Page 2
891 F.Supp. 492, 25 Envtl. L. Rep. 21,577
(Cite as: 891 F.Supp. 492)
United States District Court,
E.D. Missouri,
Southeastern Division.
ANSCHUTZ MINING CORPORATION, Plaintiff,
v.
NLINDUSTRIES, INC., Defendant.
No. 1:88 CV 72 SNL.
June 23, 1995.
Owner of mining property brought action against
previous owner and operator under Comprehensive
Environmental Response, Compensation, and Liabil-
ity Act. On owner's request for declaratory judgment
and reimbursement for cleanup costs, the District
Court, Limbaugh, J., held that: (1) material at site
was “hazardous” within meaning of CERCLA; (2)
imminent release is enough to trigger CERCLA cov-
erage; (3) only substantial compliance, not strict
compliance, with National Contingency Plan (NCP)
is required under CERCLA; (4) in future, parties
would be required to contain contaminants; (5) prior
owner was 80% liable for cleanup and containment
costs, while current owner was 20% liable; and (6)
current owner would be awarded all reasonable attor-
ney fees connected with litigation.
Ordered accordingly.
West Headnotes
[1] Environmental Law 149E 438
149E Environmental Law
149EIX Hazardous Waste or Materials
149Ek436 Response and Cleanup; Liability
149Ek438 k. Elements in General. Most
Cited Cases
(Formerly 199k25.5(5.5) Health and Environ-
ment)
Elements of prima facie claim under CERCLA are:
defendant must fall within one of four categories of
“covered persons”; there must have been “release or
threatened release” of hazardous substance from fa-
cility; release or threatened release must “cause the
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
incurrence of response costs” by plaintiff; and re-
sponse costs must be necessary costs and consistent
with National Contingency Plan (NCP). Comprehen-
sive Environmental Response, Compensation, and
Liability Act of 1980, §§ 101(14, 22-25), 107(a),
(a)(4), (a)(4)(B), 42 U.S.C.A. §§ 9601(14, 22-25),
9607(a), (a)(4), (a)(4)(B).
[2] Environmental Law 149E 440
149E Environmental Law
149EIX Hazardous Waste or Materials
149Ek436 Response and Cleanup; Liability
149Ek440 k. Substances Covered. Most
Cited Cases
(Formerly 199k25.5(5.5) Health and Environ-
ment)
Material at mining site was “hazardous” within
meaning of CERCLA, despite argument for exclusion
of mining waste. Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980, §
101(14), 42 U.S.C.A. § 9601(14).
[3] Environmental Law 149E 442
149E Environmental Law
149EIX Hazardous Waste or Materials
149Ek436 Response and Cleanup; Liability
149Ek442 k. Threatened Release. Most
Cited Cases
(Formerly 199k25.5(5.5) Health and Environ-
ment)
CERCLA does not require that there has been release
but, rather, imminent release is enough to trigger
CERCLA coverage. Comprehensive Environmental
Response, Compensation, and Liability Act of 1980,
§ 107(a)(4), 42 U.S.C.A. § 9607(a)(4).
[4] Environmental Law 149E 439
149E Environmental Law
149EIX Hazardous Waste or Materials
149Ek436 Response and Cleanup; Liability
149Ek439 k. Remedial and Removal Ac-
tions in General; Cleanup Plans. Most Cited Cases
(Formerly 199k25.5(5.5) Health and Environ-
ment)

891 F.Supp. 492, 25 Envtl. L. Rep. 21,577
(Cite as: 891 F.Supp. 492)
Strict compliance with National Contingency Plan
(NCP) is not required under CERCLA but, rather,
only substantial compliance is mandated. Compre-
hensive Environmental Response, Compensation, and
Liability Act of 1980, §§ 101(23-25), 107(a)(4)(B),
42 U.S.C.A. §§ 9601(23-25), 9607(a)(4)(B); 40
C.F.R. § 300.700(c)(3)(i), (c)(4).
[5] Environmental Law 149E 439
149E Environmental Law
149EIX Hazardous Waste or Materials
149Ek436 Response and Cleanup; Liability
149Ek439 k. Remedial and Removal Ac-
tions in General; Cleanup Plans. Most Cited Cases
(Formerly 199k25.5(5.5) Health and Environ-
ment)
Jointly liable parties in CERCLA litigation regarding
contamination of mining site would be required in
future to contain contaminants in most cost effective
way that would eliminate any future problems with
runoff contamination into waterways or into
neighboring land and town, but parties had to take
into account remote location of site and lack of im-
mediate population; there was no justification for
complete removal action in which huge sums of
money would be spent to take contaminants from one
remote part of country to another remote part of
country. Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, § 101 et
seq., 42 U.S.C.A. § 9601 et seq.
[6] Environmental Law 149E 447
149E Environmental Law
149EIX Hazardous Waste or Materials
149Ek436 Response and Cleanup; Liability
149Ek447 k. Contribution and Indemnity;
Allocation of Liability. Most Cited Cases
(Formerly 199k25.5(5.5) Health and Environ-
ment)
Allocation of liability under CERCLA must be done
in equitable fashion based on court's factual findings
and legal conclusions. Comprehensive Environmental
Response, Compensation, and Liability Act of 1980,
§ 101 et seq., 42 U.S.C.A. § 9601 et seq.
[7] Environmental Law 149E 447
149E Environmental Law
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
149EIX Hazardous Waste or Materials
149Ek436 Response and Cleanup; Liability
149Ek447 k. Contribution and Indemnity;
Allocation of Liability. Most Cited Cases
(Formerly 199k25.5(5.5) Health and Environ-
ment)
Prior owner and operator of mining site was 80%
liable under CERCLA for cleanup and containment
costs of site, while current owner was 20% liable;
contaminants representing bulk of hazardous waste
were extracted by prior owner while current owner
had only owned facility for short time and its opera-
tions of facility were minimal. Comprehensive Envi-
ronmental Response, Compensation, and Liability
Act of 1980, § 101 et seq., 42 U.S.C.A. § 9601 et seq.
[8] Environmental Law 149E 720(2)
149E Environmental Law
149EXIII Judicial Review or Intervention
149Ek711 Attorney Fees
149Ek720 Hazardous Waste or Materials
149Ek720(2) k. Response and Cleanup
Actions. Most Cited Cases
(Formerly 199k25.5(5.5) Health and Environ-
ment)
Private causes of action under CERCLA include cost
of attorney fees, in order to conserve finite resources
of government and encourage prompt attention to
environmental problems. Comprehensive Environ-
mental Response, Compensation, and Liability Act of
1980, § 101 et seq., 42 U.S.C.A. § 9601 et seq.
[9] Environmental Law 149E 447
149E Environmental Law
149EIX Hazardous Waste or Materials
149Ek436 Response and Cleanup; Liability
149Ek447 k. Contribution and Indemnity;
Allocation of Liability. Most Cited Cases
(Formerly 199k25.5(5.5) Health and Environ-
ment)
Environmental Law 149E 720(2)
149E Environmental Law
149EXIII Judicial Review or Intervention
149Ek711 Attorney Fees
149Ek720 Hazardous Waste or Materials
149Ek720(2) k. Response and Cleanup

891 F.Supp. 492, 25 Envtl. L. Rep. 21,577
(Cite as: 891 F.Supp. 492)
Actions. Most Cited Cases
(Formerly 199k25.5(5.5) Health and Environ-
ment)
CERCLA plaintiff bringing private action against
prior owner and operator of mining site would be
awarded all reasonable fees connected with litigation,
and that amount would not be affected by liability
allocation. Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, § 101 et
seq., 42 U.S.C.A. § 9601 et seq.
*493 Maurice B. Graham,Padberg McSweeney, St.
Louis, MO, Norella Huggins and George D. Martin,
Armstrong Teasdale Schlafly & Davis, St. Louis,
MO, and Richard A. Oertli, Holme Roberts & Owen,
Denver, CO, for plaintiff.
John L. Oliver, Jr. and J. Fred Waltz, Oliver Oliver
Waltz & Cook, Cape Girardeau, MO, and Marcus
Martin, Bartlit Beck Herman Palenchar & Scott,
Denver, CO, for defendant.
MEMORANDUM OPINION AND ORDER
LIMBAUGH, District Judge.
This matter is before the Court on the Plaintiff's re-
quest for a declaratory judgment and reimbursement
for cleanup costs under the Comprehensive Environ-
mental Response, Compensation, and Liability Act
(“CERCLA”), 42 U.S.C. § 9601 et seq.
Statement of Facts
The center of this suit is a tract of land near Freder-
icktown, Missouri. Since the mid 1800s, the area has
been operated sporadically as a mine, smelter, mill,
and tailings disposal area. From 1902 to 1922, the
North American Lead Company and Missouri Cobalt
Company worked the mine and produced nearly
700,000 tons of waste solids. From 1944 to 1961, the
National Lead Company (now NLIndustries) mined
the property continuously and created shafts which
contain mining refuse and generated nearly 4.5 mil-
lion tons of tailings.
In 1978, National Lead sold the property to two local
businessmen. One year later, after a dramatic increase
in the price of cobalt, an element believed to be
abundant at the site, the businessmen were able to
sell an option to NEDLOG, which in turn was able to
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
sell the property to Anschutz Mining Corporation for
Ten Million Dollars ($10,000,000).
Because of the years of neglect, it took Anschutz
some time to bring the mine back to an operable con-
dition. By the time the mine was ready, the price of
cobalt had plummeted and the venture was halted
because it was no longer profitable. Anschutz was
able to gather some of the surface cobalt from the
*494 tailings piles, but there was never any active
mining of the site by Anschutz.
There has been no further activity at the site. It is
surrounded by a chain link fence to keep out tres-
passers and there is a part-time watchman who main-
tains the integrity of the fence. The video tour pro-
vides a clear picture of the current condition of the
facility.
Discussion
This action is a private action brought by the current
property owner against a previous owner and opera-
tor. As the law has become more hostile towards
businesses that alter the environment as a byproduct
of their industrial efforts, Congress has attempted to
share the heavy cleanup burden with successive own-
ers. After all, even though a party may be the current
owner of a facility he may not be the main contribu-
tor to the environmental problems.
With that in mind, Congress enacted CERCLA. It
was “enacted in 1980 to accomplish the dual purpose
of ensuring the prompt cleanup of hazardous waste
sites and imposing the costs of such cleanups on re-
sponsible parties.” Dico Inc. v. Diamond, 35 F.3d
348, 349 (8th Cir.1994) citing General Elec. Co. v.
Litton Indus. Automation Sys. Inc., 920 F.2d 1415,
1422 (8th Cir.1990), cert. denied, 499 U.S. 937, 111
S.Ct. 1390, 113 L.Ed.2d 446 (1991).
[1] In order for an action to fall under the aegis of
CERCLA, it must fit within a framework that has
been developed through case law. The statute itself
does not specifically list the prima facie elements of a
claim, but the case law is in agreement that the ele-
ments are: (1) the defendant must fall within one of
four categories of “covered persons”, 42 U.S.C. §
9607(a); (2) there must have been a “release or
threatened release” of hazardous substance from the
facility, § 9607(a)(4), 9601(14), (22); (3) the release

891 F.Supp. 492, 25 Envtl. L. Rep. 21,577
(Cite as: 891 F.Supp. 492)
or threatened release must “cause the incurrence of
response costs” by the plaintiff, § 9607(a)(4); and (4)
response costs must be necessary costs and consistent
with the National Contingency Plan (NCP). §§
9607(a)(4)(B), 9601(23)-(25). See, Stewman v. Mid-
South Products of Mena, Inc., 993 F.2d 646, 648 (8th
Cir.1993); See also, Dedham Water Co. v. Cumber-
land Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st
Cir.1989).
[2] In the case at hand, all the elements of CERCLA
are met. The Defendant is a covered person because
NLIndustries qualifies under § 9607(a)(2) as “any
person who at the time of disposal of any hazardous
substance owned or operated a facility at which such
hazardous substances were disposed.” The parties
cannot dispute that a release occurred as defined by
42 U.S.C. 9601(22) nor does the Court have any
doubt, despite the defendant's argument for the exclu-
sion of mining waste, that the material is hazardous
as defined by statute. 42 U.S.C. 9601(14); Eagle-
Picher Industries v. US E.P.A., 759 F.2d 922, 926
(DC.Cir.1985); Idaho v. Bunker Hill Co., 635
F.Supp. 665, 673 (D.Idaho 1986).
[3] The next two prongs of the CERCLA test are
more contested, but nonetheless applicable. In the
first place, the Court makes the factual finding that
the site poses a significant threat to human health and
the environment. (Uncontrolled Hazardous Waste
Site Investigation, prepared by the Missouri Depart-
ment of Natural Resources, Pltf. Ex. 581 at 1). Sec-
ondly, the eighth circuit has found that CERCLA “is
a strict liability statute, with only a limited number of
statutorily-defined defenses available.” General Elec-
tric Co. v. Litton Indus. Automation Sys., Inc., 920
F.2d 1415, 1418 (8th Cir.1990); therefore, the causa-
tion argument fails. Finally, an argument that the
defendant's waste was released but was not the cause
of the cleanup must fail because the statute does not
mandate a release, an imminent release is enough to
trigger CERCLA coverage. There cannot be a re-
quirement that medical evidence support claims that
the local population has already been harmed; if that
were a requirement it would eliminate an entire cate-
gory which Congress has specifically included. Early
cleanup can avert major disaster; a doctrine that re-
quired a party to produce evidence of disaster would
circumvent a purpose of the legislation.
*495[4] The final element of CERCLA coverage is
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
that the actions which are taken must be necessary
and taken in accordance with the NCP. The Court
dismisses the defendant's argument, supported by
authority from the Fifth Circuit, that strict compli-
ance is required. Not only do the regulations call for
“substantial compliance” 40 CFR § 300.700(c)(3)(i),
(c)(4), but decisions in this circuit have followed the
standard of substantial compliance Id. The rationale
is that cleanup is encouraged, even if it is by private
parties, and that if the court were to disallow reim-
bursement for insubstantial deviations from technical
regulations, that policy would serve to block private
cleanup actions. The Court finds that up to this point,
all of the remedial actions taken by Anschutz have
been done in accordance with the NCP and 42 U.S.C.
9601(23), (24). This includes, but is not limited to the
sampling costs, the Dames & Moore Reports and the
construction work done on the D dam.
[5] The more difficult problem comes in determining
what work must be done in the future. The Court
determines that the parties must contain the contami-
nants. This must be done in the most cost effective
way that will eliminate any future problems with run
off contamination into the waterways or into the
neighboring land and town, but must take into ac-
count the remote location of the site and lack of im-
mediate population. The Court finds no justification
for a complete removal action in which huge sums of
money would be spent to take these contaminants
from one remote part of the country to another re-
mote part of the country. However, both parties are
compelled to prevent the spread of this contamination
so that further damage, with ensuing joint liability,
will not occur.
[6] Having found that both parties to this suit are li-
able, the Court turns to the allocation of liability. To
address this issue, many courts have looked to the
“Gore Factors”, which were submitted to Congress to
address this issue, but never adopted. This Court
chooses not to address those factors specifically,
since they do not serve as precedent, but certainly
follows the premise that allocation must be done in
an equitable fashion based on the Court's factual find-
ings and legal conclusions. See, Gopher Oil Company
v. Union Oil, 955 F.2d 519, 526-527 (8th Cir.1992);
See also Pennsylvania v. Union Gas Co., 491 U.S. 1,
21, 109 S.Ct. 2273, 2285, 105 L.Ed.2d 1 (1989); Key
Tronic Co. v. U.S., 511 U.S. 809, 114 S.Ct. 1960, 128
L.Ed.2d 797 (1994).
 Page 6

891 F.Supp. 492, 25 Envtl. L. Rep. 21,577

(Cite as: 891 F.Supp. 492)

IT IS FINALLY ORDERED that the Defendant pay

[7] In the case at bar, the defendants were the long- all costs already incurred, at the allocated liability
time operators and the main users of the facility. The rate, including prejudgment interest, and that the De-
plaintiff has only owned the facility for a short time fendant pay all reasonable attorney fees incurred by
and its operations of the facility were minimal. The the Plaintiff in this action.
contaminants that represent the bulk of the hazardous
waste were extracted by the defendant and are the E.D.Mo.,1995.
defendant's legacy. Anschutz Min. Corp. v. NL Industries, Inc.
891 F.Supp. 492, 25 Envtl. L. Rep. 21,577
However, both parties are liable and the Court finds
that the Defendant is Eighty Percent (80%) liable for END OF DOCUMENT
the cleanup and containment costs of the site and the
Plaintiff is Twenty Percent (20%) liable for the
cleanup and containment costs of the site. That figure
represents liability for past, present, and future
cleanup efforts. The Plaintiff is also entitled to inter-
est on the sums that have already been paid. 42
U.S.C. 9607(a); U.S. v. Allen, 1990 WL 339489, *2
(W.D.Ark.).

[8][9] Having made that determination, the Court is

left with the final issue of fees. In order to conserve
the finite resources of the government and encourage
prompt attention to environmental problems, private
causes of action include the cost of attorney fees.
U.S. v. Mexico Feed and Seed Co. Inc., 980 F.2d 478,
490 (8th Cir.1992). Therefore, the Court awards the
plaintiff all reasonable fees connected with this litiga-
tion. That amount will not be effected by the liability
allocation; the Plaintiff will receive One Hundred
Percent (100%) of all reasonable fees that have been
incurred.

Accordingly,

IT IS HEREBY ORDERED that the Plaintiff and

Defendant are jointly liable for the cleanup costs of
the Madison Mine site near Fredericktown, Missouri.

IT IS FURTHER ORDERED that the Plaintiff is

allocated Twenty Percent (20%) of all cleanup costs
and that the Defendant is *496 allocated Eighty Per-
cent (80%) of all cleanup costs.

IT IS FURTHER ORDERED that the parties con-

tain the contaminants within the site so that they pose
no threat of release. This containment is to be done in
the most cost effective manner in compliance with
the NCP.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.