June 2000 violation
concerning OPS should be, and it is hereby, dismissed.12
B.
Composite Sample for Turbidity on July 22, 2000
Paragraph 118 of plaintiffs’ sixth claim alleges that Teck violated condition I(A)(1)
of its mine site NPDES permit by failing to collect a 24-hour composite sample for
turbidity on July 22, 2000. Defendant alleges that it typically measures turbidity using a
24-hour composite sample, but that on July 22, 2000, it determined turbidity based on
data from the mill and that the “turbidity data from the mill provides the same information
that would have been obtained from a 24-hour composite sample.”13
11
Id. at pp. 21-22. Each of the thirteen is identified in the text below.
12
Id.
13
Motion at 7-8, doc. 44.
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Plaintiffs argue that, because there are genuine issues of material fact as to
whether the testing method defendant employed is equivalent to that required by the
permit, this violation should be resolved at trial. The court agrees with plaintiffs. The
parties’ cross-motions for summary judgment are denied as to this claim.
C.
Monitoring of Metals in Sulphur Creek in November 2002
Paragraph 124 of plaintiffs’ sixth claim alleges that Teck violated condition I(D)(3)
of its mine site NPDES permit in November 2002 when it failed to report aluminum,
cadmium, chromium, copper, iron, lead, manganese, nickel, and zinc monitoring results
for the Sulfur Creek ambient monitoring station. In their opposition, plaintiffs concede
that the nine alleged November 2002 violations for failing to report metals monitoring
results should be dismissed. Accordingly, they are dismissed.14
D.
Monitoring of Stream Flows at Stations 2, 8, 9, 10, 12, and 140 in
October 2002, November 2002, and May 2003
Paragraph 127 of plaintiffs’ sixth claim alleges that Teck violated condition I(D)(8)
of its mine site NPDES permit 264 times by failing to report daily stream flows at
Stations 2, 8, 9, 10, 12, and 140 in October 2002, November 2002, and May 2003.
Condition I(D)(8) requires streamflow to be determined on a daily basis at Stations 2, 8,
9, 10, 12, and 140, using standard methods recognized by the United States Geological
Survey (“USGS”), including measuring discharge and “estimating using all available
information.”15 Condition I(D)(8) also requires Teck to report the streamflow data and
the methods used to determine streamflow in its monthly discharge monitoring report
(“DMR”) to the EPA.
It is undisputed that Teck used estimates to determine daily streamflow for most
of the months at issue and did not timely report daily streamflows at Stations 2, 8, 9, 10,
12, and 140 in its monthly DMRs for October 2002, November 2002, and May 2003.
However, defendant argues that it did not violate permit condition I(D)(8) because for
“[m]uch of the time, it was [] not possible to take discharge measurements in October
14
Opposition and Cross-Motion at 22, doc. 54.
15
Motion at 9, doc. 44.
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2002, November 2002 or May 2003 due to dangerous field conditions” and because
there was ice in the channel.16 Consequently, defendant used estimates to determine
streamflow. Defendant further alleges that the “USGS data was not available until wellafter the October and November 2002 and May 2003 DMRs were required to be
submitted so revised DMRs for those months were submitted with the estimated flow
report.”17
Based on the record before the court, it is unclear when Teck submitted the
revised DMRs to the EPA, why the USGS data was not available earlier, and whether
Teck’s acts of timely submitting a DMR explaining its inability to conduct streamflow
testing, and then submitting revised DMRs once the estimates were available
constituted a violation of condition I(D)(8). Because material questions of fact exist as
to the alleged streamflow monitoring and reporting violations, the parties’ cross-motions
for summary judgment are denied as to these alleged violations.
E.
Sampling for Hardness and Copper at Outfall 001 in May 2002
Paragraph 148 of plaintiffs’ ninth claim alleges in part that Teck violated permit
condition I(A)(1) of its port site NPDES permit in May 2002 by failing to monitor total
hardness and copper at Outfall 001. Plaintiffs concede that alleged May 2002 violations
concerning Teck’s alleged failure to monitor total hardness and copper should be
dismissed, and so they are dismissed.18
F.
Whole Effluent Toxicity Testing on Mysidopsis bahia and
Holmesmysis costata
Paragraph 148 of plaintiffs’ ninth claim alleges that Teck violated condition
III(A)(2)19 of its port site NPDES permit by failing to conduct Whole Effluent Toxicity
16
Id. at 10.
17
Declaration of Mark Thompson at 8, Exh. 1, doc. 44.
18
Opposition and Cross-Motion at 22, doc. 54.
19
Plaintiffs’ revised complaint erroneously refers to condition I(A)(1) of the port NPDES
permit. However, it is undisputed that condition III(A)(2) of the port NPDES permit is the
applicable provision.
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(“WET”) tests on Mysidopsis bahia and Holmesmysis costata in July 2002, August 2002,
and September 2002. Condition III(A)(2) provides:
The Permittee shall conduct one acute toxicity test per month (per
fish and invertebrate specie) during the months of June, July,
August and September. The testing shall occur by the third year
following the effective date of the permit.20
Defendant argues that the plain language of condition III(A)(2) only requires Teck
to conduct one toxicity test per month during the months of June, July, August, and
September “by the third year following the effective date of the permit.” Because the
effective date of the permit was January 29, 1999, and Teck completed and reported
WET tests for mysids in June, July, August, and September of 2001, Teck argues that it
fully complied with condition III(A)(2). In support of its interpretation, defendant filed an
undated EPA fact sheet, which states in pertinent part:
Because of the deep outfall within the Chukchi Sea and available
dilution, acute testing is more protective of the 1.0 chronic toxicity
unit (TU) than chronic testing... Therefore, the draft permit requires
completion of acute WET testing by the third year of the effective
date of the permit. Testing (for that one year) during the months of
June, July, August, and September shall be for acute toxicity.21
This is a consistent and convincing explanation of why the testing would only be
required during one year. The agency chose an acute test rather than a chronic test,
because of the anticipated (and presumably unchanging) effect of locating the outfall in
a deep offshore location.
Plaintiffs argue that the plain language of condition III(A)(2) “implies a pattern of
regular testing on an annual basis, as with every other permit parameter.”22 Plaintiffs
further allege that the phrase “by the third year” gives defendant a grace period to start
the testing program, but requires that once started, testing must be conducted annually.
In fact, the permit language establishing the requirement is consistent with Teck’s
20
Permit No. AK-004064-9 at 11, exh. 2, doc. 44.
21
Fact Sheet at 22, exh. 2, doc. 61.
22
Plaintiffs’ Reply at 5, doc. 70.
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interpretation, but not plaintiffs’ interpretation. The permit says that the testing “shall
occur by the third year following the effective date of the permit.”23 Had the permit been
intended to require on-going annual testing every year as contended by plaintiffs, it
would have said that the testing “shall commence by the third year following the
effective date of the permit.”
The plain language of condition III(A)(2) suggests that Teck was required to
conduct one acute toxicity test per month during the months of June, July, August, and
September by the third year following the effective date of the permit. While plaintiffs
argue that condition III(A)(2) requires annual toxicity testing during the months of June,
July, August, and September, plaintiffs do not provide any evidentiary support for their
competing interpretation of condition III(A)(2)’s language. Plaintiffs “cannot rely on the
mere possibility of a factual dispute” as to the intent of the permit condition to avert
summary judgment.24 Plaintiffs do not dispute that Teck completed the acute WET
testing for the months of June, July, August, and September by the third year following
the effective date of the permit. Teck is entitled to summary judgment on the alleged
violations based on failure to conduct WET tests on Mysidopsis bahia and Holmesmysis
costata in July 2002, August 2002, and September 2002.
G.
Sampling for Hardness at Outfall 005 in May 2000
Paragraph 151 of plaintiffs’ ninth claim alleges that Teck violated condition I(B)(5)
of its port site permit in May 2000 by failing to monitor the discharge from Outfall 005 for
hardness. Plaintiffs concede the alleged May 2000 violation concerning defendant’s
failure to monitor for hardness cannot be supported, and their claim as to this alleged
violation is dismissed.25
23
Exh. 12 to Declaration of Luke Cole attached to Opposition and Cross-Motion, doc. 54.
24
National Union Fire Ins. Co. of Pittsburgh v. Argonaut Ins. Co., 701 F.2d 95, 97 (9th
Cir. 19983).
25
Opposition and Cross-Motion at 22, doc. 54.
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H.
WET Monitoring for Station 9 in July, August, and October of 2002
Paragraph 90 of plaintiffs’ third claim alleges in part that Teck violated condition
I(H)(4) of its mine site NPDES permit by not reporting results of WET testing for Station
9 in July, August, and October of 2002. In their opposition, plaintiffs specifically allege
that defendant violated condition I(H)(4) by not taking three “aliquots,” or water samples,
at Station 9 in July, August, and October of 2002. Defendant acknowledges that it used
only one aliquot for ambient water testing at Station 9 in July, August, and October of
2002, but argues that testing with less than three aliquots is sufficient to satisfy the WET
testing requirements. Condition I(H)(4) does not contain the word “aliquot,” nor does it
specify the number of samples which must be taken.
In support of their argument that material questions of fact exist as to the number
of aliquots required by condition I(H)(4), plaintiffs offer evidence that James Kulas,
Teck’s environmental supervisor at the mine site, testified in an earlier deposition that
three aliquots were required and in a subsequent deposition that only one aliquot was
required. In light of the conflicting testimony, plaintiffs argue that the alleged violations
should be resolved at trial.
Because material questions of fact exist as to how many aliquots, if any, are
required to satisfy the WET testing requirements in condition I(H)(4), the court denies
the parties’ cross-motions for summary judgment as to the alleged violations of
condition I(H)(4).
I.
Monitoring for Total Dissolved Solids on July 14, 2000
Paragraph 162 of plaintiffs’ tenth claim alleges that Teck violated the monitoring
requirements of the Mine Consent Order on July 14, 2000. Defendant provides
evidence that Teck “collected and recorded all the monitoring data on July 14, 2000 as
required by the Consent Order,” but was unable to transmit “due to intense solar flare
activity.”26 Plaintiffs argue that even if Teck monitored for TDS on July 14, 2000, Teck
failed to provide any evidence that the data was transmitted or reported to the EPA as
required. Plaintiffs’ argument goes more to the issue of whether Teck committed a
26
Declaration of Mark Thompson at 9, doc. 44.
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reporting violation, not a monitoring violation. Because plaintiffs have failed to raise a
genuine issue of material fact as to whether Teck committed a monitoring violation on
July 14, 2000, defendant is entitled to summary judgment on plaintiffs’ claim that Teck
violated the monitoring requirements of the Mine Consent Order on July 14, 2000.
Section Two
Defendant argues that the court does not have jurisdiction over, and plaintiffs do
not have standing to pursue, the monitoring and reporting claims discussed in this
section because plaintiffs cannot establish that the violations were ongoing as of
March 8, 2004, the date plaintiffs filed their complaint. Defendant further argues that
because Teck has “installed new monitoring equipment, implemented new monitoring
procedures, and installed additional backup monitoring systems,” plaintiffs cannot
establish that any of the monitoring and reporting violations at issue are likely to recur in
the future.27 Plaintiffs oppose defendant’s motion on the grounds that the monitoring
and reporting violations in this section are likely to recur in the future. Plaintiffs crossmove for summary judgment on the monitoring and reporting violations in Section II on
the grounds that Teck admitted the past violations in its motion for summary judgment.
At issue is whether the alleged monitoring and reporting violations are wholly
past or ongoing. The Clean Water Act “‘does not permit citizen suits for wholly past
violations’: rather, the statute ‘confers jurisdiction over citizen suits when the citizenplaintiffs make a good-faith allegation of continuous or intermittent violation.’”28 Citizenplaintiffs are not required to “prove their allegations of ongoing noncompliance before
jurisdiction attaches under § 505.”29
27
Motion at 18, doc. 44.
28
Natural Resources Defense Council v. Southwest Marine, Inc., 236 F.3d 985, 998 (9th
Cir. 2000) (quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S.
49, 64 (1987)).
29
Gwaltney, 484 U.S. at 64.
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To prevail at trial, a citizen-plaintiff must prove ongoing violations.30 “[A] citizen
plaintiff may prove ongoing violations ‘either (1) by proving violations that continue on or
after the date the complaint is filed, or (2) by adducing evidence from which a
reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent
or sporadic violations.’”31 The Ninth Circuit has “confirmed that ‘[i]ntermittent or sporadic
violations do not cease to be ongoing until the date when there is no real likelihood of
repetition.’”32 In determining whether violations are ongoing, the district court may
consider “whether remedial actions were taken to cure violations, the ex ante probability
that such remedial measures would be effective, and any other evidence presented
during the proceedings that bears on whether the risk of defendant’s continued violation
had been completely eradicated when citizen-plaintiffs filed suit.”33
Plaintiffs’ third, sixth, ninth, and tenth claims each contain the allegations that the
violations at issue are “ongoing to this day or are capable of repetition,” and that
“without the imposition of appropriate civil penalties and the issuance of appropriate
equitable relief,” Teck will continue to violate the permit conditions at issue. Based on
the court’s review of the record, it appears that plaintiffs’ allegations of continuous or
intermittent violations are based on a good-faith belief, formed after reasonable inquiry
into the facts. Because plaintiffs have made the requisite good-faith allegations,
plaintiffs have satisfied the threshold requirement for jurisdiction.34
The court’s discussion next turns to whether the following monitoring and
reporting violations are ongoing or reasonably likely to occur: failure to monitor flow and
pH in May 2000 and June 3-9, 2001; failure to transmit TDS data from Station 10 in July
30
Community Association for Restoration of the Environment v. Henry Bosma Dairy, 305
F.3d 943, 953 (9th Cir. 2002).
31
Sierra Club v. Union Oil Co., 853 F.2d 667, 671 (9th Cir. 1988) (quoting Chesapeake
Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171-72 (4th Cir. 1988)).
32
Henry Bosma Dairy, 305 F.3d at 953 (quoting Chesapeake Bay Foundation, 844 F.2d
at 172).
33
Union Oil, 853 F.2d at 667 (quotation and citation omitted) (emphasis in original).
34
Southwest Marine, 236 F.3d at 998.
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2000; failure to monitor TDS data on May 30, 2001; failure to monitor TDS for July 2531, 2001; failure to report TDS data in May 2002; failure to sample for hardness in May
2002; failure to sample for fecal coliform on April 10, 2002; failure to conduct silver
analysis in June 2000; failure to conduct metals analyses at Stations 10, 12, and 140 in
June 2000; failure to perform TDS analyses at the mine site on July 10, 2000, and
August 3, 2000; failure to conduct TSS analyses at the port site on July 7 and 26, 2000,
and August 9, 2000; failure to perform ammonia analyses in June and July 2001; and,
failure to conduct turbidity analyses in September 1999 and on June 10 and 13, 2000.
Plaintiffs suggest that because Teck has allegedly violated two other particular
monitoring and reporting requirements after the March 2004 filing of this suit, “the Court
is free to infer that all of the monitoring and reporting violations can be considered
ongoing or capable of repetition.”35 Plaintiffs do not cite, and the court is not aware of,
any controlling authority which supports plaintiffs’ proposition. Moreover, the argument
is illogical. The likelihood that conduct A will recur because conduct B has since
occurred is, without more, not probative. Moreover, with respect to plaintiffs’ motion for
summary judgment (but not Teck’s motion), it is enough to say that defendant has
demonstrated that there are material questions of fact as to whether the two more
recent monitoring and reporting violations alleged by plaintiffs actually were violations.
As discussed above, plaintiffs may establish ongoing violations either by proving
violations that continue on or after the date the complaint is filed or by providing
evidence “from which a reasonable trier of fact could find a continuing likelihood of a
recurrence in intermittent or sporadic violations.’”36 In determining whether the alleged
violations in this section are ongoing or reasonably likely to recur, the court follows the
approach adopted by the Ninth Circuit in Union Oil and considers whether remedial
actions have been taken to cure the alleged violations, the probability that such
remedial measures will be effective, and any evidence bearing on whether the risk of
35
Plaintiffs’ Reply at 15, doc. 70.
36
Union Oil, 853 F.2d at 671 (quoting Chesapeake Bay, 844 F.2d at 171-72).
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defendant’s continued violation was completely eradicated when plaintiffs filed their
complaint.37 The court considers each of the alleged violations below.
A.
Monitoring Flow and PH at Port Site in May 2000 and June 3-9, 2001
Paragraph 151 of plaintiffs’ ninth claim alleges that Teck violated condition I(B)(5)
of its port NPDES permit by failing to properly monitor discharge from Outfall 005.
Plaintiffs specifically allege that Teck violated condition I(B)(5) by failing to continuously
monitor flow and pH in May 2000 and by failing to monitor pH on June 3-9, 2001.
Defendant argues that the installation of a programmable logic controller, as well as
several flow meters and a pH probe, at the new IX plant at the port site eliminated the
data transfer problems that led to the above violations. Defendant offers the testimony
of Mark Thompson, Senior Environmental Coordinator at the Red Dog Mine/Port
operation, that the same system has been “used at the mine to automatically record
flow and pH readings during the whole effective life of the 1998 Mine NPDES permit
without any data loss or similar problems.”38 Consequently, Thompson avers that there
is “no reason to believe that the problems that occurred in May 2000 and June 2001
have any reasonable probability of reoccurrence in the future.”39
In support of their allegations that the monitoring violations at issue are likely to
recur, plaintiffs offer the expert testimony of Dr. Robert Moran, who has “more than
thirty-two years of domestic and international experience in conducting and managing
water quality, geochemical and hydrogeologic work.”40 Dr. Moran testifies that
“[m]onitoring equipment and computer hardware are always susceptible to
malfunctioning and software packages are almost always subject to some degree of
error.”41 Dr. Moran also states that Teck’s assumption that new “computer hardware
37
id. at 671.
38
Declaration of Mark Thompson at 13, doc. 44.
39
Declaration of Mark Thompson at 13, doc. 44.
40
Declaration of Dr. Robert Moran at 1, doc. 54.
41
Id. at 5.
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and software, such as the IX plant’s programmable logic controller” will prevent all future
violations is naive as Teck “has admitted that similar technology has failed in the past.”42
Plaintiffs’ contention is, in effect, that defendant must offer evidence that it has
absolutely prevented all future violations, even if they might result from a failure of a
new technology which has not failed. That is not the applicable standard.43 Moreover,
neither Teck nor anybody else could ever meet such a standard, because it may ever
be said, as Dr. Moran has said, that monitoring and computer equipment are “always
susceptible to malfunctioning.” Were the courts to adopt the standard embedded in
Dr. Moran’s testimony, all violations of any permit limit would always be on-going, no
matter what changes or corrections had been made, and no matter how long the
changed system had functioned without a violation.
The Ninth Circuit has concluded that intermittent or sporadic violations cease to
be ongoing on the date when there is no real likelihood of repetition. Here, defendant
has demonstrated that the failure to monitor for flow and pH has no real likelihood of
repetition in light of the installation of the PLC system at the IX plant, and the evidence
that the same system has been employed at the mine site during the effective life of the
1998 Mine NPDES permit without any data loss or transfer problems.
Defendant has demonstrated that there is no genuine issue of material fact
regarding whether these violations are likely to recur. Teck’s motion for summary
judgment is granted as to the violations for failing to monitor flow and pH in May 2000
and failing to monitor pH on June 3-9, 2001.
B.
Transmitting TDS Data from Station 10 in July 2000
Paragraph 162 of plaintiffs’ tenth claim alleges that Teck violation the
requirements of the Mine Consent Order by not transmitting TDS data on July 14, 2000.
Defendant alleges that it monitored discharge for TDS, but was unable to transmit the
TDS data from Station 10 on July 14, 2000, because of solar flares which disrupted
Teck’s data transmission system. Defendant argues that plaintiffs cannot establish that
42
Declaration of Dr. Robert Moran at 5, doc. 54.
43
See, Union Oil, 853 F.2d at 671.
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this violation has any reasonable probability of reoccurring because Teck installed a
second data transmission system in 2001 that is unaffected by solar flares. Defendant
also offers Mark Thompson’s testimony that there have been no transmission or data
problems since the installation of the new system, and that “there is no reasonable
probability of a reoccurrence of the problem experienced in July 2000.”44
In support of their argument that defendant has not eradicated the risk of similar
malfunctions occurring, plaintiffs cite Dr. Moran’s testimony that “[s]olar flames...will
happen in the future and can reasonably be expected to cause similar violations.”45
Moran’s testimony does not rebut defendant’s evidence that it installed a second data
transmission system that is unaffected by solar flares. Plaintiffs also cite the August
2004 mine DMR as evidence that data transmission violations continue to occur. The
August 2004 DMR states in pertinent part:
On August 25, telemetry feed providing real time monitoring of
Station 160 failed. Discharge was stopped until the telemetry feed
was reestablished. During this time all required monitoring data
was collected and was within permitted levels.46
Contrary to plaintiffs’ assertion, the August 2004 DMR does not provide evidence that a
data transmission violation due to solar flares occurred after plaintiffs filed their
complaint.
Plaintiffs raise no genuine issue of material fact whose resolution is required
respecting whether the reporting violation which occurred on July 14, 2000, is
continuing or reasonably likely to occur in the future. Defendant’s evidence is
convincing. Defendant’s motion for summary judgment is granted as to the July 14,
2000, reporting violation.
C.
TDS Data Monitoring on May 30, 2001
Paragraph 162 of plaintiffs’ tenth claim alleges that defendant violated the Mine
Consent Order by failing to conduct TDS monitoring operations at Station 10 on May 30,
44
Declaration of Mark Thompson at 10, doc. 44.
45
Declaration of Dr. Robert Moran at 4, doc. 54.
46
August 2004 DMR at 3, exh. 20, Moran Dec, doc. 54.
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2001. Defendant alleges that the violation occurred due to a problem with a
conductivity probe at Station 10. Defendant offers evidence that it corrected the
problem by replacing the probe and altering the manner in which the probe’s wires are
anchored. Defendant does not provide any evidence regarding the probability that its
remedial measures will be effective. Plaintiffs argue that similar violations related to
probe malfunctions are likely to recur. In support, plaintiffs cite the August 2004 DMR,
which indicates that a temperature probe malfunctioned on August 6, 2004. Defendant
responds that a temperature probe and a conductivity probe perform two different
functions, and that no violation occurred as a result of the temperature probe
malfunction because the consent order does not require Teck to monitor or report
temperature.
Because material questions of fact exist as to whether monitoring violations
related to probe malfunctions are likely to recur, the court denies the parties’ crossmotions for summary judgment as to the monitoring violation on May 30, 2001.
D.
TDS Reporting at Station 7 on July 25-31, 2001
Paragraph 163 of plaintiffs’ tenth claim alleges that Teck violated the Mine
Consent Order by failing to timely report required data for Station 7 on July 25-31, 2001.
Defendant alleges that the violations on July 25-31, 2001, were caused when a
conductivity probe was replaced but not recalibrated to work with the transmitter at
Station 7. Defendant provides evidence that Teck “upgraded to digital transmitters” in
2003, after which “possible recalibration problems have been avoided and there is no
reasonable probability of reoccurrence of this problem.”47 Plaintiffs cite Dr. Moran’s
testimony that the installation of new technology, such as digital transmitters, will not
prevent all future violations. As previously discussed, Dr. Moran’s banal assertions that
technology is never fool-proof do not really address the evidence presented as to the
installation of new technology replacing that which failed and the track record of that
new technology.
47
Declaration of Mark Thompson at 11, doc. 44.
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In light of defendant’s showing that it has taken remedial measures to address
the problems which led to the monitoring violations on July 25-31, 2001, and the
showing that the remedial measures have been effective, plaintiffs’ objections are
insufficient to withstand summary judgment. Teck’s motion for summary judgment is
granted as to the alleged TDS reporting violations on July 25-31, 2001.
E.
Reporting TDS Data in May 2002
Paragraph 163 of plaintiffs’ tenth claim alleges that defendant violated the
requirements of the Mine Consent Order by failing to timely report data required at
Station 10 for May 27-31, 2002. Defendant alleges that the TDS data was not timely
reported because Mark Thompson was not at the mine when the May 2002 DMR was
prepared and other personnel at the mine were not experienced with how to process the
TDS data.48 Mr. Thompson testifies that he processed the TDS data upon his return
and included it in the June 2002 DMR, and that the environmental staff at the mine has
now been trained on how to process the TDS data. Thompson further testifies that “the
problems that led to the delay in the reporting of the TDS monitoring information in May
2002 have not reoccurred and there is no reasonable probability of their
reoccurrence.”49
The only evidence plaintiffs offer in support of their allegation that the reporting
violations are ongoing is Dr. Moran’s testimony that even with increased staff training,
“comparable human errors are likely in the future, leading to similar violations” because
it is not possible to eliminate all human error.50 Dr. Moran’s assertion that humans are
always susceptible to error misses the point in the same way that his opinions about the
inevitability that software, computers, and other technology is not always error free.
One need only cite Pope for the proposition that “to err is human.” However, that truism
is does not establish the standard which applies here. Plaintiffs have offered nothing to
counter Teck’s evidence of specific remedial measures which have to date eliminated
48
Declaration of Mark Thompson at 11, doc. 44.
49
Id. at 12.
50
Declaration of Dr. Robert Moran at 6, doc. 54.
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the violations. Defendant is entitled to summary judgment as to the reporting violations
which occurred on May 27-31, 2002, because they are not continuous or reasonably
likely to recur.
F.
Reporting Silver Analyses for Outfall 001 in June 2000; Reporting
Metals Analyses for Stations 10, 12, and 140 in June 2000; Reporting
TSS Analyses at the Mine on July 10, 2000 and August 3, 2000;
Reporting TSS Analyses at the Port on July 7 and 26, 2000, and
August 9, 2000
Paragraph 118 of plaintiffs’ sixth claim alleges that Teck violated condition I(A)(1)
of its mine site permit by failing to report results for silver analysis in June 2000, by
failing to report results for totally suspended solids (“TSS”) on July 10, 2000, and by
failing to report results for TSS on August 3, 2000. Paragraph 151 of plaintiffs’ ninth
claim alleges that Teck violated port site permit condition I(B)(5) by failing to monitor for
TSS on July 7 and 26, 2000, and on August 9, 2000. Paragraph 121 of plaintiffs’ sixth
claim alleges that Teck violated port site permit condition I(D)(1) by failing to analyze
samples for metals at Stations 10, 12, and 140 in June 2000.
Defendant alleges that in all of the above instances, the samples were collected
and sent to an outside lab for analysis. In 2000, Teck implemented a new software
program called “Envista” at the Red Dog Mine and port site. Defendant offers evidence
that the above violations occurred because the “Envista system had not initially been
programmed to include a request for the silver, metals and TSS analyses on the chain
of custody (COC) form.”51 Defendant offers further testimony that the “programming
errors that led to the missed analyses for silver, metals and TSS were discovered and
corrected in 2000 through reprogramming of the Envista,” that all staff using the Envista
system received additional training in 2000 and 2001 “to inform them of this potential
problem,” and that since July 2001 no “analytical instructions conveyed to the outside
labs in the COC have been inadvertently omitted.”52
51
Declaration of Mark Thompson at 13, doc. 44.
52
Id. at 13 -14.
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Plaintiffs proffer Dr. Moran’s expert testimony that “software packages are almost
always subject to some degree of error” and that, based on his experience in the mining
industry, he “would reasonably expect some form of computer or software error to occur
at the mine in the future.”53 As previously noted, Dr. Moran’s testimony misses the point
and is far too generalized to be relevant. He points to nothing specific in the new
technology and to nothing specific in the actual experience with the new technology
which supports the proposition that the violations are continuing or will recur. To say
that all software is almost always subject to error may be literally accurate, but is legally
insufficient to raise a genuine issue of material fact.
Teck has presented evidence that remedial actions were taken to cure the
violations and that the remedial measures have been effective. Plaintiff points to
nothing in the nature of the measures taken or the effect those measures have actually
had which shows the particular violations have any likelihood of recurrence. Defendant’s
motion for summary judgment is granted as to the violations for failing to report results
for silver analysis for June 2000, failing to report TSS results for July 10, 2000, and
August 3, 2000, failing to monitor for TSS on July 7 and 26, 2000, failing to monitor for
TSS on August 9, 2000, and failing to analyze samples for metals at Stations 10, 12,
and 140 in June 2000. The alleged violations are dismissed.
G.
Monitoring Ammonia in June and July 2001
Paragraph 121 of plaintiffs’ sixth claim alleges that Teck violated mine site permit
condition I(D)(1) by failing to analyze ammonia at Station 10 and at Station 73 in June
2001, and by failing to take a second ammonia sample at Station 73 in July 2001.
Defendant alleges that the missed ammonia analyses were again caused by a
programming error in Envista, namely that the COC did not include a specific instruction
to the outside lab to conduct an analysis for ammonia. Defendant also offers Mark
Thompson’s testimony that “reprogramming solved the problem and since July 2001 no
53
Declaration of Dr. Robert Moran at 5-6, doc. 54.
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ammonia or other sample analytical instructions conveyed to the outside labs in the
COC have been inadvertently omitted.”54
Once again, Teck has presented evidence that remedial actions were taken to
cure the violations and that the remedial measures have been effective. Once again,
plaintiff has failed to demonstrate that a genuine issue of fact exists by presenting
evidence that the violations are likely to recur. Defendant’s motion for summary
judgment is granted as to the June 2001 and July 2001 violations for failure to monitor
for ammonia.
H.
Monitoring Turbidity in September 1999 and June 10 and 13, 2000
Paragraph 118 of plaintiffs’ sixth claim alleges that defendant violated condition
I(A)(1) of its mine site NPDES permit by failing to monitor discharge at Outfall 001 at the
frequencies required by the permit, including failing to take weekly samples for turbidity
in September 1999, and by failing to take grab samples for turbidity on June 10 and 13,
2000. Defendant alleges that the above violations occurred because technicians forgot
to take turbidity measurements. Mark Thompson testifies that Teck has taken three
specific measures to remedy the above problem: 1) installation of the Envista program
which reminds technicians to take turbidity measurements and input the data into the
database, 2) the requirement that a supervisor review the Envista schedule on a weekly
basis for completion of turbidity measurements, and 3) the implementation of
disciplinary policies for failure to monitor for turbidity.55 Thompson further testifies that
“[t]here have not been any missed turbidity samples since June 13, 2000.”56
In support of their argument that future violations are likely to occur, plaintiffs
offer Dr. Moran’s testimony that software and human error are likely to occur in the
future, and that Teck’s “increased disciplinary measures seems to indicate that [Teck’s]
management has an expectation of future human error and a plan to address the
54
Declaration of Mark Thompson at 14, doc. 44.
55
Declaration of Mark Thompson at 15, doc. 44.
56
Id.
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problem when error occurs.”57 As previously discussed, Dr. Moran’s banal opinions are
simply insufficient to raise a genuine issue of material fact.
Defendant demonstrated that it took remedial actions to cure the violations and
the remedial measures have been effective. Plaintiffs have failed to raise material
questions of fact respecting whether the violations are likely to recur. Teck’s motion for
summary judgment is granted as to the violations for failure to monitor turbidity in
September 1999 and on June 10 and 13, 2000.
Section Three
Plaintiffs move for summary judgment dismissing on ten monitoring and reporting
violations that Teck admitted in its answer in the KRPC litigation, but denies in the
current litigation. Plaintiffs allege that in the KRPC litigation, Teck admitted that it
violated the port site permit on the following dates:
1.
2.
3.
4.
5.
6.
7.
8.
April 1999: weekly analysis for BOD was not conducted for two weeks
(two violations)
April 1999: only two samples analyzed for fecal coliform (two violations)
August 1999: sample not analyzed for salinity (one violation)
May 8, 2000: weekly coliform samples not analyzed (one violation)
May 8, 2000: weekly BOD samples not analyzed (one violation)
May 29, 2000: weekly coliform samples not analyzed (one violation)
May 29, 2000: weekly BOD samples not analyzed (one violation)
February 4, 2001: weekly BOD samples not analyzed (one violation)58
Plaintiffs argue that because defendants admitted the above violations in the
KRPC litigation, defendants are precluded from denying identical violations in the
current suit. Plaintiffs urge that Teck’s admissions in the prior suit constitute admissions
by a party opponent under Federal Rule of Evidence 801(d)(2). A statement in an
answer is a judicial admission, “as is a failure in an answer to deny an allegation.”59
57
Declaration of Dr. Robert Moran at 6, doc. 54.
58
Opposition and Cross-Motion at 21, doc. 54.
59
American Title Insurance Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988).
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When an answer in an action is sworn to by the party, “it is competent evidence against
him in another suit as a solemn admission by him of the truth of the facts stated.”60
Defendant does not dispute that it admitted the ten violations at issue in the
KRPC litigation. Accordingly, the court accepts as true plaintiffs’ allegation that Teck
admitted the above violations in the KRPC litigation. However, defendant argues that
plaintiffs are not entitled to summary judgment on the violations because plaintiffs have
not demonstrated that the violations are ongoing. In support, defendant cites Mark
Thompson’s testimony that the ten violations at issue were not ongoing when plaintiffs
filed their complaint, and that it is unlikely that the alleged violations will recur in the
future. Defendant has established the existence of a genuine issue of material fact
concerning whether the ten violations alleged above are ongoing. It follows that
plaintiffs’ motion for summary judgment as to these ten violations must be denied.
Plaintiffs also move for summary judgment on three monitoring and reporting
violations Teck admitted in its answer in the case at bar. Plaintiffs allege that defendant
admitted two separate violations in September 2001 “when samples for BOD and
organic priority pollutants were taken from water that was not discharged through Outfall
001 in violations of mine permit condition I(A)(1)” and one violation on June 22, 2000,
when defendant “failed to monitor total suspended solids, a violation of port permit
condition I(B)(5).”61
In its answer, defendant “admits the BOD and OPPS samples for September
2001 were taken from treated water that was not discharged from Outfall 001 but denies
this constituted a violation of permit requirements” because at the time, treated water
was being diverted to the tailings impoundment, rather than being discharged.62
Because the above language does not constitute an admission of the two violations,
plaintiffs’ motion for summary judgment is denied as to the alleged violations in
September 2001 regarding samples for BOD and organic priority pollutants.
60
Pope v. Allis, 115 U.S. 363, 370 (1885).
61
Opposition and Cross-Motion at 20, doc. 54.
62
Teck’s Answer at 26, ¶18, doc. 6.
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In paragraph 151 of defendant’s answer, defendant “admits that the TSS sample
shipped for analysis on June 22, 2000 was not properly preserved, and as a result the
analysis could not be conducted.”63 However, in its opposition to plaintiffs’ motion for
summary judgment, defendant argues that the violation is not ongoing. In support,
defendant cites Mark Thompson’s testimony that he is aware of only two times when
samples were improperly preserved and, thus, were unable to be properly analyzed
during his employment at the Red Dog mine from 1999 to the present. Teck has raised
material questions of fact as to whether the alleged violation is wholly past, so plaintiffs’
motion for summary judgment is denied as to the violation for failing to monitor TSS on
June 22, 2000.
V. CONCLUSION
For the reasons set out above, plaintiffs’ cross-motion for summary judgment at
docket 54 is DENIED, and defendant’s motion for partial summary judgment at
docket 44 is GRANTED IN PART and DENIED IN PART as follows:
Defendant’s motion for partial summary judgment at docket 44 is GRANTED as
to the following violations and the claims based thereon are DISMISSED:
!June 2000 violation concerning OPPS (¶118 of complaint)
!November 2002 violations for failing to report aluminum, cadmium, chromium,
copper, iron, lead, manganese, nickel, and zinc monitoring results for the Sulfur
Creek ambient monitoring station (¶124 of complaint)
!May 2002 violations for failing to monitor total hardness and copper at Outfall
001 (¶148 of complaint)
!July 2002, August 2002, and September 2002 violations for failing to conduct
WET tests on Mysidopsis bahia and Holmesmysis costata (¶148 of complaint)
!May 2000 violation for failing to monitor discharge from Outfall 005 for hardness
(¶ 151 of complaint)
!July 14, 2000, violations of the Mine Consent Order for failing to monitor and
report for TDS (¶162 of complaint)
63
Teck’s Answer at 31, doc. 6.
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!May 2000 violation for failure to monitor flow and pH (¶151 of complaint)
!June 3-9, 2001, violations for failure to monitor pH (¶151 of complaint)
!May 30, 2001, violation of the Mine Consent Order for failing to monitor TDS at
Station 10 (¶162 of complaint)
!July 25-31, 2001, violations of the Mine Consent Order for failing to timely
report TDS data for Station 7 (¶163 of complaint)
!May 27-31, 2002, violations of the Mine Consent Order for failing to timely
report TDS data at Station 10 (¶163 of complaint)
!June 2000 violation for failing to report silver analysis (¶118 of complaint)
!July 10, 2000, and August 3, 2000, violations for failing to report TSS analyses
(¶118 of complaint)
!July 7 and 26, 2000, and August 9, 2000, violations for failing to monitor TSS
(¶151 of complaint)
!June 2000 violations for failing to report metals analyses (¶121 of complaint)
!June and July 2001 violations for failing to monitor ammonia (¶121 of
complaint)
!September 1999 and June 10 and 13, 2000, violations for failing to monitor
turbidity (¶118 of complaint)
Defendant’s motion for partial summary judgment is DENIED as to the remaining
monitoring and reporting claims.
DATED at Anchorage, Alaska, this 3rd day of February 2006.
/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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