City of Las Cruces et al v. United States of America et al
Filing
290
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION re 232 MOTION to Amend/Correct Plaintiffs' Motion to File Second Amended Complaint filed by Dona Ana County, City of Las Cruces by Magistrate Judge Gregory B. Wormuth. Objections to PFRD due by 12/7/2020. (jls)
Case 2:17-cv-00809-JCH-GBW Document 290 Filed 11/23/20 Page 1 of 20
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CITY OF LAS CRUCES, et al.,
Plaintiffs,
v.
Civ. No. 17‐809 JCH/GBW
UNITED STATES OF AMERICA, et al.,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter comes before the undersigned pursuant to the Court’s Order of
Reference (doc. 249), referring Plaintiffs’ Motion to File Second Amended Complaint
(doc. 232) for determination by the undersigned in accordance with 28 U.S.C. §
636(b)(1)(B). Only Defendant American Linen Supply of New Mexico, Inc. (“American
Linen”) opposes Plaintiffs’ Motion. Doc. 235. The undersigned, having reviewed the
Motion and all related filings (docs. 233, 235, 237, 238), having heard oral arguments
(doc. 278), and being otherwise fully advised on the relevant law, recommends that
Plaintiffs’ Motion to File Second Amended Complaint be GRANTED.
I.
BACKGROUND
Plaintiffs bring the instant suit pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (“CERCLA”), seeking
cost recovery and contribution to Plaintiffs’ costs incurred in cleaning up a hazardous
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waste site in Las Cruces, New Mexico, known as the Griggs & Walnut Ground Water
Plume Superfund Site (“the Site”). See generally doc. 79.
Pursuant to CERCLA § 106(a), 42 U.S.C. § 9606(a), the U.S. Environmental
Protection Agency (“EPA”) pursued remedial action on the Site, due to high
concentrations of a hazardous chemical called tetrachloroethylene or perchloroethylene
(“PCE”). Doc. 235‐2 at 2. The EPA concluded that Plaintiffs were responsible persons
under § 9607(a)(1)–(2) (as owners/operators of facilities that released PCE) and ordered
Plaintiffs to implement and maintain a response action to clean up the Site. Doc. 235‐7.
During the administrative proceedings, the EPA considered other “Potentially
Responsible Parties” (“PRPs”), including various entities in Las Cruces that have used
PCE in dry‐cleaning operations. The EPA ultimately did not pursue action against the
dry cleaners, finding it unlikely that the dry cleaners contributed to contamination of
the Site due to their distance from it and the lack of PCE concentrations between their
facilities and the Site. See doc. 238‐3 at 2; doc. 235‐1 at 2.
Plaintiffs originally brought this suit against only the United States of America
(through various sub‐entities). Doc. 1. A scheduling order was issued setting discovery
deadlines, including a deadline of July 9, 2018 for all parties to amend their pleadings
and add parties. Doc. 32 at 1. This deadline was ultimately extended to August 23, 2018
by agreement of the parties. Doc. 59.
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On August 23, 2018, Plaintiffs filed an amended complaint (“First Amended
Complaint”) to which several new defendants were added. Doc. 79. These new
defendants, including American Linen, are alleged to have engaged in dry cleaning
using PCE, which was released into the surrounding soil and contributed to the
contamination of the Site. Id. at ¶¶ 31–48. The liability of the dry‐cleaning defendants
is premised on their being owners and/or operators of facilities from which PCE was
released. Id. at ¶ 57.
American Linen filed its answer to Plaintiffs’ First Amended Complaint on
October 19, 2018, in which it “affirmatively states that it has never engaged in dry
cleaning operations” and “affirmatively states that it has never used PCE in its
operations on its property.” Doc. 111 at ¶¶ 5, 32. This was American Linen’s position
both prior to and (until recently) throughout the present suit. See docs. 233‐4, 233‐7; doc.
278 at 6.
As the parties proceeded through discovery, they sought multiple extensions of
discovery deadlines, but no new deadline was ever established for amendments to the
pleadings. See docs. 87, 129, 146, 156, 180. On August 21, 2019, the case was stayed by
agreement of the parties. Doc. 189. The stay ultimately expired on July 17, 2020. Doc.
214 at 2. During the stay, Plaintiffs settled their claims against the United States of
America, pursuant to a consent decree which was entered by the Court on July 30, 2020.
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Docs. 216, 225. Additionally, Plaintiffs settled their claims against Defendant Rawson
Leasing, LLC as of September 15, 2020. Doc. 236.
Plaintiffs filed the instant Motion on August 26, 2020, over two years after the
pleading amendment deadline. Doc. 232. Plaintiffs seek to amend their complaint to
add new allegations particular to American Linen. Doc. 232‐1. American Linen filed a
response on September 9, 2020. Doc. 235. Briefing was complete as of September 23,
2020, upon the filing of Plaintiffs’ reply. Doc. 237.
II.
LEGAL STANDARDS
Because Plaintiffs are past the point where they may amend their complaint as a
matter of course, they must obtain either Defendants’ consent or the Court’s leave in
order to amend. See Fed. R. Civ. P. 15. The Court should “freely give leave when justice
so requires.” Fed. R. Civ. P. 15(a)(2). The decision to grant leave to amend a complaint
is within the Court’s discretion. Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th
Cir. 1994) (quoting Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991)).
“Refusing leave to amend [under Rule 15] is generally only justified upon a showing of
undue delay, undue prejudice to the opposing party, bad faith or dilatory motive,
failure to cure deficiencies by amendments previously allowed, or futility of
amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citation
omitted); see also Foman v. Davis, 371 U.S. 178, 182 (1962)).
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However, when a party moves to amend a pleading after the deadline set in the
scheduling order, it must satisfy Rule 16’s good‐cause standard in addition to the
requirements of Rule 15. Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d
1230, 1240 (10th Cir. 2014) (“After a scheduling order deadline, a party seeking leave to
amend must demonstrate (1) good cause for seeking modification under Fed R. Civ. P.
16(b)(4) and (2) satisfaction of the Rule 15(a) standard.”) (emphasis added). Good cause
“requires the moving party to show that it has been diligent in attempting to meet the
deadlines, which means it must provide an adequate explanation for any delay.” Strope
v. Collins, 315 F. App’x 57, 61 (10th Cir. 2009) (unpublished) (quoting Minter v. Prime
Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006)). See also Gorsuch, 771 F.3d at 1240
(“In practice, this standard requires the movant to show ‘the scheduling deadlines
cannot be met despite [the movant’s] diligent efforts.’”) (quoting Pumpco, Inc. v. Schenker
Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001)). “Rule 16(b)(4) is arguably more stringent
than Rule 15” and may prevent amendments where, for example, the movant “knew of
the underlying conduct but simply failed to raise [their] claims.” Husky Ventures, Inc. v.
B55 Invs., Ltd., 911 F.3d 1000, 1019–20 (10th Cir. 2018) (quoting Zisumbo v. Ogden Reg’l
Med. Ctr., 801 F.3d 1185, 1195 (10th Cir. 2015) and Birch v. Polaris Indus., Inc., 812 F.3d
1238, 1248 (10th Cir. 2015)).
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III.
ANALYSIS
The allegations that Plaintiffs seek to add to their complaint may be summarized
by two general categories. See generally doc. 232‐1. First, Plaintiffs seek to include
additional allegations regarding the basis of American Linen’s liability as an owner
and/or operator of a facility from which hazardous substances including PCE were
released. Doc. 232‐1 at ¶¶ 46, 50, 57–61; see 42 U.S.C. § 4607(a)(1)–(2). Second, Plaintiffs
seek to assert a new theory of liability against American Linen as an “arranger” for
disposal of hazardous substances including PCE. Doc. 232‐1 at ¶¶ 31–32, 51–55, 61, 71,
77; see 42 U.S.C. § 4607(a)(3); Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S.
599, 610–11 (2009).
At the hearing, the parties agreed that the first category of changes would not
alter the evidentiary scope of Plaintiffs’ case against American Linen, because the
allegations of owner/operator liability are already in the First Amended Complaint.
Doc. 278 at 2–3. Thus, the second category of changes (i.e., the assertion of arranger
liability) is at the heart of the instant Motion and is critical to determining whether leave
to amend may be granted.
A. Rule 16
Pursuant to Rule 16, the Court is required to issue a scheduling order that sets
deadlines to amend the pleadings, add parties, complete discovery, and file motions.
Fed. R. Civ. P. 16(b)(3)(A). The purpose of requiring a deadline for amending pleadings
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and adding parties is to “assure[] that at some point both the parties and the pleadings
will be fixed.” Fed. R. Civ. P. 16 advisory committee notes to 1983 amendment.
Accordingly, when a pleading amendment deadline has passed, further pleading
amendments are permitted “only for good cause and with the judge’s consent.” Fed. R.
Civ. P. 16(b)(4); Gorsuch, 771 F.3d at 1240.
In their briefing, Plaintiffs contend that Rule 16’s good‐cause standard is
inapplicable to the present motion because no pleading amendment deadline was set
with respect to the dry‐cleaning defendants. Doc. 237 at 4–5. Plaintiffs have not
identified any case law supporting an exception to the good‐cause requirement where
new parties are brought into a case, and I am unpersuaded. Doc. 278 at 2. If Plaintiffs
had any reason to believe that a new pleading amendment deadline might be required
to apply with respect to the new defendants, then it was incumbent on Plaintiffs to seek
an extension.
Because the final pleading amendment deadline in this case was August 23, 2018,
Plaintiffs must satisfy good cause by showing that they were diligent in pursuing the
proposed amendments and providing an adequately explanation for the delay. See
Strope, 315 F. App’x at 61. Plaintiffs point to several pieces of evidence obtained after
the amendment deadline which support the proposed amendment and justify the delay
in seeking it. This evidence is as follows:
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(1) The March 22, 2019 deposition of Victor Jasso, a former employee of American
Linen who was involved in its dry‐cleaning operations in the 1970s and 1980s
and observed the dumping of PCE waste by a third party acting on American
Linen’s behalf on bare soil near the Las Cruces Dam. Doc. 233‐5.
(2) The March 29, 2019 deposition of Larry Hartman and the August 21, 2020
deposition of Raymundo Castillo, former employees of American Linen,
confirming that American Linen historically engaged in dry cleaning using PCE.
Doc. 233‐6; doc. 233‐12.
(3) Historical documents from the Las Cruces Urban Renewal Agency listing drums
of PCE and dry‐cleaning equipment among American Linen’s possessions. Doc.
233 at ¶ 10; doc. 233‐8 at 3. Plaintiffs assert that they discovered this evidence
through an independent investigation on or about September 2019. Doc. 232 at 4.
(4) A Remedial Action Progress Report completed in April 2020, evaluating the
progress of cleanup of the Site (“April 2020 Report”), and Plaintiffs’
Supplemental Expert Report prepared by Steven O. Helgen based on the April
2020 Report (completed in August 2020). Doc. 238‐5; doc. 238‐1. Mr. Helgen
draws several conclusions from the April 2020 Report concerning the dry‐
cleaning defendants’ contribution to contamination of the Site. The most
pertinent finding for purposes of the instant Motion is that the highest
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concentration of PCE currently on the Site is at or near the Dam (where American
Linen reportedly dumped PCE waste). Doc. 238‐1 at 8.
(5) A May 2020 letter by the New Mexico Environment Department (“NMED”) to
American Linen, finding that American Linen has historically used and released
PCE into the surrounding soil and groundwater and requiring American Linen
to submit an abatement plan. Doc. 233‐10 at 1–2.
(6) The September 18, 2020 deposition of Christopher Whitman, an employee of the
NMED who investigated the report of dumping by Mr. Jasso and engaged in
sampling at the Dam. Doc. 238‐4.
I find that the majority of this evidence would not justify a finding that Plaintiffs
were diligent in pursuing amendment. First, much of this evidence supports Plaintiffs’
original allegations—that American Linen has historically engaged in dry‐cleaning
operations using PCE—but it does not specifically corroborate, nor is it necessary for,
Plaintiff’s new assertion of arranger liability. Clearly, Plaintiffs did not believe they
required corroboration in order to bring American Linen into this case—even in the face
of American Linen’s consistent representations that it never engaged in dry‐cleaning
operations and never used PCE. To the extent that Plaintiffs’ new evidence merely
corroborates the fact of American Linen’s dry‐cleaning operations using PCE, it does
not justify the delay in proposing the amendments. Second, the deposition of Mr. Jasso
was completed in March 2019 (as was Mr. Hartman’s corroborating deposition),
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meaning that Plaintiffs had evidence of the alleged dumping of PCE waste more than a
year before they moved to amend.1 Third, the deposition of Mr. Whitman was taken
after Plaintiffs filed this Motion, thus it does not help to explain Plaintiffs’ timing.
Nonetheless, I find that the April 2020 Report and the subsequent expert analysis
thereof were sufficiently important to justify the delay in seeking the proposed
amendment. At the hearing, Plaintiffs’ counsel provided further context on this Report.
As Plaintiffs’ counsel explained, the Report is an annual summary of the progress of
Plaintiffs’ cleanup of the Site, which has been produced each April since 2012. Doc. 278
at 3. The annual report is based on sampling taken from various groundwater
monitoring wells within the Site on a routine basis. Id. During the early years of the
cleanup, the highest levels of PCE were elsewhere than at the Dam. See doc. 238‐5 at 5.
In 2015, the PCE levels at the well nearest the Dam began to rise and, in 2018, saw a
notable spike. Id.; doc. 238‐1 at 6. Plaintiffs’ experts at first considered this spike
anomalous. Doc. 278 at 3. In 2019, sampling again showed high levels at the Dam,
while the levels at other wells have decreased. Doc. 238‐5 at 5; doc. 238‐1 at 8–11. These
2019 samplings were first reported in April 2020. Doc. 238‐5 at 3.
Plaintiffs’ counsel further explained that the April 2020 Report is critical not
merely because it corroborates Mr. Jasso’s report, but more importantly because it
The Court also acknowledges American Linen’s evidence that Plaintiffs were on notice about Mr. Jasso’s
report as early as 2009. See doc. 235‐3 at 3; doc. 235‐4 at 3.
1
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provides a basis to attribute harm to American Linen. Doc. 278 at 3–4. As Plaintiffs’
counsel explained, the mere fact that an entity has arranged for disposal of hazardous
substances does not entitle a plaintiff to obtain contribution from that entity. Id. The
plaintiff must show that the disposal caused actual harm in the form of increased
response costs. See Chevron Mining Inc. v. United States, 863 F.3d 1261, 1269 (10th Cir.
2017) (noting that a prima facie case for CERCLA liability requires that the release of a
hazardous substance “caused the plaintiff to incur necessary response costs”). Absent a
causal link between American Linen’s alleged dumping and Plaintiffs’ incurrence of
response costs, Plaintiffs reasonably concluded that arranger liability was not a viable
claim. With the addition of the April 2020 Report, Plaintiffs’ current theory is that
unexpectedly high levels of PCE at the Dam have driven up Plaintiffs’ response costs
beyond what they had anticipated. Doc. 278 at 3; doc. 238‐1 at 10–11. Accordingly,
Plaintiffs now believe that American Linen’s dumping at the Dam is responsible for an
apportionable share of the response costs.
Based on the April 2020 Report, Mr. Helgen’s Supplemental Expert Report, and
Plaintiffs’ counsel’s supplementary explanations at the hearing, I find that Plaintiffs
have adequately explained their failure to seek amendment before April 2020. The
remaining question is whether Plaintiffs’ delay from April 2020 to August 26, 2020 was
also justified. First, the case was stayed from August 2019 until July 17, 2020.
Consequently, Plaintiffs need only further justify the time from July 17th until August
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26th.2 At the hearing, Plaintiffs’ counsel explained that the data in the April 2020 Report
required expert analysis, particularly regarding the significance of the year‐over‐year
trends in PCE levels at the various monitoring wells. Doc. 278 at 5. Plaintiffs’ counsel
stated that the April 2020 Report was delivered to Mr. Helgen by May and Mr. Helgen
produced his Supplemental Expert Report in August. Id. at 4. I find this explanation
persuasive to explain why Plaintiffs did not seek to amend their complaint immediately
upon receiving the April 2020 Report. It certainly justifies the additional 40‐day delay.
In conclusion, the data revealed in the April 2020 Report (and the subsequent
expert analysis of that data) provided material and new evidence supporting a viable
arranger theory of liability. Given the nature of the manner in which the data was
collected, Plaintiffs’ lack of diligence was not the reason why the information was
received well after the pleading amendment deadline. Moreover, the data required
expert analysis, which the Plaintiffs were sufficiently diligent in having performed.
Upon receipt of the expert analysis, Plaintiffs were diligent in seeking permission to
amend their Complaint. I therefore recommend finding that Plaintiffs have established
good cause to amend their complaint beyond the pleading amendment deadline.
At the hearing, I queried Plaintiffs’ counsel whether, given the long delay in seeking the pleading
amendment, it was reasonable to rely on the stay as opposed to raising it with the Court as soon as
possible. Doc. 278 at 4–5. Whether or not that decision could undermine the finding of diligence,
Defendant American Linen did not press this argument in its briefing or its oral argument, so the
undersigned will not address it further.
2
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B. Rule 15
A motion to amend a pleading may be defeated by showing “undue delay,
undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment.” Frank, 3
F.3d at 1365 (citation omitted). There is no argument here that Plaintiffs’ proposed
amendments are an attempt to cure deficiencies in the First Amended Complaint. I
address each other potential basis to deny Plaintiffs’ motion in turn.
1. Undue Delay
The Tenth Circuit has held that objections of “undue delay” pursuant to Rule 15
require something more than mere untimeliness. Minter, 451 F.3d at 1205 (noting that
the “[e]mphasis is on the adjective”). To determine whether a delay is undue, the Tenth
Circuit “focuses primarily on the reasons for the delay.” Id. at 1206. Under Rule 15, an
amendment may be denied if it appears the plaintiff is attempting to make the
complaint a moving target, to salvage a lost case by new theories of recovery, to raise
“theories seriatim,” or to knowingly delay raising an issue until the eve of trial. Id.
(citations omitted).
For the same reasons that I recommend finding that Plaintiffs have satisfied good
cause, I also recommend finding that the present motion is not unduly delayed.
Plaintiffs have adequately explained their reasons for not asserting an arranger theory
of liability any earlier than they did.
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2. Undue Prejudice
Prejudice has been treated by the Tenth Circuit as the “most important[] factor in
deciding a motion to amend the pleadings[.]” Minter, 451 F.3d at 1207. “Typically,
courts will find prejudice only when an amendment unfairly affects non‐movants in
terms of preparing their response to the amendment.” Bylin v. Billings, 568 F.3d 1224,
1229 (10th Cir. 2009) (citation and internal quotation marks omitted). Courts most often
make such a finding “when the amended claims arise out of a subject matter different
from what was set forth in the complaint and raise significant new factual issues.”
Minter, 451 F.3d at 1208. An amendment may be found to be prejudicial “if its timing
prevents the defendant from pursuing a potentially promising line of defense[.]” Id. at
1209.
American Linen contends that “[a]lthough [it] need not demonstrate prejudice
under the circumstances, it is clear that it will suffer prejudice if forced to defend
against these belated claims at this time.” Doc. 235 at 13. American Linen’s statement
echoes that of the defendant in Minter, which unsuccessfully argued that the plaintiff’s
proposed amendments “would result in ‘obvious’ prejudice.” 451 F.3d at 1208.
“Obvious” or “clear” prejudice is not the same as undue prejudice. Any pleading
amendment worth pursuing would presumably be prejudicial to the opposing party.
As with undue delay, the emphasis is on the adjective. Cf. id. at 1205.
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In its response, American Linen noted the then‐looming discovery deadline of
October 9, 2020. Doc. 235 at 13; see doc. 214. Based on the concurrence of the parties, I
have granted extensions specifically to accommodate the deposition of Plaintiffs’ expert
witnesses, in light of the experts’ new findings. Docs. 255, 276. The most recent of these
extensions should have resolved any concern that American Linen will be unable to
complete these depositions as a result of Plaintiffs’ belated amendments. Doc. 276.
Moreover, American Linen has not indicated that any other discovery will be necessary
to defend against Plaintiffs’ proposed amendments. Finally, I note that no trial date has
been set in this case. Cf. Husky Ventures, 911 F.3d at 1020–21 (denying leave to amend
filed “on the eve of trial”). For these reasons, I recommend finding that American Linen
will not be unduly prejudiced in its ability to respond to Plaintiffs’ proposed
amendments.
At the hearing, American Linen’s counsel’s primary argument of prejudice was
based on the EPA’s findings (or lack thereof) regarding American Linen’s liability for
contamination of the Site. Doc. 278 at 6. The EPA proceedings concluded in 2017,
before American Linen was brought into this suit. See doc. 235‐7. The prejudice inquiry,
for purposes of Rule 15, depends primarily on the timing of the amendments, see Minter,
451 F.3d at 1209, and not on the substance of the new allegations. To the extent that
American Linen is challenging Plaintiffs’ right to bring their proposed amendments at
all, American Linen’s argument invokes futility (which I address below), not prejudice.
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In sum, I recommend finding that no undue prejudice would result to American Linen
in granting Plaintiffs’ motion.
3. Bad Faith
Bad faith may be “inferred if a party seeks leave to amend for an improper
purpose.” Rivera v. Volvo Cars of N. Am., LLC, 2015 WL 12860553, at *4 (D.N.M. Feb. 9,
2015) (citation omitted). The gist of American Linen’s argument is that the Court
should infer a bad faith purpose from the lack of any “good faith explanation for why
[Plaintiffs] have now targeted American Linen for prosecution after years of ignoring
the improper disposal theory.” Doc. 235 at 18. As I previously found, Plaintiffs have
adequately explained their reasons for not pursuing the arranger theory earlier.
American Linen’s arguments largely attack the credibility of the evidence on which
Plaintiffs rely. Id. at 16–18. Whether Plaintiffs’ evidence will prove out their theories of
American Linen’s liability is a question for the factfinder to resolve. It is not a proper
consideration for purposes of the present Motion. I recommend rejecting American
Linen’s assertions of bad faith by Plaintiffs in bringing this Motion.
4. Futility
“A proposed amendment is futile if the complaint, as amended, would be
subject to dismissal.” Jefferson Cty. Sch. Dist. No. R‐1 v. Moody’s Investor’s Servs., Inc., 175
F.3d 848, 859 (10th Cir. 1999) (citations omitted). American Linen asserts that Plaintiffs’
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claims cannot prevail under the applicable standard of review based on 42 U.S.C. §
9613(j), which provides:
(1)
Limitation
In any judicial action under this chapter, judicial review of any issues
concerning the adequacy of any response action taken or ordered by the
President shall be limited to the administrative record. Otherwise
applicable principles of administrative law shall govern whether any
supplemental materials may be considered by the court.
(2)
Standard
In considering objections raised in any judicial action under this chapter,
the court shall uphold the President’s decision in selecting the response
action unless the objecting party can demonstrate, on the administrative
record, that the decision was arbitrary and capricious or otherwise not in
accordance with law.
42 U.S.C. § 9613(j)(1)–(2). American Linen’s argument based on § 9613(j) is that
Plaintiffs’ claims cannot proceed because (1) the EPA has already found that American
Linen is not a responsible party, (2) Plaintiffs cannot rely on evidence outside the
administrative record to hold American Linen responsible, and (3) Plaintiffs cannot
establish that the EPA’s findings were “arbitrary and capricious.” See doc. 235 at 14–16.
American Linen’s citation to § 9613(j) is inapposite. Plaintiffs are not seeking
judicial review of any action taken by the EPA. Plaintiffs have complied with the EPA’s
order to institute and maintain the response action on the Site. Furthermore, CERCLA
specifically contemplates that responsible persons, like Plaintiffs, will seek contribution
from other PRPs: “Any person may seek contribution from any other person who is
liable or potentially liable under section 9607(a) of this title, during or following any civil
action under section 9606 of this title or under 9607(a) of this title.” 42 U.S.C. § 9613(f)(1)
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(emphasis added). This statutory scheme was designed to promote the timely cleanup
of hazardous substances by spreading costs. Chevron Mining, 863 F.3d at 1269. Under
CERCLA, “everyone who is potentially responsible for hazardous‐waste contamination
may be forced to contribute to the costs of cleanup.” Id. (quoting United States v.
Bestfoods, 524 U.S. 51, 56 n.1 (1998)). See also United States v. Occidental Chem. Corp., 200
F.3d 143, 150 (3d Cir. 1999) (noting that “bringing more parties into the cleanup effort”
protects “against the risk that any one party may become unable or unwilling to
perform the remedy”).
Additionally, I find that the evidence from the administrative record is not as
conclusive concerning American Linen’s lack of liability as American Linen suggests.
See doc. 235 at 14. Early in the EPA’s remediation efforts, in 2003, the EPA considered it
“unlikely that the concentrations of PCE observed in ground water have migrated
laterally from distant locations west of the known plume boundary, such as from the
current and former dry cleaners in the vicinity of North Main Street.” Doc. 235‐1 at 2
(emphasis added). This statement is the only indication from the evidence supplied by
American Linen that the EPA rejected a finding of liability against any dry‐cleaning
entity.
The other evidence relied on by American Linen includes the EPA’s 2007 Record
of Decision, identifying Plaintiffs as PRPs and listing three source areas for the release
of PCE, all properties owned and operated by Plaintiffs. Doc. 235‐2. The portion of the
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Record of Decision supplied by American Linen does not contain any findings
regarding the potential responsibility of any dry‐cleaning entity, let alone an
“express[]” finding, doc. 235 at 14, that American Linen is not a PRP. American Linen
also supplies the EPA’s administrative orders from 2009 and 2011 designating Plaintiffs
as responsible parties and requiring them to undertake the response action to clean up
the Site and the EPA’s 2017 Unilateral Administrative Order finalizing the response
action after a five‐year review. Docs. 235‐5, 235‐6, 235‐7. None of these orders address
the potential responsibility of any dry‐cleaning entity. Consequently, even if the Court
were required to give deference to the EPA’s findings,3 American Linen does not
identify any finding by the EPA that would preclude Plaintiffs from pursuing
contribution from American Linen as a fellow PRP.
Whether deference is required in this context is uncertain in the Tenth Circuit. Other circuit courts have
held that the EPA’s findings pursuant to 42 U.S.C. § 9606(a) are not entitled to deference: “Courts, not the
EPA, are the adjudicators of the scope of CERCLA liability.” Redwing Carriers, Inc. v. Saraland Apartments,
94 F.3d 1489, 1507 n.24 (11th Cir. 1996) (citing Kelley v. EPA, 15 F.3d 1100, 1107–08 (D.C. Cir. 1994)).
3
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IV.
CONCLUSION
For the foregoing reasons, I RECOMMEND that Plaintiffs’ Motion to File Second
Amended Complaint (doc. 232) be GRANTED and Plaintiffs be permitted to file the
proposed Second Amended Complaint (doc. 232‐1).
_____________________________________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteen‐day
period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be
allowed.
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