State of New York v. Solvent Chemical, et al
Filing
1571
DECISION AND ORDER in compliance with the directives of the Second Circuit's 12/19/2011 Opinion and Summary Order. The parties are directed to submit to the court a joint proposal or separate proposals for entry of final judgment by the Clerk at a time reasonably calculated to address the matters discussed in the Decision. Signed by Hon. John T. Curtin on 5/16/2012. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
THE STATE OF NEW YORK,
Plaintiff,
-vsSOLVENT CHEMICAL COMPANY, INC., and
ICC INDUSTRIES, INC.,
83-CV-1401-JTC
Defendants/Third-Party Plaintiffs,
-vsOLIN CORPORATION and
E.I. du PONT de NEMOURS & COMPANY,
Third-Party Defendants.
On January 26, 2010, following years of protracted litigation and a lengthy non-jury
trial, this court issued a Memorandum of Decision incorporating its findings of fact and
conclusions of law on the issues pertaining to liability and equitable allocation of
responsibility for response costs incurred in remediating environmental contamination at
adjoining industrial sites located in Niagara Falls, New York, pursuant to the
Comprehensive Environmental Response and Compensation Act (“CERCLA”), 42 U.S.C.
§§ 9601–9675. New York v. Solvent Chemical Co., Inc., 685 F. Supp. 2d 357 (W.D.N.Y.
2010). The court awarded third-party plaintiff Solvent Chemical Company, Inc. (“Solvent”)
contribution from third-party defendant E.I. du Pont de Nemours & Company (“DuPont”)
in the amount of $2,050,371, and from third-party defendant Olin Corporation (“Olin”) in the
amount of $462,288, for past costs associated with the remediation of contaminated soil
and groundwater at Solvent’s facility located at 3163 Buffalo Avenue (the “Solvent Site”),
and groundwater contamination at a portion of Olin’s neighboring property known as the
“Olin Hot Spot.” The court denied Solvent’s request for declaratory judgment as to liability
for future cleanup costs, determining upon consideration of the equitable factors “that final
judgment regarding the allocation of future costs to any party other than Solvent would be
premature.” Id. at 455-56. Judgment was entered on May 14, 2010 (Item 1547), and all
parties appealed.
On December 19, 2011, the Second Circuit Court of Appeals entered separately (1)
an Opinion and (2) a Summary Order constituting its ruling on the parties’ appeals. New
York v. Solvent Chemical Co., Inc., 664 F.3d 22 (2d Cir. 2011) (“Opinion”); New York v.
Solvent Chemical Co., Inc., 453 F.App’x 42 (2d Cir. 2011) (“Summary Order”). The ruling
vacated this court’s allocation of response costs as between Solvent, DuPont, and Olin
with respect to the Olin Hot Spot, and reversed the judgment insofar as this court declined
to issue a declaratory judgment in favor of Solvent against DuPont and Olin as to liability
for recovery of future response costs. The ruling affirmed this court’s findings of fact and
conclusions of law in all other respects, and remanded only for reallocation of response
costs for the Olin Hot Spot and entry of declaratory judgment in favor of Solvent on liability
for future response costs.
In the wake of this ruling, a status conference was held with counsel on February
15, 2012 to discuss the parties’ respective positions regarding an appropriate way to
address the matters necessary for compliance with the Second Circuit’s directives on
remand.
Failing to reach a consensus, the parties were ordered to submit written
proposals, which the court has now had the opportunity to consider.
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Upon full consideration of the Second Circuit’s Opinion and Summary Order, and
for the reasons discussed below, the court finds that those portions of its January 26, 2010
findings of fact and conclusions of law that were either expressly affirmed or undisturbed
on appeal remain binding on the parties, and provide a solid basis for both reallocation of
responsibility at the Olin Hot Spot and entry of declaratory judgment in favor of Solvent
regarding equitable allocation of ongoing remediation costs. This can be done without
resort to additional discovery, presentation of evidence, briefing, argument, or other
wasteful re-visitation of issues that have been exhaustively litigated during years of pretrial
proceedings, lengthy trial on the merits, and on appeal. Accordingly, in the interests of
economy of public and private resources, judicial efficiency, and finality, the court turns to
the record as it stands for compliance with the directives on remand.
To recap, in its decision after trial, this court found DuPont and Olin liable for
contribution under CERCLA § 113(f) for an equitable share of response costs incurred by
Solvent to remediate contamination at both the Solvent Site and the Olin Hot Spot by virtue
of the migration of hazardous substances to both areas from the DuPont and Olin facilities.
Solvent Chemical, 685 F. Supp. 2d at 430-38. The court then adopted, with certain
modifications, the volumetric allocation methodology proposed by Solvent’s allocation
expert, James Kohanek, and allocated responsibility among the three parties for costs
incurred through the agreed upon date of June 30, 2007 for each of the four separate
components of the remediation–the contaminated soils at the Solvent Site; the shallow
overburden (or “A–Zone”) groundwater contamination at the Solvent Site; the bedrock (or
“B–Zone”) groundwater contamination at the Solvent Site; and the groundwater
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contamination at the Hot Spot.1 The court dismissed Solvent’s claim for a declaratory
judgment against both DuPont and Olin with respect to remediation costs incurred after
June 30, 2007, finding upon consideration of “key equitable factors” that “final judgment
regarding the allocation of future costs to any party other than Solvent would be
premature.” Id. at 455–56.
The parties each appealed different aspects of this court’s findings of fact and
conclusions of law.
For its part, Solvent appealed the denial of the request for a
declaratory judgment and the allocation of costs incurred at the Olin Hot Spot. DuPont
appealed the court’s ruling on certain discrete issues regarding threshold contribution
liability under CERCLA, and the court’s failure to consider toxicity as a factor in determining
the groundwater allocation. Olin challenged certain issues related to the court’s allocation
of responsibility for costs incurred in connection with the cleanup of Gill Creek.
Significantly, neither DuPont nor Olin appealed this court’s adoption of Mr. Kohanek’s
volumetric-based allocation methodology, or for that matter, any of the court’s factual
findings or evidentiary rulings with respect to hydrogeology and groundwater migration
pathways between the various facilities. See Item 1566, pp. 2-4.
In its December 19, 2011 Opinion and Summary Order, the Second Circuit
sustained both of Solvent's arguments on appeal, while rejecting all of the arguments
raised by DuPont and Olin. With respect to the claim for declaratory judgment, the circuit
court found that while the equitable factors considered by this court in declining to issue
1
The court also awarded Olin a judgm ent against Solvent for an equitable share of responsibility
for response costs incurred in rem ediating a portion of the contam inated sedim ents in Gill Creek, Solvent
Chemical, 685 F. Supp. 2d at 453-54, but it dism issed Olin’s claim against Solvent’s parent corporation,
ICC Industries, Inc., for these sam e costs. Id. at 439-42.
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a final judgment might justify a refusal to allocate future cleanup responsibility, they did not
support the refusal to grant declaratory judgment as to liability itself. The Second Circuit
stated:
The district court has already decided that Olin and DuPont were liable for
contribution as to historical losses. Save for the possibility that the DEC
might in the future impose different remedies to clean up the chlorinated
aliphatics, none of the factors identified by the court distinguishes between
past and future cleanup. That is to say, the factors do not explain why
DuPont and Olin should pay for cleanup costs through June 30, 2007, but
not for those incurred on July 1, 2007 and thereafter. And should the DEC
take action in the future regarding chlorinated aliphatics, the district court can
consider that fact in allocating costs down the road. Even concern over the
future role of chlorinated aliphatics in the ongoing cleanup would not affect
Olin's responsibility to contribute to cleanup costs based on its discharge of
chlorinated benzenes.
Opinion, 664 F.3d at 26. Upon considering the factors for determining whether to issue a
judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201(a), the circuit court
found that declaratory judgment was necessary in this case for statute of limitations
purposes “to ensure an equitable apportionment of cleanup costs that (as is common) are
incurred over many years …,” id. at 26-27, and because the “ ‘costs and time involved in
relitigating issues as complex as these where new costs are incurred would be massive
and wasteful.’ ” Id. at 26-27 (quoting Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1191
(9th Cir. 2000)).
With respect to the allocation itself, the Second Circuit found that this court did not
abuse its discretion when it calculated equitable shares of responsibility for the B-Zone
groundwater contamination based on the allocation framework proposed by Mr. Kohanek.
The circuit court noted that, in constructing his proposal, Mr. Kohanek relied on the findings
of other experts as to migration pathways and use of a “tracer” compound associated with
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DuPont’s plant to conclude that 68.39% of the B-Zone groundwater being remediated at
the Solvent Site contained chlorinated aliphatics, and 31.61% contained chlorinated
benzenes. He attributed 98% of the chlorinated aliphatic share to DuPont, and 2% to
Solvent, and he attributed 98% of the chlorinated benzene share to Solvent and 2% to
Olin. This court found that equitable considerations required modification of Mr. Kohanek’s
proposed share percentages in order to adequately account for the principal negative
environmental impact of the contaminants driving the groundwater remedy–i.e., chlorinated
benzenes and chlorinated benzene DNAPL. The court determined that this could be
accomplished by splitting the difference between the risk analysis rates as calculated by
Solvent (on the basis of pumping well data) and DuPont (on the basis of monitoring well
data), to arrive at adjusted relative contribution rates of 62.05% for chlorinated benzenes
and 37.95% for chlorinated aliphatics.
DuPont’s share of the chlorinated aliphatic
contamination was then discounted by 10% to further account for “the overwhelming
evidence of the extensive chlorinated benzene contamination as the primary negative
environmental impact driving the overall remedy at issue in this litigation,” Solvent
Chemical, 685 F. Supp. 2d at 451, resulting in the allocation of the costs associated with
the B-Zone groundwater remedy at the Solvent Site at 65.98% to Solvent, 33.39% to
DuPont, and 0.63% to Olin. The Second Circuit expressly rejected DuPont’s challenge to
this allocation on the ground that the court’s adoption of Mr. Kohanek’s methodology
overlooked the relative toxicities of the contaminants, finding “no abuse of discretion.”
Summary Order, 453 F.App’x at 48.
This court again relied on Mr. Kohanek’s framework to allocate the costs associated
with the groundwater remedy at the Olin Hot Spot. Based primarily on the volumetric
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analysis of the pumping well data, Mr. Kohanek determined that chlorinated aliphatics (for
which DuPont was 100% responsible) constituted 93.52% of the contamination in the Hot
Spot groundwater, and chlorinated benzenes (for which Olin was 98% responsible)
constituted 6.48% of the Hot Spot groundwater contamination. He therefore proposed that
DuPont bear 93.52%, Olin 6.35%, and Solvent 0.13% of the costs associated with the Hot
Spot groundwater remedy. This court once again reasoned that the “overwhelming
evidence of the extensive chlorinated benzene and DNAPL contamination” required
modification of these percentages to reflect the same equitable considerations made with
respect to the allocation of the responsibility for the costs associated with the B–Zone
remedy at the Solvent Site, resulting in a “discounted relative share of 33.39%” for DuPont.
Solvent Chemical, 685 F. Supp. 2d at 452-53. The court adopted Mr. Kohanek’s proposed
assessment of Olin’s allocable share at 6.35%, leaving Solvent to bear 60.26% of the
responsibility of the responsibility for the costs associated with the Hot Spot remedy.
The Second Circuit found inadequate support for these calculations. According to
the circuit court:
Solvent’s proposal that Olin bear 6.35% of the cleanup costs for the Olin Hot
Spot was premised on the view that 93.52% of the costs resulted from
contamination by chlorinated aliphatics, of which DuPont was the sole
producer. The district court's rejection of this view in favor of a finding that
the remedy was driven primarily by contamination from chlorinated
benzenes—which both Olin and Solvent produced—therefore removes the
foundation for the 6.35% figure. Moreover, the district court should not,
without further explanation, have borrowed for its Hot Spot findings the same
percentage of responsibility it had allocated to DuPont for B–Zone
contamination at the Solvent Site. There was substantial dispute about the
nature and extent of contamination at the Hot Spot, as well as about the
similarity (or lack thereof) between the contamination at the Hot Spot and at
the Solvent Site. Absent resolution of at least some of these issues, the
district court's use of its allocation at the Solvent Site in allocating costs for
the Hot Spot is not supported. Although the district court was disserved by
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the “parties’ inability to reach any workable consensus as to the reasonable
scientific conclusions” to be drawn from the evidence, the finding made
nevertheless lacks support.
Summary Order, 453 F.App’x at 49 (quoting Solvent, 685 F. Supp. 2d at 452). The circuit
court therefore vacated this court’s allocation of response costs for the Olin Hot Spot, and
remanded “to reallocate response for the Olin Hot Spot and to enter a declaratory
judgment in favor of Solvent not inconsistent with this order.” Id.
The court now turns to the task at hand, based on the existing record and the prior
findings of fact, conclusions of law, and evidentiary rulings that were either expressly
affirmed or left undisturbed by the Second Circuit.
I.
Olin Hot Spot Reallocation
Considering the extensive testimony and exhibits presented at trial with respect to
the underlying hydrogeology, groundwater chemistry, and migratory pathways in the area
of concern, this court finds that the proper allocation of responsibility for the Olin Hot Spot
groundwater remedy can be readily calculated without resort to additional fact or expert
discovery, testimony, briefing, or argument. To reiterate, this court’s undisturbed findings
establish that none of the contamination detected in the groundwater at the Olin Hot Spot
was derived from materials transported to, stored, handled or released at the Hot Spot by
any of the three remaining parties; rather, all of the chlorinated benzene and chlorinated
aliphatic contamination detected at the Hot Spot has migrated there (see Solvent
Chemical, 685 F. Supp. 2d at 436); all of the chlorinated aliphatic contamination at the Hot
Spot is attributable to DuPont (id. at 431-432, 451); the overall groundwater flow pattern
in the area of concern in both the A- and B-Zones is in a general southwest-to-northeast
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direction, indicating a migratory pathway from the Olin ARGC area (where Olin historically
manufactured benzene hexachloride (“BHC”) and released large amounts of chlorinated
benzenes into the environment) to the Hot Spot (id. at 437-38); the top of bedrock
elevations underlying the Olin facility indicate a pathway for Olin chlorinated benzene
DNAPL to migrate from the ARGC Area to the Hot Spot (id.); additional contaminants
associated only with Olin’s operations (BHC and perchlorate) have been detected in the
monitoring wells at the Hot Spot (id.); and, Olin is the current owner of the property on
which the Hot Spot is located (id. at 434). There is nothing in the Second Circuit’s rulings
on appeal that would cause this court to revisit these findings.
These same findings establish that no similar pathways exist for the migration of
chlorinated benzenes or chlorinated benzene DNAPL from the Solvent Site to the Olin Hot
Spot. Specifically, the Solvent Site is immediately east of the Hot Spot (see Exhibit S6017); the prevailing flow of groundwater is from southwest to northeast (i.e., from the
ARGC Area to the Hot Spot; see Solvent Chemical, 685 F. Supp. 2d at 437-38); and the
top of bedrock elevations are generally higher at the Hot Spot than at the Solvent Site (see
id. at 437). Based on these findings, undisturbed on appeal, the conclusion can be drawn
that chlorinated benzene contamination in the A- and B-Zone groundwater beneath the
Solvent Site migrates away from the Olin Hot Spot, and chlorinated benzene DNAPL at the
Solvent Site could not have migrated along the top of bedrock from the Solvent Site to the
Olin Hot Spot.
Similarly undisturbed is this court’s reliance on Mr. Kohanek’s volumetric allocation
framework, as well as the modification of his proposed share percentages by averaging
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pumping well data with monitoring well data. The circuit court did express concern about
the lack of foundation for assigning the same percentage for DuPont’s allocable share of
responsibility for the Hot Spot remediation that it had assigned to DuPont for B–Zone
contamination at the Solvent Site. However, this concern can be substantially alleviated
on reallocation by eliminating the 10% discount assessed in DuPont’s favor for the Solvent
Site B-Zone groundwater remedy to account for the “primary negative environmental
impact” of chlorinated benzene contamination. Solvent Chemical, 685 F. Supp. 2d at 451.
Notwithstanding the proof at trial regarding the DEC’s underlying rationale for requiring
hydraulic control at the Hot Spot as a component of the overall integrated B–Zone
remedy–i.e., that the chlorinated benzenes found at the Hot Spot were similar to the
“predominant site indicator chemicals” driving the remedy which were “likely due in part to
migration from the Solvent Site” (id. at 452) (quoting Solvent ROD, S–1012 at p. 20)–the
record is also clear that Solvent never owned or operated any portion of the Olin property,
and therefore cannot be responsible for any direct releases of hazardous substances at
the Hot Spot.
This court’s undisturbed findings further establish that all of the
contamination at the Olin Hot Spot migrated there from off-site due to past industrial
operations (see id. at 431-32, 435-36), and that at least as much source contamination (in
the form of chlorinated aliphatics DNAPL) exists at the DuPont facility and (in the form of
chlorinated benzene DNAPL) at Olin’s ARGC area as exists at the Solvent Site (id. at 43738). It is also beyond dispute that a substantial portion of the contamination in the
groundwater pumped from the B-Zone at the Hot Spot consists of DuPont-related
chlorinated aliphatics (see, e.g., id. at 452). Considering this court’s factual findings
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regarding prevailing groundwater flow direction and other potential migration pathways, it
would be inequitable to discount DuPont’s share of response cost liability at the Olin Hot
Spot based on the existence of chlorinated benzene contamination at the Solvent Site that,
in all likelihood, could not have migrated to the Hot Spot.
Based on these findings, and adhering to the equitably modified volumetric
allocation framework, DuPont’s responsibility for the groundwater contamination at the Olin
Hot Spot can be fairly reallocated by averaging the Hot Spot pumping well data, indicating
that 93.52% of the contaminants being pumped from the groundwater at the Hot Spot are
chlorinated aliphatics, with the monitoring well data, indicating that 7.5% of the
groundwater contamination at the Hot Spot consists of chlorinated aliphatics. Averaging
these two figures ((93.52 + 7.5) x .5 = 50.51) results in recalculation of the chlorinated
aliphatics share of the groundwater contamination at the Olin Hot Spot, for which DuPont
is 100% responsible, at 50.51%. The remaining 49.49% of the Hot Spot groundwater
contamination is attributable to chlorinated benzenes.
The same unchallenged findings discussed above likewise support the adoption of
Mr. Kohanek’s proposal to assess Olin a 98% share of responsibility for the chlorinated
benzene contamination at the Hot Spot.
See id. at 452.
To reiterate, the court’s
undisturbed factual findings regarding groundwater flow patterns, bedrock elevations, and
tracer chemicals establish that, while both Olin and Solvent were responsible for significant
releases of chlorinated benzenes at their respective facilities, much of the chlorinated
benzene contamination being remediated at the Olin Hot Spot originated from Olin’s ARGC
Area, where Olin had conducted its BHC operations and where site investigations have
consistently confirmed the continuing presence of significant levels of BHC,
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trichlorobenzene, and other chlorinated benzenes in the soils and groundwater (see id. at
437-38). As discussed above, the fact that the predominant direction of groundwater flow
and the general slope of the top of bedrock is towards the northeast support the
reasonable conclusion the Olin ARGC Area, and not the Solvent Site, is the primary source
of the chlorinated benzene contamination at the Olin Hot Spot.
Accordingly, Olin’s allocable share of responsibility for response costs incurred in
remediating the groundwater contamination at the Olin Hot Spot is assessed at 48.50%
(49.49% x .98 = 48.50%) of the chlorinated benzene share, leaving Solvent with 0.99% of
the chlorinated benzene share (49.49% x .02 = 0.99%). This would result in a final Hot
Spot reallocation as follows:
DuPont
50.51%
Olin
48.50%
Solvent
II.
0.99%
100.00%
Declaratory Judgment
As discussed above, the circuit court found that this court abused its discretion by
refusing to issue a declaratory judgment in favor of Solvent as to liability for future
response costs.2 The circuit court determined that a declaratory judgment was necessary
to ensure equitable apportionment of cleanup costs incurred on July 1, 2007 and
2
Future costs will involve rem ediation of B-Zone groundwater contam ination at the Solvent Site
and Hot Spot. The court allocated 100% of the A-Zone groundwater contam ination costs to Solvent, and
there are currently no future costs with respect to the Solvent Site soil rem edy.
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thereafter, and because of the “massive and wasteful” cost of relitigation in the absence
of such a judgment. Opinion, 664 F.3d at 27.
In light of the circuit’s clear expression of disfavor toward revisiting complex issues
that have been exhaustively litigated over many years, and considering the extensive
findings of fact and conclusions of law that have been either expressly affirmed or
undisturbed on appeal, the court finds that the declaratory judgment should include a
method for allocating future costs on the same basis as the allocation of past costs, and
can be entered on the basis of the current record. See City of Wichita, Kansas v. Trustees
of the APCO Oil Corp. Liquidating Trust, 306 F. Supp. 2d 1040, 1117, 1120 (D. Kansas
2003) (entering declaratory judgment as to liability for future costs of groundwater
remediation, to be allocated on the same basis as past costs).
As proposed by Solvent, response costs incurred for groundwater remediation from
July 1, 2007 to December 31, 2011 (“Past Future Costs”) are to be allocated in the same
manner as the court previously allocated past costs for the Solvent Site B-Zone, and by
this order, reallocated past costs for the Olin Hot Spot. Response costs incurred for the
Solvent Site B-Zone and Hot Spot groundwater remediation after December 31, 2011
(“Future Future Costs”) are to be allocated based upon recalculation of the Kohanek
allocation framework averaging new groundwater pumped well and monitor well data
gathered twice a year. In the court’s view, adopting this common sense approach will allow
for equitable allocation of the parties’ responsibility for response costs in proportion to their
respective contributions to the harm being addressed by the remedy on a continuing basis,
while limiting future proceedings to the minimum necessary to achieve this end.
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Further in line with Solvent’s proposal, documentation of Past Future Costs incurred
by Solvent since July 1, 2007 shall be provided to Olin and DuPont by affidavit of Mr. Paul
Hughes, the same witness who presented Solvent’s remediation costs at trial. These costs
are to be aggregated into the same categories of remedial tasks applicable to the Solvent
Site B-Zone and Hot Spot as set forth in Solvent’s Proposed Findings of Fact (see Item
1461, ¶¶ 432-448), and as incorporated in this court’s January 26, 2010 findings of fact
and conclusions of law. Mr. Hughes shall be made available for deposition regarding the
documented costs, upon demonstration of good cause in a written application to this court.
With regard to Future Future Costs, Solvent shall provide DuPont and Olin with a
calculation of the parties’ respective shares biannually, along with supporting
documentation, data, test results, and any other relevant information. Reimbursement for
Future Future Costs shall be provided to Solvent within 45 days (1) after DuPont and Olin
receive the biannual information from Solvent, or (2) after any disputes are resolved.
CONCLUSION
Based on the foregoing, and in compliance with the directives of the Second Circuit
in its December 19, 2011 Opinion and Summary Order, this court makes the following
rulings:
(1)
Hot Spot Reallocation
The court reallocates equitable shares of responsibility for response costs incurred
in remediating the groundwater contamination at the Olin Hot Spot as follows:
DuPont 50.51%
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Olin 48.50%
Solvent 0.99%
Within thirty days from the date of entry of this order, Solvent shall submit to DuPont
and Olin a statement of the amount of past response costs incurred at the Hot Spot,
adjusted by prejudgment and post-judgment interest rates. DuPont and Olin may contest
these calculations upon written application to this court demonstrating good cause to do
so, to be submitted within twenty days of their receipt of Solvent’s statement.
(2)
Declaratory Judgment
Pursuant to 28 U.S.C. § 2201(a) and 42 U.S.C. § 9613(g)(2), the court issues the
following declaratory judgment:
(a)
DuPont and Olin are liable for equitable shares of future response
costs incurred by Solvent for the Solvent Site B-Zone and Olin Hot Spot groundwater
remediation.
(b)
Past Future Costs (costs incurred by Solvent from July 1, 2007 to
December 31, 2011) for the Solvent Site B-Zone groundwater and the Hot Spot
groundwater shall be allocated in the same manner as the court previously allocated past
costs for the Solvent Site B-Zone, and by this order, reallocated past costs for the Olin Hot
Spot. Solvent shall be responsible for documenting Past Future Costs by affidavit of a
suitable representative with personal knowledge and access to supporting data. The
affiant shall be made available for deposition by DuPont or Olin upon demonstrating good
cause in a written application to this court.
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(c)
Future Future Costs (costs incurred by Solvent after December 31,
2011) for the Solvent Site B-Zone groundwater and the Hot Spot groundwater shall be
allocated based upon a recalculation of the Kohanek allocation framework using new
groundwater data gathered twice a year. Within 60 days after June 30th and December
31st of each year, Solvent shall serve DuPont and Olin with a calculation of the parties’
respective shares of Future Future Costs, along with supporting documentation, data, test
results, and any other information relevant to the calculation. DuPont and Olin shall have
the opportunity to contest Solvent’s calculations upon demonstrating good cause in a
written application to this court, to be submitted within twenty days of receipt of the
biannual submissions. Payment of Future Future Costs shall occur within 45 days after
submission of documentation of the costs, or within 45 days after any contested costs are
resolved by the court.
In accordance with the above, and at a time reasonably calculated to address the
matters discussed herein, the parties shall submit to the court a joint proposal (or, in the
absence of a consensus, separate proposals) for entry of final judgment by the Clerk of the
Court.
So ordered.
\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
Dated: May 16, 2012
p:\pending\1983\83-1401.apr24.2012
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