Ameripride Svc Inc v. Valley Industrial, et al
Filing
735
ORDER signed by Senior Judge Lawrence K. Karlton on 5/12/11 GRANTING-IN-PART and DENYING-IN-PART 698 Motion for Summary Judgment. The amounts AmeriPride paid in settlement to Huhtamaki and Cal-Am are not recoverable under CERCLA section 107. AmeriPride may file an Amended Complaint seeking to recover these costs under CERCLA section 113(f). Said complaint shall be filed no later than 14 days from the date of this order. (Donati, J)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
AMERIPRIDE SERVICES, INC.,
A Delaware corporation,
12
NO. CIV. S-00-113 LKK/JFM
Plaintiff,
13
v.
14
15
VALLEY INDUSTRIAL SERVICE, INC.,
a former California corporation,
et al.,
O R D E R
16
Defendants.
17
18
/
AND CONSOLIDATED ACTION AND
CROSS- AND COUNTER-CLAIMS.
/
19
20
This case is one more involving the cleanup of hazardous
21
chemicals at a site formerly used for dry cleaning.
The parties’
22
claims principally arise under the Comprehensive Environmental
23
Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §
24
9601 et seq.
25
formerly owned the site, and released hazardous chemicals into the
26
soil during its ownership.
Defendant Texas Eastern Overseas, Inc. (“TEO”)
Plaintiff AmeriPride Services, Inc.
1
1
(“AmeriPride”) then purchased the site and has conducted an ongoing
2
effort to clean up the chemicals.
3
costs of this cleanup from TEO. TEO counter-argues that AmeriPride
4
shares responsibility for the contamination and that AmeriPride’s
5
cleanup costs were excessive, such that AmeriPride’s claims should
6
be denied or offset.
7
defenses to AmeriPride’s claims and as counterclaims.
8
9
AmeriPride seeks to recover the
TEO presents these counter-arguments as both
The case is before the court on AmeriPride’s motion for
summary
judgment.
AmeriPride
seeks
summary
judgment
on
10
AmeriPride’s CERCLA claims and on all counterclaims.1
11
resolves the matter on the papers and after oral argument. For the
12
reasons
13
adjudication, as provided by Fed. R. Civ. P. 56(g).
14
costs are largely appropriate and AmeriPride’s remediation effort
15
was proper, but triable questions remain as to whether AmeriPride
16
bears a portion of the responsibility for these costs.
stated
below,
the
court
grants
The court
partial
summary
AmeriPride’s
I. STANDARD
17
18
Summary judgment is appropriate when there exists no genuine
19
issue as to any material fact. Such circumstances entitle the
20
moving party to judgment as a matter of law.
21
56(c); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
22
(1970); Secor Ltd. v. Cetus Corp., 51 F.3d 848, 853 (9th Cir.
23
1995).
Fed. R. Civ. P.
Under summary judgment practice, the moving party
24
1
25
26
AmeriPride also brings state law claims, and AmeriPride
initially moved for summary judgment as to these claims as well.
AmeriPride’s reply brief affirmatively abandoned this aspect of the
motion.
2
1
always bears the initial responsibility of
informing the district court of the basis for
its motion, and identifying those portions of
“the pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any,” which
it believes demonstrate the absence of a
genuine issue of material fact.
2
3
4
5
6
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.
7
R. Civ. P. 56(c)).
8
If the moving party meets its initial responsibility, the
9
burden then shifts to the opposing party to establish the existence
10
of a genuine issue of material fact.
Matsushita Elec. Indus. Co.
11
v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also First
12
Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89
13
(1968); Secor Ltd., 51 F.3d at 853.
14
party may not rely upon the denials of its pleadings, but must
15
tender evidence of specific facts in the form of affidavits and/or
16
other admissible materials in support of its contention that the
17
dispute exists.
18
391 U.S. at 289.
19
reasonable inferences from the facts before it in favor of the
20
opposing party.
21
States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam));
22
County of Tuolumme v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th
23
Cir. 2001).
24
to produce a factual predicate as a basis for such inferences. See
25
Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir.
26
1987).
In doing so, the opposing
Fed. R. Civ. P. 56(e); see also First Nat’l Bank,
In evaluating the evidence, the court draws all
Matsushita, 475 U.S. at 587-88 (citing United
Nevertheless, it is the opposing party’s obligation
The opposing party “must do more than simply show that
3
1
there is some metaphysical doubt as to the material facts . . . .
2
Where the record taken as a whole could not lead a rational trier
3
of fact to find for the nonmoving party, there is no ‘genuine issue
4
for trial.’”
Matsushita, 475 U.S. at 586-87 (citations omitted).
5
Rule 56(g) provides that “If the court does not grant all the
6
relief requested by the motion, it may enter an order stating any
7
material fact — including an item of damages or other relief — that
8
is not genuinely in dispute and treating the fact as established
9
in the case.”
II. BACKGROUND
10
11
The court begins by summarizing the structure of CERCLA’s
12
relevant provisions. The court then discusses the facility itself,
13
TEO’s operation of the facility, TEO’s contentions that AmeriPride
14
contributed to the contamination at the facility, and the efforts
15
that have been taken to clean the facility.
16
A.
CERCLA
17
Congress enacted CERCLA in 1980 “in response to the serious
18
environmental and health risks posed by industrial pollution.”
19
Burlington Northern & Santa Fe Railway Company v. United States,
20
--- U.S. ----, 129 S.Ct. 1870, 1874 (2009). “The Act was designed
21
to promote the timely cleanup of hazardous waste sites and to
22
ensure that the costs of such cleanup efforts were borne by those
23
responsible for the contamination.”
Id.
24
Under CERCLA section 107(a), 42 U.S.C. § 9607(a), the federal
25
government, state governments, and private parties may all initiate
26
cleanup of toxic areas, and each such entity may sue potentially
4
1
responsible parties for reimbursement of response costs.
2
Harbor v. County of Los Angeles, 433 F.3d 1260, 1265 (9th Cir.
3
2006) (Carson Harbor II) (quoting Ascon Properties, Inc. v. Mobil
4
Oil Co., 866 F.2d 1149, 1152 (9th Cir. 1989)).
5
has identified four elements necessary to a private plaintiff’s
6
prima facie case under section 107(a):
7
Carson
The Ninth Circuit
(1) the site on which the hazardous substances
are contained is a “facility” under CERCLA’s
definition of that term, Section 101(9), 42
U.S.C. § 9601(9);
8
9
(2) a “release” or “threatened release” of any
“hazardous substance” from the facility has
occurred, 42 U.S.C. § 9607(a)(4);
10
11
(3) such “release” or “threatened release” has
caused the plaintiff to incur response costs
that were “necessary” and “consistent with the
national contingency plan,” 42 U.S.C. §§
9607(a)(4) and (a)(4)(B); and
12
13
14
(4) the defendant is within one of four
classes of persons subject to the liability
provisions of Section 107(a).
15
16
City of Colton v. American Promotional Events, Inc.-West, 614 F.3d
17
998, 1002-03 (9th Cir. 2010) (quoting Carson Harbor Village, Ltd.
18
v. Unocal Corp., 270 F.3d 863, 870-71 (9th Cir. 2001) (en banc)
19
(Carson Harbor I)).2
A “release” for purposes of this section
20
includes
“any
spilling,
leaking,
pumping,
pouring,
emitting,
21
22
23
24
25
26
2
Government plaintiffs face a lesser burden under section
107. Whereas a private plaintiff must show that response costs
were consistent with the national contingency plan, City of Colton,
614 F.3d at 1002-03, a government plaintiff need only show that the
costs were incurred, leaving it to the defendant to show that costs
were inconsistent with the national contingency plan.
United
States v. W.R. Grace & Co., 429 F.3d 1224, 1232 n.13 (9th Cir.
2005), United States v. Chapman, 146 F.3d 1166, 1169 (9th Cir.
1998).
5
1
emptying, discharging, injecting, escaping, leaching, dumping, or
2
disposing into the environment.” 42 U.S.C. § 9601(22).3
The “four
3
classes
known
4
“potentially responsible parties,” include, as is relevant to this
5
case, “(1) the owner and operator of . . . a facility,” and “(2)
6
any person who at the time of disposal of any hazardous substance
7
owned or operated any facility at which such hazardous substances
8
were disposed of.”
9
113(g)(2), a party who prevails on a section 107 claim may also
10
seek a declaratory judgment that it is entitled to reimbursement
11
for future response costs as well.
12
at 1008.
of
persons
subject
to
liability,”
42 U.S.C. § 9607(a).
also
as
Under CERCLA section
See City of Colton, 614 F.3d
13
Absent from the four elements of a prima facie case is any
14
requirement that the plaintiff be innocent with regard to the
15
contamination at issue.
16
551 U.S. 128, 139 (2007).
17
party remediates the damage and incurs response costs, that party
18
may seek to recover these costs from another.
United States v. Atlantic Research Corp.,
Thus, where one potentially responsible
Id.
19
3
20
21
22
23
24
25
26
At oral argument, counsel for both parties suggested that
under CERCLA, it is enough to show that a property owner used a
hazardous chemical and that the chemical may be found in the soil.
In other words, both parties suggested that no evidence of a
specific release was necessary.
Neither party argued for this
proposition in its briefing, and no counsel provided any authority
for this proposition at oral argument. As the Northern District
of California recently recognized, “[t]he Ninth Circuit has not
adopted this broad position,” Walnut Creek Manor, LLC v. Mayhew
Center, LLC, 622 F. Supp. 2d 918, 926 (N.D. Cal. 2009), although
it does not appear that the Ninth Circuit has rejected it either.
Because the parties’ briefing does not rely on this interpretation
of CERCLA, the court does not further address it here. The parties
may revisit this issue in their trial briefs.
6
1
With regard to allocating responsibility among potentially
2
responsible parties, CERCLA provides overlapping and somewhat
3
convoluted mechanisms.
4
potentially responsible parties.
5
at 1879, 1881.
6
several as well.
7
1188, 1192 (E.D. Cal. 2009).
8
liability for the entire response cost has two options under
9
CERCLA. Under section 107, a defendant may avoid joint and several
10
liability by proving that “a reasonable basis for apportionment
11
exists.”
12
States v. Chem-Dyne Corp., 572 F. Supp. 802, 810 (S.D. Ohio 1983)).
13
Apportionment on this basis looks solely to whether the defendant
14
can “establish[] a fixed amount of damage for which [it] is
15
liable,” and not to any equitable concerns.
16
(quotation omitted).
17
authorizes claims for contribution “from any other person who is
18
liable or potentially liable under section 9607(a) of this title,
19
during or following any civil action under section 9606 of this
20
title or under section 9607(a) of this title.”
21
9613(f)(1).
22
equitable factors.
23
court may allocate response costs among liable parties using such
24
equitable factors as the court determines are appropriate.”),
25
Burlington Northern, 129 S.Ct. at 1882 n.9.
26
differs from section 107 in several other regards; for example,
Section 107 imposes strict liability on
Burlington Northern, 129 S.Ct.
Liability under section 107 is generally joint and
Adobe Lumber, Inc. v. Hellman, 658 F. Supp. 2d
A defendant seeking to avoid
Burlington Northern, 129 S.Ct. at 1881 (citing United
Section
Id. at 1882 n.9
Alternatively, CERCLA section 113(f)(1)
113(f)
does
allow
for
42 U.S.C. §
consideration
of
Id. (“In resolving contribution claims, the
7
Section 113(f)(1)
1
section 113(f) provides a shorter statute of limitations.
2
Atlantic Research, 551 U.S. at 139; 42 U.S.C. § 113(g).
3
B.
4
See
The Contaminated Facility
This suit concerns perchloroethylene (“PCE”) at a facility
5
located at 7620 Wilbur Way in Sacramento, California.
6
Statement of Undisputed Facts (“SUF”) ¶ 1.4 PCE is listed as a
7
hazardous substance under CERCLA.
8
§ 302.4. PCE and other chemicals (including but not limited to PCE
9
breakdown products) have been found in the soil at and near the
10
facility.
SUF ¶ 4.
11
groundwater at the facility.
Plaintiff’s
42 U.S.C. § 9601(14), 40 C.F.R.
These chemicals have also been found in the
SUF ¶¶ 8-9.
PCE is the most
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4
Pursuant to E.D. Cal. Local Rule 260(a), AmeriPride has
submitted a “Statement of Undisputed Facts,” to which TEO has
responded. The court cites only those facts that TEO has conceded
are undisputed. Local Rule 260(b) permits TEO to oppose summary
judgment with a “Statement of Disputed Facts.” TEO has filed such
a document, although TEO mislabels it as another statement of
undisputed facts. (Dkt. 716). To avoid conflating TEO’s filing
with AmeriPride’s, the court refers to TEO’s as a Statement of
Disputed Facts, or “SDF.”
Both parties’ briefs and statements of facts rely heavily on
declarations submitted by counsel and experts. Both parties in
turn object to portions of these declarations as lacking
foundation. These objections raise issues regarding the degree to
which foundational documents must be tendered to the court in a
Federal Rule of Civil Procedure 56 motion for summary judgment.
For the most part, the court need not resolve these issues, because
the parties have either stipulated to sufficient foundational facts
or the foundation is provided by separately submitted deposition
testimony. In discussing the underlying facts, the court generally
cites to the underlying testimony or admission, where possible,
rather than to the expert’s restatement thereof.
The parties also object to aspects of the expert declarations
as inadmissibly stating legal conclusions. These objections are
generally well founded, and the court disregards the appropriate
sections of the challenged declarations.
In all other regards, evidentiary objections not discussed in
this order are overruled.
8
1
widespread and highly concentrated of the contaminants, id., and
2
has been found at levels exceeding federal and state maximums, SUF
3
¶¶ 4, 6.
4
C.
VIS/TEO’s Ownership of the Facility
5
The defendant in this case is Texas Eastern Overseas, Inc.,
6
appearing as successor in interest to Valley Industrial Services,
7
Inc.
8
reinstated under a receivership for purposes of this case.
9
In re Texas Eastern Overseas, 2009 WL 4270799 (Del. Ch. Nov. 30,
TEO is a dissolved Delaware corporation that has been
See
10
2009), aff’d by 998 A.2d 852 (2010).
11
TEO’s curious legal posture is not at issue in this motion.
12
parties similarly do not dispute that TEO is the successor in
13
liability to VIS.
14
the court refers to TEO and all its predecessors as “TEO.”
15
Fortunately for this court,
SUF ¶ 25-31, especially 31.5
The
For simplicity,
Beginning in July 1972, TEO conducted industrial dry cleaning
16
at the facility.
SUF ¶ 19.
This continued into the 1980s, and
17
possibly through TEO’s transfer of the facility to AmeriPride’s
18
predecessor-in-interest in March 1983.
19
used “dense nonaqueous phase liquid” PCE (“DNAPL PCE”) as a solvent
Id.
During this time, TEO
20
5
21
22
23
24
25
26
TEO objects to many of these purportedly undisputed facts,
but the objections generally do not raise relevant and triable
disputes. Notably, TEO does not dispute that “TEO is a successor
to VIS, Inc. by way of mergers,” and that the “merger agreements
contemplate the passage of liabilities of the merged entities, as
of the time of the merger, to the resulting entities.” Responses
to SUF ¶ 28, 31. TEO nonetheless asserts that “what liabilities
may have passed as a result of those mergers is not undisputed.”
Response to SUF ¶ 28. TEO has not articulated any argument as to
why it should not be held liable for all of VIS’s liabilities. This
fleeting objection fails to raise a triable material question on
the issue.
9
1
for its dry cleaning operations.
2
SUF ¶¶ 3, 11, 20.
On at least four occasions, TEO spilled DNAPL PCE.
3
21-24.
4
SUF ¶¶
On at least two of these occasions, the spill was not
contained:
5
6
*
In 1980 or 1981, a pipe broke while a storage tank for DNAPL
7
PCE was being moved, and 50 to 100 gallons of DNAPL PCE
8
spilled onto the ground at the facility.
SUF ¶ 21.
9
10
*
In the late 1970s, a delivery truck driver left the pump
11
running while filling a PCE storage tank, causing a DNAPL PCE
12
spill.
13
PCE spilled.
14
TEO states that a 1/8 to 1/4 inch deep puddle of PCE formed
15
in the room when the spill occurred and that this spill
16
formed a stream flowing out the door to a drainage canal.
17
Robert Smith Dep. 25:8-15, Oct. 24, 2005 (Dkt. 717-7) (“2005
18
Smith Dep.”).
19
to six feet wide, although it is unclear whether this refers
20
to the width of the puddle or the stream.
SUF ¶ 22.
TEO contends it is unclear what volume of
Response to SUF ¶ 22.
The evidence cited by
The cited testimony states that “it” was four
Id.
21
22
At least two more spills occurred, but TEO contends that these
23
spills were cleaned prior to reaching the environment:
24
////
25
////
26
////
10
1
*
Between 1976 and 1981 an approximately 20 gallon overflow of
2
DNAPL PCE occurred when operators forgot to turn off a pump.
3
SUF ¶ 24, SDF ¶ 3.
4
5
*
6
In the late 1970s a “boil-over” occurred, resulting in DNAPL
PCE being released.
SUF ¶ 23.
7
8
TEO’s contention that these spills were cleaned is based on the
9
testimony of two employees. The first testified that employees had
10
been instructed to use clothes to soak up spilled material.
11
Smelosky Dep. 21:6-13 (Dkt. 717-8).
12
employees would attempt to “soak up all the [PCE] [they] could,”
13
Flowers Dep. 64:18-19 (Dkt. 717-5).
14
specifically states that any form of cleanup occurred in these
15
specific instances.
16
cleanup was undertaken, no evidence indicates that these actions
17
would have cleaned the entire amount of the spill.
18
not resolve that issue here.
19
Warner, that at least one spill was not contained and that some of
20
the DNAPL PCE spilled by TEO “most likely” reached the soil and
21
impacted groundwater.
22
D.
23
The other testified that
None of the cited evidence
AmeriPride argues that even if this type of
The court does
TEO admits, by way of its expert Jim
Warner Decl. ¶ 6 (Dkt. 718)
AmeriPride’s Operation of the Facility
The plaintiff in this action is AmeriPride Inc.
AmeriPride’s
24
predecessor in interest purchased the facility from TEO in 1983.
25
SUF ¶¶ 32-35.
26
In
arguing
that
TEO
is
11
entirely
to
blame
for
the
1
contamination, AmeriPride argues that it never conducted dry
2
cleaning operations, stored or used PCE, or otherwise conducted
3
activities that contributed to the PCE contamination at the site.
4
TEO
5
contributed to the contamination in four ways: (1) by using and
6
storing dry cleaning equipment, (2) by failing to respond to a 1983
7
discovery of PCE contamination, (3) by spilling waste in 1993, and
8
(4) by discharging wastewater into the soil.
9
each of these in turn.
offers
evidence
purportedly
indicating
that
AmeriPride
The court discusses
TEO has presented evidence creating a
10
triable question as to the first, second, and fourth arguments, but
11
not the third.
12
1.
Whether AmeriPride Used or Stored Dry Cleaning Equipment
13
Dry cleaning equipment remained at the facility until sometime
after
15
AmeriPride
16
operations.
17
triable question as to this issue, the court notes that the
18
majority of evidence TEO cites is incomplete. Thus, TEO’s argument
19
on this part rests on a thin foundation.
20
AmeriPride
purchased
continued
to
use
the
facility.6
14
this
equipment
TEO
in
argues
dry
that
cleaning
Although the court concludes that TEO has raised a
The one piece of evidence indicating that AmeriPride conducted
21
22
23
24
25
26
6
AmeriPride concedes this fact. So long as the equipment
remained in use (see following paragraph of the body), PCE would
presumably have remained present. The evidence offered by TEO,
however, indicates that once the equipment was put into storage,
all PCE was drained out of the equipment. See Flowers Dep. 104
(Dkt. 717-5). TEO cites the deposition of James Burlingame for the
proposition that PCE remained onsite until 1985, but TEO has failed
to provide the cited page of this deposition (page 34). See Dkt.
717-9.
12
1
dry cleaning is an Environmental Assessment that states that dry
2
cleaning was performed until 1987.
3
16
4
Consultants at the behest of AmeriPride.
5
that the 1987 date was merely a “typographical error” in the
6
report.
7
citing letters submitted by AmeriPride to the California water
8
authorities.
9
AmeriPride also cites
(Dkt.
717-16).
This
Weissenberger Decl. Ex. Q, 12,
assessment
was
Id.
prepared
by
Delta
AmeriPride argues
AmeriPride attempts to support this characterization by
See L. Smith Rebuttal Decl., Ex. H (Dkt. 727-6).
competing evidence indicating that dry
10
cleaning stopped during TEO’s ownership.
See Taylor Dep. 64 (Dkt.
11
714-4), Cal. Regional Water Quality Control Board Cleanup and
12
Abatement Order No. R5-2003-0059 ¶ 7 (May 7, 2003) (Dkt. 298-7 page
13
76 of 228) (“2003 Abatement Order”).
14
judgment motion, the court must assume that the trier of fact could
15
credit the original report.7
On AmeriPride’s summary
16
TEO’s other evidence does not support TEO’s position, in that
17
none of this other evidence specifies when dry cleaning halted.
18
Jesse Taylor, a former employee at the facility, repeatedly and
19
explicitly stated in the cited portion of his deposition that he
20
21
22
23
24
25
26
7
The conclusion reached is somewhat anomalous since the trial
of this case is to the court, and on the basis of the evidence
submitted, it is unlikely that the court would find for the
defendant on the issue. Nevertheless, applying summary judgment
standards, the court feels compelled to find there is a triable
issue of fact. See Minidoka Irrigation Dist. v. Dept. of Interior,
406 F.3d 567, 575 (9th Cir. 2005) (citing Kearney v. Standard Ins.
Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (en banc)) (explaining
that district court judges must apply the ordinary summary judgment
standard even when the matter will subsequently be heard by the
same district court judge in a bench trial).
13
1
did not know when dry cleaning was shut down. Taylor Dep. 64 (Dkt.
2
717-4).
3
deposition that dry cleaning stopped 4-5 years before he quit.
4
Flowers Dep. 104 (Dkt. 717-5).
5
when Flowers quit, this statement does not indicate that dry
6
cleaning occurred on AmeriPride’s watch.
7
employee, states that dry cleaning stopped after Smith left a
8
position in the dry cleaning room but before Smith stopped working
9
at the facility altogether.
Tim Flowers, another former employee, stated in his
In the absence of evidence as to
Robert Smith, a third
2005 Smith Dep. 45 (Dkt. 717-7).
10
Again, because TEO offers no evidence as to when Smith changed
11
positions or when he left the facility, this testimony does not
12
enable a trier of fact to conclude that AmeriPride conducted dry
13
cleaning.
14
“AmeriPride continued to order dry cleaning products from 1986 to
15
1992 from Fabrilife products.”
16
717).
17
who has no personal knowledge of this fact.
18
relies on a purported “vendor sales record.”
19
document, however, provides no indication that it is a sales record
20
and does not mention Fabrilife.
21
a heading for “BRANCH: Sacramento,” it lists only the details of
22
two dry cleaning machines.
23
Accordingly, this exhibit (if it could be properly authenticated)
24
might support the contention that equipment remained present after
25
AmeriPride’s purchase, but does not demonstrate that the equipment
26
was in use.
Moving beyond employee testimony, TEO argues that
Weissenberger Decl. ¶ 19 (Dkt.
TEO relies on the declaration of its counsel Weissenberger,
Id.
Weissenberger instead
Id.
The attached
Id. Ex. Q (Dkt. 717-16).
Under
The document is dated 1989.
14
Id.
1
2.
Whether AmeriPride Discovered Contamination in 1983
2
TEO contends that AmeriPride discovered the contamination in
3
1983, but that AmeriPride did not report this discovery.
4
Below,
I examine that evidence.
5
At some point, a trench at the facility was enlarged in
6
connection with expansion of laundry (non-dry-cleaning) facilities.
7
A trier of fact could conclude that this expansion occurred during
8
AmeriPride’s ownership, in 1983 or 1984.
9
deposition
testimony
of
former
TEO relies on the 2005
employee
Robert
Smith,
who
10
explicitly states that the trench was expanded after AmeriPride
11
purchased
12
AmeriPride argues that Smith recanted this testimony in 2006.
13
the 2006 deposition, Smith stated that the expansion occurred prior
14
to AmeriPride’s purchase.
15
727-6 Page 44 of 84) (“2006 Smith Dep.”).
16
not refer to R. Smith’s initial statement or address the conflict
17
between the two statements.
18
the court must assume that a trier of fact faced with this
19
conflicting
20
testimony.8
21
22
the
facility.
evidence
2005
Smith
Dep.
36
(Dkt.
717-7).
In
R. Smith Dep. 14 (May 3, 2006) (Dkt.
could
Id.
The 2006 testimony does
At the summary judgment stage,
choose
to
credit
Smith’s
2005
While the trench was being expanded, employees smelled fumes
that they identified as PCE coming from the exposed soil.
2005
23
24
25
26
8
AmeriPride further provides the testimony of Mr. Dankoff,
another employee, which also indicates that the expansion occurred
prior to AmeriPride’s purchase. This testimony does not defeat the
existence of a triable question, although it raises the issue
discussed in the prior footnote.
15
1
Smith Dep. 36 (Dkt. 717-7).
Smith testified that “if [he]
2
remember[ed] correctly” employees, including those in a nearby
3
office, were sent home because the smell was so strong that it gave
4
them headaches.
Id. at 37.
5
It is undisputed that, whenever the trench was expanded, the
6
discovery of PCE fumes was not reported to any authorities.9
7
Instead, the only action that was taken was to replace concrete
8
over the soil and contain the fumes.
9
10
3.
Whether AmeriPride Discharged Pollutants in 1993
TEO contends that AmeriPride “released hazardous chemicals to
11
the subsurface” in 1993.
Warner Decl. ¶ 26 (Dkt. 718).
The
12
evidence cited in support of this contention is an inspection
13
report prepared by a County of Sacramento official.
14
County Environmental Management Dept. of Compliance, Inspection
15
Report (December 6, 1993) (Dkt. 707-49). The report indicates that
16
a “waste oil drum [was] overflowing and leaking onto the ground.”
17
TEO has not offered evidence indicating that this leak reached the
18
“subsurface,” or that it otherwise could have contributed to the
19
soil and groundwater contamination at issue here.
20
showing, this fact is immaterial.
Sacramento
Absent such a
21
4.
Whether AmeriPride’s Operations Have Leaked Wastewater
22
TEO argues that AmeriPride repeatedly discharged wastewater,
23
24
25
26
9
At oral argument, TEO separately argued that AmeriPride
“discovered” the PCE contamination in 1983 because AmeriPride
continued to employ persons with knowledge of the prior spills.
Because this theory of discovery was not articulated in the brief,
the court discusses it only in passing.
16
1
primarily from laundry operations, into the soil.
2
that this wastewater aggravated the PCE contamination in two ways.
3
First, the wastewater allegedly mobilized the DNAPL PCE that was
4
already in the soil, pushing this PCE down to the water table and
5
spreading the contamination. Second, the wastewater was allegedly
6
contaminated with additional PCE, as a result of washing clothes
7
that were contaminated with PCE.
8
evidence regarding discharge of wastewater, and then turns to the
9
evidence regarding the effects of this water.
10
TEO contends
The court first surveys the
As the court
explains, TEO has raised triable questions as to both theories.
a.
11
A
Trier
of
Fact
Could
Conclude
that
Several
Wastewater Leaks Occurred
12
13
TEO contends that AmeriPride discharged wastewater into the
14
soil
on
several
discrete
occasions,
and
also
15
that
the
wastewater/sewer system pervasively leaked wastewater.
16
The first asserted discrete discharge was in 1983 or 1984.
17
A triable question exists as to whether AmeriPride discharged
18
wastewater into the soil at this time.
19
a pipe broke and was patched in 1983 or 1984.10
20
48 (Dkt. 717-6).
21
or sump pump and/or tank. Id. at 49-50. Delossantos presumed that
Delossantos testified that
Delossantos Dep.
The pipe connected washing machines to a sewer
22
10
23
24
25
26
The testimony regarding timing is as follows:
Q: When was that?
A. Just before I got out of there.
Q: Early ‘80’s?
A: Something like that.
Q: ‘83? ‘84?
A: Yeah
Dkt. 717-6, at 48.
17
1
the leak was discovered during a weekly cleaning of a trench
2
adjacent to the pipe, suggesting that the pipe had been leaking for
3
at most a week.
4
facility used “[m]ore [water] than you want to know [per day].
5
don’t know.
6
thousands.”
7
Id. at 49.
Delossantos testified that the
I can’t take a number.
I
Thousands of gallons,
Id. at 50.11
A trier of fact could conclude that a second wastewater
8
discharge occurred in 1997.
9
testified that in 1997, AmeriPride added a new style of washer that
10
required reconfiguration of a drainage trench. Burlingame Dep. 132
11
(Dkt. 717-9).
12
draining a restroom was breached.
13
that this water flowed into the soil for “a day or two” and that
14
the only “whatever was in the line” leaked, which “may have been
15
just a few gallons.”
16
at 136.
17
Former employee James Burlingame
In the course of this reconfiguration, a sewer line
Id. at 135.
Id. at 133.
Burlingame opined
This leak reached the soil.
Id.
Some evidence indicates that a third leak occurred in 2005.
18
Burlingame Dep. 119-21, 123 (Dkt. 717-9).
19
that at this time AmeriPride again damaged a wastewater pipe in the
20
course of an excavation, resulting in discharge of wastewater into
21
the soil.
Id.
Burlingame testified
Water leaked for a “few minutes.”
Id. at 121.
On
22
23
24
25
26
11
Regarding this pipe breach, TEO also cites the declaration
of Jim Warner, ¶ 26 (Dkt. 718). Warner merely cites the above
portions of the Dessantos deposition and opines that this leak
constituted a “potential release[] of PCE and other contaminants
by [AmeriPride] at the [facility].” Id. This opinion is discussed
below. The court notes it here merely to state that Warner adds
no additional facts regarding the timing, extent, etc. of the leak.
18
1
this occasion the top of another pipe was also broken, but because
2
of the nature of the breach “nothing really leaked out” of the
3
second pipe.
4
5
Id.
Fourth, the parties agree that the wastewater sump overflowed
“a couple” of times.
SDF ¶ 29.
6
Finally, in addition to these discrete leaks resulting from
7
damage or overflow, TEO raises a triable question as to whether the
8
system inherently leaks.
TEO marshals three types of evidence in
9
support of this argument.
First, TEO’s expert Warner argues that
10
wastewater systems generally leak, implying that leaks may be
11
presumed here. Warner Decl. ¶ 30 (Dkt. 718). Warner supports this
12
assertion with citations to various studies by the Environmental
13
Protection Agency and California regulators.
14
parties agree that contaminants other than PCE breakdown products
15
have been found on the site.
16
most
17
wastewater.
18
evidence regarding the integrity of the sewer system.
19
argues that video and conductivity test demonstrated that the
20
system did not leak.
21
inherent in these studies, opining that the studies could not
22
reveal whether leaks exist.
likely
source
of
Id. ¶ 32.
Id.
Second, the
Warner’s expert opinion is that the
these
contaminants
would
be
leaking
Third, TEO seeks to rebut AmeriPride’s
AmeriPride
Warner offers testimony regarding limits
Warner Decl. ¶ 31.12
23
12
24
25
26
In a fourth argument about leaks in the wastewater system,
Warner contends that on site studies have found soil moisture in
a pattern indicating wastewater leaks. Warner Decl. ¶ 31 (Dkt.
718).
AmeriPride objects to this testimony on the ground that
these underlying studies were not tendered in connection with TEO’s
opposition to the present motion; TEO disputes whether Fed. R. Civ.
19
b.
1
Effects of the Wastewater Leaks
2
In the preceding section, the court concluded that TEO had
3
raised triable questions as to whether AmeriPride had discharged
4
wastewater into the soil.
5
aggravated the groundwater contamination by contributing additional
6
PCE and by mobilizing the PCE that was already there.
i.
7
TEO contends that these discharges
PCE in the Wastewater
8
The parties agree that AmeriPride received laundry that was
9
contaminated with PCE, notably laundry from automotive and print
10
shops.
Farr Decl. ¶ 25 (Dkt. 698-5), Warner Decl. ¶¶ 11-12 (Dkt.
11
718).
The parties further agree that dissolved PCE has been
12
detected in AmeriPride’s wastewater, although AmeriPride disputes
13
Warner’s conclusion that the wastewater “consistently contained
14
dissolved PCE.”
15
the wastewater system leaked, a trier of fact could conclude that
16
these leaks contributed additional PCE to the soil.
ii.
17
18
Because there is a triable question as to whether
TEO’s
expert
Wastewater Can Move PCE Already in The Ground
Warner
testifies,
on
the
basis
of
his
19
professional training and experience, that DNAPL PCE of the type
20
spilled by TEO moves through soil slowly absent something to push
21
it farther, such that “only a minor portion . . . would have most
22
likely impacted groundwater” as a result of the initial spills.
23
Warner Decl. ¶ 6 (Dkt. 718).
Warner similarly declares that
24
25
26
P. 56 required these studies to be submitted. The court need not
resolve this dispute, because other aspects of Warner’s testimony
are sufficient to create a triable question as to whether the
wastewater system leaked.
20
1
wastewater could have mobilized the DNAPL PCE in the soil, causing
2
it to travel further through the soil and therefore reach the
3
groundwater.
4
testimony.
5
E.
6
Id. ¶ 9.
A trier of fact could credit this
Cleanup of the Facility
The court now turns to the facts regarding AmeriPride’s
7
investigation and remediation of PCE contamination.
8
to many of the facts in this section on hearsay grounds and by
9
arguing
that
the
cited
evidence
fails
to
support
TEO objects
the
facts
10
asserted.
Except where otherwise noted, these objections are
11
overruled.
In particular, much of the evidence falls into the
12
public record and business record exemptions to the hearsay rule.
13
1.
Discovery of PCE
14
“In 1997, during remodeling work, AmeriPride detected . . .
15
PCE . . . in near-surface soil beneath the Site . . . . AmeriPride
16
conducted additional soil investigations . . . to determine the
17
extent of the PCE in the soil gas and possible soil cleanup
18
alternatives.”
19
and Abatement Order RS-2009-0702 ¶ 10 (April 30, 2009) (Dkt. 698-7
20
page 173 of 228) (“2009 Abatement Order”); see also Marcus Dep. 14
21
(Dkt. 698-7 page 32 of 228).
Cal. Regional Water Quality Control Board Cleanup
22
AmeriPride reported this discovery to the Sacramento County
23
Environmental Management Department by telephone. Marcus Dep. 14.
24
AmeriPride contends that this call was made “immediately,” but the
25
cited evidence provides no indication as to timing.
26
After the discovery of the contamination, a series of soil
21
1
bores and groundwater monitoring wells were installed. Marcus Dep.
2
16, 2009 Abatement Order ¶ 11 (indicating that well investigations
3
were done between 1997 and 2002).
4
that PCE was in the groundwater as well as the soil.
These investigations revealed
Id.
5
In August 2001, PCE was detected in water from two nearby
6
wells: a California-American Water Company municipal supply well
7
and a well used by Huhtamaki North America (formerly Chinet). 2003
8
Abatement Order ¶¶ 14-15 (Dkt. 698-7, page 77 of 228). As a result
9
of this contamination, Cal-Am and Huhtamaki discontinued use of
10
these and neighboring wells.
Id.
¶¶ 14-17.
11
2.
Remedial Actions
12
Also in 2002, the California Regional Water Quality Control
13
Board (“RWQCB”) became the government agency with control over the
14
site investigation. 2009 Abatement Order ¶ 16 (Dkt. 698-7 page 173
15
of 228).
16
Delta and Burns & McDonnell, have performed investigation and
17
remediation at the site on behalf of AmeriPride.
18
12-13 (698-6 page 3 of 65); SUF ¶ 53.
19
is ongoing, as the work directed by the RWQCB has not been
20
completed.
21
Id., SUF ¶ 60.
22
and its breakdown products in the soil and groundwater at and near
23
the facility.
24
In
Under the direction of the RWQCB, two consulting firms,
SUF ¶ 54.
Stott Decl. ¶¶
The cleanup at the facility
As such, additional costs will be incurred.
TEO has not performed any work to address the PCE
SUF ¶ 55.
connection
with
this
investigation
and
remediation,
25
AmeriPride designed and executed a community relations plan which
26
included a number of public meetings.
22
SUF ¶ 89.
AmeriPride
1
conducted
remedial
investigation/feasibility
study
efforts,
2
implemented interim remedial/removal actions involving public and
3
private water supplies, and implemented final remedial measures.
4
SUF ¶¶ 90, 92.
5
and safety plans.
6
efforts were approved by regulators after public comment.
7
94.
AmeriPride further designed and conducted health
SUF ¶ 93.
AmeriPride’s proposed remediation
SUF ¶
8
As part of AmeriPride’s remediation, contaminated groundwater
9
is pumped to the surface at Operating Units 2 and 3 of the
10
facility.
11
AmeriPride’s laundry operations, after which it is discharged into
12
the municipal sewer system.
13
This
groundwater
is
treated
and
then
used
in
AmeriPride places its total costs in connection with the
14
action
15
investigation and remediation as of August 2010, Bryant Decl. ¶ 48
16
(Dkt. 698-8 page 11 of 159), $474,729.67 in regulatory oversight
17
through September 2010, Peter Decl. ¶ 30 (Dkt. 698-17 page 8 of 9),
18
and $10.25 million in settlement paid to Huhtamaki and Cal-Am, SUF
19
¶ 62.
20
at
over
$18
million.
This
includes
$7,331,528.25
for
TEO does not dispute that these amounts were spent.
The RWQCB determined that the facility was responsible for the
21
PCE in the Huhtamaki and Cal-Am wells.
22
ordered AmeriPride to provide replacement water for these two
23
companies.
24
discharged by the $10.25 million in settlements referred to in the
25
preceding paragraph.
26
////
SUF ¶ 61.
SUF ¶ 64.
The RWQCB then
The RWQCB held that this obligation was
SUF ¶¶ 68-69, 74-75.
23
III. ANALYSIS
1
2
AmeriPride seeks summary judgment as to its claims under
3
CERCLA sections 107 and 113(g)(2).
AmeriPride further seeks
4
summary judgment on TEO’s counterclaims, which are brought under
5
CERCLA section 113(f) and state law.
6
As summarized above, section 107 allows a party to recover
7
“response costs” from parties who contributed to contamination.
8
Once a party has paid costs under section 107, that party may use
9
section 113(f) to seek indemnification or contribution from other
10
parties, including the section 107 plaintiff.
11
court begins by discussing the elements of a prima facie case under
12
section 107. The court then determines that AmeriPride is entitled
13
to summary judgment as to satisfaction of the bulk of these
14
elements, although questions remain as to the precise amount of
15
response costs incurred.
16
allocating those costs between AmeriPride and TEO, whether through
17
apportionment under section 107 or through a claim for contribution
18
under
19
adjudication
20
AmeriPride’s section 113(g)(2) claim for declaratory judgment
21
regarding liability for future response costs.
22
section 113(g)(2) claim is largely derivative of AmeriPride’s
23
section 107 claim, and therefore can only be partially resolved on
24
this motion.
25
////
26
////
section
of
113(f).
these
In this order, the
The court then turns to the question of
Material
issues.
questions
Finally,
24
the
preclude
court
summary
addresses
AmeriPride’s
1
2
3
4
5
A.
Section 107 Claim
As
explained
above,
a
private
plaintiff
must
show
four
elements to demonstrate a prima facie case under section 107:
(1) the site on which the hazardous substances
are contained is a “facility” under CERCLA’s
definition of that term, Section 101(9), 42
U.S.C. § 9601(9);
6
7
(2) a “release” or “threatened release” of any
“hazardous substance” from the facility has
occurred, 42 U.S.C. § 9607(a)(4);
8
9
10
(3) such “release” or “threatened release” has
caused the plaintiff to incur response costs
that were “necessary” and “consistent with the
national contingency plan,” 42 U.S.C. §§
9607(a)(4) and (a)(4)(B); and
11
12
(4) the defendant is within one of four
classes of persons subject to the liability
provisions of Section 107(a).
13
City of Colton, 614 F.3d at 1002-03.
In this case, AmeriPride has
14
satisfied the first, second, and fourth elements of this test; TEO
15
does not meaningfully contest these issues.
The property is a
16
“facility” “where a hazardous substance has . . . come to be
17
located.” 42 U.S.C. § 9601(9), SUF ¶ 4. TEO released PCE into the
18
soil at least once. 42 U.S.C. § 9601(22) (defining releases). TEO
19
is a type of person potentially subject to liability, as TEO owned
20
the facility at the time the PCE was disposed of.
42 U.S.C. §§
21
9607(a)(2), 9601(21) (corporations are persons for purposes of
22
CERCLA), 9601(29) (“disposal” includes “spilling”).
23
As to the third element, TEO intermingles two arguments,
24
asserting that AmeriPride violated the national contingency plan
25
and that AmeriPride seeks costs outside the scope of CERCLA section
26
25
1
107.13
2
with the national contingency plan, and then turns to TEO’s three
3
arguments:
4
requirements, that AmeriPride’s response was not cost effective,
5
and that AmeriPride seeks recovery for amounts that are not
6
“response costs” within the meaning of section 107.
7
reasons explained below, AmeriPride is entitled to summary judgment
8
on the overall issue of national contingency plan compliance.
9
Nonetheless, it appears that the amount sought by AmeriPride must
The court first reviews the caselaw regarding compliance
that
AmeriPride
violated
the
plan’s
reporting
For the
10
be reduced.
Furthermore, the court agrees that a second group of
11
costs cannot be recovered under section 107, although the court
12
will permit AmeriPride to seek these costs under section 113(f).
13
The court postpones discussion of apportionment and contribution
14
until part III(B) below.
15
1.
The National Contingency Plan
16
Response costs are considered consistent with the National
17
Contingency Plan “if the action, when evaluated as a whole, is in
18
substantial compliance” with it.
19
(emphasis added).
40 C.F.R. § 300.700(c)(3)(I)
The National Contingency Plan is codified at 40
20
21
22
23
24
25
26
13
TEO also asserts without meaningful argument that
AmeriPride’s response costs were not “necessary,” a separate aspect
of the third section 107 element. Response costs are considered
necessary when “an actual and real threat to human health or the
environment exist[s].” Carson Harbor I, 270 F.3d at 871. The
Regional Water Quality Control Board identified such a threat, and
TEO does not dispute that such a threat existed. Instead, TEO’s
“necessity” argument merely rephrases TEO’s cost-effectiveness
argument. That is, TEO argues that certain specific costs were
unnecessary because cheaper alternatives were available. The court
addresses cost effectiveness below.
26
1
C.F.R. part 300. This plan “specifies procedures for preparing and
2
responding
3
Environmental Protection Agency (EPA) pursuant to CERCLA § 105.”
4
Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 161 n.
5
2 (2004). “It is designed to make the party seeking response costs
6
choose a cost-effective course of action to protect public health
7
and the environment.” Carson Harbor II, 433 F.3d at 1265 (internal
8
quotation marks omitted), see also City of Colton, 614 F.3d at
9
1003.
to
contaminations
and
was
promulgated
by
the
10
For purposes of a claim under CERCLA section 107(a)(4)(B), the
11
court evaluates substantial compliance by looking to the provisions
12
enumerated in 40 C.F.R. §§ 300.700(c)(5) and (c)(6) and to whether
13
the response “results in a CERCLA-quality cleanup.”
14
300.700(c)(3).
15
other things, worker health and safety, documentation, reporting
16
of releases, site evaluation, and remedial investigation and
17
feasibility studies. Subpart (c)(6) imposes requirements regarding
18
public
19
‘protective of human health and the environment,’ (2) utilizes
20
‘permanent solutions and alternative treatment technologies or
21
resource recovery technologies,’ (3) is cost-effective, and (4) is
22
selected after ‘meaningful public participation.’”
23
Manor, 622 F. Supp. 2d at 930 (quoting 55 Fed. Reg. 8666, 8793
24
(March 8, 1990)).
25
AmeriPride has satisfied the majority of these requirements.
26
e.g.,
Subpart (c)(5) enumerates requirements for, among
participation.
SUF
¶¶
40 C.F.R. §
A
“CERCLA-quality
cleanup”
is
“(1)
Walnut Creek
In this case, TEO does not dispute that
89-90,
92-94.
Instead,
27
TEO’s
sole
See,
national
1
contingency plan arguments are that AmeriPride violated reporting
2
requirements and that the response action was not cost effective.
3
The cases provide unclear guidance as to how compliance with
4
the contingency plan fits into the section 107 analysis.
CERCLA
5
allows recovery of “necessary costs of response incurred by any
6
other person consistent with the national contingency plan.”
7
U.S.C. § 9607(a)(4)(B).
8
held that consistency with the national contingency plan is an
9
element of a private party’s prima facie case under section 107.
10
Carson Harbor I, 270 F.3d at 870-71, see also Ascon Properties, 866
11
F.2d 1149.
12
proving that cleanup costs were consistent with this plan.
13
Harbor II, 433 F.3d at 1265.
14
I had held, however, that “the question [of] whether a response
15
action is necessary and consistent with the criteria set forth in
16
the contingency plan is a factual one to be determined at the
17
damages
18
Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 695
19
(9th Cir. 1988), see also Mid Valley Bank v. North Valley Bank, 764
20
F. Supp. 1377, 1389-90 (E.D. Cal. 1991) (Karlton, J.) (following
21
Cadillac Fairview to hold that “a failure to comply with the
22
[National Contingency Plan] is not a defense to liability, but goes
23
only to the issue of damages.”).14
42
An en banc panel of the Ninth Circuit has
A private plaintiff accordingly bears the burden of
stage
of
a
Carson
Other cases prior to Carson Harbor
section
107(a)
action.”
Cadillac
24
14
25
26
Another case holding that national contingency plan
noncompliance affected damages, but not liability, was Basic
Management Inc. v. U.S., 569 F. Supp. 2d 1106, 1121 (D. Nev. 2008).
Although Basic Management was decided after Carson Harbor I and II,
28
1
As this court understands the issue, these cases may be
2
reconciled by noting that under the statutory text, the question
3
is whether any particular cost is consistent with the national
4
contingency plan, rather than whether the plaintiff has uniformly
5
adhered
6
violations of the national contingency plan warrant different
7
treatment.
8
the national contingency plan completely bars recovery.
9
Colton, 614 F.3d at 1004.
to
the
plan.
Thus,
different
types
of
substantial
Total failure to comply with the procedural aspects of
City of
Similarly, the Northern District of
10
California has held that a plaintiff who failed to provide “any
11
meaningful opportunity for public participation [had committed]
12
more than a technical or de minimis deviation from the NCP. . . .
13
As such, [the plaintiff had not] met its burden of demonstrating
14
that its incurred response costs were ‘consistent’ with the NCP,
15
and thus recoverable under CERCLA.” Waste Mgmt. of Alameda County,
16
Inc. v. E. Bay Reg’l Park Dist., 135 F. Supp. 2d 1071, 1103 (N.D.
17
Cal. 2001). City of Colton suggested, however, that a past failure
18
to
19
Contingency Plan did not bar all possible future recovery.
20
of Colton, 614 F.3d at 1004 n.4, 1004-08.
21
case effectively conceded that past costs had been incurred without
22
substantial compliance with the national contingency plan, but the
23
plaintiff sought a declaratory judgment entitling it to recovery
comply
with
the
procedural
requirements
of
the
National
City
The plaintiff in that
24
25
26
it relied on a Fifth Circuit case without citing the above Ninth
Circuit authority; as such, Basic Management carries little
persuasive weight.
29
1
of future costs that would be incurred in compliance with the plan.
2
Id. at 1004.
3
declaratory judgment in the absence of a showing of “liability for
4
past costs . . . under section 107.”
5
not reject, however, the plaintiff’s underlying premise that future
6
costs could be consistent with the plan notwithstanding past
7
inconsistency.
The court held that CERCLA did not authorize such a
Id. at 1008.
The court did
8
Thus, the inquiry under CERCLA section 107(a)(4)(B) is whether
9
the particular costs for which the plaintiff seeks reimbursement
10
were incurred in connection with the national contingency plan, and
11
not whether the plaintiff has ever violated the plan. For example,
12
a
13
complying with the public participation requirements cannot recover
14
the costs of that action.
15
Supp. 2d at 1103.
16
incurs costs without public participation can recognize the error,
17
seek meaningful participation regarding any work that remains, and
18
thereby recover the latter costs.
19
twin aims of providing an incentive for cleanup while ensuring that
20
the cleanup occurs in an effective (and cost-effective) manner.
21
To hold otherwise would mean that once a party had substantially
22
violated the national contingency plan, that party would have
23
little incentive to remediate the site.
24
also
25
particular costs complied with the national contingency plan.
26
////
plaintiff
who
disregard
undertakes
a
remedial
action
without
first
Waste Mgmt. of Alameda County, 135 F.
It appears, however, that a party who initially
the
statute’s
This approach serves CERCLA’s
syntax,
30
Holding otherwise would
which
looks
to
whether
1
2.
2
Under 40 C.F.R. § 300.700(c)(5)(iv), one of the indicia of
3
“substantial compliance” with the national contingency plan is
4
compliance with 40 C.F.R. § 300.405.
5
reporting of “releases” of hazardous materials.
6
provides that “A release may be discovered through: . . . (5)
7
Inventory or survey efforts or random or incidental observation
8
reported by government agencies or the public; . . . [or] (8) Other
9
sources,”
10
Reporting the 1983 Discovery of PCE Fumes
and
“reports
of
[such]
Section 300.405 requires
releases
.
Specifically, it
.
.
shall,
as
appropriate, be made to the [National Response Committee].”
11
As noted above in part II(D)(2), TEO has raised a triable
12
question as to whether AmeriPride discovered PCE in the soil in
13
1983
14
AmeriPride was required to report the presence of PCE at that time.
15
The court assumes that reporting was required without deciding the
16
issue. Even under this assumption, the failure to report a release
17
does not preclude a finding of substantial compliance with the
18
National Contingency Plan. NL Industries, Inc. v. Kaplan, 792 F.2d
19
896, 898-99 (9th Cir. 1986).
20
confronted this issue, the court quotes the opinion at length:
21
22
23
24
25
26
when
excavation
released
PCE
fumes.
TEO
argues
that
Because NL Industries squarely
[defendant] NL Industries contends that
[plaintiff] Kaplan did not incur response
costs
“consistent
with
the
national
contingency plan” since it failed to report
promptly the existence of a release of
hazardous substances to the National Response
Center, as required by 40 C.F.R. § 300.63(b)
(1985).
We have held, however, that
consistency with the national contingency plan
does not necessitate strict compliance with
its provisions.
[Wickland Oil Terminals v.
31
1
Asarco, Inc, 792 F.2d 887, 891-92 (9th Cir.
1986).]
The apparent purpose of the
requirement that releases be reported promptly
to the National Response Center is to
facilitate the development by a lead agency of
a coordinated governmental response. Since we
have held in Wickland that private parties may
incur costs consistent with the national
contingency plan without acting pursuant to a
cleanup program approved by a lead agency, it
would make little sense for us to bar private
party recovery under section 107(a) of CERCLA
on the basis of failure to comply with 40
C.F.R. § 300.63(b) (1985). Therefore, we hold
that noncompliance with this section does not
alone render the incurrence of response costs
inconsistent with the national contingency
plan.
2
3
4
5
6
7
8
9
10
11
NL Industries, 792 F.2d at 898-99.
12
subsequent
13
pertains to compliance with the national contingency plan.15
cases
addressing
the
The court is not aware of any
reporting
requirement
as
it
14
At oral argument, TEO conceded that NL Industries established
15
that failure to report, without more, does not constitute a
16
substantial violation of the national contingency plan. TEO argues
17
that something “more” is present in this case, namely, harm
18
resulting from the delay in reporting.
19
that NL Industries rested on the factual conclusion that the
20
failure to report was harmless in that case.
In contrast, TEO argues
21
15
22
23
24
25
26
All the cases TEO cites about reporting have to do with
claims for failure to report under CERCLA section 103, and none
have to do with the question of whether failure to report precludes
recovery of costs under section 107. United States v. Buckley, 934
F.2d 84, 89 (6th Cir. 1991), Sierra Club, Inc. v. Tyson Foods,
Inc., 299 F. Supp. 2d 693 (W.D. Ky. 2003). Tyson Foods stands for
the unobjectionable propositions that a party actual or
constructive knowledge will trigger a duty to report, but that the
duty only arises when there is knowledge of both a release and that
the release occurred in a reportable quantity.
32
1
The court agrees that a failure to report, if it leads to a
2
delay in a response, can aggravate contamination.
3
a party whose delay makes the problem worse can bear responsibility
4
for a share of the response costs.
5
156 F.3d 416, 422 (2d Cir. 1998), overruled on other grounds by
6
W.R. Grace & Co.-Conn. v. Zotos Int’l, Inc., 559 F.3d 85, 90 (2d
7
Cir. 2009) (citing Cooper Indus., Inc. v. Aviall Servs., Inc., 543
8
U.S. 157 (2004)).
9
by posturing the delay as a violation of the national contingency
10
plan, TEO argues that AmeriPride should be wholly barred from
11
recovery.
12
Under CERCLA,
Bedford Affiliates v. Sills,
TEO argues for a broader proposition, however:
The court rejects TEO’s broader argument as contrary to the
13
purposes of CERCLA.
14
failed to report a discharge leading to a delay in cleanup, that
15
party would be forever barred from recovering response costs. This
16
would
17
incentive to clean the site.
18
report unique among violations of the contingency plan.
19
court explained above, City of Colton implies that other violations
20
of the national contingency plan can be corrected, at least
21
prospectively.
22
fails to report cannot partially cure this failure by reporting at
23
a later date--indeed, AmeriPride did file a later report in this
24
case.
25
26
vastly
Under TEO’s interpretation, once a party had
diminish,
if
not
wholly
eliminate,
the
party’s
It would also make a failure to
As the
Under TEO’s interpretation, a party who initially
The court further notes that TEO’s interpretation would
apparently be at odds with the purposes of CERCLA.
33
Under TEO’s
1
position, once AmeriPride had failed to initially report a release,
2
AmeriPride would be forever barred from recovering response costs
3
under
4
requirements into, in some sense, a more extreme violation of
5
CERCLA
6
responsible for the majority of pollution can bring a section 107
7
claim against another party to recover the small fraction of costs
8
attributable to the second party.
9
consequently remove a key incentive for the non-reporting party to
10
remediate the site, thereby frustrating CERCLA’s primary purpose.
11
Cases concerning other violations of the national contingency plan
12
have not imposed such forward looking consequences.
13
above, City of Colton suggested that where a party has failed to
14
comply with the national contingency plan, the party could not
15
recover past costs, but that the door remained open for compliance
16
in future remedial efforts and thus future recovery.
17
section
than
107.
This
discharge
Rejecting
TEO’s
of
would
make
pollution
argument
violation
itself.
of
Even
reporting
a
party
TEO’s interpretation would
does
not
read
As discussed
the
reporting
18
requirement out of the regulation, because a failure to report
19
still carries consequences.
20
action for failure to report discharges of hazardous chemicals,
21
CERCLA § 103, and the threat of such suits is an incentive to
22
report.
23
demonstrate a substantial violation of the national contingency
24
plan, is one factor that may be evaluated together with other
25
violations in determining substantial compliance. Washington State
26
Dept. of Transp. v. Washington Natural Gas Co., Pacificorp, 59 F.3d
A
failure
to
CERCLA provides a separate cause of
report,
34
while
itself
insufficient
to
1
793, 805 (9th Cir. 1995) (compliance evaluated based on the
2
“situation as a whole.”).16
3
a failure to report may expose a party to liability contribution
4
under
5
consequences, the court’s rejection of TEO’s argument does not
6
eliminate the reporting requirement from the regulation.
7
case, the report requirement remains an issue for trial because of
8
the contribution question.
9
section
In
113(f).
summary,
there
Finally, as the court explained above,
Because
is
a
of
triable
these
numerous
question
as
potential
In this
to
whether
10
AmeriPride was aware of the PCE contamination in 1983.
Regardless
11
of whether AmeriPride was aware of PCE contamination in 1983,
12
AmeriPride’s response costs were incurred in substantial compliance
13
with the national contingency plan.
14
report in the context of its section 113(f) counterclaim.
TEO may raise the failure to
15
3.
16
TEO next argues that the particular remedial measures adopted
17
by AmeriPride violated the national contingency plan because they
18
were not “cost effective,” 55 Fed. Reg. 8793.
19
TEO’s argument and grants summary adjudication to AmeriPride on
20
this issue.
21
Appropriateness of Response Costs
The court rejects
TEO first argues that rather than treating the contaminated
22
water,
AmeriPride
should
23
municipal sanitary sewer.
24
13-14.
have
discharged
the
water
into
the
TEO’s Opp’n to Pl.’s Mot. For Summ. J.,
TEO asserts that this option would have been cheaper,
25
16
26
In this case, however, TEO has not provided evidence of any
other general violations of the national contingency plan.
35
1
relying on the Warner expert declaration.
(Dkt. 718).
Warner
2
offers no evidence, however, regarding his cost calculations.
3
AmeriPride argues that discharging contaminated water to the
4
sanitary sewer would be more expensive than treating the water.
5
AmeriPride re-uses the treated water in laundry operations before
6
discharging the water to the sewer. Stott Rebuttal Decl. ¶ 8 (Dkt.
7
727-9).
8
AmeriPride would be unable to use it for laundry.
9
would therefore have to pay to discharge of both contaminated water
If AmeriPride did not first treat the contaminated water,
Id.
AmeriPride
10
and laundry’s “process water” into the sewer.
11
option would not obviate the expenses incurred in extracting and
12
testing the contaminated water.
13
declaration indicating that as a result of these expenses, stopping
14
treatment of contaminated water at Operating Unit 2 would increase
15
expenses by $21,100 annually.
16
present motion, TEO has not submitted any evidence to the contrary.
17
Instead, Warner’s analysis of Operating Unit 2 ignores the costs
18
associated
19
sanitary sewer.
with
disposing
of
Id.
Id.
¶ 9.
Moreover, this
AmeriPride submitted a
In connection with the
contaminated
water
through
the
Warner Decl. ¶ 49 (Dkt. 718).
20
TEO advances a broader argument regarding the facility’s
21
“operating unit 3”. For this unit, Warner argues that discharging
22
to the sanitary sewer would also have saved many up-front capital
23
costs in addition to saving annual treatment costs, but Warner does
24
not provide any evidence regarding annual costs of disposal to the
25
sanitary sewer.
26
credit Warner’s conclusions regarding capital savings. AmeriPride
Id.
The court assumes that a trier of fact could
36
1
has provided evidence indicating, however, that these capital
2
savings would be overwhelmed by increases in annual disposal costs,
3
an issue on which TEO has not provided evidence.17
4
Decl. ¶¶ 11-14 (Dkt. 727-9).
5
a triable question as to whether discharging the contaminated water
6
directly
7
treatment option.
into
the
sanitary
Stott Rebuttal
Accordingly, TEO has failed to raise
sewer
would
have
been
a
cheaper
8
TEO also asserts that AmeriPride seeks recovery for “other
9
potentially unjustified costs enumerated in [expert] Jim Warner’s
10
declaration and report.”
11
14.
12
addresses despite TEO’s failure to discuss these costs in its
13
brief.
14
competitive bidding was used for construction work at the site.
15
If not, it is possible that the costs could have been reduced.”
16
Warner Decl. ¶ 49 (Dkt. 718).
17
triable question.
18
(“metaphysical doubt” insufficient to defeat motion for summary
19
judgment).
20
TEO’s Opp’n to Pl.’s Mot. For Summ. J.,
Warner identifies only two such costs, which the court
Warner states “I was not able to determine whether
This is insufficient to raise a
Matsushita Elec. Indus., 475 U.S. at 585-86
Warner also argues that, although the Regional Water Quality
21
Control
Board
requires
AmeriPride
to
monitor
the
plume
of
22
groundwater contamination on a quarterly basis, AmeriPride “should
23
have been more aggressive in negotiating [with the Board for] a
24
25
26
17
Warner assumed that the costs of water disposal and the
operating costs of the treatment facility would be equivalent,
without indicating that he had actually considered the issue.
37
1
semiannual or even annual monitoring program.”
2
This does not raise a triable issue.
3
wholly speculative as to whether such an aggressive posture would
4
have influenced the agency.
5
the Board would have been receptive because the local Board has
6
approved less frequent monitoring on analogous projects.
7
Since those questions turn on particular facts, an assertion of
8
similarity is less then convincing.
9
whether less frequent monitoring, although cheaper, would have been
10
as effective. By requiring a cost-effective response, the national
11
contingency plan does not mandate the cheapest possible response.
12
Instead, courts have held that more expensive options were cost-
13
effective when the added expense bought additional environmental
14
benefit.
15
American Premier Underwriters, Inc., 240 F.3d 534, 546 (6th Cir.
16
2001).
17
Board has approved semiannual monitoring in other cases does not
18
raise a triable question as to the cost-effectiveness of quarterly
19
monitoring.
20
4.
21
Separate from TEO’s arguments regarding compliance with the
22
national contingency plan, TEO challenges AmeriPride’s calculation
23
of costs.
24
AmeriPride’s costs have been partially offset by recovery from
25
other
26
reimbursement for funds paid in settlement to third parties.
Franklin
Warner Decl. ¶ 49.
It appears to the court
Warner argues that it is likely that
Id.
Moreover, it is unclear as to
County Convention Facilities Authority v.
Thus, the court concludes that Warner’s statement that the
AmeriPride’s Calculation of Response Costs
TEO first raises triable questions as to whether
sources.
TEO
then
argues
38
AmeriPride
cannot
seek
The
1
court concludes that although these settlement costs are not
2
recoverable under CERCLA section 107, AmeriPride may pursue them
3
under section 113(f).
4
a.
Costs Offset by Other Sources
5
TEO argues that AmeriPride’s costs are offset by the economic
6
benefit AmeriPride derives from re-using treated water and by funds
7
AmeriPride has received in settlement from third parties.
8
Taking the first issue, TEO argues that by re-using the
9
treated water, AmeriPride offsets the cost of purchasing water from
10
the city, but that AmeriPride has failed to include this savings
11
in its cost calculations.
12
13-14. Warner Decl. ¶ 49 (Dkt. 718).
13
argument as an aspect of cost-effectiveness, the argument merely
14
speaks to accounting, rather than to whether AmeriPride’s course
15
of conduct was cost effective (and by extension, whether AmeriPride
16
complied with the national contingency plan). Warner declares that
17
AmeriPride saved $28,632 in this manner.
18
responded to this argument.
19
testimony, the consequence will be to reduce AmeriPride’s recovery
20
by $28,632, not to wholly bar AmeriPride from recovery.
TEO’s Opp’n to Pl.’s Mot. For Summ. J.,
Although TEO presents this
AmeriPride has not
If the trier of fact credits Warner’s
21
As to funds received in settlement, under CERCLA, a settlement
22
by one defendant “reduces the potential liability of the others by
23
the amount of the settlement.”
24
asserts that AmeriPride has received funds in settlements with
25
Chromalloy and Petrolane, although TEO does not quantify these
26
funds.
TEO’s response to SUF ¶ 56.
39
42 U.S.C. § 9613(f)(2).
TEO
AmeriPride agrees that it has
1
received these funds and that its claim must be reduced by this
2
amount.
3
funds, the court does not further address this issue now.
b.
4
5
Because the parties’ briefing does not quantify these
Money AmeriPride Paid in Settlement
TEO also points to AmeriPride’s settlement of claims brought
6
against
it
7
AmeriPride paid $8.25 million in settlement to Huhtamaki and $2
8
million to Cal-Am, for a total of $10.25 million.
9
4 (“Huhtamaki Settlement”), Notice of Mot. and Joint Mot. for
10
Approval of Settlement, 2:02-cv-01479, Dkt. 100 at 2 (“Cal-Am
11
Settlement”).
12
agreed to dismiss appeals of certain Cleanup and Abatement Orders
13
issued by the Central Valley Regional Water Quality Control Board
14
and to comply with future orders issued by the Board regarding PCE.
15
Although
16
indemnification or contribution for these costs under section 107,
17
the court permits AmeriPride to pursue these costs under section
18
113(f).
the
by
Huhtamaki
and
California-American
(Cal-Am).
Dkt. 638 page
In these settlement agreements, AmeriPride further
court
concludes
that
AmeriPride
may
not
seek
19
The Supreme Court has explained that “[w]hen a party pays to
20
satisfy a settlement agreement or a court judgment, it does not
21
incur its own costs of response . . . [r]ather, it reimburses other
22
parties for costs that those parties incurred.” Atlantic Research,
23
551 U.S. at 139.
24
the relationship between CERCLA sections 107 and 113(f).
25
sections have differing scopes.
26
of action for “contribution” for damages paid to another party.
The court reached this conclusion by examining
The two
Section 113(f) provides a cause
40
1
Atlantic Research, 551 U.S. at 139.
2
of “response costs.”
3
is that section 113(f) has a shorter statute of limitation than
4
section 107.
5
funds paid to a third party, a party could always circumvent
6
section 113(f)’s statute of limitations by repackaging the same
7
claim under section 107.
8
9
Section 107 allows recovery
Another distinction between the two sections
The Court held that if “response costs” included
Id.
Here, the court agrees with TEO that the funds AmeriPride paid
in settlement were not “response costs.”
AmeriPride argues to the
10
contrary, asserting that these payments were for the cost of
11
providing
12
AmeriPride argues that pursuant to the Regional Water Quality
13
Control Board Abatement Orders, AmeriPride had pre-existing legal
14
obligations to provide replacement water to Huhtamaki and Cal-Am,
15
and that the Board held that the settlements discharged these
16
obligations. The settlement agreements demonstrate, however, that
17
rather than fulfilling these obligations directly, AmeriPride paid
18
funds in exchange for agreements from Cal-Am and Huhtamaki to
19
release AmeriPride from this obligation.
20
Huhtamaki Settlement at 3, 4, 8.
21
funds to Huhtamaki and Cal-Am, rather than actually purchasing
22
replacement water, the court cannot view these payments as response
23
costs.
replacement
water
and
therefore
response
costs.
Cal-Am settlement at 5,
Because AmeriPride simply paid
24
Atlantic Research did not hold that a party cannot seek
25
contribution for settlement payments; the Court merely held that
26
such claims must be brought under section 113(f) rather than
41
1
section 107.
Nothing appears to preclude AmeriPride from bringing
2
a section 113(f) claim here.
3
statute of limitations has expired.
4
AmeriPride should be prevented from recovering these costs because
5
AmeriPride failed to cite the correct provision of the statute in
6
its complaint.
7
AmeriPride may therefore seek to recover these costs under section
8
113(f).
Notably, it does not appear that the
Thus, TEO simply argues that
The court rejects this “magic words” argument.
9
Finally, TEO notes that the settlements restated AmeriPride’s
10
existing obligation to comply with Regional Water Quality Control
11
Board orders regarding cleanup.
12
settlement restated these obligations, the costs associated with
13
these obligations were transformed into non-recoverable settlement
14
costs. TEO misunderstands Atlantic Research. Notwithstanding the
15
settlement, costs paid in connection with remediation actually
16
performed by AmeriPride remain recoverable.
TEO argues that because the
17
5.
Summary of Liability under Section 107
18
TEO raised three arguments in response to AmeriPride’s section
19
107 claim.
First, TEO argued that the claim was barred by
20
AmeriPride’s failure to report PCE contamination in 1983. Assuming
21
that AmeriPride was aware of the contamination at that time, any
22
failure to report does not demonstrate that AmeriPride was not in
23
substantial compliance with the national contingency plan, as
24
explained by the Ninth Circuit in NL Industries, 792 F.2d 896.
25
Second, TEO argues that AmeriPride’s response costs were not cost-
26
effective.
TEO has failed to raise a triable question regarding
42
1
cost-effectiveness.
Finally,
TEO
challenges
AmeriPride’s
2
accounting for costs.
3
AmeriPride’s recovery must be offset by the value of the treated
4
water and by amounts AmeriPride received in settlement from third
5
parties.
6
Huhtamaki and Cal-Am were not “response costs” recoverable under
7
CERCLA section 107, but AmeriPride may seek to recover these funds
8
under section 113(f).
Triable questions exist as to whether
The court further agrees that funds AmeriPride paid to
9
Thus, AmeriPride is entitled to summary judgment regarding the
10
threshold question of TEO’s liability under section 107. The court
11
therefore turns to the questions of AmeriPride’s fault in the
12
matter.
13
B.
14
Apportionment and Contribution
CERCLA provides various mechanisms by which liability may be
15
distributed among potentially responsible parties.
Under section
16
107, where the defendant can show that it is liable for only an
17
identifiable portion of the harm, courts will apportion liability
18
accordingly.
19
To defeat a plaintiff-initiated motion for summary judgment, the
20
defendant only needs to show there are “genuine issues of material
21
fact regarding a reasonable basis for apportionment of liability.”
22
U.S. v. Alcan Aluminum Corp. (Alcan-PAS), 990 F.2d 711, 722 (2nd
23
Cir. 1993).
24
strict standards of section 107, a defendant may seek contribution
25
under section 113(f), which allows for consideration of additional
26
equitable factors, and which further allows a defendant to seek
Burlington Northern, 129 S.Ct. at 1882 n.9 (2009).
Even when apportionment is not possible under the
43
1
contribution from the section 107 plaintiff. Burlington Northern,
2
129 S.Ct. at 1882 n.9.
3
In the instant motion, AmeriPride argues that it did not
4
contribute to the PCE contamination in any way, and that the court
5
should therefore ascribe 100% of the liability to TEO.
6
basis, AmeriPride argues that the court should grant summary
7
judgment for AmeriPride’s section 107 claim, dismiss TEO’s section
8
113(f)
9
counterclaims.
10
counterclaim,
and
similarly
dismiss
TEO’s
On this
state
law
The court rejects this argument because triable questions
11
exist
as
to
whether
AmeriPride
contributed
to
the
PCE
12
contamination.
13
culpable conduct.
14
cleaning
15
AmeriPride’s purchase of the facility, presumably spilling some
16
PCE.
17
with PCE into the soil.
18
discharge, even if it was not contaminated with PCE, “mobilized”
19
the PCE already in the soil and therefore aggravated the problem.
20
See Carson Harbor I, 270 F.3d at 877 (“movement of [existing]
21
contamination
22
‘disposal.’”) (citing Kaiser Aluminum & Chemical Corp. v. Catellus
23
Development Corp., 976 F.2d 1338, 1342 (9th Cir. 1992)).
24
AmeriPride may have discovered the contamination in 1983 or 1984,
25
in which case AmeriPride’s delay in response may have allowed the
26
problem to become worse.
TEO has provided evidence supporting four types of
using
First, TEO argues that AmeriPride conducted dry
PCE
during
the
years
immediately
following
Second, that AmeriPride discharged wastewater contaminated
.
.
.
Third, that AmeriPride’s wastewater
result[ing]
44
from
human
conduct
is
a
Fourth,
1
Thus, there are triable questions as to whether TEO was 100%
2
responsible.
This defeats the predicate underlying AmeriPride’s
3
argument for summary judgment on these issues.
4
C.
AmeriPride’s Claim for Declaratory Judgment Regarding Future
5
Response Costs
6
Finally, AmeriPride seeks summary judgment on its claim for
7
future response costs under CERCLA section 113(g)(2).
8
to such a claim is success on a claim under section 107.
9
Colton, 614 F.3d at 1008.
City of
To the extent that the court has
10
determined
11
substantially complied with the national contingency plan, the
12
court
13
similarly compliant.
14
allocation of responsibility between AmeriPride and TEO, however,
15
the court cannot grant declaratory judgment holding TEO responsible
16
for those future costs.
determines
AmeriPride’s
that
existing
continuation
of
response
those
actions
actions
have
will
be
Because triable questions exist as to the
IV. CONCLUSION
17
18
that
A predicate
For the reasons stated above, the court orders as follows:
19
20
1.
AmeriPride’s motion for summary judgment is GRANTED IN
21
PART. The court grants partial summary judgment pursuant
22
to Fed. R. Civ. P. 56(g).
23
24
2.
The amounts AmeriPride paid in settlement to Huhtamaki
25
and Cal-Am are not recoverable under CERCLA section 107.
26
AmeriPride may file an amended complaint seeking to
45
1
recover these costs under CERCLA section 113(f).
Said
2
complaint shall be filed no later than fourteen (14)
3
days from the date of this order.
4
5
3.
AmeriPride’s statement of costs may need to be reduced
6
to account for funds received in settlements with other
7
parties and for the economic value of the treated water.
8
9
4.
All
of
the
remaining
are
response
10
AmeriPride
“necessary”
11
and
costs
claimed
consistent
by
with
the
national contingency plan.
liable
for
12
13
5.
TEO
is
a
potentially
responsible
party
14
AmeriPride’s response costs pursuant to CERCLA section
15
107(a)(4)(B). The precise amount of this liability, and
16
potential apportionment of liability between TEO and
17
AmeriPride, remains to be determined.
18
19
6.
Triable
questions
remain
as
to
whether
AmeriPride
20
“released” or “disposed of” PCE within the meaning of
21
CERCLA.
22
23
7.
Similarly,
triable
questions
24
equitable
allocation
25
pursuant to CERCLA section 113(f).
of
26
46
costs
remain
between
regarding
the
the
parties,
1
8.
Accordingly, the court denies AmeriPride’s motion for
2
summary judgment insofar as this motion pertains to
3
allocation of liability on AmeriPride’s CERCLA claims.
4
The
5
summary judgment as to TEO’s counterclaims.
court
similarly
denies
6
7
IT IS SO ORDERED.
8
DATED: May 12, 2011.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
47
AmeriPride’s
motion
for
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?