Full opinion text
MEMORANDUM OPINION AND ORDER CARRIGAN, District Judge. Plaintiff State of Colorado instituted this declaratory judgment action pursuant to 28 U.S.C. § 2201 asserting claims under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 [“SARA”], Pub.L. No. 99-499, 100 Stat. 1615 (1986) (collectively “CERCLA”) and under the Toxic Substance Control Act, 15 U.S.C. §§ 2601 et seq., (“the TSCA”). Plaintiff seeks to impose liability against the defendants for the cleanup of hazardous wastes and for natural resources damage at and near the defendants’ mine and milling facilities located between Ouray and Telluride, Colorado. Defendants are Idarado Mining Company, Newmont Mining Corporation (“Newmont Mining”) and Newmont Services Limited (“Newmont Services”), all owners and operators of the Idarado Mine. (For convenience only, these defendants may be referred to collectively as “Idarado” in this opinion. Maps of the area at issue are appended as Exhibits A, B and C.) Pursuant to CERCLA § 107(a)(l)-(4)(A) and (D), [42 U.S.C. § 9607(a)(l)-(4)(A) and (D)], the State has sued to recover its response costs incurred and to be incurred in the cleanup of past and ongoing releases of hazardous wastes at the mining site. Plaintiff state also seeks an injunction under CERCLA § 121(e)(2), [42 U.S.C. § 9621(e)(2) ] to implement certain remedial actions it proposes to effectuate the cleanup process. In addition, pursuant to CERCLA § 107(a)(4)(C), [42 U.S.C. § 9607(a)(4)(C)], the State has sued for damages for destruction of natural resources. Finally, the State seeks an injunction under the TSCA compelling the defendants to remedy the adverse environmental consequences caused by their allegedly illegal mishandling of polychlorinated biphe-nyls (“PCB’s”) at the site. I earlier granted the State’s motion to bifurcate trial on the claim for natural resources damage. The State’s claims under the TSCA and the CERCLA response costs were tried to the court over twenty-six trial days. This opinion constitutes my findings of fact, conclusions of law and order as to the matters tried, pursuant to Rule 52, Fed.R.Civ.P. I. Scope of Liability Under CERCLA § 107(a), [42 U.S.C. § 9607(a)]. To establish liability under CERCLA, the State must prove that (1) the defendants are owners or operators (2) of a facility (3) from which there has been a release or a threatened release, of a hazardous substance that causes response costs to be incurred. State of Colorado v. ASARCO, Inc., Civil Action No. 83-C-2383, Slip Op. at 2 (D.Colo. Nov. 27, 1985). Defendant Idarado Mining Company has admitted that it is an owner and operator of the Idarado Mine. In a previous order, I ruled that, for purposes of CERCLA liability, Newmont Mining was both an owner and an operator, and that Newmont Services was an operator, of the Idarado property and sites at issue. Moreover, I have previously determined that the defendant Idarado Mining Company is liable to the State under CERCLA § 107(a), [42 U.S.C. § 9607(a)] for the release, or threatened release of a hazardous substance from a facility that has caused the State to incur response costs. That holding applies equally to the liability of Newmont Services and Newmont Mining. Generally, CERCLA authorizes the United States Environmental Protection Agency (“USEPA”) to undertake pollution abatement and cleanup efforts and then seek reimbursement for cleanup costs from responsible parties. The National Contingency Plan (“the NCP”), 40 C.F.R. Part 300 (1986), prepared by the USEPA, outlines the administrative process that governs these cleanup efforts by establishing procedures and standards applicable to the response actions. Like the USEPA, states can sue responsible parties to recover remedial and removal costs. To prevail, a State’s response efforts must be “not inconsistent with the NCP.” United States v. Northeastern Pharmaceutical and Chem. Co., 810 F.2d 726, 747 (8th Cir.1986); State of New York v. Shore Realty Corp., 759 F.2d 1032, 1041 (2d Cir.1985); State ex rel. Brown v. Georgeoff 562 F.Supp. 1300, 1315 (N.D.Ohio 1983). CERCLA § 121(d)(1), [42 U.S.C. § 9621(d)(1)], provides that: “Remedial actions selected under this section ... shall attain a degree of cleanup of hazardous substances, pollutants, and contaminants released into the environment and of control of further release at a minimum which assures protection of human health and the environment. Such remedial actions shall be relevant and appropriate under the circumstances presented by the release or threatened release of such substance, pollutant, or contaminant.” Pursuant to the NCP, a detailed environmental investigation of the area is performed and the feasibility of various remedial alternatives is analyzed. The Remedial Investigation (“RI”), or first component, determines the nature and extent of the harm caused or threatened by the release of hazardous substances into the environment at a site. The Feasibility Study (“FS”), or second component, is the evaluation of proposed remedies. These two components are interdependent and may be conducted concurrently. CERCLA § 121(d)(2)(A), [42 U.S.C. § 9621(d)(2)(A) ] requires that applicable or relevant and appropriate federal and state environmental and public health requirements be identified and applied to the response action undertaken at the site. Under the NCP, “applicable requirements” mean “those Federal requirements that would be legally applicable, whether directly, or as incorporated by a Federally authorized State program, if the response actions were not undertaken pursuant to CERCLA section 104 or 106.” 40 C.F.R. § 300.6. Also, pursuant to 40 C.F.R. § 300.6, “[Relevant and appropriate requirements are those Federal requirements that, while not ‘applicable,’ are designed to apply to problems sufficiently similar to those encountered at CERCLA sites that their application is appropriate. Requirements may be relevant and appropriate if they would be ‘applicable’ but for jurisdictional restrictions associated with the requirement.” After notice and an opportunity for public comment, a comprehensive remedial action plan appropriate for the site as a whole is selected utilizing the data gathered from the RI/FS activities. The final remedy selected for the site is issued as the Record of Decision (“ROD”). CERCLA § 121(d)(2)(A)(ii), [42 U.S.C. § 9621(d)(2)(A)(ii) ]; 40 C.F.R. §§ 300.-68(i)(l), 300.71(a)(2)(ii)(B) and 300.71(a)(4). CERCLA § 121(a), [42 U.S.C. § 9621(a)], requires that the governmental response be “cost-effective,” taking into consideration total long and short term costs, including costs of operation and maintenance. Pursuant to 40 C.F.R. § 300.68(i), the NCP provides that: “(1) The appropriate extent of the remedy shall be determined by the ... selection of a cost-effective remedial alternative that effectively mitigates and minimizes threats to and provides adequate protection of public health and welfare and the environment_ [T]his will require selection of a remedy that attains or exceeds applicable or relevant and appropriate Federal public health and environmental requirements that have been identified for the specific site.” “(2) In selecting the appropriate extent of the remedy from among the alternatives that will achieve adequate protection of public health and welfare and the environment in accordance with § 300.68(i)(l), the lead agency will consider cost, technology, reliability, administrative and other concerns, and their relevant effects on public health and welfare and the environment.” “(3) If there are no applicable or relevant and appropriate Federal public health or environmental requirements, the lead agency will select that cost-effective alternative that effectively mitigates and minimizes the threats to and provides adequate protection of public health and welfare and the environment, considering cost, technology, and the reliability of the remedy.” “(4) Pertinent other Federal criteria, advisories, and guidance and State standards will be considered and may be used in developing alternatives, with adjustments for site-specific circumstances.” * * * * * * Determining the appropriate removal and remedial action involves specialized knowledge and expertise. Where the federal government has sued polluters, the courts have recognized that the choice of a particular cleanup method is within the USEPA’s discretion, and the applicable standard of judicial review is whether the agency’s decision is arbitrary and capricious. United States v. Northeastern Pharmaceutical and Chem. Co., 810 F.2d at 748; United States v. Ward, 618 F.Supp. 884, 900 (E.D.N.Car.1985). See also, CERCLA § 113(j)(2), [42 U.S.C. § 9613(j)(2) ]. By analogy, this reasoning would seem to apply to actions initiated by the states, at least after a threshold showing of expertise in the state lead agency. Nevertheless, at a pretrial hearing, I indicated that I also would review the State’s response plan on the merits. Pursuant to CERCLA § 113(j)(3), [42 U.S.C. § 9613(j)(3) ], if the court determines that the selected response action was arbitrary, capricious, or otherwise not in accordance with the law, “the court shall award (A) only the response costs or damages that are not inconsistent with the National Contingency Plan, and (B) such other relief as is consistent with the National Contingency Plan.” Thus, it is within my authority to modify the State’s proposed plan or, alternatively, remand the matter to the State for further study. Costs or damages may be disallowed if serious procedural errors were made relating to matters of significant relevance. CERCLA § 113(j)(4), [42 U.S.C. § 9613(j)(4) ]. I have previously ruled that the defendants bear the burden of proving that the State’s selected remedial plan and response costs incurred are not consistent with the NCP. See, United States v. Ward, 618 F.Supp. at 901; United States v. Northeastern Pharmaceutical and Chem. Co., 810 F.2d at 747. The focus of this lawsuit is on that narrow issue. As I ruled in Colorado v. ASARCO, Inc., supra, Congress mandated that the parties responsible for environmental pollution be held strictly liable for governmental costs incurred in responding to clean up hazardous waste and for natural resource damage, regardless of fault. See also United States v. Ottati & Goss, Inc., 630 F.Supp. 1361, 1401 (D.N.H.1985). The government is not required, however, “to match the waste found to each defendant as if it were matching fingerprints.” United States v. Ottati & Goss, Inc., 630 F.Supp. at 1402. The defendant polluter must have deposited his waste at the site, and the hazardous material found in that waste also must be present at the site. Id. This strict liability standard, however, is not absolute. Under CERCLA § 107(b), [42 U.S.C. § 9607(b)], available defenses include acts of God, acts of war, and acts or omissions by third parties other than the defendants’ employees or agents, or other persons whose causal acts or omissions occur in connection with a contractual relationship with the defendants. State of New York v. Shore Realty Corp., 759 F.2d at 1042. The available defenses thus are strictly defined by statute. Defendants here asserted the additional defenses of laches, estoppel, failure to mitigate damages and the State’s encouragement of mining, but at trial produced no adequate evidence to support any of these purported defenses. Thus, while I have concluded that these “defenses” are not available under the statute, I further find and conclude that even if they were available none of them has been established by the evidence. With respect to suits involving several defendants, I have held that the removal and remedial action liabilities imposed by CERCLA § 107(a), [42 U.S.C. § 9607(a) ] are joint and several. State of Colorado v. ASARCO, Inc., Case No. 83-C-2388 (D.Colo., Order of May 13, 1985). See also United States v. Northeastern Pharmaceutical and Chem. Co., 810 F.2d at 742-44. Moreover, since SARA, CERCLA § 113(f)(1), [42 U.S.C. § 9613(f)(1)] expressly provides for the right to contribution in cases of multiple liability. During trial, I denied the defendants’ several motions to dismiss this action on the asserted grounds that the State was not entitled to a declaratory judgment or to injunctive relief. CERCLA § 113(g)(2), [42 U.S.C. § 9613(g)(2)], indicates that a declaratory judgment may be entered, where appropriate, in government initiated cost-recovery actions. See also State ex rel. Brown v. Georgeoff, 562 F.Supp. at 1316 (declaratory judgment available to State in suit filed prior to SARA). The State has incurred initial response costs as a result of its remedial investigation conducted at the Idarado site. The defendants have challenged the results of the State’s investigation and proposed remedy. A substantial controversy exists between the parties and the matter is now ripe for decision. CERCLA § 121(e)(2), [42 U.S.C. § 9621(e)(2) ], added by SARA, provides that “A State may enforce any Federal or State standard, requirement, criteria, (sic) or limitation to which the remedial action is required to conform under this Chapter in the United States district court for the district in which the facility is located.” Thus injunctive relief also is available to the State under CERCLA. II. Overview of the Site. The Idarado Mine (“mine” or “site”) is located in San Miguel, Ouray and San Juan Counties in southwestern Colorado. Idara-do currently owns 10,574.46 acres, or 16.-5226 square miles, of the property in this area. The property consists largely of patented and unpatented mining claims, and generally includes the adits, shafts, underground mine workings, mine portals, mine waste rock, and tailings ponds. The site involves three distinct natural areas: (1) the Telluride Valley, (2) the Red Mountain area, and (3) the High Country between the two. A.The Telluride Valley. The Telluride Valley is a box canyon. Defendants’ mining and milling facilities are located near the canyon head. The Town of Telluride is located downstream from the mine and mill, toward the open end of the canyon below. The San Miguel River originates in the mountains at the closed upper end of the canyon and flows downward through Telluride. The San Miguel increases in size as it is supplemented by tributaries over its 81 mile length until ultimately it empties into the Dolores River near Uravan, Colorado. The Telluride Valley portion of the Idara-do Mine (elevation approximately 9,062 feet) includes two mine openings, or portals, called the “Mill Level Tunnel” and the “Meldrum Tunnel,” located at the valley head. Next to the Mill Level Tunnel is the Pandora Millsite, which includes a former mill, support buildings and storage areas. Four infiltration lagoons are located up the valley from the Millsite. Below the Mill-site, and adjacent to the San Miguel River, are four consecutive tailings piles (piles nos. 1, 2, 3 and 4), and one very large merged or combined tailings pile (pile no. 5/6). All of these tailings piles are a short distance up the San Miguel river valley from the Town of Telluride. The tailings piles contain deposits of ground mine rock that remain after most of the valuable metals have been removed by milling. At the lower end of the valley, below the Town, is an area along the San Miguel River known as “Society Turn.” Tailings piles are located near Society Turn and other locations along the San Miguel River as it flows down the valley. These tailings are approximately five miles or more downriver from the Pandora Millsite. B.The Red Mountain Valley. The Red Mountain Valley portion of the mine (elevation 10,650 feet) is located in an uninhabited area adjacent to State Highway 550 and approximately twelve miles southwest of the Town of Ouray. It includes a mill complex of administrative offices and shop areas comprising the Red Mountain yard. Downgradient from the Red Mountain yard are four tailings piles (piles nos. 1, 2, 3 and 4) adjacent to Red Mountain Creek. The tailings pile farthest from the yard area (Red Mountain pile 4) is located at the head of Ironton Park, approximately two miles down valley from the Red Mountain mine office. Ironton Park is a marshy area that adjoins the creek for about one and one-half miles. It is located about two miles above Red Mountain Creek’s confluence with the Uncompahgre River. The Red Mountain Valley area also includes a “buried” tailings pile, the “Treasury Tunnel” mine portal, and several other scattered mines, tailings piles, mine waste rock piles and portals. The headwaters of Red Mountain Creek originate in the Uncompahgre National Forest near the Ouray/San Juan County line, which is the forest boundary. Red Mountain Creek flows from Red Mountain Pass in a northerly direction to its confluence with the Uncompahgre River about 2.75 miles upstream from the Town of Our-ay, Colorado. The Uncompahgre River continues its course through Ridgway, Colorado, emptying into the Gunnison River which, in turn, flows into the Colorado River near Grand Junction, Colorado. The Red Mountain Valley and the Telluride Valley are separated by mountains. Both areas, however, are connected by a maze of horizontal mine tunnels at various depths interconnected by hoists and chutes for vertical travel of staff or movement of materials. Although the mine has not operated since about 1978, a skeleton crew maintains it and one can travel from one end to the other by underground railcar a horizontal distance of about seventeen miles. However such a trip requires several transfers from one mine tunnel level up or down to another. C.The High Country. The High Country consists of mountain basins generally above 10,000 feet between the Red Mountain and Telluride Valleys. The High Country drains into the San Miguel River and Red Mountain Creek watersheds. Idarado owns much of the High Country land but has never carried on mining activity there. The High Country contains scattered waste rock piles, portals and relics of past mining activities by prior owners or occupants. III. Brief History of the Idarado Mine. The Telluride/Red Mountain area is highly mineralized, and has been extensively prospected and mined for approximately 100 years. Idarado was formed in 1939 by Telluride Black Bear Mines, Inc., San Juan Metals Corporation, Newmont Mining Corporation and Barstow-Imogene Mines, as a corporate entity under which they consolidated several mining properties in the Red Mountain area. In 1953, Idarado purchased the Telluride Mines. Between 1954 and 1956, the Red Mountain mill was decommissioned, and the Pandora millsite, located in the Telluride Valley, was reconstructed and expanded. From 1956 until Idarado’s mining operations were shut down, all ore was run through the Treasury and Mill Level Tunnels and milled near Telluride at the Pandora Mill. Zinc, copper, lead, silver and gold were produced. In 1978, depressed metal prices necessitated cessation of Idarado’s operations. In August 1986, approximately 80% of Idarado’s mining and milling equipment and machinery was sold at public auction. As stated, it now retains only a skeleton crew to perform maintenance at the site. During its years of operation, Idarado had a net income of $130 million. IV. The State’s Remedial Investigation. In 1984, the State, through the State Attorney General’s office, entered into contracts with independent environmental consultants to develop or assist in the development of the Remedial Investigation, Feasibility Study and Record of Decision regarding the Idarado Mine. These consultants acted under the direction of several state officials. The Remedial Investigation included a review of historical records with respect to mining and milling operations and a field investigation. That investigation consisted of sampling all environmental media, including the soil, air and water at the site, and determining the sources, pathways and receptors of contaminants. A Feasibility Study was conducted to analyze the remediation alternatives. Initially, the State’s consultants began with over 200 different possible response actions. These alternatives were screened using the following factors: technical feasibility, practicality, technical reliability, applicability, environmental effectiveness, short and long term benefits, adverse impact, health effects, and costs. Six alternatives ultimately were selected for each side of the mountain. The State issued the RI and FS for public comment. Public meetings were held at Telluride and Ouray, and comments were received. Next, a Preliminary Record of Decision was prepared as a preliminary draft of the State’s decision regarding remedial action. The State’s consultants then performed cost analyses and environmental effectiveness analyses with respect to the proposed remedies. The cost analyses were obtained by standard engineering and construction practices and other methods approved by the USEPA’s FS guidance documents. Finally, the State issued its Record of Decision as its final remedial action decision with respect to the Idarado site. The Colorado Department of Health served as the lead agency in the ROD’s preparation. This ROD document was admitted as a trial exhibit. V.Areas of Contamination at the Idar-ado Facility, the Parties’ Proposed Remedies and the Court’s Selected Remediation Plan. The State has identified three main sources of metals contamination at the Idarado Facility: tailings, mine drainage and waste rock. Tailings are the waste products from the milling process and are composed of finely crushed and ground waste rock containing the small fraction of metals not recovered during milling as well as chemical reagents and water used in the milling process. Water, including water from rain, snow, underground sources, and the mines, flows across and through the tailings, eroding the tailings piles and picking up metals to be deposited in the area’s rivers and creeks. The waters that flow over and through the tailings contain cadmium, copper, lead, zinc, and in some instances, arsenic, chromium, nickel and silver. All of these metals are hazardous substances within the meaning of CERCLA § 101(14), [42 U.S.C. § 9601(14)]. Water flows out of mine portals and crosses waste piles, where it picks up metals and hazardous materials on its downward course, ultimately carrying hazardous waste and metals into the area’s streams. With respect to the proposed remediation plans, I heard separately the evidence as to each contamination source or affected area. The evidence was presented in the following order: (1) the Telluride tailings piles; (2) the Telluride soils; (3) the Society Turn tailings; (4) the mine portal discharges and mine waste rock; (5) the millsite cleanup; (6) the miscellaneous tailings along the San Miguel River, stream bank cleanup and habitat enhancement; and (7) the Red Mountain tailings. Evidence also was presented on the State’s proposed monitoring system. I now will address (albeit not in the order above listed) each of the specific contamination sources or affected areas, discussing the parties’ respective proposals for remediation addressed to each source or area. As to each I will then state my findings and conclusions with respect to each source or area. A. The Telluride Tailing Piles. On the Telluride side, there are six large tailings piles located near the Pandora Millsite. Piles one through four contain between 431,000 and 807,000 dry tons of tailings and cover a surface area of between 14.3 and 18.1 acres. Considered individually, pile 1 contains approximately 72,000 dry tons of tailings and covers a surface area of approximately 1.4 acres; pile 2 contains approximately 214,000 dry tons of mine tail-ings and covers a surface area of approximately 2.2 acres; pile 3 contains approximately 327,000 dry tons of mine tailings and covers a surface of approximately 6.1 acres; and pile 4 contains approximately 194,000 dry tons of mine tailings and covers a surface area of approximately 4.6 acres. Tailings were deposited in these piles between 1938 and 1944. Piles 1 and 2 have an average height of fifteen to thirty-five feet. The average height of piles 3 and 4 is thirty-five feet. The “merged” tailings pile formed from combining piles 5 and 6 is approximately 100 feet high. It contains approximately ten million tons of tailings and covers between fifty and sixty-five acres. Tailings were deposited in pile 5 between 1944 and 1952, and between 1955 and 1978. Pile 6 received tailings deposits between 1955 and 1976. The metals concentration in piles 1 through 6 varies, but all piles contain cadmium, copper, lead, zinc, silver, chromium and arsenic. Piles 5 and 6 contain 30 million pounds of lead and zinc, over five million pounds of arsenic and over two thousand pounds of cyanide. The Telluride tailings piles are not lined and were not required to be lined when they were constructed. All six piles are the result of mining and milling activities at the Idarado mine. No newly mined tail-ings have been added to these piles since milling ended in 1978. Oxidized acidic “hot spots” occur in the tailings where water is seeping out from the piles’ sides or near the basins of the tailings. Materials that are oxidized are generally more soluble in water and thus are more mobile in the environment. When water contacts the tailings, hazardous substances are released into the water. These six tailings piles are eroded by water caused by precipitation, snowmelt and flood events. The piles show evidence of erosion gullies. As a result, tailings have flowed directly into the San Miguel River, contaminating its sediments. Tailings constitute the majority of sediment within the San Miguel stream bed along piles 5 and 6. Sediment contamination extends as far as the confluence of the San Miguel with its South Fork. Water from run-on, snowmelt and precipitation flows off the tailings piles, and seeps from the piles’ side slopes. The water carries high concentrations of heavy metals, including lead and zinc, leached from the tailings. Metal sampling in the San Miguel River has indicated heavy metal concentrations, including lead and zinc, over the stream reach from above pile 1 to below pile 5/6. Hazardous substances also are released into the ground water from the six piles as a result of rain and snow melt. The ground water is eventually discharged into the San Miguel River. Concentrations of zinc, cadmium and copper in the San Miguel River were relatively low upstream but increased downstream past the Pandora Mill site. The high zinc concentration and the other heavy metals in the surface water and sediments in the San Miguel River have resulted in significant degradation of the water quality as a habitat for aquatic life. In the fall of 1985, the defendants’ experts, assisted by the State’s experts, conducted a fish population estimate by elec-tro-shock fishing. The greatest number of fish, insects and algae were found at the upstream edge of the San Miguel River, below Bear Creek. Bear Creek is a San Miguel tributary that enters the river from the south below tailings pile 5/6 near the Town of Telluride. Lower numbers of fish, insects and algae were found in the smaller tributaries of the upper basin and in the headwaters of the San Miguel River, upstream from Bear Creek and adjacent to Idarado’s property. There was some evidence that natural barriers preclude fish migration. Brook trout, the resident fish, were located in the San Miguel River below Bear Creek. The State’s evidence indicated that the fish population survives there because the inflow from Bear Creek dilutes the heavy metal load, and because the brook trout has been able to adjust to stream waters with increased metal content. Brook trout are fairly resistant to metals compared to other kinds of trout. Liver tissue samples taken from fish indicated elevated metal levels, and elevated cadmium and lead levels were found in their other tissues. The metal levels in San Miguel fish were 6 to 6,000 times higher than the metal concentrations found in fish from Lake Powell (a large recreational lake located across the Arizona-Utah border). But for the metals concentration in the San Miguel River, cut-throat, rainbow and brown trout would be expected to be present. Toxic effects of metals on aquatic life include death, growth reduction, diminished egg hatchability and, in the case of lead, deformities as well as breakdowns in the metabolic system. Lower insect density on the river corresponded to the lower fish density. Plant life density in the San Miguel River also decreased substantially downstream from the tailings piles, and this too is attributable to the presence of heavy metals. Flooding occurred in the Telluride Valley in 1911, 1914, 1923, 1927, 1964 and 1966. Future flooding of the San Miguel River would cause more tailings pile erosion and additional releases of hazardous metals into the River. The six tailings piles also are continually eroded by wind. Blowing tailings contaminate soils and surface water with cadmium, lead, zinc and copper. Water is sprinkled on pile 5/6 as part of Idarado’s dust control program. A portion of that water infiltrates the tailings, enters the ground water and eventually flows into the San Miguel. Tailings are blown into the Town of Tel-luride, producing a whitish-gray dust cloud that deteriorates the air quality. Tailings also have been used as “fill” on Telluride properties and as ditch linings when sewer and water lines have been laid in the town. In 1977, the Town of Telluride constructed two wells downgradient from pile six. The concentration of chromium in Telluride’s drinking water wells was elevated during the late 1970’s because of a slug release of chromium from pile 5/6. However, chromium concentrations in those wells have decreased steadily and they are now within drinking water standards. Tests indicated that tailing pile 5/6 is “EP toxic,” meaning that it contains high concentrations of lead. The EP toxicity test identifies wastes that are capable of posing a substantial hazard to the public health and environment when improperly managed. The State has determined in its Record of Decision that all activities must comply with the Colorado Water Quality Control Act, C.R.S. §§ 25-8-101 through 25-8-612 (1986). Stream classification and water quality standards apply for all pollutants except that certain numeric standards for zinc and lead have been selected for the San Miguel River. The State also has determined that all point source discharges must, at a minimum, meet effluent limitations and Colorado Discharge Permit System Requirements, and that the antidegra-dation and basic standards of 5 CCR 1002-8, at 3.1.8 and 3.1.11 (1-84) apply to all surface water. Regarding ground water, the Record of Decision indicates that the Colorado Safe Drinking Water authorities [C.R.S. §§ 25-l-107(l)(x) and (y); 25-1-114 — 25-1-114.1 (Supp.1986) ], and the Colorado Primary Drinking Water Regulations apply to ground water at the site that may be a source of municipal water supplies. The Basic Standards for Ground Water [5 CCR 1002-8, at 3.11.0 to 3.11.9 (1-87) ] also are applicable. Based on the evidence presented, I find and conclude that the Telluride tailings piles 1 through 6 contain hazardous substances as defined under CERCLA § 101(14), [42 U.S.C. § 9601(14)], and that the release of those hazardous substances poses a threat to and has harmed the public welfare and the environment in the Telluride Valley. As a result the State has incurred response costs. I further find that the San Miguel River and the area ground water are contaminated because of the presence of these hazardous substances that have caused endangerment and injury to aquatic life. I conclude that the San Miguel River contamination violates applicable, or relevant and appropriate State standards. I further conclude that the releases of hazardous substances from the Telluride tailings piles constitute one source of this contamination and that a cleanup remediation plan must be implemented. (i) The State’s Proposed Plan. Generally, the State’s Plan for the Telluride tailings piles calls for isolating the approximately ten million tons of tailings in piles 1 through 6 to prevent tailings dispersal into the environment. The plan consists of: (a) consolidating piles 1 through 4 at the location of pile 5/6; (b) constructing a multilayer cap on the consolidated tailings; (c) constructing surface water run-on diversion ditches; and (d) constructing flood control measures designed to withstand the probable maximum flood event to protect the consolidated tailings impoundment from erosion and structural failure. With respect to the piles consolidation aspect, after removal of the tailings, original soil material beneath the piles would be removed to approximately a one foot depth. The tailings would be moved by conveyor, trucks or both. The conveyor would cross the San Miguel River, using standard supports or culverts. To prevent discharging tailings into the environment while they are being moved, the State proposes using a pipeline conveyor system that encapsulates the moving tailings. The multilayer cap covering the ultimate consolidated pile or piles would consist of a low permeability layer, an erosion resistant layer and a growth media layer. As proposed, the low permeability layer would retard the downward movement of water through the piles and would thus reduce tailings oxidation and the leaching of hazardous substances from the tailings by water, thereby preventing, or at least minimizing, any further metals loading to surface and ground water. This layer also would reduce root penetration into the tailings, and thus prevent the uptake of hazardous substances by growing plants. The State indicated that the low permeability layer can be constructed using compacted tail-ings material and slimes from piles 1 through 4. The erosion resistant layer would provide a permanent remedy to reduce long-term erosion by wind and water. This layer would consist of coarse rock material available from the Royer Gulch debris fan located on the Idarado mill site near tailings piles 1 through 4. Theoretically, the erosion resistant layer would act like a sponge, retaining water and providing moisture to the vegetative cover. The growth media layer would consist of locally available soil and would provide for a self-sustaining plant population on top of the cap. The soil could be obtained from the Royer Gulch debris fan. The State asserts that tree roots and vegetation would aid in erosion control. It appears undisputed that runoff and run-on diversion control structures are necessary to prevent water from running onto and standing on the tailings piles. The State contends that the appropriate diversion remedy should be designed to withstand the probable maximum flood. The probable maximum flood is defined as the largest flood that reasonably could be expected to occur in an area. Under the State’s plan, diversion control structures would be constructed on the south side of the consolidated tailings im-poundment. The impoundment’s base would be lined with riprap, or large rock that is available on-site. After consolidation, the tailings impoundment would be approximately 120 feet above the surface of the San Miguel River. Riprap would be placed 50 feet up the side of the impoundment so that the impoundment could withstand the effect of the probable maximum flood event. The State estimates that execution of its plan would cost approximately $9.3 million. (ii) Defendants’ Proposed Plan. Defendants propose stabilizing Telluride tailings piles 1 through 6 in place and re-vegetating the areas by applying fertilizer, manure and straw to naturally manufacture soil. In fact, the defendants have begun to implement their revegetation plan on the surfaces and slopes of piles 1 through 4, and some vegetation growth has occurred. Defendants propose using limestone to neutralize the piles’ acidic “hot spots.” Revegetation would reduce water flow through the piles. Defendants plan to control erosion from direct precipitation by modifying the drainage patterns on the piles, contouring the piles’ surfaces and placing riprap on the piles’ side slopes. Under this plan, run-on/runoff contour ditches would be constructed for drainage and diversion. Erosion gullies would be backfilled and covered with erosion blankets. At trial, the defendants’ remedial evidence addressed the issue of protection to withstand the 100 year flood event. In subsequent papers submitted to the court, it appears that the defendants have agreed to construct flood protection for the area to withstand the 500-year flood event, but not the probable maximum flood event. The over-all cost of the defendants’ plan is estimated to be approximately $1.8 million. (iii) The Court’s Remediation Plan. Defendants do not appear to dispute the need for cleanup of the Telluride tailings piles, or their liability for that cleanup. Thus the issue is the scope of that cleanup. At trial I expressed my concerns about the cost of the State’s proposed remedy, and the disturbing and possibly dangerous side effects of transporting huge amounts of tailings, some by truck through the town. Specifically, I am concerned about tailings being released into the air, water and environment, even though the State’s plan contemplates an encapsulated convey- or system to transport the tailings for consolidation. Clearly tailings consolidation to the degree suggested by the state would severely disrupt the Town of Telluride and the entire valley because of heavy construction traffic, and other factors, for an indefinite time. Based on the evidence presented from both sides, a remediation plan such as the State’s, designated to prevent contamination and insure protection of the environment against even the worst of all imaginable or possible natural catastrophes does not appear to be technically feasible or necessary. CERCLA requires that the plan be cost-effective, taking into consideration long and short-term costs, operation and maintenance. I conclude that certain components of the State’s plan, i.e., moving and consolidating the tailings piles and use of a six-foot multilayer cap, do not comport with CERCLA’s overall scheme and goal of achieving acceptable health and environmental protection. Nor is the state’s plan for consolidating tailings piles cost-effective. In sum, the State’s plan would go too far. On the other hand, I conclude that the defendants’ proposed plan does not go far enough. While stabilizing these enormous tailings piles in place appears feasible, doing so by merely “manufacturing” soil from mulch to achieve revegetation is neither practical nor likely to succeed. I asked the parties to submit alternatives to their proposals presented at trial. I find and conclude that the State’s alternative proposal best satisfies CERCLA’s aims. Generally, this alternative plan calls for stabilizing the six tailings piles in place and constructing a multilayered cover on each pile using locally available material. The cover would contain a two-foot thick erosion resistant (random fill) layer, amended by bentonite, and topped by a plant growth media layer that is also two feet thick. The sides of the combined tailings piles 5 and 6 would be similarly covered, but without the bentonite, and a self-sustaining vegetative cover would be established on the top. Drainage and erosion control structures as described by the State, would be utilized. They would be designed to withstand the 500-year flood event and the forces of a maximum credible earthquake. Flood protection design would encompass the San Miguel River, Royer Gulch and Marshall Creek. Monitoring activities for the Telluride tailings piles would include surface water, ground water, soils, vegetation, erosion, and construction aspects as outlined in the State’s alternative plan. The State is ordered to submit, within thirty days, a cost estimate for executing its alternative plan for these tailings piles. B. The Society Turn Tailings. The three Society Turn tailings piles are situated adjacent to the San Miguel River in the immediate vicinity of the Highway 145 intersection. The three piles, each located at the site of a glacial moraine and mostly barren of vegetation, contain a total of approximately 120,000 to 160,000 tons of tailings. These man-made tailings piles were formed around 1900 when tailings were impounded behind wooden timber dams that trapped the tailings previously deposited upstream. The tailings settled in the calmer waters behind the dams. Later, when the dams were breached or removed, the San Miguel River, the natural course of which had run through the tailings piles, returned to its channel and washed out a renewed channel through the tailings. The remaining tailings form the Society Turn tailings. At Society Turn there are three tailings piles, one upstream and two downstream. The upstream tailings pile is one to five feet deep, and the first downstream pile is up to fifteen feet deep. These two piles contain approximately 90 to 95 per cent of the total Society Turn tailings. The third, or westernmost, downstream pile contains the remainder. The estimated total volume of tailings at Society Turn is about 145,000 cubic yards. River meander continues to erode the piles, particularly during spring snowmelt each year. The Society Turn tailings contain heavy metals, including cadmium, copper, lead and zinc. Lead content is 3,338 mg/kg. The two large tailings piles are respectively, thirty-two times and four times above the EP toxicity threshold for lead. The deepest pile is EP toxic for cadmium. The Colorado stream standards for cadmium, lead and zinc applicable to the San Miguel River are violated all the way past Society Turn. Stream bed sediments in the Society Turn area are high in metals, including zinc, copper, arsenic, cadmium and silver. In fact, the highest silver concentration in sediments for the entire reach of the San Miguel River occurs in the Society Turn area. Sources of elevated metal concentrations in the sediments at Society Turn include previous tailings deposits in the area, and erosion and transport of tailings from the upper Marshall Basin and of materials from Idarado’s six Telluride tailings piles. The materials from these six piles either wash downstream through Society Turn or are deposited in the area. Metals loading at Society Turn has occurred continuously since tailings and sediments were first deposited there. Although metal concentrations appear to decrease as the river proceeds downstream toward Society Turn, metal toxicity increases because of the sediments and tailings, the increased silver concentrations, and the reduced role of organic materials in binding the metals. The macroinvertebrate population at Society Turn is approximately one-tenth of the population found upstream. This indicates that the aquatic system, overall, is in poor condition and there is probably a major disruption in the aquatic food chain for all fish species. There was evidence that the Society Turn stream area, if not polluted, should provide an excellent habitat for various trout species. However, only brook trout are present, and they are found at only half the rate of their upstream population. Because of the presence of heavy metals in the San Miguel, brook trout density is only one-third the population density predicted by the defendants’ modeling analysis. There also was evidence that the cadmium and silver concentrations in sediments at Society Turn are directly toxic to rainbow trout eggs. Defendants contend that the Society Turn tailings do not present a substantial danger to public health, welfare, or the environment. They have attempted to absolve themselves of cleanup liability by asserting that they do not own any property at Society Turn. Defendants also assert that the State cannot quantify any amount of Idarado’s tailings at Society Turn, nor can the State directly identify or trace any specific tailings as having eroded from the six Telluride tailings piles and come to rest in the Society Turn area. I find and conclude, however, that the defendants’ arguments are not sufficient to absolve them of responsibility for cleanup of the Society Turn tailings. When the Society Turn piles were first formed, the general practice among mining companies operating upstream from the area was to dump tailings into the San Miguel River or its tributaries. By 1918, as much as 1,400 tons of tailings were being dumped daily. Smuggler Union Company, Liberty Bell Gold Mining Company, and The Tomboy Gold Mines Company, Ltd. (a corporation organized under the laws of Great Britain) were among the mining companies operating at the San Miguel’s headwaters during the early 1900’s. All had placed tailings in the river by 1904. Smuggler Union and Liberty Bell were later acquired by Telluride Mines, Inc. Tomboy England was acquired by Tomboy Gold Mines, Inc., a Colorado corporation. In the 1950’s, Idarado ultimately acquired the assets, and assumed the obligations and liabilities of, Telluride Mines and Tomboy Colorado. None of the defendants, nor any of their associated concerns, currently own any of the property on which the remaining Society Turn tailings piles are deposited. In October 1967, however, an Idarado affiliate, on Idarado’s behalf, acquired placer claims in the Society Turn area that included the upstream tailings pile. Between 1967 and 1971, Idarado rechanneled the San Miguel River upstream from the Society Turn tailings piles. Idarado sold its placer claim property in December 1983, to Cordillera Corporation, a company not associated with the defendants. Defendants contend that neither Idarado nor any of its affiliates disposed of tailings on that property, nor did they move or disturb any of the existing tailings at Society Turn, except as incidental to rechannel-ing the San Miguel. Defendants, however, do not dispute that tailings material from the six Telluride piles have eroded into the San Miguel River and have been carried downstream toward Society Turn. As indicated in United States v. Shell Oil Co., 605 F.Supp. 1064, 1072 (Colo.1985), Congress made it clear when it initially enacted CERCLA, that generators, transporters, consumers, or dumpsite owners who have profited or otherwise benefited from commerce involving hazardous substances should bear the cleanup cost for affected areas. Under CERCLA § 107(a), [42 U.S.C. § 9607(a) ], persons liable (other than a facility’s current owners or operators) include past owners or operators of any facility at the time the hazardous waste was disposed; and persons who by contract, or otherwise, arrange for the disposal of hazardous substances by another party at a facility. CERCLA § 101(9)(B), [42 U.S.C. § 9601(9)(B) ] defines “facility” as “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located....” Contaminated tailings deposits have “come to be located” in the Society Turn area because tailings were “released” into the San Miguel River and ultimately settled there behind the dams and in the river’s sediments. (See CERCLA § 101(22), [42 U.S.C. § 9601(22) ] for the definition of “release,” which includes “spilling,” “discharging,” “injecting,” “escaping,” “dumping” or “disposing” into the environment). These tailings areas are the result of dump-ings by Idarado’s predecessor mining companies, for whom Idarado assumed all debts, liabilities and obligations, at the time of acquisition in the 1950’s. Idarado continued its mining operations in the area until 1978. Moreover, Idarado, through its subsidiary, previously owned property at Society Turn that included the upstream tailings area. The evidence is undisputed that the Society Turn tailings piles have eroded in the past and continue to erode, into the San Miguel River. Tailings from the defendants’ six Telluride piles also have eroded, and continue to erode, into the San Miguel. This erosion releases heavy metals into the waters and sediments. Defendants are liable in part as past owners and operators of a “facility” at the time of waste disposal. CERCLA § 107(a)(2), [42 U.S.C. § 9607(a)(2) ]. They also are liable because they “otherwise arranged for ... disposal,” of hazardous waste by placing their contaminated tailings in the San Miguel River and those tailings “have come to be located” at Society Turn. CERCLA § 107(a)(3), [42 U.S.C. § 9607(a)(3)]. As I earlier indicated, the State is not required to match specific waste found to a particular defendant, nor is strict proof of causation required. See United States v. Ottati & Goss, Inc., 630 F.Supp. at 1402; State of New York v. Shore Realty Corp., 759 F.2d 1032, 1044 (2d Cir.1985). In sum, the evidence establishes that the defendants “released” contaminated tail-ings that “have come to be located” at Society Turn, and that are being “released” from Society Turn, a “facility” previously owned by the defendants. The release of contaminated waste from this area is posing a threat to the environment and to the public welfare for which the State has incurred response costs. Defendants thus are liable under CERCLA for those response costs and for cleaning up the affected area. (i) The State’s Proposed Plan. The keystone of the State’s plan is the removal of the tailings from the area of active erosion to a hydrologically and geologically suitable disposal site within one mile of the tailings’ present location. The tailings will be consolidated at this new site and placed in a lined impoundment. The State has suggested using Mancos shale to construct the liner because it is indigenous and generally suitable for the intended purpose. The soils beneath and adjacent to the old tailings site will be cleaned to 1,000 parts per million (“ppm”) lead or less. During trial, the State initially proposed consolidating the Society Turn tailings piles onto Telluride tailings piles 5 and 6. That preliminary proposal was changed, however, after the public voiced objections because implementing it would have necessitated substantial truck traffic along the highway and through the Town of Telluride to transport the Society Turn tailings upstream. The State now proposes constructing a multilayer cap six feet deep on top of the consolidated tailings, using material excavated from the selected disposal site. The cap’s design would include the same features proposed for capping the Telluride tailings piles. The tailings impoundment would be designed to withstand the maximum credible earthquake, probable maximum precipitation and probable maximum flood. Surface water run-on and runoff diversion ditches would be installed. All areas disturbed by the construction activities would be recontoured and revege-tated. The State estimates that its proposed plan would cost approximately $2,580,000. The State considered rechanneling the San Miguel River but that option was rejected because of the potential cost, the lack of permanence, and the negative feasibility based on the area’s topography. Moreover, certain permits would be required from the Army Corps of Engineers. There was evidence that channelization would negatively impact the aquatic habitat and reduce aquatic biota. As earlier discussed, none of the parties own the subject property. The State has identified several available options for gaining access to the property to implement the remedy. One option calls for the State to purchase the property at a cost of approximately $100,000 for ten acres. Other options include gaining access through negotiations with the current land owners, condemnation proceedings and state injunctive relief to abate a nuisance. The cost of obtaining property access is not reflected in the State’s cost estimate. (ii) Defendants’ Proposed Plan. Defendants have not proposed a remedial plan for the Society Turn tailings because they contend that they are not liable for the area’s cleanup. I have rejected the defendants’ position in my above stated findings. (iii) The Court’s Remediation Plan. The State has not asked for a mandatory injunction requiring the defendants to begin cleanup of the Society Turn tailings. Rather, the State asks that declaratory judgment be entered in its favor addressing the scope of the cleanup effort. Since I have determined that the defendants are liable for cleanup of the Society Turn tailings, I further conclude that declaratory relief must be entered in favor of the State. I also conclude that the State’s cleanup plan shall be implemented as proposed with the following restrictions: (1) The State’s plan for moving and consolidating the three Society Turn tailings piles shall be implemented, but rather than utilizing the six foot multilayer cap, the capping component shall be installed following the same guidelines as specified for capping the Telluride tailings piles. Within six months, the State shall select the site for the consolidated tailings. Selection of that site must take into consideration the objections voiced by Telluride citizens, and substantial construction vehicle traffic shall not be permitted to traverse and disrupt the Town of Telluride or expose its people or their homes to undue traffic hazards, or blowing or dropping of tailings dust or material from trucks in or near the town. In short, a site shall be selected that would not involve hauling tailings through or near the town of Telluride. C. Miscellaneous Tailings along the San Miguel River, Stream Bank Cleanup and Aquatic Habitat Enhancement. The State estimates that there are between fifty and seventy-five thousand tons of tailings material located along the stream banks of the San Miguel River between the Town of Telluride and Society Turn. Some of these tailings have vegetation covers, are mixed with soil, or have a “soil gravel cover.” The “barren tailings,” which the State seeks to remove, are located in unvegetated or sparsely vegetated areas. These barren tailings were deposited during times of high water, and have eroded into the San Miguel River. Defendants were once owners of the affected stream bank areas, but the land is now owned by persons not parties to this lawsuit. These miscellaneous tailings are exposed to direct precipitation, such as rain and snow melt. At least 1,000 cubic yards of the tailings are oxidized, causing the hazardous substances to be more soluble and mobile in the environment. The State contends that these stream bank tailings cause significant metals loading to the San Miguel River, especially during storm events and whenever water leaches through the tailings. The metals that are being deposited into the San Miguel include zinc, copper and lead. Humans, livestock and wild animals come into contact with the tailings, although there was no direct evidence of resulting health problems. Defendants contend that the miscellaneous tailings are not responsible for elevated concentrations in, or metals loading to, the San Miguel River. There was evidence that once the San Miguel has flowed past Idarado’s property, in the vicinity of Bear Creek, metals concentrations in the water decline from there on downstream. Defendants further assert that if indeed any metals contribution at all occurs from the miscellaneous tailings, it is from seepage or surface runoff (surface water washing across the tailings), or other unidentified sources, including groundwater recharge. Defendants again emphasize that before Idarado’s existence, the general practice of mining companies in the area was to dump tailings directly into the San Miguel River or its tributaries. I conclude, however, that the defendants’ contention that the stream bank tailings contribute a de mini-mus amount of hazardous substances to the San Miguel River does not preclude their liability. Defendants’ six tailings piles above the Town of Telluride contribute major contamination to the San Miguel. On the average, the tailings piles contribute less than fifty per cent of the metals loading to the San Miguel River. The major contributors are the Mill Level and Meldrum Tunnel discharges. As compared to the tailings piles, however, the stream bank tailings have greater surface area per unit volume exposed to the atmosphere. Moreover, the State’s evidence, and common sense, indicate that tailings are deposited on the stream banks during times of high water. The tailings are deposited either in, or adjacent to, the river. As stated before, it is unnecessary for the State to “fingerprint” waste. United States v. Ottati & Goss, Inc., 630 F.Supp. at 1402. Defendants, whose waste is located along the San Miguel River stream banks, are liable for clean up even as de minimus polluters. United States v. Conservation Chemical Co., 619 F.Supp. 162 (W.D.Mo.1985). (i) The State’s Proposed Remedy. Generally, the State’s plan would require removal of tailings from stream banks that are not vegetated or that are sparsley vegetated. The State, however, has not clearly identified the areas targeted for tailings removal. The removed tailings would be deposited on the Telluride or Society Turn tailings piles. Disturbed areas would then be revegetated. The State proposes removing the tailings with a track-mounted backhoe, and hauling them away in dump trucks. The State estimates that, using ten-yard capacity trucks, it will take approximately 5,000 truck loads to remove the 50,000 cubic yards of tailings. Approximately ten percent as many truck loads will be required to haul the cover material to the affected areas. The aquatic habitat will be restored and improved, and fish, including species other than brook trout (brown and rainbow trout), will be stocked in the San Miguel River, between Bear Creek and Society Turn. All habitat improvements will be designed to allow for channel stability at flows of up to the one hundred year flood level. Much of the land along the river is owned by Cordillera Corporation, not the defendants. However, the State asserts that access to the affected stream banks is available from several side roads, and that an abandoned railroad berm that extends for almost the full stretch of the river can be used. In areas where there are no roads to the river, tailings would be loaded on sleds and the sleds would be hauled by backhoe to truck loading points on the nearest road. The State estimates that its plan will cost approximately $582,000. (ii) Defendants’ Proposed Plan. Defendants did not submit a proposed remedy for this area. However, the defendants suggest that it would be feasible to vegetate the barren tailings deposits in place. Defendants also have challenged the State’s plan on several grounds. First, the defendants contend that roads are not available to provide access to all areas. Nor has the State presented any evidence that it has obtained, or could obtain, access rights. Next, the defendants argue, the State has not quantified the extent of the environmental disturbance that would result from the extensive hauling activities required. Defendants contend that it would be necessary to remove trees and other vegetation existing on private property, and that vehicles would have to be driven across the San Miguel River, or bridges would have to be constructed, causing a significant adverse impact on the environment. In sum, the defendants assert that the State’s plan is not cost-effective, nor is it the least environmentally disruptive alternative. (iii) The Court’s Remediation Plan. Since I have found and concluded that the defendants are liable for the environmental harm caused by the