Voggenthaler, et al., v. Maryland Square, LLC, et al.,

Filing 937

ORDER Granting in part and Denying in part #833 Motion for Summary Judgment. FURTHER ORDERED that #863 Counter-Motion for Summary Judgment is DENIED. FURTHER ORDERED that #874 Motion to Strike is DENIED. FURTHER ORDERED that #923 Motion for Reconsideration is DENIED. Signed by Chief Judge Robert C. Jones on 5/17/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PETER J. VOGGENTHALER, et al.,

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Plaintiffs,
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v.
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MARYLAND SQUARE, LLC, et al.,
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Defendants.
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___________________________________ )

2:08-cv-1618-RCJ-GWF
ORDER

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Currently before the Court are NDEP's Motion for Summary Judgment (#833); Maryland
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Square LLC's Cross Motion for Summary Judgment (#863); Motion to Strike the Declarations
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of Mary Siders, Greg Lovato and Jasmine Mehta (#874); and Motion for Reconsideration of
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Minute Order Granting Shapiro Defendants’ Motion for Leave to File Surreply (#923). The
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Court heard oral argument on April 19, 2012.
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BACKGROUND
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I.

Complaint

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On May 4, 2009, the Nevada Division of Environmental Protection (“NDEP”) filed a
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complaint against Maryland Square Shopping Center, LLC; Irwin Kishner, Jerry Engel and
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Bank of America N.A., as co-trustees of the Herman Kishner Trust; Maryland Square LLC;
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Melvin Shapiro and Philip Shapiro, individually and doing business individually and/or as a
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general partner of “Al Phillips the Cleaner” or “Al Phillips the Cleaner, Inc.”; estate of Philip
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Shapiro; Shapiro Bros. Investment Corporation; Al Phillips the Cleaners, Inc., dissolved
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corporation no. 745-1965; and Al Phillips the Cleaners, Inc., dissolved corporation no. 11-71
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(collectively “Defendants”). (Compl. (NDEP #1) at 1).1 NDEP filed the complaint for cost

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recovery and injunctive relief as a result of perchloroethylene (“PCE”) to soil and groundwater

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from the former site of an Al Phillips the Cleaner dry cleaning business located at 3661 South

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Maryland Parkway, Las Vegas, Nevada. (Id. at 2). As of January 2009, NDEP had incurred

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costs of $265,623.50 in responding to the potential human exposure to PCE resulting from the

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former Al Phillips’ property. (Id. at 7).

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NDEP alleged four causes of action. (Id. at 7-10). In the first cause of action, NDEP

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sought cost recovery under the Comprehensive Environmental Response Compensation and

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Liability Act (“CERCLA”), 42 U.S.C. § 9607(a)(4), for the response costs associated with the

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releases and threatened release of PCE into the environment by the former Al Phillips’

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property. (Id. at 7-8). In the second cause of action, NDEP sought declaratory relief that

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Defendants were jointly and severally liable for any further costs of response incurred in

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response to the release or threatened releases of PCE and other hazardous substances at

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the Al Phillips’ site, pursuant to CERCLA, 42 U.S.C. § 9613(g)(2). (Id. at 8). In the third cause

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of action, NDEP sought cost recovery under NRS § 459.537. (Id. at 8-9). In the fourth cause

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of action, NDEP sought injunctive relief requiring Defendants to complete an assessment of

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the extent and magnitude of the contamination resulting from releases from the former dry

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cleaner property that would be approved by NDEP, monitor groundwater, submit timely

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reports, submit a corrective action plan for soil and groundwater, and implement the corrective

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action plan approved by NDEP or as approved by NDEP with modification, pursuant to NRS

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§ 445A.695. (Id. at 9-10).

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On July 22, 2010, this Court granted a motion to consolidate this case with

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Voggenthaler v. Maryland Square, LLC et al., case no. 2:08-cv-1618-RCJ-GWF. (Order

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(NDEP #76) at 15).

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This case was originally filed under docket number 3:09-cv-231-RCJ-GWF. All
docket entry citations in this case will use “NDEP #___.”
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II.

Undisputed Facts2

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The Maryland Square Shopping Center (“the Shopping Center”) has been owned by

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various defendants since 1968. (NDEP Undisputed Facts (#847) at 2). In 1968, Herman

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Kishner, doing business as Maryland Square Shopping Center, owned the Shopping Center.

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(Id.). In 1969, Herman Kishner created the Herman Kishner Trust, which became the

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successor-in-interest to the Shopping Center. (Id.). After the Herman Kishner Trust, Maryland

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Square Shopping Center LLC became the successor-in-interest to the Shopping Center. (Id.).

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In 2002, the Clark County School District purchased the Shopping Center from Maryland

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Square Shopping Center LLC. (Id.). In 2005, Defendant Maryland Square, LLC purchased

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the shopping center from the school district. (Id.). Defendant Maryland Square, LLC is the

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current owner of the shopping center. (Id.).

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From 1968 through August 31, 1984, Shapiro Bros. Investment Co. (“SBIC”), a now

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dissolved Nevada corporation, operated a dry cleaning facility at the Shopping Center (“the

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Site”). (Id.; Resp. to Undisputed Facts (#873) at 3). SBIC had leased the Site from the

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landlord/owner of the Shopping Center. (NDEP Undisputed Facts (#847) at 3). SBIC had

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used PCE in its dry cleaning operations and had released PCE onto a concrete floor at the

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Site.3 (Id.).

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In 1984, Johnson Group Inc., the predecessor of DCI USA, Inc. (collectively “DCI”)

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purchased the Al Phillips the Cleaner, Inc. business from SBIC. (Id.). DCI leased the Site until

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2003. (Id.). DCI operated the dry cleaning facility at the Site until approximately 2000. (Id.).

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NDEP filed a statement of undisputed facts in support of its motion for summary
judgment. (NDEP Undisputed Facts (#847)). Maryland Square LLC does not dispute any of
NDEP’s facts. (Maryland Square LLC Undisputed Facts (#862-1) at 2-5). The Kishner
Defendants dispute one of NDEP’s facts, which is noted in this section. (See Kishner
Defendants’ Undisputed Facts (#870-1) at 2-5). The Shapiro Defendants clarify some of the
undisputed facts. (See Resp. to Undisputed Facts (#873) at 3, 5). Those clarifications are
noted in this section.
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The Kishner Defendants and the Shapiro Defendants state that SBIC’s written
discovery admits certain spills of PCE onto the concrete floor at the Site, but not releases into
the ground at the Site. (See Kishner Defendants’ Undisputed Facts (#870-1) at 3; Resp. to
Undisputed Facts (#873) at 3).
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The PCE discharge at the Site was first reported on November 29, 2000, during an

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environmental inspection done as part of a property transaction. (Id.). NDEP received an

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initial report on July 21, 2001. (Id.). PCE is a solvent that is commonly used in dry cleaning

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operations and is a hazardous substance as defined by CERCLA and the NAC § 445A.3454.

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(Id. at 4). Through oversight of NDEP, the Maryland Square Defendants4 have conducted an

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investigation of the Site. (Id.). The investigation has revealed the presence of PCE in the soil

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and groundwater in and around the Site. (Id.). The investigation has also revealed a plume

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of groundwater containing PCE emanating from the Site (“the Plume”). The Plume has

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extended eastward into a residential neighborhood (“the Neighborhood”). The Plume has

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volatized into soil gas beneath the Neighborhood and presents a threat to the indoor air of the

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residents of the Neighborhood. (Id.).

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An April 2007 soil gas report and computer simulation indicated a potential for vapor

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intrusion into the homes of the area. (Id.). Based on the soil gas data, NDEP determined that

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a potential existed for PCE vapor intrusion from shallow groundwater into the neighborhood

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residences to be present at rates sufficient to raise PCE concentrations in indoor air. (Id.).

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NDEP determined that indoor air PCE concentrations caused by the vapor intrusion had the

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potential to exceed indoor air concentrations estimated by the EPA to increase the probability

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of exposed individuals to contracting a case of cancer to higher than 1 in 10,000. (Id. at 5).

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NDEP offered the installation of subslab depressurization systems in certain homes to address

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the vapor intrusion issue. (Id.). In August 2007 through early 2008, NDEP notified residents,

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property owners, and local government officials of the PCE contamination in groundwater

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under the Neighborhood and possible long-term health effects. (Id.).

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In 2008, NDEP notified the Maryland Square Defendants that it had expended

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approximately $160,000 to determine whether the PCE posed “a potential human exposure”

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in the Neighborhood and that it intended to expend additional state funds to address human

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The Maryland Square Defendants include Maryland Square LLC; Maryland Square
Shopping Center LLC; Herman Kishner, dba as Maryland Square Shopping Center; and Irwin
Kishner, Jerry Engel, and Bank of America as trustees for the Herman Kishner Trust. (Mot.
for Summ. J. (#833) at 3).
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exposures to PCE and that it would seek recovery of its expenses from the responsible

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parties. (Id.). In May 2009, NDEP commenced the present lawsuit. (Id.).

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LEGAL STANDARD

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In reviewing a motion for summary judgment, the court construes the evidence in the

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light most favorable to the nonmoving party. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.

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1996). Pursuant to Fed.R.Civ.P. 56, a court will grant summary judgment “if the movant shows

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that there is no genuine dispute as to any material fact and the movant is entitled to judgment

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as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are “facts that might affect the outcome

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of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

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S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A material fact is “genuine” if the evidence is such

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that a reasonable jury could return a verdict for the nonmoving party. Id.

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The moving party bears the initial burden of identifying the portions of the pleadings and

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evidence that the party believes to demonstrate the absence of any genuine issue of material

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fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265

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(1986). A party asserting that a fact cannot be or is genuinely disputed must support the

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assertion by “citing to particular parts of materials in the record, including depositions,

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documents, electronically stored information, affidavits or declarations, stipulations (including

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those made for purposes of the motion only), admissions, interrogatory answers, or other

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materials” or “showing that the materials cited do not establish the absence or presence of a

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genuine dispute, or that an adverse party cannot produce admissible evidence to support the

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fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). Once the moving party has properly supported the

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motion, the burden shifts to the nonmoving party to come forward with specific facts showing

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that a genuine issue for trial exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

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U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). “The mere existence of a

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scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be

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evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252,

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106 S.Ct. at 2512. The nonmoving party cannot defeat a motion for summary judgment “by

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relying solely on conclusory allegations unsupported by factual data.” Taylor v. List, 880 F.2d
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1040, 1045 (9th Cir. 1989). “Where the record taken as a whole could not lead a rational trier

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of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita, 475

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U.S. at 587, 106 S.Ct. at 1356.
DISCUSSION

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In its motion for summary judgment, NDEP argues that this Court has jurisdiction to rule

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on its motion despite the pending appeals in this case because NDEP’s motion for summary

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judgment is on the CERCLA claims and the pending appeals reference the RCRA claims.

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(Mot. for Summ. J. (#833) at 7-9). NDEP asserts that it is entitled to summary judgment on

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its CERCLA claim because: (1) the Shopping Center was a facility at the time of the release

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of PCE; (2) PCE is a hazardous substance under CERCLA; (3) a release of a hazardous

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substance occurred at the Shopping Center; and (4) Defendants were owners or operators

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of the facility at the time of the disposal. (Id. at 11-12). NDEP asserts that it has incurred

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costs–including past response costs and attorney fees–for remedial action that are consistent

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with the National Contingency Plan and are therefore recoverable. (Id. at 14-15, 19). NDEP

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also argues that it is entitled to summary judgment on its claims for declaratory relief, cost

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recovery pursuant to NRS § 459.537, and injunctive relief under NRS § 445A.695. (Id. at 20-

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In response, the various defendants argue that: (1) this Court lacks jurisdiction to

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adjudicate NDEP’s motion because of the pending appeals; (2) CERCLA is unconstitutional

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because it exceeds Congress’s Commerce Clause authority; and (3) they are not liable under

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CERCLA. Each of these arguments will be addressed in turn.

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I.

Jurisdiction

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Defendants Melvin Shapiro, Shapiro Brothers Investment Co., and the Estate of Philip

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Shapiro (collectively “the Shapiro Defendants”) argue that this Court lacks jurisdiction to

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adjudicate NDEP’s motion because this Court entered the permanent injunction based, in part,

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on CERCLA, and asserts that the permanent injunction is on appeal. (Opp’n to Mot. for

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Summ. J. (#871) at 3, 6).

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Generally, “the filing of a notice of appeal . . . divests the trial court of jurisdiction.” In
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re Silberkraus, 336 F.3d 864, 869 (9th Cir. 2003). “The purpose of this judicially-created

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doctrine is to avoid the potential confusion and waste of resources from having the same issue

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before two separate courts at the same time.” Id.

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In this case, the same two issues are not before two separate courts. This Court’s

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previous order, now on appeal, makes clear that this Court had granted summary judgment

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on the Voggenthaler Plaintiffs’ Resource Conservation and Recovery Act (“RCRA”) claims.

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(See Order (#390)). Because NDEP seeks summary judgment on its CERCLA claims, the

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same two issues are not before two separate courts and the Court will proceed to merits of the

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motion for summary judgment.

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II.

CERCLA’s Constitutionality

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The Shapiro Defendants and Maryland Square LLC argue that CERCLA as applied to

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these facts exceeds Congress’s Commerce Clause authority. (Opp’n to Mot. for Summ. J.

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(#862) at 5; Opp’n to Mot. for Summ. J. (#871) at 29). They argue that the PCE contamination

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only affected residences within Nevada. (Opp’n to Mot. for Summ. J. (#862) at 5; Opp’n to

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Mot. for Summ. J. (#871) at 30).

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Although the Court believes that this lawsuit exceeds the authority granted by the

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Commerce Clause to regulate a local contamination plume, this Court recognizes that, based

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on existing case law, the Ninth Circuit will find that the Constitution permits enforcement of

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CERCLA in this case. See United States v. Olin, 107 F.3d 1506, 1510-11 (11th Cir. 1997)

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(holding that CERCLA constitutes a permissible exercise of Congress’s authority under the

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Commerce Clause when it regulates intrastate, on-site waste disposal). As such, the Court

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will proceed to the merits of the motion.

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III.

First Claim: Cost Recovery under Section 107 of CERCLA

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Congress enacted CERCLA in response to the serious environmental and health risks

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posed by industrial pollution. Burlington N. & Santa Fe R.R. Co. v. United States, 556 U.S.

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599, 129 S.Ct. 1870, 1874, 173 L.Ed.2d 812 (2009). CERCLA was designed to promote the

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timely clean up of hazardous waste sites and to ensure that the costs of such clean up efforts

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were borne by those responsible for the contamination. Id.
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To recover costs under CERCLA § 107, NDEP must establish four elements: (a) the

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site on which the hazardous substances are contained is a “facility” under CERCLA’s definition

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of that term, 42 U.S.C. § 9601(9); (b) “release” or “threatened release” of any “hazardous

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substance” from the facility has occurred, 42 U.S.C. § 9607(a)(4); (c) such “release” or

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“threatened release” has caused the plaintiff to incur response costs, 42 U.S.C. §§ 9607(a)(4),

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(a)(4)(B); and (d) the defendant is within one of four classes of persons subject to the liability

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provisions of Section 107(a). 3550 Stevens Creek Assoc. v. Barclays Bank of Cal., 915 F.2d

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1355, 1358 (9th Cir. 1990).

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Under the fourth element, CERCLA imposes strict liability for environmental
contamination upon four broad classes of potentially responsible parties (“PRPs”):

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(1) the owner and operator of a vessel or a facility,

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(2) any person who at the time of disposal of any hazardous substance owned
or operated any facility at which such hazardous substances were disposed of,

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(3) any person who by contract, agreement, or otherwise arranged for disposal
or treatment, or arranged with a transporter for transport for disposal or
treatment, of hazardous substances owned or possessed by such person, by
any other party or entity, at any facility or incineration vessel owned or operated
by another party or entity and containing such hazardous substances, and

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(4) any person who accepts or accepted any hazardous substances for transport
to disposal or treatment facilities, incineration vessels or sites selected by such
person, from which there is a release, or a threatened release which causes the
incurrence of response costs, of a hazardous substance . . .
42 U.S.C. § 9607(a)(1)-(4). An entity identified as a PRP is liable for:

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(A) all costs of removal or remedial action incurred by . . . a State . . . not
inconsistent with the national contingency plan;

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(B) any other necessary costs of response incurred by any other person
consistent with the national contingency plan;

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(C) damages for injury to, destruction of, or loss of natural resources, including
the reasonable costs of assessing such injury, destruction, or loss resulting from
such a release; and
(D) the costs of any health assessment or health effects study carried out under
[42 U.S.C. § 9604(i)].
42 U.S.C. § 9607(a)(4)(A)-(D).
Once the government presents a prima facie case for response costs, the burden shifts

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to the defendant to prove the government’s response action was inconsistent with the National

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Contingency Plan (“NCP”). United States v. Chapman, 146 F.3d 1166, 1169 (9th Cir. 1998).

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The NCP is “designed to make the party seeking response costs choose a cost-effective

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course of action to protect the public health and the environment.” Id. at 1170. In order to

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show that NDEP’s actions were inconsistent with the NCP, the burden is on the defendant to

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show that NDEP acted in an “arbitrary and capricious manner in choosing a particular

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response action.” Cal. Dep’t of Toxic Substances Control v. Neville Chemical Co., 358 F.3d

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661, 673 (9th Cir. 2004); 42 U.S.C. § 9613(j)(2). “When a state is seeking recovery of

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response costs, consistency with the national contingency plan is presumed.” Cal. Dep’t of

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Toxic Substances Control, 358 F.3d at 673.
In this case, none of the defendants challenge the first three elements of the prima facie

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case to establish a CERCLA claim.

The defendants make various challenges to the

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designation of a PRP and some defendants contest whether NDEP’s response action was

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consistent with the NCP. Each of the defendants arguments will be addressed in turn.

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A.

Maryland Square LLC

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Maryland Square LLC does not dispute that it is the current owner or operator of a

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facility. See 42 U.S.C. § 9607(a)(1); (see Opp’n to Mot. for Summ. J. (#862) at 9). However,

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it asserts that, even if it is the current owner or operator, it is not liable under CERCLA

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because of the bona fide prospective purchaser exception. (Id.).

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Pursuant to 42 U.S.C. § 9607(r), “a bona fide prospective purchaser whose potential

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liability for a release or threatened release is based solely on the purchaser’s being considered

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to be an owner or operator of a facility shall not be liable as long as the bona fide prospective

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purchaser does not impede the performance of a response action or natural resource

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restoration.” 42 U.S.C. § 9607(r)(1). A “bona fide prospective purchaser” is a person that

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acquires ownership of a facility and establishes eight criteria5 by a preponderance of the

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The bona fide prospective purchaser must establish that: (1) all disposal of hazardous
substances at the facility occurred before the person acquired the facility; (2) the person made
all the appropriate inquires into the previous ownership and uses of the facility in accordance
with standards and practices; (3) the person provided all legally required notices with respect
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evidence. 42 U.S.C. § 9601(40)(A)-(H).

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In this case, Maryland Square LLC only provides argument that they satisfied the eight

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criteria to become a bona fide prospective purchaser. However, Maryland Square LLC

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provides no evidence of any kind supporting its argument that it is a bona fide prospective

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purchaser. As such, Maryland Square LLC fails to establish a genuine issue of material fact

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as to its liability under CERCLA § 107(a). Moreover, Maryland Square LLC does not assert

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that the recovery costs are inconsistent with the National Contingency Plan. Accordingly, the

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Court grants summary judgment (#833) to NDEP against Maryland Square LLC on claim one.6

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B.

Kishner Defendants

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The Kishner Defendants7 argue that they are not a “person who at the time of disposal

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of any hazardous substance owned or operated any facility at which such hazardous

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substances were disposed of” pursuant to Supreme Court law. (Opp’n to Mot. to Summ. J.

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(#870) at 3).

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CERCLA defines “owner or operator” as “any person owning or operating such facility.”

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42 U.S.C. § 9601(20)(A)(ii). A “facility” is “any building, structure . . .” or “any site or area

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where a hazardous substance has been deposited, stored, disposed of, or placed, or

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otherwise come to be located.” 42 U.S.C. § 9601(9)(A)-(B). In United States v. Bestfoods,

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to the discovery or release of any hazardous substances at the facility; (4) the person
exercised appropriate care with respect to the hazardous substances by taking reasonable
steps to stop any continuing release, prevent future release, and prevent or limit exposure to
the previous release; (5) the person provided full cooperation to persons authorized to conduct
response actions; (6) the person is in compliance with any land use restrictions established;
(7) the person complies with information requests and subpoenas; and (8) the person is not
affiliated with any person that is potentially liable for response costs. 42 U.S.C. § 9601(40)(A)(H).
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Maryland Square LLC also filed a cross-motion for summary judgment (#863) which
is the exact same document as its opposition to NDEP’s motion for summary judgment. The
Court denies the cross-motion for summary judgment (#863) on claim one because Maryland
Square LLC fails to provide any evidence demonstrating that it is a bona fide prospective
purchaser as a matter of law.
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The Kishner Defendants are Maryland Square Shopping Center LLC, the Herman
Kishner Trust d/b/a Maryland Square Shopping Center, Irwin Kishner, Jerry Engel, and Bank
of America, as Trustees for The Herman Kishner Trust. (Opp’n to Mot. for Summ. J. (#870)
at 1).
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524 U.S. 51, 66, 118 S.Ct. 1876, 1887, 141 L.Ed.2d 43 (1998), the Supreme Court held that,

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under CERCLA, an “operator” is someone who “must manage, direct, or conduct operations

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specifically related to pollution.”

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In this case, the Kishner Defendants were not “operators.” However, they were owners

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of the site of the dry cleaners from 1968 through 2002. PCE was first reported on the site on

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November 2000. As such, the Kishner Defendants were owners under the meaning of the

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statute and NDEP has established a prima facie case against the Kishner Defendants for

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CERCLA liability.

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The Kishner Defendants argue that they are not jointly and severally liable under

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CERCLA because the Shapiro Defendants were the operators of the dry cleaners when the

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releases occurred. (Opp’n to Mot. for Summ. J. (#870) at 4). The Kishner Defendants also

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argue that they need to conduct more discovery to determine whether the response costs were

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consistent with the National Contingency Plan. (Id. at 5). Specifically, the Kishner Defendants

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assert that they will need to serve requests for production of documents to NDEP, subpoenas

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for business records to Broadbent & Associates and Brown & Caldwell, and conduct

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depositions of the NDEP staff and the persons most knowledgeable of Broadbent &Associates

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and Brown & Caldwell because NDEP alleges costs in the amount of $321,238.15 to

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Broadbent & Associates and $26,286.60 to Brown & Caldwell. (Id.).

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In reply, NDEP argues that the Kishner Defendants do not need further discovery and

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are attempting to prevent the Court from granting summary judgment at this time. (Reply to

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Mot. for Summ. J. (#898) at 8). NDEP argues that the Kishner Defendants have been deeply

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involved with NDEP throughout the entire remediation process over the last several years and

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that they cannot point to a single instance where NDEP’s actions were inconsistent with the

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NCP. (Id. at 6).

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As noted above, in order to show that NDEP’s actions were inconsistent with the NCP,

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the burden is on the defendant to show that NDEP acted in an “arbitrary and capricious

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manner in choosing a particular response action.” Cal. Dep’t of Toxic Substances Control, 358

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F.3d at 673; 42 U.S.C. § 9613(j)(2). Title 40 C.F.R. § 300.415 sets forth the mandatory factors
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that a lead agency must consider in determining the appropriateness of a removal action.8

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See 40 C.F.R. § 300.415(b)(2)(i)-(viii).

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In this case, the Kishner Defendants do not argue that they are going to be seeking

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discovery on anything that demonstrates that NDEP failed to consider the mandatory factors

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of NRS § 300.415. Instead, it appears that the Kishner Defendants are going to try to contest

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the costs of specific response actions taken by NDEP. However, attacking the specific costs

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of the actions taken by NDEP will not demonstrate that NDEP’s actions were arbitrary and

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capricious because NDEP’s actions would be arbitrary and capricious if they failed to comply

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with the mandatory factors.

Because the Kishner Defendants do not seek discovery

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demonstrating that NDEP failed to comply with the mandatory factors, the Court denies the

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request for further discovery and grants the motion for summary judgment (#833) on the first

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cause of action against the Kishner Defendants.

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C.

Shapiro Defendants9

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Pursuant to 40 C.F.R. § 300.415(b)(2), NDEP must consider the following:
(i) Actual or potential exposure to nearby human populations, animals, or the
food chain from hazardous substances or pollutants or contaminants;
(ii) Actual or potential contamination of drinking water supplies or sensitive
ecosystems;
(iii) Hazardous substances or pollutants or contaminants in drums, barrels,
tanks, or other bulk storage containers, that may pose a threat of release;
(iv) High levels of hazardous substances or pollutants or contaminants in soils
largely at or near the surface, that may migrate;
(v) Weather conditions that may cause hazardous substances or pollutants or
contaminants to migrate or be released;
(vi) Threat of fire or explosion;
(vii) The availability of other appropriate federal or state response mechanisms
to respond to the release; and
(viii) Other situations or factors that may pose threats to public health or welfare
of the United States or the environment.

9

The Shapiro Defendants argue that NDEP has not provided any evidence supporting
any of its claims against Melvin Shapiro or the Estate of Philip Shapiro. (Opp’n to Mot. for
Summ. J. (#871) at 24). In response, NDEP argues that Melvin and Philip Shapiro directly
managed and oversaw their closely held family dry cleaning business. (Reply to Mot. for
Summ. J. (#902) at 17).
The evidence that NDEP cites to support their argument that Melvin and Philip Shapiro
directly managed and oversaw the dry cleaning does not actually state that either of the
brothers did such a thing. (See id.). Although it is true that the brothers each owned 50% of
the stock and were corporate officers, there is no evidence that they managed, directed, or
conducted operations specifically related to pollution. See Best Foods, 524 U.S. at 66, 118
S.Ct. at 1887. As such, all references to liability of the Shapiro Defendants refer only to SBIC
12

1

The Shapiro Defendants argue that NDEP failed to present undisputed evidence that

2

hazardous substances were released into the environment when SBIC operated the dry

3

cleaning facility. (Opp’n to Mot. to Summ. J. (#871) at 12). SBIC states that its interrogatories

4

stated that “occasionally a button trap would clog and amounts of PCE would spill onto the

5

concrete floor” and that, in 1982, “a filter change resulted in a spill of PCE onto the concrete

6

floor.” (Id.). The Shapiro Defendants assert that a former employee estimated that 100

7

gallons of PCE had spilled during the course of the filter change in 1982 but notes that there

8

was no measurement of the quantity of the spill at that time. (Id. at 12 n.3). The Shapiro

9

Defendants dispute the declaration of Dr. Mary A. Siders, who offers an opinion on the timing

10

of the PCE release from the dry cleaning facility.10 (Id. at 13). The Shapiro Defendants argue

11

that Dr. Siders’ declaration is deficient because she has not identified which portions of her

12

declaration are based on personal knowledge and on information and belief, and that the

13

declaration is “suffused with inadmissible evidence.”11 (Id. at 13-14). The Shapiro Defendants

14

also assert that the declaration of their expert, Stephen Henshaw, demonstrates that Dr.

15

Siders’ declaration is flawed, unreliable, and materially disputed. (Id. at 18). The Shapiro

16

Defendants also argue that NDEP’s response action was inconsistent with the National

17

Contingency Plan. (Id. at 22). The Shapiro Defendants assert that NDEP failed to present

18

evidence that it complied with 40 C.F.R. § 300.415(n)(2)(i)-(iii). (Id. at 22-23).

19

In reply, NDEP asserts that it only needs to demonstrate that it incurred costs for

20

removal or remediation that were not inconsistent with the National Contingency Plan. (Reply

21

to Mot. for Summ. J. (#902) at 12). NDEP concedes that it did not make its removal decision

22

available for public notice and comment but argues that it does not mean that its actions were

23
24
25
26
27
28

and not individually to Melvin or Philip Shapiro.
10

Dr. Siders opines that the release date of the PCE from the former dry cleaner in the
former Maryland Square Shopping Center was 1971. (Siders’ Decl. (#833-2) at 4).
11

The Shapiro Defendants also argued that NDEP had failed to previously disclose Dr.
Siders as an expert. (Opp’n to Mot. for Summ. J. (#871) at 17-18). However, pursuant to a
stipulation, Shapiro Defendants agreed to withdraw this argument in exchange that NDEP
would not raise the same challenge to the Shapiro Defendants’ expert, Stephen Henshaw.
(Amended Stip. Order (#907) at 3-4).
13

1

inconsistent with the National Contingency Plan. (Id. at 13).

2

In a previous order, this Court found that there was sufficient evidence in a prior motion

3

for summary judgment “to conclude that the PCE plume at issue in this case stemmed from

4

the operation of the dry cleaning facility at the Shopping Center” and that “SBIC was the owner

5

and operator of that dry cleaning facility until 1984.” (Order (#487) at 9). Therefore, the

6

Shapiro Defendants were persons who, at the time of disposal of any hazardous substances,

7

owned and operated the facility at which such hazardous substances were disposed of. As

8

such, NDEP has established a prima facie case for liability.12

9

With respect to the National Contingency Plan (“NCP”), 40 C.F.R. § 300.415(n)

10

provides that, in cases where the lead agency determines that a removal action is appropriate

11

and less than six months exists before on-site removal activity must begin, the lead agency

12

shall: (1) publish a notice of availability of the administrative record file in a major local

13

newspaper of general circulation; (2) provide a public comment period; and (3) prepare a

14

written response to significant comments. 40 C.F.R. § 300.415(n)(2)(i)-(iii).

15

In Washington State Dep’t of Transp. v. Washington Natural Gas Co., Pacificorp, 59

16

F.3d 793 (9th Cir. 1995), the Ninth Circuit held that the state’s actions were inconsistent with

17

the NCP after “[l]ooking at the situation as a whole.” Id. at 805. There, the Ninth Circuit found

18

that the state “failed to assess accurately both the nature and the extent of the threat posed

19

by the presence of PAHs in the soil, failed to evaluate alternatives in the matter prescribed in

20

the NCP, and failed to provide opportunity for public comment.” Id. The Ninth Circuit held that

21
22
23
24
25
26
27
28

12

The Shapiro Defendants file a Motion to Strike the Declarations of Mary Siders, Greg
Lovato, and Jasmine Mehta based on alleged deficiencies in their declarations. (Mot. to Strike
(#874) at 1-2). After the Shapiro Defendants had filed their opposition to the motion for
summary judgment, NDEP filed subsequent declarations to address these alleged
deficiencies. (See Siders Supp. Decls. (#894-1, 902-1); Lovato Supp. Decls. (#894-7, 903-1)).
In response to the subsequently filed declarations, the Shapiro Defendants filed a Motion for
Leave to File a Surreply to NDEP’s Reply in Support of its Motion for Summary Judgment
(#918), which this Court granted. (Minute Order (#920)). The surreply responds to the
subsequently filed declarations. (See generally Surreply (#918-1)). As such, the Court denies
as moot the Motion to Strike (#874) because the subsequent declarations address the Shapiro
Defendants concerns. Additionally, the surreply gives the Shapiro Defendants an opportunity
to respond to the subsequently filed declarations. The Court also denies NDEP’s Motion for
Reconsideration of this Court’s Minute Order Granting Shapiro Defendants’ Motion for Leave
to File Surreply (#923).
14

1

“[g]iven the high degree of inconsistency with the requirements set forth in the NCP, [the

2

state’s] action [was] arbitrary and capricious” and that the state was not entitled to recover its

3

response costs. Id.

4

In this case, the Shapiro Defendants fail to demonstrate that NDEP acted in an arbitrary

5

and capricious manner in choosing to conduct the indoor air removal action. The Shapiro

6

Defendants do not allege or provide any evidence that NDEP failed to access the

7

appropriateness of the removal action pursuant to the mandatory factors outlined in 40 C.F.R.

8

§ 300.415(b)(2)(i)-(viii). The Shapiro Defendants do not allege or provide any evidence that

9

the removal action was unnecessary to mitigate the potential human exposure to PCE vapor

10

by the indoor air exposure pathway or that NDEP’s chosen action was not rationally based

11

upon groundwater data, soil gas sampling data, modeling of soil gas and groundwater data

12

for homes likely to be impacted by PCE-contaminated soil gas, and actual indoor air sampling.

13

The Shapiro Defendants do not allege or provide any evidence that NDEP failed to evaluate

14

alternatives in the manner prescribed in the NCP. Looking at the situation as a whole, NDEP

15

only failed to provide an opportunity for public comment. Because the Shapiro Defendants

16

have not demonstrated that NDEP failed to comply with any other requirements in the NCP,

17

the Court finds that NDEP’s action was not arbitrary and capricious because there was a high

18

degree of consistency with the NCP’s requirements. As such, the Court grants summary

19

judgment (#833) to NDEP on the first claim against the Shapiro Defendants.

20

D.

NDEP’s Request for Attorneys’ Fees

21

NDEP also moves for reasonable attorneys’ fees attributable to the litigation as

22

response costs under CERCLA. (Mot. for Summ. J. (#833) at 19). NDEP asserts that it has

23

incurred 866.8 hours of attorney time from August 15, 2007 to October 2011. (Id.). NDEP

24

asserts that its attorneys’ fees should be reimbursed at a reasonable hourly rate of $390 per

25

hour, which it alleges is the prevailing rate in the Northern Nevada community. (Id.). NDEP

26

seeks attorneys’ fees totaling in the amount of $338,052. (Id.).

27

In response, Maryland Square LLC does not address NDEP’s request for attorneys’

28

fees in its opposition. (See generally Opp’n to Mot. for Summ. J. (#862)). The Shapiro
15

1

Defendants do not address NDEP’s request for attorneys’ fees in its opposition. (See

2

generally Opp’n to Mot. for Summ. J. (#871)). The Kishner Defendants argue that summary

3

judgment on this claim should be deferred until it has time to conduct discovery on this issue.

4

(Opp’n to Mot. for Summ. J. (#870) at 7). The Kishner Defendants assert that the Attorney

5

General’s invoices demonstrate that the Attorney General’s office does not have the same

6

institutional controls as in the private sector to ensure accurate billing because it bills in one-

7

hour increments and uses general descriptions for billing activities. (Id. at 6). The Kishner

8

Defendants also argue that the request for $390/hour is not adequately supported because

9

it does not reflect the hourly rate of a public agency and is a higher rate than what this Court

10

previously found reasonable for the Voggenthaler Plaintiffs’ counsel. (Id.). The Kishner

11

Defendants assert that the Voggenthaler Plaintiffs’ counsel had hourly rates between $175

12

and $300/hour and that NDEP’s rates should be $200/hour. (Id. at 7).

13

In reply, NDEP states that it will ask for rates of $300/hour for Carolyn Tanner and

14

William Frey and $250/hour for Jasmine Mehta based on this Court’s previous reasonable rate

15

structure of $300/hour for partners with 20 or more years of experience, $250/hour for an

16

experienced associate, and $175 for new associates. (Reply to Mot. for Summ. J. (#898) at

17

10). Based on that rate structure, NDEP seeks attorneys’ fees in the amount of $247,425.

18

(Id.). NDEP seeks recovery of attorneys’ fees for work performed from August 2007 through

19

the present. (Id.). Based on its original rate request, NDEP seeks attorneys’ fees in the

20

amount of $338,052 from August 2007 to October 20, 2011, and $120,744 from October 21,

21

2011 to February 19, 2012, for a total amount of $458,796. (Id. at 11-12). NDEP asserts that,

22

if the Court finds that the lower rates are more reasonable, the total amount sought is

23

$326,630. (Id. at 12).

24

In Chapman, the Ninth Circuit held that, under CERCLA, statutory authority permits the

25

government, as a prevailing party, to recover attorneys’ fees attributable to the litigation as part

26

of its response costs. 146 F.3d at 1175. The government is only entitled to recover

27

“reasonable” attorneys’ fees. Id. at 1176.

28

In this case, the Court grants in part and denies in part the motion for attorneys’ fees.
16

1

Pursuant to Chapman, this Court finds that NDEP is entitled to an award of reasonable

2

attorneys’ fees. Pursuant to the discussions at oral argument, the Court finds that the “lower”

3

rates of $200/hour and $175/hour are reasonable for NDEP’s attorneys. However, the Court

4

denies in part the motion for the amount sought until the Kishner Defendants have an

5

opportunity to brief the reasonableness of the fees sought with respect to the hours billed.

6

Accordingly, the Court grants in part and denies in part NDEP’s motion for summary

7

judgment (#833) on its first cause of action. The Court grants summary judgment on claim

8

one as to all Defendants. However, the Court denies NDEP’s request for attorneys’ fees in

9

the amount of $326,63013 until after the Kishner Defendants conduct further discovery and

10

brief the issue of reasonableness on the billable hours sought.

11

IV.

Second Claim: Declaratory Relief under CERCLA

12

NDEP asserts that it is entitled to declaratory relief under CERCLA because it has

13

established that Defendants are liable under CERCLA’s strict liability standards. (Mot. for

14

Summ. J. (#833) at 20).

15

In response, Maryland Square LLC asserts the same argument that it did for claim one.

16

(See Opp’n to Mot. for Summ. J. (#862) at 9-13). The Kishner Defendants argue that granting

17

summary judgment on this claim is premature because it still has to conduct further discovery

18

on NDEP’s actions under the NCP. (Opp’n to Mot. for Summ. J. (#870) at 7). The Shapiro

19

Defendants argue that NDEP is not entitled to declaratory relief on future response costs

20

because it did not establish that it was entitled to past response costs. (Opp’n to Mot. for

21

Summ. J. (#871) at 23).

22

In interpreting 42 U.S.C. § 9613(g)(2), the Ninth Circuit has held that “if a plaintiff

23

successfully establishes liability for the response costs sought in the initial cost-recovery

24

action, it is entitled to a declaratory judgment on present liability that will be binding on future

25

cost-recovery actions.” City of Colton v. Am. Promotional Events, Inc.-West, 614 F.3d 998,

26
27
28

13

The Court directs NDEP to file a motion for attorneys’ fees under the rates specified
within 20 days of this order. The Kishner Defendants shall have the time set in the rules to
file a response.
17

1

1007 (9th Cir. 2010). Section 9613(g)(2) provides that “the court shall enter a declaratory

2

judgment on liability for response costs or damages that will be binding on any subsequent

3

action or actions to recover further response costs or damages.” 42 U.S.C. § 9613(g)(2).

4

As discussed above, NDEP has established liability for response costs in the initial cost-

5

recovery claim under 42 U.S.C. § 9607 for Maryland Square LLC, the Kishner Defendants, and

6

the Shapiro Defendants. As such, the Court grants NDEP’s motion for summary judgment

7

(#833) on claim two against Maryland Square LLC14, the Kishner Defendants, and the Shapiro

8

Defendants.

9

V.

Third Claim: Cost Recovery under Nevada Revised Statutes

10

NDEP asserts that it is entitled to recover its expenditures from the Hazardous Waste

11

Fund that it used to address the indoor air exposure pathway and for its preliminary

12

groundwater clean-up evaluation pursuant to NRS § 459.537. (Mot. for Summ. J. (#833) at

13

21). NDEP asserts that it has expended $347,478.55 from the Hazardous Waste Fund for

14

installation and evaluation of the SSD systems to mitigate the indoor air exposure pathway and

15

for a preliminary groundwater clean up evaluation. (Id. at 22). NDEP also argues that it

16

expended $45,477.48 in indirect costs in mitigating the exposure pathway including staff time

17

and overhead and attorneys’ fees15 in the amount of $11,328.41. (Id.).

18

In response, Maryland Square LLC argues that it is not liable under a plain reading of

19

NRS § 459.537 because it did not own the property at the time of disposal. (Opp’n to Mot. for

20

Summ. J. (#862) at 13). The Kishner Defendants respond that they do not fall within the class

21

of persons subject to liability under the statute and that the statute does not apply because

22

there was no documented spill. (Opp’n to Mot. for Summ. J. (#870) at 8-11). The Shapiro

23

Defendants argue that NDEP has not produced any evidence that it was responsible for any

24

leak or spill. (Opp’n to Mot. for Summ. J. (#871) at 26). The Shapiro Defendants also assert

25
26
27
28

14

The Court also denies Maryland Square LLC’s cross-motion for summary judgment
(#863) on this claim.
15

NDEP asserts that if the Court awards attorneys’ fees under CERCLA, then it will not
seek an additional $11,328.41 in attorneys’ fees because that amount is subsumed within the
fees sought under CERCLA. (Mot. for Summ. J. (#833) at 22 n.6).
18

1

that NDEP failed to send it a letter informing them that they were potentially responsible

2

parties and that NDEP intended to use funds from the Hazardous Waste Fund to address the

3

area affected by the spill. (Id. at 27-28).

4

NDEP filed replies. (Reply to Mot. for Summ. J. (#884, 898, 902)).

5

Nevada Revised Statute § 459.537 provides that money from the Account for the

6

Management of Hazardous Waste may be expended to pay the costs of responding to the

7

leak, spill, or accident, including coordinating efforts of various agencies, managing the

8

cleaning and decontamination of the area, and removal of the hazardous material if the person

9

responsible for the leak or spill “does not act promptly and appropriately to clean and

10

decontaminate the affected area properly, and if his or her inaction presents an imminent and

11

substantial hazard to human health, public safety or the environment.” Nev. Rev. Stat. §

12

459.537(1)(a)-(d). The statute provides that the Director shall demand reimbursement of the

13

Account for money from any person “who is responsible for the accident, leak or spill, or who

14

owns or controls the hazardous waste, hazardous material or a regulated substance, or the

15

area used for the disposal of the waste, material or substance.” Nev. Rev. Stat. § 459.537(2).

16

The term “does not act promptly and appropriately” means that the person did not clean and

17

decontaminate the affected area properly.16 Nev. Rev. Stat. § 459.537(4)(a)(4).

18

There are no cases that interpret NRS § 459.537. As such, the Court looks to the plain

19

meaning of the statute to determine liability. See Allstate Ins. Co. v. Fackett, 206 P.3d 572,

20

576 (Nev. 2009) (holding that to determine legislative intent under the NRS the court first looks

21

to the plain language of statute and only looks beyond the plain language if it is ambiguous

22

or silent on the issue in question). A plain reading of the statute demonstrates that the

23

following people are responsible for reimbursing the hazardous waste account: (1) those who

24

are responsible for the accident, leak, or spill; (2) those who own or control the hazardous

25

waste, hazardous material, or regulated substance; or (3) those who own or control the area

26
27
28

16

The term “does not act promptly and appropriately” lists four other definitions but
uses the word “or” to indicate that any of those definitions may stand alone. See Nev. Rev.
Stat. § 459.537(4)(a)(1), (2), (3), (5).
19

1

used for the disposal of the waste, material, or substance. See Nev. Rev. Stat. § 459.537(2).

2

The statute does not provide any temporal limits on liability.

3

In this case, Maryland Square LLC is liable under the statute because it owns or

4

controls the area used for the disposal of the waste, material, or substance because it is the

5

current owner of the Shopping Center. As such, the Court grants summary judgment (#833)

6

for NDEP on the third cause of action against Maryland Square LLC.17

7

With respect to the Kishner Defendants, they are also liable under the statute because

8

they owned or controlled the area used for the disposal of the waste when the dry cleaner

9

operated on property that they owned. Moreover, the full definition of “does not act promptly

10

and appropriately” demonstrates that the statute applies not only when a person does not act

11

immediately, i.e. within 2 hours of notification of the incident, but also when a person “[d]oes

12

not clean and decontaminate the affected area properly” after notification, without respect to

13

time. See Nev. Rev. Stat. § 459.537(4)(a)(1)-(2), (4). As such, the Kishner Defendants are

14

liable under the statute because it failed to decontaminate the area after finding out about the

15

leak, spill, or accident, regardless of time. Therefore, the Court grants summary judgment

16

(#833) to NDEP on the third cause of action against the Kishner Defendants.

17

The Shapiro Defendants are also liable under the statute because this Court has

18

already found that they were responsible for the accident, leak, or spill of hazardous materials.

19

Additionally, although NDEP did not send the Shapiro Defendants a letter, there is no

20

requirement under the statute that NDEP send them a letter.

21

Defendants are not shielded from liability based on the absence of an NDEP letter. As such,

22

the Court grants summary judgment (#833) to NDEP on the third cause of action against the

23

Shapiro Defendants. Accordingly, the Court grants summary judgment (#833) to NDEP on

24

the third cause of action.

25

VI.

26

Therefore, the Shapiro

Fourth Claim: Injunctive Relief under NRS § 445A.695
NDEP argues that it is entitled to injunctive relief pursuant to NRS § 445A.695 because

27
28

17

The Court denies Maryland Square LLC’s cross-motion for summary judgment
(#863) on this claim.
20

1

Defendants violated NRS § 445A.465. (Mot. to Summ. J. (#833) at 24-25). NDEP argues that

2

Defendants violated NRS § 445A.465 by discharging any pollutant into any waters of the State

3

from a point source or allowing a pollutant from a point source to remain in place where the

4

pollutant or fluids could be carried into the waters of the State by any means. (Id. at 25).

5

NDEP seeks a mandatory injunction against each Defendant to (1) complete an NDEP-

6

approved assessment of the extent and magnitude of the contamination resulting from

7

releases from the former Al Phillips the Cleaner property; (2) monitor groundwater; (3) submit

8

timely reports; (4) submit a corrective action plan for soil and groundwater; and (5) implement

9

the corrective action plan approved by NDEP or as approved by NDEP with modification. (Id.).

10

In response, Maryland Square LLC argues that NDEP has not presented evidence that

11

it violated NRS § 445A.465 because NDEP does not claim than any PCE currently remains

12

on the soil of the property or that any additional PCE could travel to the plume or into Nevada’s

13

waterways. (Opp’n to Mot. for Summ. J. (#862) at 14). The Kishner Defendants argue that

14

NDEP fails to identify a “point source” and only states that PCE was released into soil and

15

groundwater at the site. (Opp’n to Mot. for Summ. J. (#870) at 13). The Kishner Defendants

16

argue that there was no evidence that they were responsible for the spills or the release of the

17

PCE by the operators of the dry cleaners and that they cannot be responsible for the

18

discharge from any point source of the pollutant. (Id. at 14). The Shapiro Defendants argue

19

that there is a dispute as to whether Melvin or Philip Shapiro ever owned or operated the dry

20

cleaning facility and that there is a dispute as to whether SBIC operated the facility when PCE

21

was released into the soil or groundwater. (Opp’n to Mot. for Summ. J. (#871) at 28-29).

22

In reply, NDEP asserts that Maryland Square LLC does not dispute that, for six years

23

of its ownership of the site, it allowed PCE in the contaminated soil to remain in place where

24

it could be carried into the waters of the State. (Reply to Mot. for Summ. J. (#884) at 16).

25

NDEP also asserts that Maryland Square LLC does not dispute that such contamination has

26

made it into the waters of the State. (Id.). NDEP argues that the Kishner Defendants are

27

liable because a plain reading of the statute does not require a person to actively discharge

28

the PCE. (Reply to Mot. for Summ. J. (#898) at 19). NDEP argues that the Kishner
21

1

Defendants owned the drain pipes beneath the dry cleaning facility where the highest

2

concentrations were found and, thus, PCE was discharged from a point source which the

3

Kishner Defendants owned. (Id.). NDEP asserts that, with respect to the Shapiro Defendants,

4

this Court has already found that SBIC was the operator of the site where PCE was released

5

into the soil and groundwater. (Reply to Mot. for Summ. J. (#902) at 20).

6

Pursuant to NRS § 445A.695, the Director of the State Department of Conservation and

7

Natural Resources “may seek injunctive relief in the appropriate court to prevent the

8

continuance or occurrence of any act or practice which violates any provision of NRS

9

445A.300 to 445A.730.” Nev. Rev. Stat. § 445A.695(1). Pursuant to NRS § 445A.465, it is

10

unlawful for any person to “(c) [d]ischarge from a point source a pollutant . . . that could be

11

carried into the waters of the State by any means” or “(d) [a]llow a pollutant discharged from

12

a point source . . . to remain in a place where the pollutant or fluids could be carried into the

13

waters of the State by any means.” Nev. Rev. Stat. § 445A.465(1)(c)-(d). A “point source” is

14

“any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch,

15

channel, tunnel, conduit, . . . , from which pollutants are or may be discharged.” Nev. Rev.

16

Stat. § 445A.395. “Discharge” means “any addition of a pollutant or pollutants to water.” Nev.

17

Rev. Stat. § 445A.345.

18

In this case, the facts demonstrate that an NDEP investigation revealed the presence

19

of PCE in the soil and groundwater in and around the Site. The investigation also revealed

20

a plume of groundwater containing PCE emanating from the Site and that the PCE

21

concentration in the plume beneath the neighborhood was above the maximum contaminant

22

level, or federal drinking water standard, for PCE. Additionally, in this Court’s prior order, it

23

found that the owners and prior owners of the Shopping Center had leased space to a dry

24

cleaning facility that had used PCE and that, those defendants, had “owned the drain pipes

25

beneath the dry cleaning facility where the highest concentrations of PCE were found.” (See

26

Order (#390) at 11-12).

27

Here, Maryland Square LLC is liable under NRS § 445A.465 because it allowed a

28

pollutant discharged from a pipe to remain in place where the pollutant was carried into the
22

1

groundwater of the State. Maryland Square LLC does not argue that, since its ownership in

2

2005, that it did anything to remove PCE from the site. As such, Maryland Square is liable

3

under § 445A.465 and the Court grants the motion for summary judgment (#833) on claim four

4

for injunctive relief against Maryland Square LLC pursuant to § 445A.695.18

5

With respect to the Kishner Defendants, the undisputed facts demonstrate that PCE

6

discharge was first reported in November 2000 on the Site and that the Kishner Defendants

7

owned the Shopping Center until 2002. The Kishner Defendants, as owners of the Shopping

8

Center, permitted the PCE to remain in place and to be carried into the groundwater of the

9

State. As such, the Kishner Defendants are liable under § 445A.465 and the Court grants the

10

motion for summary judgment (#833) on claim four for injunctive relief against the Kishner

11

Defendants pursuant to § 445A.695.

12

With respect to the Shapiro Defendants, this Court previously found that SBIC had

13

released PCE into the ground at the dry cleaner site. Thus, SBIC discharged from a point

14

source a pollutant that could, and did, carry into the groundwater of the State. As such, the

15

Court grants the motion for summary judgment (#833) on claim four for injunctive relief against

16

the Shapiro Defendants pursuant to § 445A.695.

17

Accordingly, the Court grants the motion for summary judgment (#833) on claim four.
CONCLUSION

18
19

For the foregoing reasons, IT IS ORDERED that NDEP’s Motion for Summary

20

Judgment (#833) is GRANTED in part and DENIED in part. The Court GRANTS summary

21

judgment to NDEP on all substantive claims. The Court also GRANTS NDEP reasonable

22

attorneys’ fees, but DENIES the motion for a specific amount of fees at this time. NDEP is

23

directed to file a motion for attorneys’ fees based on the rates of $200/hour and $175/hour

24

within 20 days of this Order. The Kishner Defendants shall respond to the motion within the

25

period specified by the rules.

26

IT IS FURTHER ORDERED that Maryland Square LLC’s Cross-Motion for Summary

27
28

18

The Court denies Maryland Square LLC’s cross motion for summary judgment (#863)
on this claim.
23

1
2
3

Judgment (#863) is DENIED.
IT IS FUTHER ORDERED that Shapiro Defendants’ Motion to Strike (#874) is DENIED
as moot.

4

IT IS FURTHER ORDERED that NDEP’s Motion for Reconsideration of this Court’s

5

Minute Order Granting Shapiro Defendants’ Motion for Leave to File Surreply (#923) is

6

DENIED.

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Dated: this 17th day of May, 2012.
DATED: This _____ day of April, 2012.

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_________________________________
United States District Judge

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