State of New Mexico v. United States Environmental Protection Agency

Filing 625

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson, Overruling Objections to Special Master's Order. Related document(s): (589 in 1:16-cv-00465-WJ-LF, 844 in 1:18-md-02824-WJ, 386 in 1:16-cv-00931-WJ-LF) Objections,. Associated Cases: 1:18-md-02824-WJ, 1:16-cv-00465-WJ-LF, 1:16-cv-00931-WJ-LF (meq)

Case 1:16-cv-00465-WJ-LF Document 625 Filed 11/30/20 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
____________________________________
IN RE: GOLD KING MINE RELEASE
IN SAN JUAN COUNTY, COLORADO,
ON AUGUST 5, 2015

No. 1:18-md-02824-WJ

This Document Relates to: No. 1:16-cv-00931-WJ-LF
No. 1:16-cv-00465-WJ-LF
MEMORANDUM OPINION AND ORDER
OVERRULING OBJECTIONS TO SPECIAL MASTER’S ORDER
THIS MATTER comes before the Court on the Federal Parties’ Objections to the Special
Master’s Order on the Sufficiency of the Sovereign Plaintiffs’ Answers, Doc. 844, filed September
24, 2020.
On September 3, 2020, the Special Master, the Honorable Alan C. Torgerson, denied in
part the Federal Parties’ Motion to Determine the Sufficiency of the Sovereign Plaintiffs’ Answers
to Requests for Admission. See Doc. 797. The Federal Parties object to the Special Master’s
rulings on Requests for Admissions (“RFA”) Nos. 5-10, 12-15, 18-20, 25-26 and 30. The Special
Master stated that “No further response is required” for RFAs 5-10, 12-15, 18-20, 25-26 and 30.
Rule 36 permits parties to serve requests for admissions “relating to … facts, the
application of law to fact, or opinions about either.” Fed. R. Civ. P. 36(a)(1)(A). Rule 36 “does
not authorize requests for admissions of law unrelated to the facts of the case.” Fed. R. Civ. P.
36(a) advisory committee’s note to 1970 amendment; see also Disability Rights Council v. Wash.
Metro. Area, 234 F.R.D. 1, 3 (D.D.C. 2006) (it is “inappropriate for a party to demand that the
opposing party ratify legal conclusions that the requesting party has simply attached to operative
facts”).
RFAs 5, 8, 12 and 18

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RFA 5 states:1
Admit that 29 C.F.R. § 1926.651(h) is an Occupational Health and Safety Act
regulation applicable to employers at the Gold King Mine in 2014 and 2015 for
protection of their employees from hazards associated with water accumulation.
RFA 8 states:
Admit that 29 C.F.R. § 1910.120(b)(1)(iii) is an Occupational Health and Safety
Act regulation applicable to employers at the Gold King Mine in 2014 and 2015 for
protection of their employees.
RFA 12 states:
Admit that 29 C.F.R. § 1926.651(k) is an Occupational Health and Safety Act
regulation applicable to employers at the Gold King Mine in 2014 and 2015 for
protection of their employees.
RFA 18 states:
Admit that 29 C.F.R. § 1910.120(e)(7) is an Occupational Health and Safety Act
regulation applicable to employers at the Gold King Mine in 2014 and 2015 for
protection of their employees.
The Navajo Nation and State of New Mexico (“New Mexico”) admitted that regulations
cited in RFAs 5, 8, 12 and 18 applied to the U.S. Environmental Protection Agency (“EPA”) and
its contractors at the Gold King Mine in 2014 and 2015, but objected to admitting the italicized
portions of the RFAs on the ground that they call for a legal conclusion without the application of
law to fact. 2

The text of the RFAs and the responses are taken from the responses by the Navajo Nation, Doc.
737-1, and the State of New Mexico, Doc. 737-2, which were attached to the Federal Parties’
Motion to Determine the Sufficiency of Sovereign Plaintiffs’ Answers to Requests for Admission,
Doc. 737, filed July 15, 2020.
2
The Navajo Nation and State of New Mexico also object to some of the RFAs on the grounds
that some of the terms, such as “adequately protected,” are vague and ambiguous, or that it calls
for information that is protected by an applicable privilege or other protection. Because it finds
the Navajo Nation and New Mexico’s responses are sufficient, the Court does not address whether
terms are vague or ambiguous, or whether the information sought is privileged or otherwise
protected.
1

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The Federal Parties objected to the Special Master’s rulings on RFAs 5, 8, 12 and 18 stating
those RFAs asked the Navajo Nation and New Mexico “to admit that the plain language of the
regulations shows that EPA’s duties were limited to the protection of employees.” Response at 78 (stating that: (i) the regulation cited in RFA 5 contains the language “to protect employees against
the hazards posed by water accumulation;” (ii) the regulation in RFA 8 contains the language
“Employers shall develop and implement a written safety and health program for their employees
involved in hazardous waste operations;” and (iii) RFAs 12 and 18 “concerned the scope of” the
cited regulations”).
The Court overrules the Federal Parties’ Objections to the Special Master’s rulings on the
Navajo Nation and New Mexico’s responses to RFAs 5, 8, 12 and 18. The Navajo Nation and
New Mexico admitted the cited regulations applied to EPA and its contractors at the Gold King
Mine in 20104 and 2015. Asking the Navajo Nation and New Mexico to admit language contained
in the regulations, and the purpose and scope of the regulations, seeks admissions of law unrelated
to the facts of the case.
RFAs 6, 7, 9, 10, 13, 14, 19, 20, 26 and 30
RFA 6 states:
Admit that 29 C.F.R. § 1926.651(h)(1) allowed for discretion in how employees at
the Gold King Mine in 2014 and 2015 may be adequately protected against hazards
posed by water accumulation.
RFA 7 states:
Admit that 29 C.F.R. § 1926.651(h)(1) did not prescribe specific precautions for
adequately protecting employees against hazards posed by water accumulation at
the Gold King Mine in 2014and 2015.
RFA 9 states:
Admit that 29 C.F.R. § 1910.120(b)(1)(iii), if it applied, allowed the U.S.
Environmental Protection Agency to exercise discretion in how a site excavation
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Case 1:16-cv-00465-WJ-LF Document 625 Filed 11/30/20 Page 4 of 6

can be appropriately shored or sloped to prevent accidental collapse at the Gold
King Mine in 2014 and 2015.
RFA 10 states:
Admit that 29 C.F.R. § 1910.120(b)(1)(iii) did not prescribe specific procedures for
shoring or sloping a site excavation to prevent accidental collapse at the Gold King
Mine in 2014 and 2015.
RFA 13 states:
Admit that 29 C.F.R. § 1926.651(k)(1) only required inspections at the Gold King
Mine in 2014 and 2015 for evidence of a situation that could result in possible caveins, indications of failure of protective systems, hazardous atmospheres, or other
hazardous conditions when employee exposure can be reasonably anticipated.
RFA 14 states:
Admit that 29 C.F.R. § 1926.651(k)(1) provided discretion in requiring inspections
only when employee exposure can be reasonably anticipated at the Gold King Mine
in 2014 and 2015.
RFA 19 states:
Admit that 29 C.F.R. § 1910.120(e)(7) allowed the U.S. Environmental Protection
Agency to exercise discretion in the content of training how to respond to expected
emergencies at hazardous waste cleanup sites, such as the Gold King Mine.
RFA 20 states:
Admit that 29 C.F.R. § 1910.120(e)(7) did not prescribe specific training that the
U.S. Environmental Protection Agency had to provide regarding response to
expected emergencies at hazardous waste cleanup sites, such as the Gold King
Mine.
RFA 26 states:
Admit that under 40 C.F.R. § 300.150(c), the U.S. Environmental Protection
Agency may delegate the responsibility for the preparation of a Health and Safety
Plan (“HASP”) under the Occupational Safety and Health Act (“OSHA”) to a
contractor.
RFA 30 states:
Admit that in 2014 and 2015, U.S. Environmental Protection Agency On-Scene
Coordinators (“OSCs”) performing a removal site evaluation under the
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Comprehensive Environmental Response, Compensation, and Liability Act
(“CERCLA”) had discretion in determining how to perform the response under 40
C.F.R. § 300.400 et seq., including in modifying plans and in determining when to
stop work.
The Navajo Nation and State of New Mexico objected to admitting RFAs 6, 7, 9, 10, 13,
14, 19, 20, 26 and 30 on the ground that they call for a legal conclusion without the application of
law to fact.
The Court overrules the Federal Parties’ Objections to the Special Master’s rulings on the
Navajo Nation and New Mexico’s responses to RFAs 6, 7, 9, 10, 13, 14, 19, 20, 26 and 30 because
those RFAs ask the Navajo Nation and New Mexico to admit legal conclusions regarding the
subject regulations. While the RFAs reference “Gold King Mine” and “U.S. Environmental
Protection Agency,” they only ask the Navajo Nation and New Mexico to admit what the cited
regulations require/do not require or permit. See Disability Rights Council v. Wash. Metro. Area,
234 F.R.D. 1, 3 (D.D.C. 2006) (it is “inappropriate for a party to demand that the opposing party
ratify legal conclusions that the requesting party has simply attached to operative facts”).
RFAs 15 and 25
RFA 15 states:
Admit that 29 C.F.R. § 1910.120(e)(7) applies only to employees engaged in
responding to hazardous emergency situations at hazardous waste clean-up sites
that may expose the employees to hazardous substances.
RFA 25 states:
Admit that under 40 C.F.R. § 300.150(e), governmental agencies and private
employers are directly responsible for the health and safety of their own employees.
The Navajo Nation and New Mexico objected to admitting RFAs 15 and 25 on the ground
that they seek a legal conclusion without application of law to facts.

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The Court overrules the Federal Parties’ Objections to the Special Master’s rulings on the
Navajo Nation and New Mexico’s responses to RFAs 15 and 25 because both RFAs ask the Navajo
Nation and New Mexico to admit legal conclusions regarding the subject regulations without any
reference at all to the facts of this case. See Fed. R. Civ. P. 36(a) advisory committee’s note to
1970 amendment (Rule 36 “does not authorize requests for admissions of law unrelated to the facts
of the case”).
IT IS ORDERED that the Federal Parties’ Objections to the Special Master’s Order on
the Sufficiency of the Sovereign Plaintiffs’ Answers, Doc. 844, filed September 24, 2020, are
OVERRULED.

________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

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