Case 6:12-cv-00053-DLC Document 354 Filed 05/26/21 Page 1 of 60
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`HELENA DIVISION
`
`
`ASARCO LLC, a Delaware
`Corporation,
`
`Plaintiff,
`
`v.
`ATLANTIC RICHFIELD
`COMPANY, a Delaware Corporation,
`
`Defendant.
`
`
`
`CV 12–53–H–DLC
`
`FINDINGS OF FACT,
`CONCLUSIONS OF LAW, and
`JUDGMENT
`
`
`
`
`INTRODUCTION
`
`As summarized in the November 19, 2020 Order (Doc. 324) and otherwise
`
`discussed extensively throughout the nine-year life of this case, Plaintiff ASARCO
`
`LLC (“ASARCO”) and Defendant Atlantic Richfield Company’s (“Atlantic
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`Richfield”)1 smelting and fuming activities in East Helena, Montana (the “Site”)
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`caused arsenic contamination to the groundwater. 2 (Doc. 269 at 28, 53.) In 2009,
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`ASARCO entered into complimentary settlement agreements and consent decrees
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`with the United States and State of Montana to resolve its outstanding
`
`
`1 Atlantic Richfield is the successor in interest to Anaconda Mining Company (“Anaconda”),
`which leased a portion of the East Helena Site from ASARCO and operated a zinc fuming plant
`there from 1927 to 1972. See, e.g., ASARCO LLC v. Atlantic Richfield Company, LLC, 975 F.3d
`859, 862–63 (9th Cir. 2020) (“ASARCO II”).
`2 The Site is designated as a National Priorities List or “Superfund” site. 42 U.S.C. § 9605.
`
`-1-
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`HELENA DIVISION
`
`
`ASARCO LLC, a Delaware
`Corporation,
`
`Plaintiff,
`
`v.
`ATLANTIC RICHFIELD
`COMPANY, a Delaware Corporation,
`
`Defendant.
`
`
`
`CV 12–53–H–DLC
`
`FINDINGS OF FACT,
`CONCLUSIONS OF LAW, and
`JUDGMENT
`
`
`
`
`INTRODUCTION
`
`As summarized in the November 19, 2020 Order (Doc. 324) and otherwise
`
`discussed extensively throughout the nine-year life of this case, Plaintiff ASARCO
`
`LLC (“ASARCO”) and Defendant Atlantic Richfield Company’s (“Atlantic
`
`Richfield”)1 smelting and fuming activities in East Helena, Montana (the “Site”)
`
`caused arsenic contamination to the groundwater. 2 (Doc. 269 at 28, 53.) In 2009,
`
`ASARCO entered into complimentary settlement agreements and consent decrees
`
`with the United States and State of Montana to resolve its outstanding
`
`
`1 Atlantic Richfield is the successor in interest to Anaconda Mining Company (“Anaconda”),
`which leased a portion of the East Helena Site from ASARCO and operated a zinc fuming plant
`there from 1927 to 1972. See, e.g., ASARCO LLC v. Atlantic Richfield Company, LLC, 975 F.3d
`859, 862–63 (9th Cir. 2020) (“ASARCO II”).
`2 The Site is designated as a National Priorities List or “Superfund” site. 42 U.S.C. § 9605.
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`Case 6:12-cv-00053-DLC Document 354 Filed 05/26/21 Page 2 of 60
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`environmental liabilities at various Montana sites, including the Site at East
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`Helena. ASARCO II, 975 F.3d at 863.
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`Relevant here, the consent decree between ASARCO and the United States
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`(the “Decree”) established a custodial trust to fund the cleanup of several
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`contaminated sites, with the Montana Environmental Trust Group (“METG”) as
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`the custodial trustee and the Environmental Protection Agency (“EPA”) as the lead
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`agent for the East Helena Site. Id. Pursuant to the Decree, ASARCO paid $111.4
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`million3 into the trust for Site cleanup, “accounting for comprehensive damage
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`done to the Site by all responsible parties.” Id. (See also Doc. 269 at 78); and see
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`ASARCO LLC v. Atlantic Richfield Co., 866 F.3d 1108, 1115 (9th Cir. 2017)
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`(“ASARCO I”).
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`In 2012, ASARCO brought a contribution action under CERCLA4 §§ 107
`
`and 113(f)(3)(B) against Atlantic Richfield. (See generally Doc. 28.) Specifically,
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`ASARCO sought to hold Atlantic Richfield liable for its equitable share of the
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`costs that had been incurred for response action at the Site. (Doc. 28 at 2.) After
`
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`3 Of this amount, $99.294 million was paid for a groundwater remedy to clean up the off-Site
`groundwater; $8.9 million covered costs to “establish the Custodial Trust and to fund the
`Custodial Administrative Account for the purposes of administration of the Custodial Trust, of
`which the proportionate share for the East Helena Site would be $6,403,743”; $706,000 funded
`the United States Department of the Interior natural resource restoration and future oversight
`costs for the Site; and $5 million was allocated to the State of Montana for the Site in
`compensatory natural resource damages. (Doc. 269 at 16–17.)
`4 Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C.
`§§ 9601–9675.
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`an eight-day bench trial in 2018, the Court first determined that ASARCO
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`“incurred $111,403,743 in response costs” within the meaning of CERCLA
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`§ 107—the full amount paid by ASARCO in connection with the Decree. (Doc.
`
`269 at 82.) Second, the Court found Atlantic Richfield responsible for twenty-five
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`percent of those incurred response costs, i.e., $27,850,936. (Id. at 88.)
`
`On appeal, the Ninth Circuit concluded that the expert testimony ASARCO
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`proffered—and which the Court found most persuasive—was “steeped in
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`speculation” and thus insufficient to support finding the full $111.4 million
`
`settlement amount eligible for contribution. ASARCO II, 975 F.3d at 867–68. That
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`is, ASARCO’s evidence failed to show that the full settlement amount represents
`
`necessary response costs “incurred” at the Site. See id. at 866 (emphasis added).
`
`The appellate court found no error, however, in this Court’s “devising an equitable
`
`allocation of liability for Site cleanup” by pegging Atlantic Richfield’s
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`responsibility at twenty-five percent of the response costs actually incurred at the
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`Site. Id. at 868.
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`Accordingly, this case returned from the Ninth Circuit with the mandate that
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`the Court “further consider[] [] what necessary response costs were actually
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`incurred within the meaning of CERCLA.” Id. Atlantic Richfield immediately
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`moved the Court to enter a final judgment allocating $48.5 million as the amount
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`incurred, based on ASARCO’s “pleadings, the evidence it presented at trial, and
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`the Court of Appeals’ ruling[.]” (Doc. 314 at 2.) Applying the rule of mandate,
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`the Court denied the motion. (Docs. 314 at 2; 324 at 10–13.) At the same time,
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`the Court granted ASARCO’s motion for leave to supplement and amend the First
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`Amended Complaint. (Docs. 316 at 7; 324 at 13–23.) Consequently, ASARCO’s
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`prayer for relief would now include (1) contribution on all costs “incurred” since
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`the 2018 bench trial; and (2) declaratory relief pursuant to 42 U.S.C. § 9613(g)(2)
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`to recover contribution for future costs when they are actually “incurred.’” (Docs.
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`324 at 23; 325 at 10–11.) 5
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`The Court set the matter for an evidentiary hearing on February 4 and 5,
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`2021 to consider what costs have actually been “incurred” at the Site and are
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`eligible for contribution. (Doc. 324 at 24–25.) Gregory Evans, Kris McLean, and
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`Rachel H. Parkin represented ASARCO. Randy Cox, Benjamin Strawn, and
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`Kenzo Kawanabe represented Atlantic Richfield. The Court admitted about 43
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`exhibits and heard testimony from three witnesses: Margaret Staub for ASARCO,
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`and Donald G. Booth and Jennifer E. Roberts for Atlantic Richfield.
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`Based on the evidence and testimony presented at the post-remand hearing,
`
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`5 At the post-remand evidentiary hearing, Atlantic Richfield renewed its objection to ASARCO’s
`motion to amend and supplement its Amended Complaint, which the Court overruled for the
`same reasons given in its November 19, 2020 Order. (See Doc. 324 at 23; Hr’g Tr. vol. 1, 10:8–
`22 (Feb. 4, 2021).)
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`and further considering the applicable law and the arguments made at the hearing
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`and in the parties’ written submissions, the Court makes the following findings of
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`fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.
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`FINDINGS OF FACT
`
`
`Relevant Background6
`
`
`I.
`
`1. While METG serves as trustee of and acts as a fiduciary for the
`
`custodial trust established pursuant to the Decree, the EPA is the lead agent for
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`cleanup activities at the Site. As lead agent, the EPA is charged with selecting,
`
`approving, and authorizing all work performed and funds expended by METG
`
`from the custodial trust cleanup account for the Site.7
`
`
`
`2.
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`Since 2009, METG has used money ASARCO paid into the trust to
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`fund a series of environmental actions intended to address and remediate
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`contaminated groundwater at the Site. METG’s Site activity is the focus of any
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`potential allocation responsibility because it is the work being funded by
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`ASARCO. ASARCO seeks no contribution for any work it performed at the Site.8
`
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`6 The Court incorporates by reference, as though fully set forth herein, the facts it previously
`found following the 2018 bench trial that formed neither the basis of Atlantic Richfield’s appeal
`nor the Ninth Circuit’s opinion and mandate. (See Docs. 269 at 2–25; 353 at 10 (Atlantic
`Richfield’s suggestion that “[w]here necessary to establish the foundation for additional findings
`reached after the Post-Remand hearing, the Court [may] include[] here many of its previous
`findings based on the evidence at the May/June 2018 trial”).)
`7 Ex. 570 at 8.
`8 Doc. 269 at 21–22.
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`II.
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`Stipulated Expenditures
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`3.
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`Prior to the evidentiary hearing, ASARCO and Atlantic Richfield
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`stipulated that pursuant to EPA selection, approval, and authorization, METG has
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`expended the following amounts from the trust account to remediate the Site:
`
`• 2010: $2,899,126;
`• 2011: $3,391,552;
`• 2012: $5,931,873;
`• 2013: $12,417,138;
`• 2014: $7,900,643;
`• 2015: $11,509,178;
`• 2016: $12,678,441;
`• 2017: $1,464,955;
`• 2018: $843,715;
`• 2019: $1,378,766;
`• 2020 (through third quarter): $934,971.9
`
`4.
`
`The Decree allowed that ASARCO could obtain a credit for work it
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`
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`performed between February 2009 and the date of the trust account’s funding.
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`Indeed, ASARCO received such a credit in the amount of $2,959,775.10 While
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`ASARCO initially urged that this amount, too, constituted a cost eligible for
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`contribution, it abandoned this argument at the post-remand evidentiary hearing.11
`
`
`9 Doc. 327. The Court recognizes that the sum of these expenditures totals $61,350,358—one
`dollar less than the total amount to which the parties stipulated at the hearing and in their
`respective proposed findings of fact. (See Docs. 353 at 35; 353 at 21.) However, because the
`parties agree, the Court does not disturb the total stipulated amount based on an apparent clerical
`error.
`10 Ex. 403.
`11 Hr’g Tr. vol 2, 348:25–349:11 (Feb. 5, 2021).
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`5.
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`ASARCO also paid $8,888,114 (after an $11,885.27 credit against the
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`funds the Decree obligated it to pay) to “establish a Custodial Trust and to fund the
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`Custodial Administrative Account for the purposes of administration of the
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`Custodial Trust.” This administrative expenditure covered various Montana
`
`sites.12 While it initially argued for contribution against this outlay, ASARCO also
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`abandoned this argument at the post-remand evidentiary hearing.13
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`6.
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`ASARCO also paid $5,706,000 for natural resource damages.14
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`ASARCO presented no evidence or argument related to recovering contribution for
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`these damages.
`
`7.
`
`Thus, the parties agree that METG has thus far spent $61,350,359
`
`through the custodial trust account for remediation work performed at the Site.15
`
`III. Selection of the Final Remedy
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`8.
`
`In addition to remediation costs undisputedly expended by METG
`
`before and since the 2018 trial, supra, the parties also agree that the administrative
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`process has progressed. Specifically, at the time of trial, METG—at the direction
`
`of the EPA— had recently issued its Former ASARCO East Helena Facility
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`Corrective Measures Study Report (“2018 CMS Report”). However, the 2018
`
`
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`12 Ex. 403 at 1.
`13 Hr’g Tr. vol. 2, 348:14–24.
`14 Doc. 269 at 17.
`15 Hr’g Tr. vol. 2, 349:19–23, 366:10–13.
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`CMS Report only existed then in draft form and the EPA had not yet approved it or
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`selected any remedies from it.16
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`9.
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`In general, the purpose of a corrective measures study report is to
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`investigate and evaluate alternative remedies to protect human health and the
`
`environment from hazardous releases at a Superfund site and to restore
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`contaminated media to EPA-approved standards.17
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`10. Such is the case here. In the 2018 CMS Report, METG described “the
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`process by which remedial action alternatives were developed and evaluated in
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`order to identify a recommended alternative for addressing soil, groundwater,
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`surface water, and sediment” contamination at the Site.18
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`11. Evaluating alternative methods in the 2018 CMS Report, METG
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`specifically analyzed: (1) long-term effectiveness and permanence; (2) toxicity,
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`mobility and volume reduction; (3) short-term effectiveness; (4) implementability;
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`(5) cost; (6) community acceptance; and (7) State acceptance.19
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`12.
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`In July 2020—more than two years after trial—the EPA conditionally
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`approved the 2018 CMS Report. 20 In its Statement of Basis for Groundwater,
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`
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`16 Hr’g Tr. vol. 1, 36:11–15.
`17 Ex. 976 at 13; Hr’g Tr. vol 1, 36:11–15, 37:14.
`18 Ex. 976 at 13.
`19 Id. at 11.
`20 METG satisfied the conditions required for final approval in an October 8, 2020 addendum
`letter. Ex. 1001 at 1.
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`Surface Water and Soil Corrective Measures (Remedy) Decision at Former
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`ASARCO East Helena Facility (“Statement of Basis”), the EPA selected from the
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`remedies described and evaluated in the 2018 CMS Report and identified those
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`remedies that will serve as the final remedies (collectively, “Final Remedy”) for
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`the Site.21
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`13. The Statement of Basis outlines the EPA’s reasoning for this selection,
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`explaining that the Final Remedy consists of “multiple elements that work together
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`to protect human health and the environment.”22
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`14. The Statement of Basis further establishes that, based upon “the
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`review of the [2018 CMS Report], knowledge of the remedial activities that have
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`been implemented, and understanding of the contamination present at the [Site],
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`[the EPA] has concluded that the remedies recommended by [METG] will meet
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`the cleanup objectives for the Site.”23
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`15. As part of the Final Remedy, the EPA selected a combination of
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`interim measures (“IMs”) which have already been implemented, including an
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`Evapotranspiration Cover, South Plant Hydraulic Controls, Source Removal and
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`Corrective Management Units, Speiss-Dross Slurry Wall, and Institutional
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`21 Ex. 570 at 7, 9.
`22 Id. at 9.
`23 Id. at 9.
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`Controls, and also selected an additional remedy for the slag pile. The Statement
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`of Basis further provides for ongoing Performance Monitoring and Operations &
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`Maintenance.24
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`16. The Statement of Basis is in its final form. The EPA presented to the
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`public the Final Remedy it selected via the Statement of Basis during a meeting on
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`December 8, 2020.25
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`17.
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`In October 2020, METG released the Former ASARCO East Helena
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`Facility Corrective Measures Implementation Work Plan (“Work Plan”) in
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`response to the EPA’s Statement of Basis. The Work Plan was “developed to
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`implement the decisions set forth and supported in the [Statement of Basis]” and is
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`intended to “detail all work and related requirements and schedules for the timely
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`implementation and completion of such corrective action measures.”26
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`18. The Work Plan “outlines [METG’s] plan to design, construct, operate
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`monitor, and maintain the final corrective measures” for the Site.27
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`19. Together, METG’s 2018 CMS Report, the EPA’s Statement of Basis,
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`and METG’s Work Plan outline the Final Remedy to be implemented for the Site,
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`identifies costs associated with the implementation of the Final Remedy, and
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`
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`24 Id. at 9–10.
`25 Hr’g Tr., vol. 1, 48:21–49–1; Ex. 570 at 1; Ex. 576 at 1.
`26 Hr’g Tr., vol. 1, 39:2–6; Ex. 571 at 8.
`27 Ex. 571 at 8.
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`establishes that the Final Remedy will be protective of human health and the
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`environment.28
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`20. At the post-remand hearing, Ms. Staub explained that the Final
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`Remedy is comprised of “four key elements that are still going to be ongoing.” 29
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`The Court makes its findings on each element, in turn, below.
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`A.
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`Slag Pile
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`21. The slag pile covers approximately 45 acres, is 120 feet tall at its
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`highest point, and contains approximately 3,560,000 cubic yards of slag.30 It
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`continues to be a major source of remaining arsenic contamination to
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`groundwater.31
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`22. METG noted in the 2018 CMS Report that the pile “consists of two
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`types of slag, fumed and unfumed slag, that are generally segregated in the pile due
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`to the distinct production and disposal time periods. . . . [T]he unfumed slag
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`contains higher metals concentrations than the fumed slag.” As such, METG
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`concluded, the unfumed slag “has the higher potential to leach [metals] to
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`groundwater,” and is therefore “considered the likely source of contaminants
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`28 Hr’g Tr. vol. 1, 38:7–11, 87:19–23; Ex. 570 at 9–10, 85.
`29 Hr’g. Tr. vol. 1, 48:2–17.
`30 Ex. 976 at 51.
`31 Ex. 573 at 1.
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`entering the groundwater beneath the slag pile.”32
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`23. Although Mr. Booth opined that a remedy for the slag pile is driven
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`primarily by selenium loading, with the upper lift of unfumed slag on the pile
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`representing about 75% of remaining selenium in the groundwater,33 Ms. Staub
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`countered that the slag pile is an ongoing source of both selenium and arsenic to
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`the groundwater.34
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`24.
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`Indeed, the EPA identified arsenic as a driver of the slag pile remedy,
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`stating in a Fact Sheet released to the public in October 2020 that: “After the
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`[F]inal [R]emedy is completed—re-grading and capping the ASARCO slag pile to
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`minimize the last major source of arsenic contamination to the groundwater—
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`METG will continue to monitor groundwater conditions to make sure that cleanup
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`goals are being achieved.”35
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`25. The EPA also noted in this Fact Sheet that “METG recently submitted
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`[the Work Plan] to EPA outlining its proposal to regrade and cap the ASARCO
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`slag pile to prevent arsenic (and selenium) from leaching into the groundwater in
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`East Helena.”36
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`32 Ex. 976 at 51.
`33 Ex. 576 at 28; H’rg Tr. vol. 2 at 297:20–599:3.
`34 Hr’g Tr. vol. 1 at 199:16–19.
`35 Ex. 573 at 1.
`36 Ex. 573 at 2; Ex. 571 at 1.
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`26. METG generated and the EPA considered three different slag pile
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`cover alternatives in the 2018 CMS Report—minimum, medium, and maximum.
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`For each alternative, METG calculated associated costs, including site demolition,
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`waste disposal, slag grading, cover soils, Evapotranspiration cover, hydroseeding,
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`and site preparation costs like mobilization, permitting, stormwater controls, and
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`closing out the project.37 Using its prior experience and knowledge of past
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`remediation expenditures at the Site, METG calculated the minimum alternative
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`for the slag pile cover at $4,536,000, the intermediate alternative at $8,063,000,
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`and the maximum alternative at $9,863,000.38
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`27. Ultimately, however, EPA did not select any of the three alternatives
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`identified in the 2018 CMS Report, and instead—along with METG—successfully
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`negotiated a deal with a third-party metals broker to remove about 2 million tons of
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`unfumed slag from the surface layer of the pile.
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`28. Then, once the broker hauls that material offsite, the Final Remedy
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`calls for regrading the remaining slag pile—comprised of fumed slag and older
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`unfumed slag—and capping it with a soil and vegetative cover.39 Because the slag
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`remaining onsite after the upper lift of unfumed slag is removed will still be
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`37 Ex. 583 at 53–55; Hr’g Tr. vol. 1, 54:19–23.
`38 Hr’g Tr. vol. 1, 58:6–9; Ex. 583 at 53–55.
`39 Ex. 570 at 22, 38; Ex. 576 at 26; Ex. 1027 at 59; Hr’g Tr. vol. 1, 49:9–14; Hr’g Tr. vol. 2,
`292:6–14.
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`regraded and fully covered by a vegetative cover, the evidence that the fumed slag
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`remains a source of arsenic and other contaminants that will continue to require
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`corrective measures is underscored.40
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`29. The Work Plan accounts for EPA’s chosen final remedy as it relates to
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`the slag pile, calculating a total cost of $7,660,000, which includes both design and
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`construction expenses.41 Ms. Staub testified that, “by selecting the final remedy
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`[for the slag pile], [the EPA] committed to costs to implement the remedy.”42
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`30. Mr. Booth agreed that while nothing is speculative about “the need for
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`or whether [the Final Remedy] will happen,” he disagreed with the purported
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`“certainty” surrounding METG’s cost estimates.43
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`31. Ms. Staub relied on the Work Plan to form the basis of her opinion
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`that EPA has committed certain costs for the elements of the Final Remedy.44
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`However, the Work Plan explicitly states that the calculations constitute only a
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`“[p]reliminary [e]stimate of [c]ost.” The Work Plan goes on to note that its cost
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`tables “present those costs estimated for the implementation of the final
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`components of remedy[.]”45
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`40 Ex. 576 at 26–28; H’rg Tr. vol. 1 at 51:5–7.
`41 Ex. 1039 at 39.
`42 Hr’g Tr. vol. 1, 38:7–11.
`43 Hr’g Tr. vol. 2, 331:17–332:8.
`44 Hr’g Tr. vol. 1, 135:2–5.
`45 Ex. 571 at 39 (emphasis added).
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`32. Further, her testimony regarding the EPA’s commitment to the slag
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`pile’s final remedy notwithstanding, Ms. Staub admitted that at the beginning of
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`2020, the EPA planned to implement the maximum alternative slag pile cover,
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`supra at ⁋ 26 (calculated at $9,863,000). However, because zinc prices changed in
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`the middle of 2020, a fourth remedy—the removal of two million tons of slag
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`before regrading and capping the remainder—became feasible and was ultimately
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`selected by the EPA. She went on to agree that if metal prices continued to trend
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`favorably, more slag than two million tons could be removed.46
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`33. The Work Plan also indicates that “because unfumed slag removal
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`activities would impact a significant area of the slag pile footprint, development of
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`the final grading and cover plan would not start until the unfumed slag removal is
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`complete.” At the time METG published the Work Plan in October 2020, “the
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`removal and recovery operation [was] estimated to be approximately 10 years.”47
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`34. Ms. Staub went on to concede that, while the EPA relied on cost
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`estimates to establish a Final Remedy, METG is charged with developing detailed
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`designs necessary for implementation. After that, Ms. Staub explained, “they
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`[METG] will update their costs.” She admitted that she did not “know whether
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`they’re [the updated costs] gonna be the same or different” than those estimated in
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`46 Hr’g Tr. vol. 1, 140:8–141:18.
`47 Ex. 1039 at 19.
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`Case 6:12-cv-00053-DLC Document 354 Filed 05/26/21 Page 16 of 60
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`the Work Plan.48
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`35. And, while the “EPA has announced and selected and published the
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`[F]inal [R]emedy, and the [F]inal [R]emedy has costs associated with it,” Ms.
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`Staub agreed that no actual invoices or other contractual obligation are tethered to
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`the costs estimated by METG in the Work Plan.49 Moreover, she explained that in
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`“typical engineering practice,” cost estimates in similar circumstances cover a
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`range of minus thirty to plus fifty percent of the stated cost, and she admitted that
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`she did not know whether future costs at the Site—including the selected remedy
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`for the slag pile—could ultimately be thirty percent lower or fifty percent higher
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`than the costs estimated in the Work Plan.50
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`36. Similarly, Ms. Roberts,51 confirmed that METG accounts for potential
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`variations in costs spent versus cost estimates. She explained that METG relies on
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`a “range of magnitude” (“ROM”) that gauges the level of uncertainty associated
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`with a given estimate, ranging from ROM 1 (least uncertain) to ROM 5 (most
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`uncertain). Ms. Roberts testified that at ROM 5, METG adds 100 percent to the
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`cost estimated by an engineer “to be able to cover that number.” She also
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`48 Hr’g Tr. vol. 1., 145:13–22.
`49 Id. at 133:23–134:10.
`50 Id. at 138:4–139:1.
`51 Ms. Roberts works for Greenfield Environmental Trust Group, Inc., which provides trustee
`services to METG. H’rg Tr. vol. 1, 214:10–13.
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`Case 6:12-cv-00053-DLC Document 354 Filed 05/26/21 Page 17 of 60
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`explained that METG’s budgeting process accounts for the fact that “for whatever
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`reason[,] on these [Superfund] sites, as you know, things change rapidly and plans
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`change.” 52
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`37.
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`In sum, while the EPA may have committed to remedial action as it
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`relates the slag pile, neither Ms. Staub’s testimony nor the Work Plan on which she
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`relies establishes that the costs associated with implementing the remedy (totaling
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`$7,660,000)—at this juncture—are anything but estimates of future costs.
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`B. Corrective Measures Operations and Maintenance
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`38. The Final Remedy selected by the EPA calls for a Corrective
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`Measures Operations and Maintenance Plan (“O&M”) for each final corrective
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`measure “to ensure the measures remain protective over time.” Ms. Staub
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`explained that O&M involves “a series of inspections, maintenance protocols, and
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`basically looking at each of the final—the components of the [F]inal [R]emedy to
`
`make sure that they are functioning as designed and to ensure they remain
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`protective of human health and the environment.”53
`
`39. O&M covers “the entire remedy” at the Site, Ms. Staub explained—
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`not just one element. Thus, O&M ensures that not only the “four key elements that
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`are still going to be ongoing” at the Site remain protective, but also that the IMs do,
`
`
`52 Hr’g Tr. vol. 1, 214:10–13; 238:9–239–9; 222:7–8.
`53 Ex. 571 at 21; H’rg Tr. vol. 1, 66:2–7.
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`Case 6:12-cv-00053-DLC Document 354 Filed 05/26/21 Page 18 of 60
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`including: “the ET cover; the south plant hydraulic controls; the corrective action
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`management units; the slag pile, [and] the slurry wall.” Margaret Staub testified
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`further that “there’s fencing around the [S]ite that needs to be maintained. There’s
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`erosional features. There’s erosional control structures. So it’s [O&M] a . . .
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`pretty hefty job.” 54
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`40. Ms. Staub went on to explain the importance of O&M in
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`implementing the Final Remedy: “[I]n order for . . . that remedy to remain
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`protective of human health and the environment, the remedies need to be
`
`maintained, and you can’t do that unless you’re operating them appropriately and
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`maintaining them appropriately.”55
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`41. Pointing to the Work Plan, Margaret Staub opined that EPA has
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`“committed” to O&M costs pursuant to the Final Remedy at a rate of $305,000 per
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`year through 2046. At that rate, METG’s Work Plan calculates a total of
`
`$7,930,000 for O&M costs at the Site through 2046.56
`
`42. Mr. Booth agreed that the four key ongoing elements identified by
`
`Ms. Staub—including O&M—constitute actions the METG will take at the Site
`
`and that they are “necessary,” but he opined that the O&M budget through 2046
`
`
`54 Hr’g Tr. vol. 1, 48:2–17, 66:2–16.
`55 Id. at 66:18–23.
`56 Id. at 70:11–15; Ex. 571 at 39; see also Hr’g Tr. vol. 1, 71:13–17 (Ms. Staub explaining her
`understanding that the Work Plan’s calculations were reduced to net present worth).
`-18-
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`Case 6:12-cv-00053-DLC Document 354 Filed 05/26/21 Page 19 of 60
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`would be more accurately pegged at lesser amount.57
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`43. Mr. Booth’s opinion about the Work Plan’s calculation aside, the
`
`Work Plan’s cost table, and as already discussed regarding the slag pile, supra,
`
`indicates that that the $305,000 rate is a “[p]reliminary [e]stimate of [c]ost.”58
`
`44. Furthermore, the Work Plan represents that an O&M plan for each
`
`final remedy “will be prepared” and “will . . . develop contingency and mitigation
`
`procedures for unforeseen conditions, and identify performance requirements for
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`variances, modifications, or termination of O&M activities.”59 On cross
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`examination, Ms. Staub admitted that “unforeseen conditions”—like floods—could
`
`affect costs related to O&M.60
`
`45.
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`Indeed, the Work Plan itself disclaims that the cost table—on which
`
`Ms. Staub relied—constitutes a “preliminary estimate of cost” as it relates to, inter
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`alia, long term O&M.61
`
`46. Ms. Staub admitted, too, that past O&M costs approved by the EPA
`
`and budgeted for by METG had significantly varied from the amount METG
`
`actually spent on O&M. For example, in 2019, the approved budget for O&M was
`
`
`57 Hr’g Tr. vol. 2, 316:2–23, 313:12–18.
`58 Ex. 571 at 39.
`59 Id. at 21 (emphasis added).
`60 Hr’g Tr. vol. 1, 150:5–16.
`61 Ex. 571 at 14.
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`-19-
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`Case 6:12-cv-00053-DLC Document 354 Filed 05/26/21 Page 20 of 60
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`$896,600, but METG only spent $275,744 on O&M that year. As Ms. Staub put it,
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`“[t]hat’s a variance of negative $620,855.” Put another way, in 2019, METG spent
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`more than $600,000 less than had been budgeted and approved for O&M.62
`
`47.
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`In sum, while the EPA may have committed to O&M from the present
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`day through 2046, neither Margaret Staub’s testimony nor the Work Plan on which
`
`she relies evidences that the costs associated ongoing O&M (totaling
`
`$7,930,000)—at this juncture—are anything but estimates, albeit well-reasoned
`
`ones.
`
`
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`C. Corrective Measures Performance Monitoring
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`48. Corrective Measures Performance Monitoring in the form of
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`groundwater monitoring has been conducted at and downgradient of the Site since
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`1984, and the Final Remedy selected by the EPA requires continued groundwater
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`monitoring to evaluate the performance of the corrective measures over time.63
`
`49. Corrective Measures Performance Monitoring includes, and will
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`continue to include, collection of groundwater levels and elevations, surface water
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`elevations, and groundwater and surface water quality sampling at selected
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`monitoring locations. Further, Corrective Measures Performance Monitoring
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`includes permit review, review of private well statuses, and review of land use and
`
`
`62 Hr’g Tr. vol. 1., 158: 5–18; see also Ex. 1025 at 9.
`63 Ex. 570 at 22; 571 at 9, 12.
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`Case 6:12-cv-00053-DLC Document 354 Filed 05/26/21 Page 21 of 60
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`land use restrictions.64
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`50. The contaminants tested at each monitoring well do not vary, and
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`testing is not limited to a single contaminant. Every well tests for a menu of
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`contaminants of concern, including but not limited to arsenic, selenium, cadmium,
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`and zinc, as well as additional analytical parameters. None of the wells test for
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`only a single contaminant.65
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`51. Corrective Measures Performance Monitoring began in 2016,
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`following implementation of IMs, and continues annually for at least a thirty-year
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`period. The scope of testing, including groundwater monitoring, residential water
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`supply monitoring, and water level monitoring does not change from year to
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`year.66
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`52. Corrective Measures Performance Monitoring must occur to evaluate
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`the performance of the corrective measures “until MCSs [media cleanup standards]
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`are met at the points of compliance.”67
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`53. Corrective Measures Performance Monitoring is necessary to
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`demonstrate that the final corrective measures are meeting the relevant
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`performance criteria, that the conditions remain protective of human heath and the
`
`
`64 Ex. 571 at 16; 576 at 10–11.
`65 Hr’g Tr. vol. 1, 75:24–76:5.
`66 Ex. 576 at 16; Ex. 571 at 39; Hr’g Tr. vol. 1, 75:9–23.
`67 Ex. 570 at 22.
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`Case 6:12-cv-00053-DLC Document 354 Filed 05/26/21 Page 22 of 60
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`environment, and to determine if a need for additional corrective measures arises.68
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`Indeed, Mr. Booth agreed that Corrective Measures Performance Monitoring is
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`important and did not dispute its necessity.69
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`54. As it does for the other components of the Final Remedy, the Work
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`Plan also lists the costs for Corrective Measures Performance Monitoring. And, as
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`it does with the costs associated with O&M, the Work Plan sets out costs for
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`Corrective Measures Performance Monitoring based on a thirty-year period,
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`beginning in 2016 and ending in 2046.70
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`55. Specifically, in the cost table designated as a “[p]reliminary [e]stimate
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`of [c]ost,” the Work Plan budgets $280,000 per year through 2046 for Corrective
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`Measures Performance Monitoring. Thus, the amount METG sets out in the Work
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`Plan for Corrective Measures Performance Monitoring from 2021 through 2046
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`totals $7,280,000.71
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`56. Mr. Booth provided his own estimation of the total cost for Corrective
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`Measures Performance Monitoring going forward until 2046 ($3,041,411).
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`However, while testifying that his numbers “have the accuracy level of what [he]
`
`would typically call a feasibility study level,” he explained that even his estimate
`
`
`
`68 Ex. 571 at 16; 576 at 25.
`69 Hr’g Tr. vol. 1, 265:2–11.
`70 Ex. 571 at 39.
`71 Id.
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