United States District Court, D. Arizona
G. Campbell, Senior United States District Judge.
case concerns environmental liability under the Comprehensive
Environmental Response, Compensation, and Liability Act
(“CERCLA”) for 19 uranium mines located near
Cameron, Arizona, on the Navajo Nation Reservation (the
“Mine Sites”). Plaintiff El Paso Natural Gas
Company, LLC, whose predecessors operated the mines in the
1950s and 1960s, brings claims against Defendants United
States of America, the Department of the Interior
(“DOI”), the Bureau of Indian Affairs
(“BIA”), the United States Geological Survey
(“USGS”), and the Department of Energy
(“DOE”) (collectively, the “United
States”) for cost recovery and contribution. Doc. 55
¶¶ 1-2. The United States asserts a CERCLA
counterclaim against El Paso for contribution. Docs. 53,
stipulates that it was an operator of the Mine Sites for
purposes of CERCLA liability (Doc. 108), and the Court
previously held that the United States is liable as an owner
of the land where the mines are located (Doc. 135). The
parties assert additional grounds for CERCLA liability
against each other and ask the Court to make an equitable
allocation of past and future response costs under CERCLA
Court held an eight-day bench trial in February and March,
2019. Each side presented many witnesses, live or by
deposition, and hundreds of exhibits. The parties also
submitted extensive proposed findings of fact and conclusions
of law, as well as post-trial briefing on specific issues
addressed in this order. For reasons set forth below, the
Court will allocate 65% of past and future response costs to
El Paso and 35% of such costs to the United States.
Findings of Fact.
order sets forth the Court's findings of fact and
conclusions of law under Rule 52 of the Federal Rules of
Civil Procedure. The Court provides some citations to the
record, but the citations should not be regarded as the sole
basis for the Court's ruling. The Court's findings
and conclusions are based on all of the testimony and
exhibits admitted in evidence.
is the corporate successor of Arrowhead Uranium Company
(“Arrowhead”), Rare Metals Corporation of America
(“Rare Metals”), and El Paso Natural Gas Company.
Doc. 159 at 8. Arrowhead and Rare Metals mined uranium at
the Mine Sites. Arrowhead was one of the original uranium
mining companies in the Cameron region of Northern Arizona,
operating from 1952 to 1954. Ex. 28 at 7-8. Rare Metals was
formed in 1954 to prospect, explore, and acquire properties
containing uranium deposits and other valuable minerals. Rare
Metals acquired Arrowhead in December 1954 and took over its
uranium mining operations. See Exs. 1040-44. Rare
Metals also engaged in uranium exploration and development in
Utah, New Mexico, California, and other locations. Exs. 1041
at 7; 1042 at 6, 8; 1043 at 5-7, 9. Rare Metals merged with
El Paso in 1962. Ex. 1056. El Paso also takes responsibility
for the mining activities of Cameron Mining Company at
several of the Mine Sites. Doc. 159 at 8.
land where the Mine Sites are located is owned by the United
States in trust for the Navajo Nation. See 25 U.S.C.
§ 640d-9(a); Doc. 159 at 7. The DOI and the BIA, as part
of their tribal trust responsibilities, oversaw some aspects
of the mining permits and leases for the Nation. Doc. 159 at
8; Ex. 12 at 2. The USGS, which is part of the DOI, collects,
analyzes, monitors, and provides information about natural
resources. Docs. 1 ¶ 19; 23 ¶ 19. DOE is the
successor agency to the former Atomic Energy Commission
(“AEC”). Doc. 23 ¶ 20. After World War II,
the AEC was responsible for creating and managing a program
to procure uranium for nuclear weapons, known as the Domestic
Uranium Procurement Program (“DUPP”). Ex. 74 at
The Cold War and the Domestic Uranium Industry.
United States' use of atomic bombs in Japan both hastened
the end of World War II and sparked the Cold War with the
Soviet Union. Both nations aggressively developed nuclear
weapons. Obtaining uranium, a naturally occurring metal that
was an indispensable component of such weapons, became a
driving objective of the United States' national defense
effort. Doc. 158 ¶ 12.
1946, Congress passed the Atomic Energy Act, which formed the
AEC. See 60 Stat. 755. The Act also established the
DUPP, a program for “the production, ownership, and use
of fissionable material to assure the common defense and
security and to insure the broadest possible mining of the
fields.” Ex. 74 at 6. Viewing foreign sources of
uranium as unreliable, the United States sought, through the
DUPP, to locate and develop domestic sources using a
combination of government-led exploration and private
enterprise incentives. Tr. at 94-95. At the time, the federal
government was the only authorized purchaser of uranium in
the United States. Atomic Energy Act of 1946 § 5(2); Ex.
74 at 14.
1948 and 1956, the AEC published nine circulars offering
guaranteed minimum prices and bonus payments for uranium ore
(the “Circulars”). See Ex. 41. Circulars
3, 4, 5, and 6 applied to uranium mining on the Colorado
Plateau, a geographic area encompassing some 140, 000 square
miles in Arizona, Utah, Colorado, and New Mexico. Ex. 1002;
Doc. 159 at 7. Circular 3 guaranteed, for three years, a
minimum price and “development allowance” of
fifty cents per pound for uranium ore of .15% grade or more.
Ex. 41 at 3-4; see also id. at 8-9 (Circular 5
Revised). Circular 4 established a haulage allowance of six
cents per mile for the first 100 miles. Id. at 5.
Circular 5 also guaranteed a minimum price and expanded the
development allowance to ore with uranium concentrations as
low as .10%. Id. at 6. Circular 6 created an
additional bonus for the production of uranium ore from new
domestic mines. Id. at 13-14.
assisted the young domestic uranium industry by conducting
geologic surveys, furnishing free testing and assaying
services, and agreeing to purchase uranium ore. Ex. 25 at 13.
The AEC established ore-buying stations in uranium-producing
areas. Id. The AEC's assistance programs
included research and development that led to improvement in
milling processes and other mining-related innovations.
Id.; see also Chenoweth Depo. Jan. 15,
2014, at 85.
in 1948, the AEC, assisted by the USGS, operated a program of
uranium exploration on the Colorado Plateau and several other
western states. Ex. 25 at 14. The program involved temporary
withdrawal of some 700 square miles of public domain land for
exploration, geologic studies, drilling, examination of
samples, and airborne reconnaissance. Id. The AEC
employed a contractor, Walker Lybarger, to use a bulldozer to
uncover any uranium outcrops that were discovered. Chenoweth
Depo. Jan. 15, 2014, at 103. Ore found on AEC land was leased
to private parties directly through the AEC in return for a
royalty on ore production. Ex. 25 at 14; see also
Chenoweth Depo. Jan. 15, 2014, at 79-82. The AEC also
undertook an access road program under which the AEC, the
Bureau of Public Roads, and various state agencies improved
over 1, 200 miles of roads in Arizona and other states to
facilitate uranium exploration and mine development. Ex. 25
1952, Charles Steen, an independent prospector, found uranium
on the Colorado Plateau south of Moab, Utah. See Tr.
at 56-57, 1600. Steen made over a million dollars on the ore
deposit, and his success motivated many others to pursue
uranium mining, launching a gold-rush-like interest in
prospecting for uranium. Tr. at 57.
Uranium Mining on the Navajo Reservation.
the 19 Mine Sites are all located on the Navajo Reservation,
both the Navajo Nation and the federal government were
involved in transactions affecting the sites. Generally, four
permits or leases are required for uranium mining: (1)
prospecting permits, (2) drilling and exploration permits,
(3) mining permits, and (4) mining leases. See Ex.
31 at 10. As of 1951, the Navajo Nation did not require a
separate drilling and exploration permit (Ex. 1075) and
required only non-Navajos to apply for prospecting permits
(Ex. 31 at 10). In 1953, the Nation's mining regulations
were updated to require drilling and exploration permits. Ex.
1078. The new regulations also required any prospector,
Navajo or non-Navajo, to apply for a prospecting permit.
Id. at 2. A non-Navajo permit holder could negotiate
a mining lease with a tribal advisory committee. Id.
were approved by the Navajo Tribal Council and the area
director of the BIA. See Tr. at 160-61; see,
e.g., Ex. 294A. All rents and royalties were paid to the
United States Treasury for deposit exclusively in Navajo
tribal funds. See Tr. at 203, 523. The permits
contained provisions related to the trust oversight
responsibilities of the DOI and required permittees to (1)
“conform to any and all regulations of the Secretary of
the Interior”; (2) receive approval from the Tribal
Council and the Secretary of the Interior before assigning
the permit; and (3) allow inspection of permitted premises
and operations by BIA personnel. Ex. 294A at 3-4. These
provisions and the DOI oversight of the leases were
consistent with the DOI's trust duties over all
reservation mining. See Tr. at 162-63, 90 (the lease
authorization requirement is consistent with all mining
contracts on the Navajo reservation); Ex. 75 (example of a
lease rejected by the BIA consistent with its tribal trust
duty); Ex. 13 (delegating approval of leases to the Secretary
of the Interior because it was in a better position to make
profitable lease arrangements for tribes); see also
Navajo Tribe of Indians v. United States, 9 Ct. Cl. 227,
232 (1985) (noting that the United States has a
responsibility to supervise the affairs of Indian tribes).
The Navajo Nation exercised independent decision-making
authority and had a strong interest in developing uranium
resources on tribal lands, and that the United States
supported the Nation's efforts consistent with its role
as tribal trustee. Tr. at 893-95, 899-904, 941-42, 988-89.
The Mine Sites.
1952, Charles Huskon, a Navajo prospector who worked for AEC
contractor Walker Lybarger, discovered a natural uranium
outcrop that would later become Huskon 1. Ex. 28 at 6. In
July 1952, Huskon and his son left the contractor to work for
Arrowhead. Id. In August and September, 1952, Huskon
received mining permits for Huskon 1, 2, 3, 4, 5, 6, 7, and
8, and assigned them to Arrowhead. Ex. 294D. In Apr. 1953,
the BIA approved a mining permit for Huskon 9, 10, and 11,
which Huskon also assigned to Arrowhead. Ex. 24 at 53. Huskon
12, 14, and 17 were surveyed and located in December 1953 and
January 1954 (Tr. at 525-27; Ex. 1023), but permits were not
obtained until March 1954 (Ex. 294D).
Metals acquired Arrowhead in December 1954 and took over all
of its uranium mining operations. See Exs. 1040-44.
In 1955, mining permits for Ramco 20, 21, and 22 were issued
to Navajo prospectors and assigned to Rare Metals. Ex. 294D.
These sites were converted to mining leases in 1959.
Id. Ramco 24 was permitted by a Navajo prospector in
1957 and assigned to Rare Metals. Id.
1959, Rare Metals allowed Cameron Mining Company, an
independent contractor, to perform mining operations at sites
where Rare Metals had ceased operations. Doc. 159 at 8; Tr.
at 499-500. These included Huskon 1, 2, 3, 6, 10, 11, 12, and
17, and Ramco 20, 21, and 22. Exs. 28 at 13; 1165; 1166;
Prince Depo. Oct. 9, 1996, at 88-89. Rare Metals relinquished
its rights to Ramco 24 in 1958, and its rights to the
remaining Mine Sites during the first half of the 1960s.
See Ex. 294D.
Three Mining Phases.
trial and in their briefs, the parties focused on three
phases of mine operations: exploration, mining, and
reclamation. The Court makes the following findings of fact
with respect to each phase.
exploration, an ore deposit is located through prospecting,
confirmed, and uncovered to determine its “dimension,
grade, and continuity.” Tr. at 216. Common exploration
methods in the 1950s included drilling and rim stripping. Tr.
at 282. El Paso concedes that there is no evidence the United
States ever conducted exploration activities at the Ramco
sites (Tr. at 62), and El Paso does not seek contribution for
exploratory drilling that occurred at any of the Huskon mines
(Tr. at 17). During trial, El Paso also stated that it would
assume responsibility for all exploration activities at
Huskon 5, 6, and 9. Tr. at 348-49. This order, therefore,
focuses on exploration at Huskon 1, 2, 3, 4, 7, 8, 10, 11,
12, 14, and 17. El Paso claims that the United States engaged
in rim stripping at each of these sites. The United States
stripping occurs when a bulldozer excavates soil, referred to
as “overburden, ” from the top of an ore deposit
to expose the mineralized zone. See Tr. at 350.
During a 45-day period between December 19, 1953 and February
3, 1954, the AEC conducted rim stripping in the Cameron area.
Exs. 58; 91 at 2; 129 at 20; 1258. According to a report
prepared in 1955 by David Hinckley, an AEC geologist (the
“Hinckley Report”), the AEC stripped
approximately 45, 000 linear feet of soil in the Cameron area
during this 45-day window, exposing portions of 15 uranium
outcrops. Ex. 129 at 20.
trenches made during rim stripping can still be seen at many
of the Mine Sites today. Some of the trenches are visible in
aerial photographs of the sites taken in 1954, and even more
are apparent in aerial photographs taken in 1992. The
question is who made the trenches.
its contractors used a Caterpillar D7 bulldozer for rim
stripping - an 11-ton machine that cut a 29-foot-wide swath
with its front blade. See Tr. at 330-31; Ex. 129 at
20. Arrowhead did not own a machine of this size, but instead
used a much smaller Allis Chalmers HD5 front-end loader for
work at the Mine Sites. See Tr. at 320-22, 441;
see also Maloney Depo. at 117. After it purchased
Arrowhead in December 1954, Rare Metals also used D7
bulldozers, as well as larger D8s, for work at the Huskon
Mine Sites. See Tr. at 542, 551 (Mr. Beahm
testifying that there is no dispute that Rare Metals
bulldozers were used at the Huskon mines), 1306 (1992 aerial
photos suggest that more rim stripping occurred after 1954);
Exs. 130 at 6; 1160 (1957 contract with Rare Metals for
contractor stripping of overburden); see also
Chenoweth Depo. Apr. 24, 2014, at 26 (more exploration by
private parties after 1956 than by the AEC before 1956).
Paso's mining expert, Douglas Beahm, reviewed historical
documents regarding the DUPP and historical aerial
photographs. Tr. at 311. He visited the Mine Sites six times.
Id. On the basis of his investigation, Mr. Beahm
testified that the AEC performed rim stripping at Huskon
1-12, 14, and 17. Tr. at 349. He testified to measuring a total
of 30.2 acres (or 45, 362 linear feet) of exploration
disturbance at these Huskon sites. Tr. at 358-59. He noted
that trenches he observed generally were 29-feet wide,
corresponding to the size of a D7 blade, and that his
estimated 45, 362 linear feet of trenching aligns with the
45, 000 linear feet of AEC rim stripping described in the
1955 Hinckley Report - rim stripping performed by the AEC
during the 45-day window in 1953 and 1954. Tr. at 358;
see also Ex. 129 at 20. Mr. Beahm concludes that all
of the AEC's rim stripping in the Cameron area was
performed at the Huskon Mine Sites, and constitutes the only
rim stripping that occurred at those sites. El Paso also
presented an undated internal corporate memorandum which
stated that the AEC bulldozed trenches on Huskon 1-11, 12,
14, and 17, and that the company did “[l]ittle
bulldozer work . . . except to strip off overburden.”
Ex. 119; see also Tr. at 366-67.
Beahm is correct in his conclusion that some 45, 000 feet of
trenching was done by the AEC at the Mines Sites during the
45-day period described by Hinkley, the trenching would have
occurred before the 1954 aerial photos were taken in February
1954 and presumably would be visible in those photos. But the
government's aerial photography expert, Mary Sitton,
testified that only 13, 589 linear feet of rim stripping can
be seen within the Mine Sites' boundaries in the 1954
aerial photographs, with approximately 3, 000 linear feet
outside of the boundaries. See Tr. at
1116. She identified many trenches visible at
the sites today that cannot be seen in the 1954 aerial
photographs. She also noted that the 1955 Hinckley Report
attributes the 45, 000 linear feet of rim stripping not to
the Mine Sites specifically, but to the general Cameron area,
which includes scores of mine sites, and that Rare Metals had
heavy bulldozers at the Mine Sites in early 1955 and
thereafter - machines capable of creating the trenches
observed on the ground today. This evidence persuasively
suggests that the trenches at Huskon 1-12, 14, and 17 were
not all made by the AEC during a single 45-day period in late
1953 and early 1954.
Court finds Ms. Sitton's testimony about the aerial
photographs to be more credible than Mr. Beahm's. She has
significantly more aerial photography training and expertise
than he does, and she obtained aerial photographs from the
National Archives and Records Administration, the USGS, and
the University of Arizona. Tr. at 1075. Unlike Mr. Beahm, she
reviewed the historical aerial photos through a stereoscope,
which allowed her to examine them in 3D. Tr. at 1076. The
Court does not find credible Mr. Beahm's assertion that
virtually all of the trenches seen on the ground today were
present in 1954 but do not appear in the 1954 aerial
photographs because they were obscured by shadows or lack of
evidence also shows that Arrowhead conducted rim stripping.
Mr. Beahm testified that Arrowhead was unable to rim strip by
bulldozer because it owned only the HD5 front-end loader,
which was incapable of creating the wide trenches observed at
the 19 Mine Sites. See Tr. at 320-22, 441; see
also Maloney Depo. at 117. And records do indicate that
Arrowhead was primarily a hand-digging operation before it
was acquired by Rare Metals. See Tr. at 323.
Further, Dozing with an HD5 front-end loader would require
multiple passes to create a trench as wide as a D7's,
would create several separate waste piles, and would not
create uniform windrows as observed on the side of trenches
at the Mine Sites. But the United States presented evidence
that Arrowhead did conduct rim stripping with its HD5 at some
of the Mine Sites. Arrowhead cofounder George Morehouse
stated that he would “strip down with the dozer,
actually [he would use] the front end loader as a
dozer.” See Ex. 69 at 9; see also Tr.
at 1196-97. Expense and production reports for the Huskon
sites, before the 45-day AEC exploration window, also
indicate that rim stripping was performed by Arrowhead at the
Huskon sites. See Ex. 1139 (report for Huskon 1 for
October 24, 1952 to March 31, 1953, stating cubic yards for
stripping); 1106 at 6 (indicating that overburden was
stripped by an ACD5, which is the Allis Chalmers HD5 dozer);
see also Tr. at 1199.
on all the evidence, the Court makes several findings
regarding the parties' involvement in the exploration
El Paso was directly involved in exploration. It has assumed
responsibility for all exploration activities at the Ramco
sites and Huskon 5, 6, and 9, as well as all exploratory
drilling. The evidence described above shows that Arrowhead
engaged in rim stripping, and Arrowhead had mining permits at
Huskon 1-11 before February 1954. See Ex. 294D. The
parties agree that Arrowhead had the authority to mine or
explore as a result of those permits. See Tr. at
1623. In fact, Arrowhead delivered its first uranium ore
shipment from Huskon 1 in October 1952, well before the
45-day window when the United States conducted rim stripping
activities in the Cameron area. See Ex. 28 at 7-8.
The Court finds it likely that the rim stripping at Huskon
1-11 was conducted by Arrowhead in conjunction with its
mining activities. See Tr. at 1099 (noting that
exploration and mining occurred at the same time), 1228
(stripping is done at the mines after mining
the Court finds by a preponderance of the evidence that the
United States engaged in exploration activities at Huskon 12,
14, and 17. Arrowhead did not receive a permit to mine these
sites until March 1954, and yet Ms. Sitton and Mr. Beahm each
found disturbances on these sites in the 1954 aerial photos
that predate the permits. See Ex. 294D. For Huskon
14 and 17, Ms. Sitton noted several linear excavations on the
1954 aerials. See Exs. 1354; 1356.
asserts that Arrowhead could not have created these
disturbances without a mining permit. See Tr. at
1623. Prior to approval of the survey of the mining claims,
Arrowhead had no privileges at Huskon 12, 14, and 17.
See Tr. at 369. El Paso argues that the United
States did have permission from the Navajo Nation to prospect
and explore on the lands in question before the February 1954
aerials were taken. Tr. at 341-43; Exs. 58; 1258. The United
States appears to argue that because Arrowhead had a
prospecting permit, and because it surveyed and plotted
Huskon 12, 14, and 17 in December of 1953 and January 1954,
Arrowhead had authority to conduct exploration activities on
those Sites. See Tr. at 1621. The United States
asserts that because the Navajo Nation did not utilize
exploration and drilling permits at the time, the prospecting
permit gave Arrowhead authority to conduct these exploration
activities. See Tr. at 1623. Further, the United
States argues that the minimal level of activity identified
by Ms. Sitton would be consistent with staking a mine claim.
Tr. at 1622.
already noted, the Navajo Nation initially did not require
exploration or drilling permits. Tr. at 896, 1255; Exs. 1075;
1078. Miners applied for a prospecting permit and then for a
mining permit. Ex. 1075. In December 1953, the Nation updated
its regulations, requiring miners to seek first a prospecting
permit, then an exploration permit, and then a mining permit.
Tr. at 896; Ex. 1078. Mr. Beahm testified that the mining
permit was necessary for miners to conduct exploration
activities like those seen clearly at Huskon 14 and 17, and
that likely occurred at Huskon 12 (Tr. at 117), and the
United States failed to present any testimony that supports
its theory that a prospecting permit prior to 1953 would
allow Arrowhead to conduct exploration. Moreover, the
fact that the disturbances in question were labeled as linear
excavations or seemed to be made by heavy equipment indicates
that these disturbances were not made in the normal course of
staking a claim. See Trial Tr at 1176 (only use a
simple compass and steel chain for staking claims). Because
the trenches and disturbances at Huskon 12, 14, and 17 were
made at a time when Arrowhead likely did not have authority
to do the work, and were made by heavy equipment of the kind
operated by the AEC contractor, the Court finds by a
preponderance of the evidence that the United States
conducted rim stripping at these sites.
the Court does not find, as El Paso suggests, that the AEC
conducted most of the exploration activities at the Mine
Sites. Mr. Beahm relied heavily on current site visits where
he assumed that bulldozer-sized trenches visible on the
ground were made by the AEC during the 45-day window in late
1953 and early 1954. But this view disregards the fact that
the disturbances could have been made at any time during the
years of mining by El Paso, including after 1954 when Rare
Metals brought its own D7 and D8 bulldozers to the Mine
Sites. See Tr. at 390; Ex. 1158. Mr. Beahm also
relied on historical documents noting that the AEC conducted
rim stripping in the Cameron area, but these documents refer
to the entire Cameron area, which contained approximately 100
mines. Tr. at 1147 (Ms. Sitton testifying that she noted
other activity in the Cameron area), 1112-14 (discussing
mapping anomalies that included linear excavations in the
Cameron area outside the Mine Sites), 1114-15 (Ms. Sitton
testifying that the 45, 000 linear feet does not cover just
the 19 Mine Sites); see also Ex. 1363. And Mr.
Beahm's assertion that he measured approximately 45, 000
linear feet of trenching, which matched the Hinckley Report
on AEC activity, is less credible than Ms. Sitton's
testimony that most of this trenching does not appear in the
1954 aerial photographs.
summary, although the Court finds that both El Paso and the
United States engaged in exploration activities at the Mine
Sites, the Court does not find that all or even a majority of
it was performed by the United States. The evidence does not
enable the Court to precisely determine the parties'
respective exploration activities at the sites, but this is
not an impediment to an overall allocation because the
exploration phase is a relatively minor portion of the
relevant activity in this case.
the Mine Sites were open pit mines. Tr. at 1611. They were
mined either by El Paso or one of the orphan companies. The
United States never mined or supervised mining operations at
any of the sites. See Tr. at 908, 1580; Ex. 69 at
4-5; Chenoweth Depo. Jan. 16, 2014, at 409; Chenoweth Depo.
Apr. 24, 2014, at 23, 57.
Navajo Nation managed uranium mining on the reservation. Tr.
at 941-42; Chenoweth Depo. Jan. 16, 2014, at 408-09. The
Nation wrote its own regulations, established a department of
mining, conducted mining inspections, and hired a mining
engineer. Tr. 893-95; Exs. 31 at 8; 62; 1074; 1080. The
United States did conduct inspections through the DOI and the
Bureau of Mines (“BOM”) to promote mine safety
and identify hazards. See, e.g., Exs. 1189-1202;
1207-08; Chenoweth Depo. Jan. 16, 2014, at 409.
Arrowhead mined with picks, shovels, wheel barrows, the HD5
loader, and a crew of about twelve workers. See Ex.
69 at 10. El Paso's proposed findings of fact admit that
Arrowhead produced almost 4, 000 tons of ore in 1953 and more
than 8, 000 tons in 1954. See Doc. 158 ¶ 167.
When Rare Metals acquired Arrowhead in December 1954,
production at the mines increased significantly. See
Doc. 158 ¶ 167; Ex. 1334. In 1956, Rare Metals Mines
produced nearly 30, 000 tons of ore. See Doc. 158
¶ 167. In 1957, the Mines Sites produced over 40, 000
tons. Doc. 158 ¶ 167. As of March 1956, an internal
company memo stated that Rare Metals had stripped 291, 169
tons of native material at the Huskon sites and another 273,
857 tons of overburden at the Ramco sites. Ex. 1135.
pit mines are created by stripping away large amounts of
overburden and then removing the ore to an onsite stockpile.
See Exs. 1190-1210 (safety inspection reports
documenting mining methods). El Paso's excavations at the
Mine Sites ranged in size from shallow trenches to large pits
up to 2, 400 feet long. Exs. 28 at 5; 1190-1210; see
also Tr. at 1202. Mine development also included
roadbuilding. See Exs. 1336 (summarizing miles of
road built at each site based on El Paso expense and
production reports); 1389 ¶ 17. A majority of the
Cameron area waste-generating activity occurred between 1954
and 1961. See Exs. 28 at 19; 1334.
disposed of hazardous substances at each of the Mine Sites.
See Doc. 117 ¶ 3. The United States did not
direct waste handling or waste disposal. See Tr. at
907, 921, 1204; Chenoweth Depo. Jan. 16, 2014, at 410. During
mining, workers used a Geiger counter to asses wheelbarrow
loads of ore and, if a load did not “measure so much on
the Geiger counter, they'd dump it over the hill 
someplace.” Chenoweth Depo. Jan. 16, 2014, at 410-11.
Waste rock was dumped out of the way so it would not
interfere with mining. Chenoweth Depo. Jan. 16, 2014, at 411;
see also Ex. 69 at 10 (Arrowhead put waste wherever
it was convenient).
bought uranium at the prices and bonuses set by the
Circulars. Because miners could grade their uranium on an
average monthly basis, they had an incentive to stockpile
lower-grade ore and blend it with higher-grade ore to sell to
the AEC. Chenoweth Depo. Apr. 24, 2014, at 36. This was a
common practice. See Tr. at 1610; Ex. 15 at 3;
Chenoweth Depo. Apr. 24, 2014, at 36-37.
Paso opened the Tuba City mill in 1956, it set an ore grade
cut-off of .20% because that was more efficient for the
mill's operation. Ex. 280; Chenoweth Depo. Apr. 24, 2014,
at 163-64 (the ore grade cut-off was up to the mill, if the
mill did not want to take the lower grade the AEC did not
force them); see also Exs. 1231-32 (mining companies
complaining that El Paso was not purchasing lower grade ore
as permitted by the Circulars). Even before the mill changed
the cut-off, miners were more focused on higher-grade uranium
because it sold for a higher price. Chenoweth Depo. Apr. 24,
2014, at 37 (most miners could not make money at the .10%
cut-off, so during the uranium boom the average grade was
1957, dramatic increases in reported uranium ore reserves and
in milling capacity prompted the AEC to announce that
“it no longer [was] in the interest of the Government
to expand production of uranium concentrate.” Ex. 25 at
12. The AEC announced that it would buy “only
appropriate quantities of concentrate derived from ore
reserves developed prior to November 24, 1958.”
Id. In 1958, the AEC announced that “domestic
producers of uranium ores and concentrate” could start
making private sales for the peaceful use of atomic energy,
but no such sales were actually made until 1966. Id.
1962, the AEC implemented a “stretch-out” program
which allowed mining companies to defer delivery of a portion
of their contract commitments until 1967 and 1968, in return
for an AEC commitment to purchase the ore in 1969 and 1970.
Id. Operations at the Mine Sites phased down as
incentives decreased, but there is also evidence that ore
reserves at the Mine Sites were exhausted by this time and no
longer held enough economically viable uranium. Chenoweth
Depo. Jan. 16, 2014, at 410-14 (describing the process of
using the Geiger counter to measure uranium from a mine; once
it was very low, mining would stop); see also Ex. 31
at 7 (“[A]s the known orebodies were depleted, ore
production declined sharply after 1958.”).
end of a mining lease, there was an inspection to ensure that
sites were free from physical hazards. See Tr. at
154; Ex. 1214; see also Chenoweth Depo. Apr. 24,
2014, at 182. Open pits were left unfilled. See
Prince Depo. Oct. 9, 1996, at 131. Language in the leases and
the customs of the day were to leave mines “timbered,
” which meant leaving the ore body accessible and, in
the case of open pit mines, leaving the pit open.
See Tr. at 154, 1613 (timbered means the structural
integrity of the pit walls).
in the mine leases also stated that mines were to be
surrendered and returned in good condition except for
ordinary wear and tear. See Tr. at 1576. El
Paso's expert, Mr. Dempsey, testified that this provision
did not affect the expectation that mine pits would be left
open. See Tr. at 1577; see also Prince
Depo. Oct. 9, 1996, at 114. By 1962, El Paso and its
subcontractors stopped all mining at the 19 Mine Sites.
Prince Depo. Oct. 9, 1996, at 68-69.
almost three decades, the Mine Sites remained largely in the
same condition as when mining ceased, with open pits and
waste piles on the properties. In the 1980s, the Navajo
Nation became concerned about possible health impacts of
abandoned uranium mines on the Reservation. Ex. 1275; Prince
Depo. Oct. 30, 1996, at 220-21. People were frequenting the
pits for recreational purposes, and livestock was watering at
the pits. Prince Depo. Oct. 30, 1996, at 221-22. As a result,
in the early 1990s the Navajo Nation undertook reclamation of
17 of the 19 Mine Sites. Reclamation was not deemed necessary
at Huskon 5 and 14. Doc. 159 at 9.
for the reclamation was provided through grants from the
federal government's Office of Surface Mining
(“OSM”) under the Surface Mining Control and
Reclamation Act (“SMCRA”). Doc. 159 at 9. The
Nation's office of Navajo Abandoned Mine Lands
(“NAML”) developed the plans for reclaiming the
mines and submitted grant applications to the OSM. Martinez
Depo. at 20-21. The OSM reviewed the applications prior to
approving funding. See id. The OSM was deferential
to the Nation in its review and oversight of the reclamation
because of the Nation's status as a sovereign nation.
Sassaman Depo. at 126-31. The OSM's role was to oversee
the sites for compliance with the NAML plans and to offer
advice when necessary. Martinez Depo. 34-36, 40-43; Sassaman
Depo. 33-35, 106. All reclamation standards were established
by the NAML. Martinez Depo. at 34-35; Sassaman Depo. at
29-30, 35, 56, 74-76.
five reclamation projects, the NAML (1) restored hundreds of
acres of land, (2) backfilled and graded seventeen uranium
mine pits formerly operated by El Paso, (3) removed or
reduced the slopes of thousands of feet of dangerous
highwalls and embankments, (4) contained mining waste
underground to prevent erosion and reduce surface exposure,
(5) built drainages structures to divert runoff from the pits
and waste piles, (6) removed ponds of polluted water that
were sometimes used for recreational and agricultural
purposes, and (7) provided replacement ponds for livestock
and wildlife. See Exs. 1279-85 (NAML technical
specifications); 1310 (Project three update report); Prince
Depo. Oct. 30, 1996, at 261-62. The United States provided
the Nation with $2.4 million in funding for this work.
See Exs. 1294-1308 (total costs by each site).
The Tuba City Mill.
Tuba City uranium mill was built and operated by El Paso, and
purchased ore from Cameron-area mines, including the Mine
Sites. The mill is not part of the EPA's current CERCLA
directive to El Paso, and the parties disagree on whether its
remediation is relevant to the Court's equitable
allocation for the 19 Mine Sites at issue in this case.
Arrowhead and Rare Metals shipped ore to the AEC's
Bluewater mill in New Mexico. Exs. 1222; 1162; 1163; 1243. In
1954, Rare Metals contacted the AEC about establishing a mill
in the vicinity of the Mine Sites, which would significantly
reduce haulage costs. Tr. at 1008; Ex. 107. Rare Metals and
the AEC agreed that the AEC would operate an ore-buying
station in Tuba City until Rare Metals could finish building
the mill, and Rare Metals would then take over the ore-buying
function. Exs. 1030 at 5; 1222; 1224. In July 1956, Rare
Metals completed construction of the mill and began
purchasing ore from mines in the area. Exs. 1241; 1235. The
mill operated from 1956 to 1966 and produced 80, 000 tons of
yellow cake uranium for the United States. Ex. 1072 at 25.
Circulars, the AEC offered to purchase uranium ore above a
.10% grade. The Tuba City mill adopted a stricter standard,
requiring a grade of .20% on a monthly average basis. Exs.
131; 280; 1040; 1226 at 2.
Tuba City mill generated its own waste pile in the form of
“tailings, ” which consisted of low-level
radioactive sand generated from processing uranium ore. Ex.
1317 at 8; Prince Depo. Dec. 1, 2016, at 43-44. El Paso also
disposed of liquid wastes from ore processing in an
impoundment pond constructed near the mill. Exs. 1317 at 101;
1319 at 5. These operations contaminated groundwater at the
site. Tr. at 1262.
stopped operation of the Tuba City mill in 1966 because
uranium sources in the area were exhausted. See Ex.
1240 at 2. The Arizona Atomic Energy Commission
(“Arizona AEC”) oversaw the termination of El
Paso's mill license. El Paso was required to stabilize
the tailings pile (Ex. 1242), and consulted with the federal
BOM to develop a stabilization plan (Ex. 176; Caulkins Depo.
at 20-22). El Paso's plan was submitted to and
approved by the Arizona AEC, the United States Public Health
Service, and the Navajo Minerals Resource Office.
See Ex. 173. El Paso implemented the plan, and the
Arizona AEC terminated El Paso's license, acknowledging
that El Paso “effectively decontaminated the mill
building, ” “stabilized the tailings pile against
wind erosion, ” and “fenced and posted the
tailings pile.” Ex. 177; see also Tr. at 1252;
the United States remediated the mill site under the Uranium
Mill Tailings Radiation Control Act (“UMTRCA”).
Ex. 1317 at 5, 18-20; 42 U.S.C. § 7901(a). In UMTRCA,
Congress acknowledged that uranium tailings at active and
inactive mill sites may pose a significant radiation health
hazard to the public. See § 7901(a). UMTRCA was
designed to “stabilize and control [mill] tailings in a
safe and environmentally sound manner and to minimize or
eliminate radiation hazards to the public.” §
7901(b). In effect, the federal government assumed
responsibility for the clean-up of uranium-producing mills
for the good of the country. Tr. at 1243. Where clean-up
occurs on Indian lands, as at the Tuba City mill, the
government pays all costs. Ex. 1317 at 9.
Tuba City mill remediation occurred in two phases from
January 1985 to Apr. 1990. Ex. 1317 at 19. Through the end of
2018, the United States has spent $34, 143, 000 in surface
remedial action costs and $59, 426, 656 in groundwater
remedial action costs, for a total of more than $93, 500,
000. See Ex. 1321. The monitoring process will
continue into perpetuity (Ex. 1320 at 7), with the United
States' future response costs projected to reach $37,
288, 757 (Ex. 1321).
The EPA and Remediation of the 19 Mine Sites.
the EPA identifies an abandoned uranium mine that contains a
hazardous substance, it requests that a potentially
responsible party (“PRP”) conduct a Remedial Site
Evaluation (“RSE”). See 42 U.S.C.
§§ 9606, 9607; 40 C.F.R. § 400.15. The RSE
investigates the nature and extent of contamination and
associated risks. See 40 C.F.R. § 400.20. It
includes determining the background levels of radiation due
to naturally occurring uranium. Stavinoha Depo. at 64-65. In
Cameron, background levels vary dramatically from place to
place and even within a particular site. Id. at 97.
After an RSE, the PRP prepares an Engineering Evaluation/Cost
Analysis (“EE/CA”), which evaluates potential
response actions. Doc. 159 at 10; Tr. at 641.
2012, the EPA sent El Paso a “general notice”
letter identifying El Paso as a PRP for the Mine Sites. Doc.
159 at 8; Stavinoha Depo. at 29. In 2013, El Paso signed an
administrative order of consent (“AOC”) to
perform a “limited” investigation. Ex. 263;
Stavinoha Depo. at 53-54. El Paso agreed to conduct gamma
screening to determine the lateral extent of disturbed areas
within a portion of the 19 Mine Sites. See Ex. 263
at 33-34. El Paso submitted a number of work plans related to
background levels and gamma scanning (Tr. at 610), and has
not missed a deadline with the EPA (Tr. at 610-11).
2017, El Paso agreed to conduct RSEs at Huskon 12 and 14,
modifying the original AOC. See Tr. at 613. In 2018,
El Paso entered a second AOC amendment to perform EE/CAs at
Huskon 12 and 14. See Tr. at 613-14. El Paso also
submitted a draft for a third modification to perform RSEs
for the remaining 17 Mine Sites. Tr. at 614. To date, El Paso
has performed draft RSEs for Huskon 12 and 14. See
Ex. 1325. El Paso has also prepared a draft EE/CA for both
sites. See Ex. 285. The EPA has not yet provided
comments on these drafts. See Tr. at 630. The EPA
has not selected a final remedy for Huskon 12 and 14, and El
Paso has not agreed to perform a remedy. Tr. at 666.
Costs at Issue in this Order.
purposes of the actual response costs to be allocated in this
order, the parties have agreed to a cut-off date of August 1,
2016. El Paso alleges that it has incurred recoverable
response costs at the Mine Sites totaling $1, 393, 448
through August 2016, and has paid another $502, 500 to the
United States to reimburse certain EPA response costs.
See Doc. 159 at 13. The United States does not
dispute these amounts ...