Citations
- 353 F. Supp. 3d 916
Full opinion text
Dana L. Christensen, Chief Judge
INTRODUCTION
This is a civil action for contribution brought by Plaintiff ASARCO LLC ("Asarco") pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. § 9613, against Defendant Atlantic Richfield Company ("Atlantic Richfield" or "ARCO") for costs and damages incurred by Asarco at a location in East Helena Montana, known as the East Helena Site, a National Priorities List or "Superfund" site ("East Helena Site" or "Site"). The parties are both citizens of the State of Delaware. This Court has subject matter jurisdiction based upon the existence of a federal question, 28 U.S.C. § 1331. Personal jurisdiction is not contested. Venue is proper in this Court as the events occurred in East Helena, Montana. D. Mont. L.R. 1.2(c)(4), 3.2(b).
The Court held a bench trial from May 29, 2018 to June 7, 2018. Asarco was represented by Kris McLean, Gregory Evans, and Rachel H. Parkin. Atlantic Richfield was represented by Randy J. Cox, Kenzo Kawanabe, and Benjamin B. Strawn. Approximately 160 exhibits were admitted and the subject of testimony by 12 witnesses, including 3 expert witnesses. Having carefully reviewed the evidence, the applicable law, and the testimony and arguments of the parties as presented at trial and in their written submissions, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.
FINDINGS OF FACT
I. THE PARTIES AND HISTORICAL OPERATIONS AT THE EAST HELENA SITE
1. Plaintiff Asarco is a limited liability company organized under the laws of the State of Delaware.
2. Asarco is the successor in interest to the American Smelting and Refining Company. Asarco is the resulting corporate entity that emerged from the Chapter 11 bankruptcy reorganization of the American Smelting and Refining Company in 2009.
3. Asarco and its predecessors owned a lead smelting facility at the Site, which was in operation from approximately 1888 until 2001. Asarco brought various ores, concentrates, and other materials to the site for smelting, which contained as much as 19% arsenic (190,000 parts per million or "ppm"). It is undisputed by Asarco that its lead smelting facility was the largest operation at the site, and that its operations caused significant groundwater contamination. Asarco continued to own and manage the Site until it emerged from bankruptcy in 2009.
4. Defendant Atlantic Richfield is a Delaware corporation. Atlantic Richfield is the successor-in-interest to Anaconda, formerly named Anaconda Copper Mining Company. Atlantic Richfield was also referred to as ARCO throughout the proceedings in this case.
5. On March 1, 1927, Asarco and Anaconda entered into an Option Agreement whereby Anaconda agreed to purchase blast furnace slag produced by Asarco's lead smelting operation, which Anaconda intended to process at the Site for the recovery of zinc fume.
6. On December 20, 1927, Asarco and Anaconda entered into a Lease Agreement whereby Anaconda leased a tract of land at the Site for the purposes of constructing and operating a zinc fuming plant for the recovery of zinc from the slag it purchased from Asarco.
7. Pursuant to these two Agreements, Anaconda constructed and operated a zinc fuming plant on land leased from Asarco at the site for 45 years, from 1927 to 1972. Anaconda's zinc fuming operation was directly adjacent to Asarco's lead smelting operation.
8. Anaconda had two sources of slag at the site. One source was molten slag which Anaconda conveyed from Asarco's lead smelter to its zinc fuming facility. The second source was hardened, cold slag stockpiled on the Site which Anaconda mined and transported to its zinc fuming facility. Both sources of slag were then fumed by Anaconda in its facility for the purposes of recovery and sale of zinc. Anaconda placed this molten and cold slag into its zinc fuming blast furnace, which heated the slag to approximately 2,000 degrees Fahrenheit, resulting in zinc fume. The molten and mined cold slag which was transported, purchased and utilized by Anaconda contained arsenic.
9. Anaconda used coal to fuel the blast furnace. Coal contains 0.0006% (6 ppm) arsenic. The coal was delivered to the facility by railcar. The coal arrived in relatively small pieces and first needed to be dried before it was used in the furnace. This process was accomplished through the use of a coal or kiln dryer. The kiln dryer utilized a horizontal turning heater that served to drive off the moisture in the coal. The dried coal was then passed from the kiln dryer to a pulverizer, which involved a milling process that reduced the coal into fine pieces so that it could be conveyed by high pressure air to the blast furnace.
10. As a protective measure, the blast furnace was completely surrounded with water jackets. Cooling water was pumped through the water jackets under pressure to route the water around the furnace. In the furnace, coal and air were injected into the molten slag material, and as that oxygen made contact with the zinc, it created zinc oxide dust, which was then conveyed through a series of cooling flues into a large building referred to as the bag house.
11. Once in the bag house, the zinc oxide dust was collected on a row of large woolen bags. The remaining air and particulates which were not collected on the woolen bags were then released through vents in the bag house into the atmosphere outside the bag house. The woolen bags would be shaken to dislodge the material into a series of augers, which would then convey the white zinc oxide material to a series of other augers and eventually into open-top railcars, and later to close-top railcars.
12. Anaconda's zinc fuming plant operated 24 hours a day, 7 days a week, 355 days per year.
13. Anaconda sold the zinc fuming operation to Asarco in 1972. Asarco then operated the zinc fuming plant for 10 more years, until 1982, at which time it ceased operations.
14. Two other entities operated at the Site. American Chemet Corporation ("ACC"), at various points in time, conducted operations at the Site, including a zinc oxide plant and a zinc fuming process, and produced a number of products, including roasted zinc dross, talc and copper oxides. Burlington Northern Santa Fe ("BNSF") operated railway lines on and near the Site. BNSF and its predecessors transported ores and other feed materials from mines and other facilities to Asarco's lead smelter beginning in 1888.
II. THE SITE AND CLEANUP EFFORT
15. The Site is located in Lewis and Clark County in the State of Montana. The Site is south of the City of East Helena, and separated by US Highway 12. The majority of the Site is at a higher elevation than the City of East Helena. Prickly Pear Creek is a naturally occurring stream that originates at a higher elevation south of the Site, and travels in a northerly direction along the eastern and northern boundaries of the Site, under US Highway 12, through a portion of the City of East Helena, and ultimately into Lake Helena.
16. In 1984, EPA added the Site to the National Priorities List of sites under CERCLA that require environmental remediation pursuant to federal law.
17. The groundwater underneath the Site is contaminated with arsenic and selenium.
Arsenic is the primary contaminant of concern. Although passing mention of selenium was made during the course of the trial, neither party offered any testimony, expert or otherwise, or evidence regarding the presence or absence of selenium in the groundwater, the source or sources of any selenium contamination, what costs are associated with the selenium contamination, or who should bear responsibility for any such costs. Thus, the focus of this order is the same as the focus at trial, arsenic contamination in the groundwater.
18. Atlantic Richfield does not dispute that Anaconda's operations may have caused some contamination at the site, but it does dispute that Anaconda's operations are the source of the arsenic found in the polluted groundwater under the Site that is the subject of the cleanup. In fact, as will be explained later in these findings of fact, Anaconda and its successor, Atlantic Richfield, have historically been consistent and steadfast in denying any contribution of arsenic to the groundwater from its operations at the Site. In contrast, Asarco has never denied that its operations at the Site contributed to the presence of arsenic in the groundwater, which is evidenced by the forthcoming approach it has taken with the State of Montana and the Environmental Protection Agency during the cleanup process. Thus, based on these diametrically opposed positions, it is no surprise that the focus of the cleanup effort has been on the Site activities of Asarco, and not Anaconda/Atlantic Richfield.
19. Asarco's acceptance of responsibility at the Site was manifested through three CERCLA consent decrees and one Resource Conservation and Recovery Act ("RCRA") consent decree, which are described in more detail below.
A. The 1990 CERCLA Consent Decree
20. In 1990, the district court approved and entered a Settlement and Consent Decree between Asarco and EPA regarding the Site, which resolved claims EPA brought against Asarco under CERCLA § 106 and § 107. The 1990 CERCLA Consent Decree concerned only specific Site features, which were the process water ponds and process water management systems, some of which were associated with only Asarco's operations, and some of which were associated with the operations of both Asarco and Anaconda (collectively, the "Process Ponds").
21. Specifically, Asarco was required to implement certain remedial measures selected in the Record of Decision ("ROD") for the Process Ponds, which EPA had issued on November 22, 1989.
22. The 1990 CERCLA Consent Decree covered four Process Ponds: (1) Lower Lake; (2) the speiss granulating pond and pit; (3) the acid plant water treatment facility; and (4) former Thornock Pond or Lake, and the associated process water management systems. The operations of both Asarco and Anaconda delivered wastewater to Thornock Pond or Lake and Lower Lake. The speiss granulating pond and pit and the acid plant water treatment facility were used solely by Asarco.
23. Asarco was required to carry out the remedial measures selected by EPA for the Process Ponds, in accordance with the 1990 CERCLA Consent Decree and Process Ponds ROD.
24. Asarco completed substantially all of the cleanup activities required under the 1990 CERCLA Consent Decree by 1997.
B. The 1998 RCRA Consent Decree
25. Prior to 1998, Asarco and EPA engaged in negotiations to resolve operational compliance issues at Asarco facilities nationwide in a cooperative manner, including at Asarco's facilities in East Helena.
26. In 1998, Asarco and EPA entered into another Settlement and Consent Decree relating to Asarco's facilities in East Helena (the "RCRA Decree"), which resolved claims EPA brought against Asarco under RCRA and the Clean Water Act, but did not include the settlement of any claims under CERCLA.
27. Under the RCRA Decree, jurisdiction over the cleanup at Asarco's facilities was transferred from EPA's CERCLA program to its RCRA program.
28. The only portion of the cleanup that was not transferred from the CERCLA program to the RCRA program was the cleanup of certain off-Site contaminated residential soils (e.g., yards, roads, parks) and other undeveloped lands in the City of East Helena, which were referred to as Operable Unit 2 ("OU2").
C. Asarco's Bankruptcy and the February and June 2009 CERCLA Consent Decrees
29. On August 9, 2005, Asarco filed a bankruptcy petition under Chapter 11 of the United States Bankruptcy Code in the Bankruptcy Court for the Southern District of Texas (the "bankruptcy court").
30. In the bankruptcy, numerous governmental entities filed proofs of claim regarding Asarco's outstanding environmental liabilities, including the United States and State of Montana Department of Environmental Quality, alleging joint and several liability under CERCLA ("proofs of claim"). The proofs of claim made various allegations and provided placeholder claim demands, which were later supplemented by expert reports. The allegations were not restricted solely to Asarco owned properties, and included claims for contamination to off-Site properties not owned by Asarco.
31. In its initial proof of claim, the United States made a claim against Asarco for "response costs and costs of assessment of injuries to natural resources under the Comprehensive Environmental Response, Compensation, and Liability Act ('CERCLA'), 42 U.S.C. §§ 9601 - 9675, incurred by the United States..." at sites including the East Helena Superfund Site.
32. The United States filed its Supplemental Proof of Claim against Asarco for "response costs incurred and to be incurred by the United States under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 - 9675 at various sites," including the East Helena Superfund Site.
33. The State of Montana Department of Environmental Quality filed a Proof of Claim alleging that "Asarco is liable under CERCLA ... for all remediation expense" with respect to the East Helena Superfund Site. Furthermore, the Department claimed future remediation expense, including "a protective contingent claim" "[t]o the extent Debtor does not undertake remedial action as required under CERCLA or RCRA and as directed by the United States, the Department cost match would be an estimated $14,300,000 in future remediation, operation, and maintenance expense. Pursuant to CERCLA, the Department would be entitled to recover $14,300,000 from Debtor."
34. In addition to the United States' claim and the Montana Department of Environmental Quality's claim for the East Helena Site, the State of Montana also submitted a Proof of Claim against Asarco in the bankruptcy proceedings for CERCLA Natural Resource Damages for an estimated $20 million.
35. Asarco understood that these Proofs of Claim were CERCLA claims asserted "for future response costs and injuries to natural resources going forward ... response costs for groundwater contamination." Asarco further understood that because the governmental claims were CERCLA claims, that "Asarco could be held responsible for all of the cleanup costs, 100 percent, regardless of if there were other PRPs on the site."
36. In support of the various claims, the State of Montana submitted the expert reports of William H. Bucher, P.E., and Ann Maest, Ph.D., which established that a $99 million pump-and-treat system was necessary to remediate the off-site groundwater plume underlying the City of East Helena.
37. Ann Maest, Ph.D., a geologist and geochemist, served as an expert witness on behalf of the State of Montana during approval proceedings related to the CERCLA Decree and attested that since 2000, the focus of the cleanup has been on restoration of groundwater, with arsenic being the primary contaminant.
38. On February 6, 2009, a Settlement and Consent Decree between Asarco, the United States, and the State of Montana was entered by the bankruptcy court which resolved Asarco's liabilities under CERCLA with respect to OU2 (the off-Site residential soils and undeveloped lands), but did not address contaminated groundwater. Pursuant to this February 2009 CERCLA Consent Decree, Asarco was required to pay $13,209,783 to fund the remaining cleanup of OU2. Again, this Decree covered only OU2, and expressly stated it did not apply to any other aspect of the East Helena Site, including groundwater.
39. Asarco, the United States, and the State of Montana reached a second Settlement and Consent Decree (the "June 2009 CERCLA Consent Decree") which resolved all of Asarco's outstanding environmental liabilities at several sites in Montana, including the remaining liabilities under CERCLA at the East Helena Site.
40. The June 2009 CERCLA Consent Decree recognizes the previously entered February 2009 CERCLA Decree, which it refers to as the "Separately Settled East Helena Matters." The June 2009 CERCLA Consent Decree does not incorporate or cover the work required under the February 2009 CERCLA Decree.
41. Asarco's Director of Environmental Services, Donald Robbins, submitted a declaration in support of Asarco's motion in the bankruptcy proceedings for an order approving the June 2009 CERCLA Consent Decree, and stated in his declaration that the two major variable factors remaining at East Helena were "the size of the groundwater plume; and the scope of the remedy."
42. Notice of this CERCLA Decree was published in the Federal Register, and the EPA received public comments.
43. On June 5, 2009, the CERCLA Consent Decree and Settlement between Asarco, the United States, and the State of Montana was entered by the bankruptcy court. The June 2009 CERCLA Consent Decree resolved all Asarco's outstanding environmental liabilities at several sites in Montana, which collectively were referred to as the "Montana Designated Properties." The Montana Designated Properties included the East Helena Site.
44. The June 2009 CERCLA Consent Decree established a Custodial Trust for the Montana Designated Properties. The Custodial Trust was to be established on the effective date of Asarco's Plan of Reorganization, as approved by the bankruptcy court.
45. The Montana Environmental Trust Group ("METG") was appointed as the Custodial Trustee for the East Helena Site to administer the Custodial Trust and Custodial Trust Accounts.
46. Asarco was required to "transfer all of their right, interest in, and title to" the Montana Designated Properties to the Custodial Trust.
47. The June 2009 CERCLA Decree established separate "Custodial Trust Cleanup Accounts" for each of the Montana Designated Properties. The purpose of the Cleanup Accounts was to provide funding for future "Environmental Actions" with respect to each Montana Designated Property.
48. "Environmental Actions" is defined as "all environmental activities related to the Montana Designated Properties, including but not limited to response or remedial actions, removal actions, corrective action, closure, or post-closure care, natural resource restoration, reclamation, investigations, studies, remediation, interim actions, final actions, emergency actions, water treatment, implementation of engineered structures and controls, obtaining and maintaining reasonable financial assurance, monitoring, repair and replacement of engineered structures, monitoring equipment and controls, operation and maintenance, and implementation, operation and maintenance of institutional controls, coordination and integration of reuse and remedial efforts and initiatives (including, without limitation, multi-stakeholder communications), and, if appropriate, long-term stewardship and perpetual custodial care activities ..." in addition to "... any and all environmental activities related to the Designated Properties...and activities related to releases of hazardous substances, hazardous waste, or hazardous constituents from any portion of the Montana Designated Properties, including all areas affected by natural migration of such hazardous substances, hazardous waste, or hazardous constituents from the Montana Designated Properties."
49. The June 2009 CERCLA Consent Decree designated EPA as the "Lead Agency" for the East Helena Site in charge of selecting, approving, and authorizing all work performed and funds expended from the Custodial Trust Cleanup Account for the East Helena Site by METG.
50. Under the June 2009 CERCLA Consent Decree, Asarco was required to pay a total of $138,300,000 to fund all of the Custodial Trust Cleanup Accounts for the Montana Designated Properties.
51. Asarco paid approximately $111.4 million to address environmental impacts caused by all parties, including Anaconda, at the East Helena Site. This includes the following payments:
a. $99,294 million into the East Helena Custodial Trust Cleanup Account for a groundwater remedy to clean up the off-site groundwater at the East Helena Site, which was based upon the estimates for a pump and treat remedy advanced by the State of Montana's experts, William H. Bucher, P.E., and Ann Maest, Ph.D.
b. $8.9 million 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.
c. $706,000 to fund United States Department of the Interior natural resource restoration and future oversight costs for the East Helena Site.
d. $5 million to the State of Montana for the East Helena Site in compensatory natural resource damages ("NRD").
52. Pursuant to the June 2009 CERCLA Consent Decree, Asarco received contribution protection and a covenant not to sue under CERCLA. Thus, Asarco's "outstanding obligations" were "fully resolved" under CERCLA.
53. In the June 2009 CERCLA Consent Decree, Asarco expressly reserved all claims past or future against third parties "for any matter arising at or relating in any manner to the Montana Sites and/or claims addressed herein."
54. Asarco's Seventh Amended Plan of Reorganization reserved Asarco's rights and interests in CERCLA contribution actions not discharged or settled in bankruptcy.
55. On December 9, 2009, Asarco's Seventh Amended Plan of Reorganization became effective, enabling disbursal of funds for environmental settlements, including funds for the East Helena settlements.
56. Notwithstanding the fact that the initial proofs of claim exceeded the amount paid by Asarco, Asarco nevertheless fully funded the agreed upon settlement amount in the June 2009 CERCLA Consent Decree at one hundred cents on the dollar.
57. Asarco paid $1.8 billion to settle all allowed environmental claims related to hazardous waste in the bankruptcy proceedings.
58. Atlantic Richfield did not contribute to Asarco's settlement with the United States and the State of Montana regarding the East Helena Site, and has paid nothing to clean-up the East Helena Site despite Anaconda's operation of the zinc fuming facility for 45 years.
59. Asarco admitted that BNSF shared some responsibility for its contamination at the Site. In the bankruptcy proceeding, Asarco listed BNSF as a PRP that Asarco could sue after bankruptcy. There was no evidence presented at trial regarding the contribution that BNSF's operations made, if any, to the arsenic in the groundwater at the Site. Regardless, in 2011, Asarco conclusively resolved any contribution from BNSF at the East Helena Site in a multi-site settlement agreement, in which BNSF paid Asarco a total of $675,000 as follows: $625,000 for environmental costs associated with the Tri States Lawsuit and $50,000 for all other claims and environmental costs, at over 40 sites including East Helena. In exchange for this consideration, Asarco released BNSF from contribution liability for numerous sites, including East Helena.
D. The Montana Environmental Trust Group and East Helena Site Remedial Work
60. METG administers and uses the trust account to fund environmental actions at the Site. Asarco made the payments described above in December, 2009, and METG assumed responsibility for the remediation work at the Site, under the direction of the EPA as the Lead Agency, in consultation with the State of Montana.
61. On January 17, 2012, the district court issued the 2012 First Modification to Consent Decree ("2012 Modification"), which, among other things, amended the 1998 RCRA Consent Decree to substitute METG for Asarco.
62. The 2012 Modification deleted certain requirements that Asarco was initially required to perform under the 1998 RCRA
Consent Decree, including a supplemental environmental project and stipulated penalties. METG is no longer required to perform such obligations under the 1998 RCRA Consent Decree, as carried forward by the 2012 Modification.
63. The 2012 Modification lists the exclusive purposes of the Custodial Trust-one is "to manage and/or fund implementation of future investigation and cleanup activities approved by EPA with respect to the Asarco Properties and contaminated groundwater."
64. The 2012 Modification also consolidates all of Asarco's remaining obligations at the East Helena Site, including remediation of the groundwater, under the 1990 CERCLA Consent Decree, the OU2 ROD, and the MDEQ AOC with the remaining obligations of the 1998 RCRA Consent Decree.
65. The 2012 Modification provides that "[b]ased upon new information and/or changed circumstances, EPA may determine or the Trustee of the Custodial Trust may propose that certain tasks, including investigatory work, engineering evaluations, or procedure/methodology modifications, are necessary in addition to or in lieu of the tasks included in any EPA-approved work plan."
66. Under the 2012 Modification, METG is not limited to only doing work at the Site under the pre-existing Consent Decrees, and has a number of duties at the East Helena Site, including:
"... own the ASARCO Properties, carry out administrative and property management functions related to them, manage and invest funds transferred by ASARCO to the Trustee of the Custodial Trust under the Plan of Reorganization, manage and/or fund implementation of future investigation and cleanup activities approved by EPA with respect to the ASARCO Properties and contaminated groundwater, and ultimately to sell, transfer or otherwise dispose and/or provide for the long-term stewardship of all or part of the ASARCO Properties, if possible, and engage in activities related thereto consistent with the fiduciary obligations of the Trustee of the Custodial Trust all for the benefit of the Governments;"
67. Since 2009, METG has used a portion of the $99.294 million Asarco paid into the trust to fund a series of environmental actions intended to address and remediate contaminated water at the Site. METG's Site activities are the focus of any potential allocation responsibility because it is the work being funded by Asarco. Asarco does not seek reimbursement for any remediation work it performed at the Site performed prior to July 2009.
68. METG's environmental actions to date consist of three projects referred to as interim measures ("IMs"). The general purpose of the IMs in this case "is to prevent and minimize the spread of hazardous waste and hazardous constituents while long term corrective measures were being evaluated." EPA approved METG's planned IMs in 2012 and, since that time, all three IMs have been fully implemented.
69. The three IMs are summarized as follows:
a. The first IM, referred to as the South Plant Hydraulic Control IM, was implemented to reduce migration of inorganic contaminants in groundwater by changing the hydrogeologic conditions at the southern end of the Site, including lowering the groundwater table, which also reduced the velocity at which groundwater moves under and away from the site. This IM has included dewatering of Upper and Lower Lakes, realignment of Prickly Pear Creek by moving it eastward, removal of the Wilson Ditch Diversion Dam and the Smelter Dam to eliminate water impoundment, and removal of reservoir sediments.
b. The second IM, referred to as the Source Removal IM, was implemented to reduce the mass loading of contaminants to groundwater by reducing the volume of soil with high concentrations of inorganic contaminants that were subject to infiltration or flow-through leaching to groundwater. This was accomplished by excavating the most highly contaminated soils at the Site to prevent those soils from serving as an ongoing source of arsenic contamination to groundwater. This IM also removed sediments from Lower Lake and from the Upper Lake marsh area.
c. The third IM, referred to as the ET Cover System IM, involved the construction by METG of a new cover of soil and vegetation over the majority of the Site with the exception of the slag pile and the former Upper and Lower Lake areas, and was implemented to further reduce the potential for inorganic soil contaminants to leach to groundwater by eliminating or reducing the amount of infiltration through contaminated materials. This IM provides for a clean surface for runoff, and is designed to eliminate human and wildlife exposure to potentially contaminated soils, and prevent windblown or storm water induced migration of potentially contaminated soils. The ET Cover System encompasses a 57 acre area of the facility, which includes the area where Anaconda's zinc fuming plant and its process water circuits were located.
70. While remediation work has been done under the 1998 RCRA Consent Decree and the 2012 Modification, the work is supervised by EPA and has been done consistent with and pursuant to CERCLA standards, and as such the work is in substantial compliance with the National Contingency Plan.
71. In addition to the three completed IMs described above, METG proposes, as future remediation work, to cap the portion of the slag pile at the Site that consists of unfumed slag, which is slag that was not processed a second time for metals recovery in Anaconda's zinc fuming process, due to the potential for the unfumed slag to leach arsenic to groundwater.
72. METG, working with local authorities, has established a set of institutional controls for the Site and surrounding areas. These institutional controls will not reduce the arsenic in the groundwater, but instead are intended to prevent property owners from using their domestic water wells in an effort to prevent contact with contaminated groundwater.
73. The EPA has determined that the remedial work done to address source areas contributing to ground water contamination "are expected to be protective of human health and the environment upon completion" and that "[i]n the interim, remedial activities completed to date have adequately addressed all exposure pathways that could result in unacceptable risk ...."
74. Though METG's remedial efforts have been focused on groundwater cleanup, that work has not been completed yet, and METG's own consultant has noted that the offsite arsenic plume will not achieve MCLs (maximum contaminant levels) or achieve drinking water standards within the next thirty years, a fact confirmed by both Asarco's and Atlantic Richfield's experts.
75. Based on the most recent accounting as of September 30, 2017, METG has spent approximately half of the trust funds, leaving METG with approximately $50 million for remaining cleanup and groundwater remediation. METG has recommended that the final remedies at the Site consist of the three IMs, a speiss-dross slurry wall built by Asarco, the cover for the unfumed portion of the slag pile, and the previously described institutional controls. Atlantic Richfield's expert, Brian Hansen ("Hansen") has estimated that the ongoing costs for operations and maintenance is $9.2 million, and METG has estimated the cost of covering the unfumed slag at $3.7 million. Thus, expert Hansen estimates that the final costs subject to the CERCLA claim total $61,447,991. Expert Hansen also predicts, without any basis, that EPA is likely to adopt and approve METG's proposed final remedies.
76. Atlantic Richfield contends that METG has ruled out a pump-and-treat remedy, as not being cost effective. METG also contends that a pump-and-treat system would be technically ineffective and could affect the stability of the arsenic-contaminated groundwater plume, which extends from the Site in a northwesterly direction into the City of East Helena.
77. Asarco's expert, Margaret W. Staub ("Staub"), disagrees with expert Hansen. Her disagreement is based on the simple fact that the three IMs employed by METG, in combination with the final remedies described in paragraph 71 and 72 above, will not address the elevated levels of arsenic and selenium that exist in the groundwater plume that is migrating under the City of East Helena, and will not restore this groundwater to background levels or achieve MCLs and drinking water standards within the next thirty years as described in paragraph 74 above. Thus, expert Staub reasons that the recommendation made years ago by State of Montana experts Maest and Bucher (see paragraph 51.a. above) that a pump-and-treat system would be necessary to address arsenic and selenium contamination in the off-site groundwater, will be the most likely final remedial outcome.
78. Staub's opinion is bolstered by the fact that this was the remedy contemplated at the time of the bankruptcy settlement and associated consent decrees, and contemplated by the 2012 Modification, which authorizes the EPA to modify and enlarge the Site remediation work being performed by METG (see paragraph 65 above). The Court adopts Staub's reasoning and concludes that unless and until the groundwater is restored to achieve MCLs and drinking water standards, something more substantial will need to be done. Whether there remains sufficient funds in the trust to accomplish this task, and whether a pump and treat system is the ultimate solution, are not the controlling questions. Regardless of the answer to those two questions, and notwithstanding Atlantic Richfield's arguments to the contrary, the Court is convinced that the balance of the approximate $50 million in the trust will most likely be expended to achieve the mandated remediation results.
79. The Court now turns to an analysis of the relative contributions of arsenic to the groundwater caused by the respective operations of Asarco and Anaconda which are the subject of the clean-up costs incurred by Asarco pursuant to the June 2009 CERCLA Consent Decree.
III. ASARCO'S CONTRIBUTION OF ARSENIC TO THE GROUNDWATER
80. Asarco concedes, and it was uncontroverted at trial, that the majority of the groundwater contamination METG is remediating at the Site was caused by Asarco's operations. Notwithstanding this concession by Asarco, Atlantic Richfield's case in chief was largely dedicated to proving the nature and extent of Asarco's pollution, and in the process, minimizing Anaconda's contribution of pollution.
81. Asarco's lead smelter operation at the Site recovered lead and other metals by smelting a variety of foreign and domestic concentrates, ores, fluxes and other non-ferrous, metal-bearing materials and byproducts, referred to as feed stocks or feed materials. Although Asarco's smelting operation changed over time, the components of its operation included: (a) raw materials storage and handling; (b) a sintering plant; (c) an acid plant; (d) a blast furnace; (e) a dross plant; (f) a speiss handling area; and (g) a slag dump. In addition, Asarco's lead smelter operation utilized large quantities of water, which were circulated through the component operations utilizing several surface water features, such as pits, ponds and ditches, and underground water pipeline circuits.
82. In the early years of its operations, Asarco smelted arsenic-bearing ores using an open roasting process. These operations produced arsenic contamination in various locations at the Site.
83. The smelter feed stocks were delivered to the Site via railcar or truck. For a period of time, these feed stocks were stored in two primary locations: the Upper Ore Storage Area and the Lower Ore Storage Area. The ores Asarco smelted contained as much as 19% (190,000 ppm) arsenic. These materials were stored in uncovered piles on concrete slabs or on the bare ground, and were exposed to the elements, which includes wind, rain and snow. Asarco also regularly performed high pressure washdowns throughout its facilities, utilizing contaminated process waters.
84. Later, Asarco modified its process by building furnaces. The first steps in Asarco's handling process involved sampling, crushing, blending, mixing, and proportioning crude ore materials to prepare them for the smelting process. Some of these materials were then sent directly to the blast furnace for smelting, but the majority of the feed materials were sent to the sintering plant, where the materials were pulverized and roasted on grates. This process reduced the sulfur content in the materials, creating a product known as sinter. The sinter, like the feed materials themselves, contained arsenic. The gas and dust produced in the sintering plant was either captured in a series of hooding systems and vented to the atmosphere, or, in more recent times, sent to Asarco's acid plant. The gases were converted to sulfuric acid, a marketable product, which was captured, stored in tanks and eventually shipped offsite. This process generated an arsenic-bearing sludge that was dried on a pad located near Lower Lake. The acid plant was a source of groundwater contamination.
85. After the sinter was conveyed to the blast furnace, it was mixed with coke-a form of coal used for fuel-as well as other materials, such as scrap metal. Asarco charged this mixture to its blast furnace and heated it to a temperature of approximately 2000 degrees Fahrenheit, which created lead bullion and slag. The lead bullion was then transferred from the blast furnace in 5-ton lead pots to the dross plant for further processing. Some spillage occurred from the 5-ton pots. This spilled material contained arsenic, selenium, lead, and other constituents. At the dross plant, the molten lead was cooled, which caused a copper-bearing material known as dross to float to the surface. Asarco then cooked the dross in a reverberatory furnace to form copper-bearing materials known as matte and speiss. The speiss contained as much as 17% arsenic (170,000 ppm).
86. The lead smelting operation generated large volumes of waste slag, which was deposited at the slag dump located on the east-northeast portion of the Site. As previously indicated, from 1927 until 1982, some of the slag was processed at Anaconda's, and later Asarco's, zinc fuming plant located at the Site.
87. Managing arsenic was a constant problem for Asarco. There was an imbalance of arsenic at the site, that is, because of the processes employed by Asarco, there was more arsenic coming in to the Site than was going out.
88. Asarco used large amounts of process waters and four main process water ponds in its lead smelting operations: (1) Lower Lake; (2) the speiss granulating pond and pit; (3) the acid plant water treatment facility; and (4) Thornock Pond or Lake. The process ponds were connected to the lead smelting operations by an underground piping network known as the process water circuit.
89. The speiss granulating pond and pit are considered to be the most significant source of arsenic contamination to the groundwater at the Site because they were connected to Asarco's process waters circuit and to Lower Lake.
90. Lower Lake was a man-made process water pond fed by Prickly Pear Creek. It was unlined, and approximately 7 acres in surface area, and 11 million gallons in volume.
91. The acid plant water treatment facility was used to settle particulates from the acid plant scrubber blowdown water, which was recirculated to the scrubbers or to the sinter plant. The components of the acid plant treatment facility were a trough, settling dumpsters and a concrete lined settling pond. The settling pond was 68 feet long by 35 feet wide and 9 feet deep. Arsenic-bearing fluids migrated to the groundwater as a result of this treatment process.
92. Thornock Lake was constructed by Asarco in 1971 as a collection and settling pond for lead smelter process waters and storm water runoff. Thornock Lake was originally about 70 feet long by 40 feet wide and 8 feet deep, with a capacity of approximately 100,000 gallons. In October 1986, Asarco replaced Thornock Lake with a 100,000-gallon, 40-foot diameter steel holding tank. Before Thornock Lake was constructed, there was a natural depression in the same location which was used for the same purposes. This was referred to as Thornock Pond, or Pond 2.
93. Asarco's process water circuit was a system of primarily underground pipes that conveyed water from Lower Lake to various portions of Asarco's smelting process. Prior to 1975, the process water circuit discharged directly to Prickly Pear Creek. Beginning in 1975, Asarco began discharging its process water into Lower Lake. Asarco used the process water to wash down various portions of its waters and to suppress dust around the plant, including the slag pile. Plant washdowns occurred on a daily basis. The process water circuit also included a system of drains that collected process waters and runoff from various parts of Asarco's operation and conveyed that water back into the circuit. This process water circuit was old and leaked, releasing process water into the ground below the smelter. Based on pressure testing of the main process water circuit pressure lines conducted in March 1988 and March 1989, the Comprehensive Remedial Investigation and Feasibility Study for the Site theoretically estimated that as much as 105,000 to 2.2 million gallons leaked from Asarco's process water circuit every year.
94. The use by Asarco of arsenic-bearing materials and water resulted in contamination to the groundwater at the Site, again, a fact that Asarco has not contested in this case. Expert Hansen estimated that the concentrations of arsenic found in the soils and sediments at the most contaminated parts of the site are as follows:
• Speiss pond/pit-14% arsenic (140,000 ppm)
• Thornock Lake-12% arsenic (120,000 ppm)
• Lower Lake-2.25% arsenic (22,500 ppm)
• Acid Plant-1.16% arsenic (11,600 ppm)
95. Expert Hansen also estimated that the fluids involved in Asarco's use of the process ponds contained the following concentrations of arsenic:
• Speiss pond/pit-3,733 mg/L
• Acid plant-2,867 mg/L
• Lower Lake-200 mg/L
• Process fluids circuit-60 mg/L
• Thornock Lake-40 mg/L
96. There is a clear connection between Asarco's operations, which used arsenic-bearing materials and waters, and the arsenic portions of the groundwater plume mapped by METG. In fact, the majority of the arsenic found in the groundwater plume can be attributed to Asarco's operations, a fact which Asarco also does not contest. What is contested in this case is Anaconda's contribution of arsenic to the groundwater plume that has been the subject of METG's remediation efforts. As will be developed later in these findings of fact, Atlantic Richfield has steadfastly maintained for decades that its zinc fuming operation did not contribute any arsenic contaminants to the groundwater at the Site. Thus, it comes as no surprise to the Court that all of the studies and investigations performed at this Site since the 1980s focus on Asarco's operations. However, as explained in the next section of these findings of fact, Anaconda's zinc fuming operation also contributed arsenic to the groundwater plume.
IV. ANACONDA'S CONTRIBUTION OF ARSENIC TO THE GROUNDWATER
97. Anaconda operated a zinc fuming plant at the Site for 45 years, from 1927 to 1972. During this period of time, Anaconda had at least eleven different discharge points at the East Helena Site where arsenic releases occurred: (1) zinc dust from the bag house; (2) zinc dust left on the ground by the flue; (3) the unlined burning coal area; (4) the unlined slag pile pond (Pond 3); (5) washdown waters; (6) unlined Thornock Pond and Lake (Pond 2); (7) unlined Wilson Ditch; (8) leaks in the pipe transporting process water from Lower Lake to the furnace; (9) the unlined return ditch to Lower Lake; (10) leaks from water jackets in the furnace; and (11) unlined Lower Lake (Pond 1).
A. Zinc Dust Released From the Anaconda Bag House
98. As previously explained, after the zinc fume traveled from the blast furnace through the flues, it was deposited at Anaconda's bag house, where the zinc particulates and dust collected on the outside of a long row of large woolen bags.
99. The bags were routinely shaken so that the zinc dust would drop off the bags into augers, and then was deposited into uncovered railcars for shipment.
100. Anaconda's fume bag house had five trapezoidal vents on the roof, which discharged zinc fume containing arsenic to the atmosphere.
101. Anaconda's bag house did not have a stack.
102. Throughout Anaconda's tenure, bag house dust was visible on the ground around the bag house, and along the railroad tracks where fumed zinc was loaded into open railcars.
103. In an internal Anaconda memorandum documenting an OSHA visit and exit interview, dated March 21, 1972, an Anaconda representative, in summarizing comments made by an OSHA assistant regional administrator, noted "[t]he fume loading area still has a lot of material blowing around there," and "[i]t still is fairly dusty in the area [around the bag house] due to the wind and openings."
104. In the same memorandum, referring to comments made by another individual, an additional source of dust was identified: "One problem there is the loading of open rail cars ..."
105. In 1971, the Montana Department of Health specifically noted, "the Anaconda Company baghouse stacks were all putting out a very persistent particulate discharge-it was blowing toward the west southwest and was visible for about 3000 feet."
106. In a letter dated June 1, 1970, the Montana Health Department issued a notice to Anaconda that the zinc fuming plant emissions violated health standards, and threatened enforcement proceedings. The letter was titled "Re: Dust Emissions from E. Helena Plant," and was addressed to Maurice Villeneuve, Superintendent, Anaconda Slag Treating Plant.
107. According to Asarco's expert, Dr. Andy Davis ("Davis"), Anaconda's zinc fume bag house dust had a high arsenic concentration at 3500 milligrams per kilogram. Expert Davis further testified that Anaconda's zinc fume emissions from the bag house settled on the surrounding soils, as well as in open ponds (Lower Lake and Thornock Pond and Lake) and ditches which were filled with process water (Wilson Ditch and the unlined return ditch), where it would percolate into the groundwater and thereby contributed appreciably to arsenic in the groundwater.
B. Zinc Dust Left on the Ground by the Flue
108. A 1954 aerial photograph of the zinc fuming plant shows what appears to be zinc fume which was deposited on the ground around the flue.
109. According to the testimony of expert Davis, soil samples from the METG database show 3300 parts per kilogram of arsenic in the soil in the area where the white dust is shown.
110. Jon Nickel, who began working at the zinc fuming plant in 1973, one year after Asarco purchased the zinc plant from Anaconda, testified to the practice of removing zinc dust from the flue system with the use of large hoe.
111. According to both experts Hansen and Davis, Anaconda's zinc dust contains 3500 milligrams per kilogram of arsenic.
112. Expert Davis further testified that the arsenic in this dust would percolate to the groundwater and increase the groundwater contamination at the Site.
113. METG's data shows that dissolved arsenic in the groundwater was measured at 56 mg/L and 22 mg/L in the area close to the flue, which is as much as three orders of magnitude above the MCL, or maximum allowable amount of a contaminant in drinking water.
C. Unlined Burning Coal Area
114. Anaconda's zinc fuming furnace required a heat source of approximately 1800 degrees Fahrenheit. Coal was the exclusive fuel source for the zinc fuming furnace. Before the coal was introduced into the furnace, it was pulverized in a grinding facility in order to create a particulate size that would ignite in the furnace and create a heat source sufficient to fume the zinc out of the slag. Anaconda routinely introduced 10 to 15 tons of pulverized coal and 57 tons of slag into the furnace during each two-hour furnace cycle, and routinely used 140 tons of coal each day in its operations. Anaconda estimated that they used 45,000 tons of coal per year, totaling 2.025 million tons of coal over the 45 years of operations
115. From approximately 1927 until sometime in the early 1960s, Anaconda's coal fines that collected at Thornock Pond were reportedly flushed out with a fire hose and the discharge was carried by gravity flow through a pipeline to the base of the slag dump.
116. The coal burning area can be seen in the 1954 aerial photograph at the top left of the slag pile.
117. In a letter dated July 31, 1958 from the superintendent of the zinc fuming plant to another Anaconda employee, a photograph of this area is provided, with the following written description:
In the coal drying process, extremely fine particles of coal dust that passes through the dust collecting system of the dryer are sprayed with water and collected as a coal-water mixture which flows to a settling pond outside the dryer building. About twice each week, this pond is flushed out with a fire hose and the discharge is carried by gravity flow though a pipe line to the base of the slag dump. This picture shows in the distance the outlet of the pipe and the accumulation of coal extending from the outlet to the bottom of a dirt dike in the foreground. This coal may be 5 to 6 feet deep in places and is gradually covered by the approaching slag dump. Coal is burning where the slag has reached the coal and also in the foreground along the base of the dirt dike.
118. As indicated in the previous paragraph, the coal fines collected at the toe of the slag pile were combustible, and after catching fire would have generated coal ash or fly ash.
119. An Anaconda map designated this area as the "burning coal area."
120. Anaconda knew of and acknowledged that "underneath the top layer of fine ash is burning coal" and that "this burning coal is a bad problem."
121. In addition, in an undated "Emission Inventory Questionnaire", prepared by Anaconda for the Montana State Department of Health, Anaconda noted that it collected 234 tons of fly ash from their plant per month, which was "Mixed with slag and disposed on Dump."
122. The combustion of the coal fines in this area generated readily-leachable coal ash in the vicinity of open settling ponds such as Thornock Pond and Lake and open ditches like Wilson Ditch and the return ditch to Lower Lake.
123. Expert Davis testified that the burning coal area was a contributing source to the arsenic plume.
124. The plume map relied on by expert Hansen shows a light yellow (1 mg/L) plume of arsenic originating from the burning coal area. Expert Hansen admitted during cross-examination at trial that fly ash is a federally regulated substance because of its toxicity.
125. Atlantic Richfield's designated corporate representative at trial, Richard Krablin ("Krablin"), admitted that Anaconda burned coal, creating fly ash which mobilizes the arsenic in the coal into a gas.
126. Anaconda released so much coal dust and burning coal on a regular basis that they were asked by the City Attorney for the City of East Helena to correct the emissions in a letter dated July 11, 1947. The City Attorney wrote that at a meeting of the city council, petitions were presented containing the signatures of numerous residents of the City of East Helena "requesting that some action be taken to eliminate and abate the condition created by coal smoke and dust issuing from your plant." He went on to state that "this dust and smoke settles upon houses and other property in the city, even penetrating into the interior of buildings."
D. Unlined Slag Pile Pond (Pond 3)
127. In the mid-1960s, Anaconda re-routed the coal fines it had previously been dumping into an unlined pond area, and began pumping the fines from the coal house to the top of the slag pile, which they called Pond 3, as depicted in a schematic sketch admitted and referenced at trial.
128. This re-routed coal dust slurry was pumped to Pond 3, located at the top of the slag pile.
129. Anaconda employee A.B. Kane, who was the zinc fuming plant superintendent, wrote in a Memorandum dated August 12, 1962 that "[f]or the last 12 days we have successfully pumped the coal dust slurry to the top of the slag dump where it disappears into the slag. We have had to move the end of the pipe once during this time, when the voids in the slag dump filled up with coal."
130. Anaconda continued pumping this effluent to Pond 3 until it sold the fuming plant in 1972.
131. Expert Davis testified that this documented discharge of coal slurry and fly ash to the slag pile impacted groundwater with arsenic and other metals.
E. Washdowns
132. Anaconda introduced approximately 50 tons of molten slag into its blast furnace per cycle, and added cold slag to bring each furnace charge to approximately 57 tons. A furnace cycle was completed approximately every two hours, and visible effluent was released into the atmosphere during the hot slag charging cycle. Because the hot metals and slag accumulated in the ladles and furnace, they would have to be removed through regular tapping cycles. The furnace was tapped approximately ten times per day.
133. During the process of introducing the slag into the furnace, and especially during tapping cycles, emissions and slag debris were deposited throughout the furnace house. Anaconda did not employ a hood or retention system.
134. So much effluent was released from the tapping and charging of the furnace, that the Montana Department of Health issued a Notice of Violation and ordered Anaconda to take corrective action to reduce air emission contaminants.
135. Anaconda routinely pressure-washed the furnace building, including the walls, floors, furnace, and cooling flues, to remove the dust and debris that resulted from the tapping and charging of the furnace.
136. This washdown process occurred at least three times per day. No attempt was made to capture this washdown water. Anaconda simply washed the dust and debris out the furnace door where it was deposited into the soils and leached into the groundwater.
137. According to expert Davis, these washdown waste waters contained very high levels of arsenic, and would have migrated to Thornock Pond (Pond 2) because it was near the furnace and the lowest topographical point on the zinc plant property. This latter point was confirmed by Atlantic Richfield's designated representative, Richard Krablin.
138. Expert Davis testified that Anaconda's uncontrolled and daily releases of washdown water from the furnace contributed appreciably to arsenic in the groundwater at East Helena.
F. Thornock Pond and Lake (Pond 2)
139. It was uncontroverted that the area surrounding and including unlined Thornock Pond is a topographic low, so runoff water from washdowns emanating from the zinc fuming plant would settle in this area.
140. As previously stated, washdown waters were not controlled in any way.
141. Expert Davis testified that washdown water containing coal dust, fume dust and/or slag from the furnace with readily leachable arsenic and other metals migrated to and settled in Thornock Pond (Pond 2).
142. Expert Davis also testified that Thornock Pond received and stored water from the Anaconda circulating cooling system, and coal slurry from the coal pulverizer, and similar to the washdown water, the arsenic in the zinc plant's cooling water percolated to and contaminated area groundwater.
143. Anaconda pumped coal dust slurry from the coal dryer building to Thornock Pond, further contaminating Thornock Pond.
144. It is the opinion of expert Davis that Anaconda discharged significant amounts of coal dust slimes and coal slurry as well as contaminated process waters containing arsenic and selenium into the unlined Thornock Pond (Pond 2), and that these releases are a major contributing source to the arsenic groundwater plumes at the Site.
145. As previously indicated, Thornock Pond has been identified as a key contributor to the arsenic groundwater contamination at the Site.
G. Wilson Ditch
146. Wilson Ditch was initially used to transport cooling water from Thornock Pond to Prickly Pear Creek, and was a natural gravity drainage creek.
147. Arsenic-laden process waters would drain from Thornock Pond into a flue that connected to a natural ditch identified on the 1930 Sanborn maps as Wilson Ditch. According to the same maps, Wilson Ditch then drained to Prickly Pear Creek.
148. An Anaconda plant sketch, believed to be dated September 9, 1970, also shows zinc fuming plant process water being discharged to Pond 2 (Thornock Pond) and then out through Wilson Ditch to Prickly Pear Creek.
149. Expert Davis testified that Anaconda's process water transported through the unlined Wilson Ditch contributed to the groundwater contamination in the area.
150. A letter from the Army Corps of Engineers to Anaconda dated July 29, 1971, stated that Anaconda's facility was identified as the source of a discharge or deposit of refuse matter into Prickly Pear Creek.
H. Leaking Cooling Circuit Pipe
151. Anaconda pumped 2,000 gallons of water per minute through its cooling water circuit up to 1964.
152. In 1964, Anaconda installed a new pump and began pumping 5,000 gallons per minute of water through its cooling water circuit, which continued at this rate until the end of Anaconda's operations in 1972.
153. The cooling water circuit leaked. Anaconda documents indicate that approximately 60 million gallons of cooling circuit water was lost each year "through evaporation, leakage and general use where it is not returnable."
154. Anaconda used a 12-inch, 600-foot steel pipe and pump system to convey cooling water from Lower Lake up to the zinc fuming plant.
155. In a February 1, 1965 internal Anaconda Memorandum, A. B. Kane, superintendent of the zinc fuming plant, noted that Anaconda planned to replace this pipe in the next year after discovering the pipe metal had become thin and was leaking in multiple locations: "A new 12? water line will be installed to replace the 600' line that was put in when the plant was built. We have found several leaks in the present line and detected the metal is getting thin.".
156. Anaconda's cooling water intake from the pump at the base of this pipe was measured as containing arsenic at 0.1933 ppm, which is also noted as being above the public health service drinking water standards in 1970.
157. In addition, in a December 21, 1961 letter from A. B. Kane, Anaconda noted that the cooling water pump that had been used to pump water from Lower Lake to the plant since 1927 had holes in it: "The pumps were installed in 1927 when this plant was built and had been used in Anaconda before that. They are 60 years old and quite worn out. Just recently we had one of these pumps repaired and discovered that the impeller had holes worn in it and the rings between the impeller and the casing were worn."
158. It is the opinion of expert Davis that Anaconda's process water, which leaked from this supply pipe, contained arsenic and migrated to the groundwater at the Site.
I. The Unlined Return Ditch to Lower Lake
159. Anaconda constructed and used a second unlined ditch to return its cooling water from the zinc fuming furnace to Lower Lake.
160. The water was pumped from the furnace area in a pipe for a distance of approximately 50 feet, and then was delivered back to Lower Lake through an open ditch via gravity flow. The location of this return ditch from the zinc fuming plant to Lower Lake was marked on aerial photographs admitted at trial. The return water was warmer in temperature than the inflow water. Thus, as the marked aerial photographs indicate, the return water was delivered to a different location in Lower Lake than the intake cooling water pipe and pumphouse.
161. Anaconda measured the flow in this ditch and reported that water was pumped through this unlined ditch at a rate of 3,200 gallons per minute as of December 31, 1961.
162. Anaconda continuously used this unlined ditch througho