United States v. Puerto Rico Industrial Development Company

Filing 163

OPINION AND ORDER denying without prejudice 138 Motion for Miscellaneous Relief; granting in part and denying in part 142 motion for summary judgment; and denying 143 motion for summary judgment. The United States is ORDERED to specify which response actions underlie the costs for which PRIDCO is purportedly liable, and to reconcile its inconsistent cost assessments, no later than April 25, 2019. Signed by Judge Francisco A. Besosa on 03/25/2019. (brc)

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

UNITED STATES OF AMERICA,
Plaintiff,
v.

Civil No. 15-2328 (FAB)

PUERTO RICO INDUSTRIAL
DEVELOPMENT COMPANY,
Defendant.

OPINION AND ORDER
BESOSA, District Judge.
Before the Court are plaintiff United States’ and defendant
Puerto Rico Industrial Development Company (“PRIDCO”)’s crossmotions for summary judgment pursuant to Federal Rule of Civil
Procedure 56 (“Rule 56”).

(Docket Nos. 142 and 143.)

The United

States also moves to limit the scope of judicial review.
No. 138.)

(Docket

For the reasons set forth below, the United States’

motion for summary judgment is GRANTED IN PART and DENIED IN PART,
PRIDCO’s motion for summary judgment is DENIED, and the United
States’ motion to limit the scope of judicial review is DENIED
WITHOUT PREJUDICE.
I.

(Docket Nos. 138, 142 and 143.)

Background
This

matter

concerns

contaminated

groundwater

located

on

property belonging to PRIDCO in Maunabo, Puerto Rico (hereinafter,

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 2 of 32

Civil No. 15-2328 (FAB)
the “property”). 1

2

The United States asserts that PRIDCO is liable

for “all response costs, including enforcement costs, incurred by
the [Environmental Protection Agency, (“EPA”)] in connection with
the

[Maunabo

Area

Groundwater

Contamination

Superfund

Site]”

pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act (“CERCLA”), 42 U.S.C. § 9607 et seq.

(Docket

No. 8 at p. 7.)
Congress drafted CERCLA in 1980 to address the release or
threatened release of hazardous substances into the environment. 2
42 U.S.C. § 9601 et seq.

CERCLA permits the United States to

allocate funds from a “Hazardous Substance Superfund” to finance
cleanup efforts.
replenish

the

26 U.S.C. § 9507.
Hazardous

Substance

The United States may
Superfund

pursuant

to

section 9607 of CERCLA by bringing suit against, among others,
“any person who at the time of disposal of any hazardous substances
owned or operated any facility at which hazardous substances were
disposed of.”

42 U.S.C. § 9607(a); United States v. Bestfoods,

1 The property is located in the “southeastern coastal area of Puerto Rico . .
. surrounded by mountains to the north, east, and west and the Caribbean Sea to
the southwest.” (Docket No. 139, Ex. 2 at p. 21.) The Municipality of Maunabo
identifies the property as L-283-0-06. (Docket No. 11 at p. 2.) PRIDCO owns
a second parcel of land that is also located in Maunabo, identified as Lot-3040-66.
(Docket No. 101, Ex. 15 at p. 17.)
This second parcel of land is
unrelated to the CERCLA cause of action.
2

Jurisdiction exists in this action pursuant to 42 U.S.C. § 9613(b), providing
that the “United States district courts shall have exclusive original
jurisdiction over all controversies arising under [CERCLA].”

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 3 of 32

Civil No. 15-2328 (FAB)

3

524 U.S. 51, 55 (1998) (“CERCLA is a comprehensive statute that
grants the President broad power to command government agencies
and private parties to clean up hazardous waste sites.”) (citation
omitted). 3
A.

Hazardous Substances Are Located on PRIDCO’s Property
PRIDCO

is

a

government

instrumentality

of

the

Commonwealth of Puerto Rico, incorporated in 1942 to stimulate the
formation

of

local

firms

and

to

attract

foreign

investment.

(Docket No. 11 at p. 2; Docket No. 117, Ex. 3 at p. 2.)
accomplish

these

ends,

PRIDCO

maintains

an

To

infrastructure

development program, and facilities for lease or sale to qualified
investors.

(Docket No. 117, Ex. 3 at p. 2.)

The property, which

PRIDCO acquired in 1964, is among these facilities.

(Docket

No. 117, Ex. 4 at p. 2.) 4

3

CERCLA empowers the President of the United States to “remove or arrange the
removal of, and provide for remedial action relating to such hazardous
substance, pollutant, or contaminant at any time.”
42 U.S.C. § 9604(a)(1).
President Ronald Reagan first delegated the authority to implement CERCLA to
the EPA pursuant to Executive Order 12580 (January 23, 1987). Section 1 of
Executive Order 12580 requires the National Contingency Plan (“NCP”) to provide
for national and regional response teams to coordinate preparedness and response
actions.

4

Between 1969 and 2015, PRIDCO leased the property to: (1) System Engineering
Labs (1969 through 1971); (2) Coulter de Puerto Rico (1972 through 1980);
(3) Solar Mar of Puerto Rico (1980 through 1984); (4) Orle International Company
(1986 through 1989); (5) Puerto Rico Housing Department (1989 through 1991);
(6) Municipality of Maunabo (1996 through 1998); (7) Premium Fruit Company (1999
through 2003); (8) E.I.G. Aqua Pura de Puerto Rico, Inc; (9) Juan Orozco, Ltd.
(date of lease not specified); and (10) Centro de Acopio Manufacturing (date of
lease not specified). (Docket No. 101-15 at p. 4.)

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Civil No. 15-2328 (FAB)

4

The Puerto Rico Aqueduct and Sewer Authority (“PRASA”)
operates four groundwater supply wells in Maunabo, providing water
to 14,000 people.

(Docket No. 101, Ex. 6 at p. 12.)

One of the

four PRASA wells is located adjacent to the southern edge of the
property (hereinafter, “Maunabo well”).
at p. 17.)

(Docket No. 101, Ex. 14

Between 2001 and 2004, PRASA detected volatile organic

compounds (“VOC”), including trichloroethylene (“TCE”) and cis-1,
2-dichloroethene (“cis-1, 2-DCE”), in the public water supply. 5
(Docket No. 101, Ex. 3 at p. 23.)
hazardous

substances.

Id.

In

TCE and cis-1, 2-DCE are

2002,

PRASA

discovered

that

groundwater from the Maunabo well contained TCE and cis-1, 2-DCE.
(Docket No. 101, Ex. 6 at p. 12.)

PRASA installed a carbon

filtration system to treat the contaminated groundwater.

(Docket

No. 101, Ex. 2 at p. 3.) 6
The EPA and the Puerto Rico Environmental Quality Board
(“EQB”)

are

groundwater.
confirmed

responsible

for

the

decontamination

(Docket No. 101, Ex. 6 at pp. 12—13.)

that

the

groundwater

from

the

Maunabo

of

the

The EPA
well

is

5

TCE is a chlorinated solvent that degrades into cis-1, 2-DCE upon disposal
into the environment. (Docket No. 101, Ex. 6 at p. 12.)
6

The Puerto Rico Department of Health (“PRDOH”) ordered PRASA to discontinue
use of the Maunabo well in 2002. (Docket No. 101-3 at p. 11.) Rather than
close the Maunabo well, however, PRASA installed carbon filtration tanks. Id.
According to CMD Smith, a firm hired by the EPA to study the contaminated
groundwater, this system “was not always effective and [. . .] contaminated
drinking water was reaching the consumers.” Id.

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Civil No. 15-2328 (FAB)

5

contaminated primarily with cis-1, 2-DCE.
further

investigation,

the

EPA

Id. at p. 26.

discovered

three

After

plumes

of

contaminated groundwater throughout the Municipality of Maunabo.
(Docket No. 101, Ex. 5 at p. 171.)
to as:

The three plumes are referred

(1) cis-1, 2-DCE, (2) PCE, and (3) 1, 1-DCE.

(Docket

No. 101, Ex. 5 at p. 171.)

The cis-1, 2-DCE plume is located below

the

southwest

property,

“flow[ing]

intercepted by [the Maunabo well].”

toward

[a]

river,

The PCE plume is located

south of the PRIDCO property near a former sugar mill.

of the property.

is

(Docket No. 101, Ex. 6 at

p. 26; Docket No. 101, Ex. 3 at p. 14.)

No. 101, Ex. 4 at p. 18.)

but

(Docket

The 1, 1-DCE plume is located northwest

(Docket No. 101, Ex. 6 at p. 12.)

Together, the

three plumes comprise the Maunabo Area Groundwater Contamination
Superfund Site (hereinafter, “the site”).
at p. 12.). 7

(Docket No. 101, Ex. 6

The EPA placed the site on the National Priorities

List, a compilation of the most contaminated sites in the United
States.

Id. at p. 15. 8
The EPA issued the Record of Decision (“ROD”) in 2012,

setting forth the “factual and legal basis for selecting the

7

The United States is not requesting reimbursement for costs in connection with
the two plumes of groundwater located beyond the PRIDCO property.
8 The 2019 National Priorities List includes the Maunabo Area Groundwater
Contamination Superfund Site.
Superfund: National Priorities List (NPL),
(Feb. 5, 2019) available at https://www.epa.gov/superfund/superfund-nationalpriorities-list-npl (last visited March 25, 2019).

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 6 of 32

Civil No. 15-2328 (FAB)
[applicable] remedy.”

6
(Docket No. 139, Ex. 2 at p. 7.) 9

The

remedy selected by the EPA incorporates air sparging for the cis1, 2-DCE plume and monitored natural attenuation for the PCE and
(Docket No. 101, Ex. 6 at p. 75.) 10

1, 1-DCE plumes.

The United States commenced this action on September 23,
2015.

(Docket No. 21.)

motion

to

trifurcate

The Court granted the United States’

this

litigation

into

a

Liability

Phase

(“Phase I”), a Cost Phase (“Phase II”), and a Contribution Phase
(“Phase III”).
B.

(Docket No. 85.)

Phase I: PRIDCO is Prima Facie Liable for the Release of
Hazardous Substances
The United States moved for summary judgment as to

liability in Phase I.

(Docket No. 101.)

PRIDCO opposed summary

judgment, emphasizing that “the technical data available to date

9

The EPA is required to issue a Record of Decision. 42 U.S.C. § 9617; 40 C.F.R.
§ 300.430.
These documents “provide a comprehensive description of site
conditions, the scope of the action, and the Selected Remedy, cleanup levels,
and the reason for selecting the remedy.”
A Guide to Preparing Superfund
Proposed Plans, Records of Decision, and Other Remedy Selection Decision
Documents, (July 1999) (available at https://www.epa.gov/superfund/recorddecision-rod-guidance) (last visited March 25, 2019).
10

According to the ROD, “air sparging is a technology in which air is injected
into the subsurface through sparge points. The injected air acts to remove or
‘strip’ the VOCs from the groundwater.”
(Docket No. 139, Ex. 2 at p. 34.)
Monitored Natural Attenuation is a “cleanup method that relies on physical,
chemical, or biological processes that, under favorable conditions, act without
human intervention to reduce the amount, toxicity, or mobility of contamination
in soil of groundwater.” United States Environmental Protection Agency Use of
Monitored Natural Attenuation at Superfund, RCRA Corrective Action, and
Underground Storage Tank Sites, Directive 9200.4-17P (April 21, 1999) (available
at
https://www.epa.gov/sites/production/files/2014-02/documents/d9200.417.pdf) (last visited March 25, 2019).

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Civil No. 15-2328 (FAB)

7

does not support the proposition [that the property] is the source
of contamination.”

(Docket No. 116 at p. 5.) 11

The source of

contamination, however, is immaterial to the prima facie liability
analysis.

See Robertshaw Controls Co. v. Watts Regulator Co., 807

F. Supp. 144, 153 (D. Me. 1992) (“Congress specifically rejected
including a causation requirement in Section 9607.”).
“sketches the contours of a strict liability regime.”

CERCLA
Acushnet

Co. v. Mohasco, 191 F. 3d 69, 74 (1st Cir. 1999); see United States
v. Monsanto, 858 F.2d 160, 161 (4th Cir. 1988) (“We agree with the
overwhelming body of precedent that has interpreted [CERCLA] as
establishing a strict liability scheme.”).

11

CERCLA contains no

The EPA collected subsurface soil samples from the areas adjacent to the Juan
Orozco and Puerto Rico Beverage buildings on PRIDCO’s property.
(Docket
No. 139, Ex. 2 at p. 14.) The soil contained “non-detect values for contaminants
previously detected in the Maunabo public water supply.” Id. The groundwater
below
the
subsurface
soil,
however,
contained
hazardous
substances
“represent[ing] a risk to human health and the environment.” Id. at p. 18.
PRIDCO questioned “how the contaminants may have leaked into the groundwater
without leaving any path of contamination or trace through the soil in the
surface or subsurface of [its] property.” (Docket No. 143 at p. 2.) The EPA
held a public meeting on August 29, 2012 regarding the Maunabo Area Groundwater
Contamination Superfund Site. (Docket No. 139, Ex. 3 at pp. 203—204.) At this
meeting, the EPA represented that “[it had] not detected a source contamination
. . . there is no source of the existing contamination. Where it comes from,
the origin, it is unknown.”
(Docket No. 139, Ex. 3 at pp. 203—204.)
Subsequently, the EPA retained Al Medine (“Medine”) as an expert in
environmental engineering. Medine asserts that the “lack of vadose zone soil
contamination in the area near the source areas is caused by the contaminate
fate processes/migration and enhanced by the high precipitation and high
temperature of the Maunabo area.” (Docket No. 142, Ex. 8 at p. 168.) Raúl
Colón (“Colón”) is a civil engineer with a concentration in water resources.
(Docket No. 142, Ex. 3 at p. 8.)
Colón rejects the opinions presented by
Medine, asserting that the “tropical conditions of the Island of Puerto Rico
[are] not a reliable explanation of why none of the chlorinated solvents of
concern have been detected at the PRIDCO Property soils.”
Id. at p. 28.
According to Colón, the sources of the cis-1, 2-DCE plume “identified by the
EPA at the PRIDCO property appears to originate to the north . . . at the
Navarro property.” Id. at p. 39.

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 8 of 32

Civil No. 15-2328 (FAB)
causation element.

8

Prisco v. A & D Carting Corp., 168 F. 3d 593,

606 (2d Cir. 1999) (“No causation is needed, however, to establish
liability

under

CERCLA.”)

(internal

citation

omitted).

Accordingly, the Court held that PRIDCO is prima facie liable for
the release of hazardous substances on its property. United States
v. P.R. Indus. Dev. Co., 287 F. Supp. 3d 133 (D.P.R. 2017) (Besosa,
J.). 12

The Court permitted PRIDCO, however, to assert certain

affirmative defenses in Phase II.

Id. at 153.

The parties later

filed cross-motions for summary judgment as to the availability of
the third-party defense.

(Docket Nos. 142 and 143.)

The United

States also moves for summary judgment regarding costs, seeking to
recover $5,398,161.04 from PRIDCO.
II.

(Docket No. 142 at p. 13.)

Standard of Review
A court will grant summary judgment if “there is no genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

“A dispute

is genuine if the evidence about the fact is such that a reasonable
jury could resolve the point in the favor of the non-moving party.

12

The United States prevailed in Phase I by establishing that: (1) the property
is a facility pursuant to section 107(b) of CERCLA, (2) PRIDCO falls within one
of four categories of covered persons pursuant to section 107(a); (3) a release
or threatened release occurred on the property; and (4) the release or
threatened release caused the United States to incur response costs that are
not inconsistent with the National Contingency Plan. 42 U.S.C. § 107; Acushnet
Co., 191 F.3d at 75 (“By and large, a person who falls within one of the four
categories defined in [section 107] is exposed to CERCLA liability.”).

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 9 of 32

Civil No. 15-2328 (FAB)

9

A fact is material if it has the potential of determining the
outcome of the litigation.”

Dunn v. Trs. of Bos. Univ., 761 F.3d

63, 68 (1st Cir. 2014) (internal citation omitted).
The role of summary judgment is to “pierce the boilerplate of
the pleadings and assay the parties’ proof in order to determine
whether trial is actually required.”

Tobin v. Fed. Exp. Corp.,

775 F.3d 448, 450 (1st Cir. 2014) (internal citation omitted).
The party moving for summary judgment has the initial burden of
“demonstrat[ing] the absence of a genuine issue of material fact”
Celotex Corp. v. Catrett,

with definite and competent evidence.

477 U.S. 317, 323 (1986); Maldonado-Denis v. Castillo-Rodríguez,
23 F.3d 576, 581 (1st Cir. 1994).
“portions

of

interrogatories,

‘the
and

pleadings,
admissions

The movant must identify
depositions,

on

file,

affidavits, if any’” which support its motion.

answers

together

with

to
the

Celotex, 477 U.S.

at 323 (citing Fed. R. Civ. P. 56(c)).
Once a properly supported motion has been presented, the
burden shifts to the nonmovant “to demonstrate that a trier of
fact reasonably could find in [its] favor.”

Santiago-Ramos v.

Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000)
(internal citation omitted).

“When the nonmovant bears the burden

of proof on a particular issue, [he or] she [or it] can thwart
summary judgment only by identifying competent evidence in the

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 10 of 32

Civil No. 15-2328 (FAB)

10

record sufficient to create a jury question.”

Tobin, 775 F.3d

at 450-51. A court draws all reasonable inferences from the record
in the light most favorable to the nonmovant, but it disregards
unsupported and conclusory allegations.

McGrath v. Tavares, 757

F.3d 20, 25 (1st Cir. 2014).
When parties file cross-motions for summary judgment, a court
must “consider each motion separately, drawing all inferences in
favor of each non-moving party in turn.”

AJC Int’l, Inc. v.

Triple-S Propiedad, 790 F.3d 1, 3 (1st Cir. 2015) (quoting D & H
Therapy Assocs., LLC v. Bos. Mut. Life Ins. Co., 640 F.3d 27, 34
(1st Cir. 2011)). “Cross-motions for summary judgment do not alter
the summary judgment standard, but instead simply ‘require [the
Court] to determine whether either of the parties deserves judgment
as a matter of law on the facts that are not disputed.’”

Wells

Real Estate Inv. Tr. II, Inc. v. Chardón/Hato Rey P’ship, 615 F.3d
45, 51 (1st Cir. 2010) (quoting Adria Int’l Grp., Inc. v. Ferré
Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001)).

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Civil No. 15-2328 (FAB)
III. Summary Judgment as
Defense is Warranted

11
to

PRIDCO’s

Affirmative

Third-Party

The United States moves to foreclose PRIDCO from asserting
the third-party defense.
PRIDCO

argues,

however,

Docket No. 142; 42 U.S.C. § 9607(b). 13
that

the

third-party

defense

defeats

CERCLA liability because “it is presently unknown from a scientific
and

technical

perspective,

contamination is [located].”

where

the

true

source

(Docket No. 143 at p. 2.)

of

the

PRIDCO’s

arguments are unavailing.
A.

The Third-Party Defense
The third-party defense provides PRIDCO with a potential

reprieve from the strict liability scheme in CERCLA.

To invoke

this defense, PRIDCO must establish by a preponderance of the
evidence that “an act or omission of a third party other than an
employee or agent of [PRIDCO], or than one whose act or omission
occurs in connection with a contractual relationship” caused the

13

PRIDCO previously invoked the Act of God and secured creditor defenses. 42
U.S.C. § 9607(b). (Docket No. 11 at pp. 7—8.) An Act of God is an “unanticipated
grave natural disaster or other natural phenomenon of an exceptional,
inevitable, and irresistible character, the effects of which could not have
been prevented or avoided by the exercise of due care or foresight.” 42 U.S.C.
§ 9601(1).
The security creditor defense extends to any “person that is a
lender that without participating in the management of a vessel or facility,
holds indicia of ownership primarily to protect his security interest in the
vessel or facility.” 42 U.S.C. § 9601(20)(E); P.R. Indus. Dev. Co., 287 F.
Supp. 3d at 150 (“Banks possessing mortgages only to secure loan payments, for
example, represent the entities that Congress intended to exempt from
liability.”) (citation omitted).
The Court has already held that PRIDCO is
ineligible for both defenses. Id. at 147.

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Civil No. 15-2328 (FAB)

12

groundwater contamination.

U.S.C. § 9607(b)(3). 14

forth two variations of the third-party defense:
landowner

defense,

and

(2)

the

contiguous

CERCLA sets

(1) the innocent

property

defense.

42 U.S.C. 9607(b)(3) and (q); United States v. A & N Cleaners &
Launderers, 854 F. Supp. 229, 238 (S.D.N.Y. 1994) (holding that
“the Innocent Landowner Defense” is a “special case of the Third
Party Defense”). To trigger the innocent landowner defense, PRIDCO
must demonstrate that it “purchase[d] property without knowledge
that a predecessor in the chain of title had allowed hazardous
substances to be disposed on the property.”

Domenic Lombardi

Realty, 290 F. Supp. 2d 198, 208 (D.R.I. 2008) (citation omitted). 15
The contiguous property defense requires PRIDCO to establish that
it “did not cause, contribute, or consent to the release or
threatened
property

release”
with

of

which

§ 9607(q)(1)(A)(i);

hazardous
PRIDCO

Wilson

is

Rd.

substances

originating

unaffiliated.
Dev.

Corp.

v.

42

from

U.S.C.

Fronabarger

14

The term “contractual relationship” encompasses “land contracts, deeds,
easements, or other instrument transferring title or possession.” 42 U.S.C.
§ 9601(35)(A).

15

PRIDCO must also establish that it “took all appropriate inquiry into the
previous ownership and uses of the property consistent with good commercial or
customary practice,” and exercised due care regarding the hazardous substances
once the contamination was discovered.
42 U.S.C. § 9607(b)(3); 42 U.S.C.
§ 9601(35)(A)-(B).

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Civil No. 15-2328 (FAB)

13

Concreters, Inc., 971 F. Supp. 2d 896, 913 (E.D. Mo. 2013). 16

Both

defenses obligate PRIDCO to prove that “a totally unrelated third
party is the sole cause of the release.”

O’Neil v. Picillo, 682

F. Supp. 706, 728 (D.R.I. 1988) (emphasis in original) (citation
omitted).
B.

PRIDCO is Not Eligible to Invoke the Third-Party Defense
PRIDCO

misconstrues

the

third-party

defense

by

repeatedly assigning the burden of proof to the United States.
(Docket Nos. 143, 153 and 161.)

The linchpin of PRIDCO’s third-

party defense is that the United States “lacks any physical or
hard evidence to demonstrate that [PRIDCO’s] property is the source
of contamination [of] the cis-1, 2-DCE plume.”
pp. 9–10.)

(Docket No. 143 at

Pursuant to CERCLA, however, PRIDCO shoulders the

burden of proving that acts or omissions of an unrelated thirdparty were the sole cause of the groundwater contamination.
U.S.C. § 9607(b)(3).

42

See Domenic Lombardi Realty, Inc., 290 F.

Supp. 2d at 209 (“In order to take advantage of the innocent
landowner defense, Lombardi Realty must first meet the threshold
burden of proving that the contamination at the Site was caused
solely by an act or omission of a third party.”) (internal citation

16

The contiguous property owner defense also requires PRIDCO to establish that
it took remedial measures after discovering the contaminated groundwater. 42
U.S.C. § 9607(q)(A)(v)(II).

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Civil No. 15-2328 (FAB)

14

and quotation omitted); Foster v. United States, 922 F. Supp. 642,
654 (D.D.C. 1996) (“A defendant’s failure to meet its burden on
any one of the required elements precludes application of [the
third-party defense].”) (citation omitted); United States v. PolyCarb, Inc., 951 F. Supp. 1518, 1531 (D. Nev. 1996) (“Defendant
bears the burden of producing evidence (at the summary judgment
stage) that a third party was the sole cause and that this thirdparty had no ‘relationship’ with [the] Defendant within the meaning
of § 9607(b)(3).”) (citation omitted). 17

This PRIDCO has not done.

Moreover, the National Contingency Plan provides that
“persons

seeking

to

establish

[the

third-party

defense]

must

conduct investigations . . . to identify conditions indicative of
releases or threatened releases.”

40 C.F.R. § 312.1(c). 18

17

The United States need not identify the source of contamination to establish
liability. See Fairchild Indus., Inc., 766 F. Supp. 404, 415 (D. Md. 1991)
(“The government need not trace each defendant’s waste to a specific release
and response.”); Kelly v. Thomas Solvent Co., 727 F. Supp. 1532, 1540 (W.D.
Mich. 1989) (holding that defendants could not avail themselves of the thirdparty defense because they “have not shown any evidence, nor have they argued,
that a third party was the sole cause of the release and concomitant harm”);
Acme Printing Ink Co. v. Menard, Inc., 870 F. Supp. 1465, 1480 (E.D. Wis. 1994)
(third-party defense inapplicable because “the undetermined third-party was not
the sole cause of the release”).
18

According to the United States, the EPA “determined that the groundwater
plume at issue originates from the PRIDCO property, . . . and this Court affirmed
that finding.” (Docket No. 139 at pp. 4—5.) This statement is incorrect. The
Court merely held that a “release” of hazardous substances occurred on PRIDCO’s
property. P.R. Indus. Dev. Co., 287 F. Supp. 3d at 145. Indeed, the Court
permitted PRIDCO to assert the third-party defense in Phase II of this
litigation precisely because “further factual development as to the cause of
the release [was] necessary before the Court [could] determine whether summary
judgment is justified as to these defenses.” Id. at 148-9.

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 15 of 32

Civil No. 15-2328 (FAB)

15

PRIDCO emphasizes that the source of contamination is
unknown.

(Docket No. 143 at p. 45.)

underscores

that

the

third-party

This proposition only

defense

is

inapplicable.

Contending that the “likely source of contamination is not within
the PRIDCO property, but rather, at the upgradient property of
Navarro” is insufficient.

(Docket No. 153 at p. 2) (emphasis

added); Fairchild Indus., 766 F. Supp. at 411 (“The detailed
provisions of [Section 9607(b)(3)] demonstrate that Congress did
not intend there to be a general third-party defense; instead, a
party must allege and prove a specific set of facts [among which
are]:

that the third party was the sole cause of the release;

[and] that the third party was not an employee or agent of the
defendant.”). The third-party defense is triggered only by proving
that the sole cause of contamination originated with an unrelated
third-party, not that a third-party likely caused or contributed
to the contamination.

47 U.S.C. § 9607; see Monsanto Co., 858

F.2d at 168 (“Section 107(b)(3) sets forth a limited affirmative
defense based on the complete absence of causation.”); City of
Bangor v. Citizens Co., 437 F. Supp. 2d 180, 213-14 (D. Me. 2006)
(holding

utility

company

liable

pursuant

to

CERCLA

despite

repeated suggestions that “no fewer than eight other sources”
caused the contamination).

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 16 of 32

Civil No. 15-2328 (FAB)
PRIDCO

also

16
maintains

that

establishing

liability

without identifying the source of contamination “is not in the
spirit of CERCLA.” (Docket No. 143 at p. 25.) The Court disagrees.
CERCLA is a comprehensive and at times severe statute, holding
property owners strictly liable for hazardous substances located
on their property.

See Consolidation Coal Co. v. Ga. Power Co.,

781 F.3d 129, 156 (4th Cir. 2015) (holding that CERCLA “must be
given a broad interpretation to effect its ameliorative goals . . .
even if faithful application of CERCLA may . . . yield seemingly
harsh results”) (citations omitted); A & N Cleaners & Launders,
854 F. Supp. at 241 (“CERCLA’s narrow affirmative defenses do
little to alleviate the unfairness of the statute’s liability
scheme, particularly in cases where liability is predicated solely
on property ownership.”).

In enacting CERCLA, however, “Congress

had well in mind that persons who dump or store hazardous waste
sometimes cannot be located or may be deceased or judgment-proof.”
New York v. Shore Realty Corp., 759 F.2d 1032, 1045 (2d Cir. 1985)
(citation omitted).

CERCLA addresses environmental threats to

public safety by “[creating] a strong incentive for both prevention
of releases and voluntary cleanup of releases by responsible
parties.”

United States v. Twp. of Brighton, 152 F.3d 307, 330

(6th Cir. 1998); United States v. Mex. Feed & Seed Co., 980 F.2d
478, 484 (8th Cir. 1992) (noting that for CERCLA, the “focus is on

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 17 of 32

Civil No. 15-2328 (FAB)

17

responsibility, not culpability”); Commander Oil Corp. v. Barlo
Equip. Corp., 215 F.3d 321, 327 (2d Cir. 2000) (“The scheme
envisioned by Congress protects taxpayers generally from bearing
the

costs

of

nationwide

cleanup

.

.

.

instead,

potentially

responsible parties must shoulder the frequently heavy burden of
environmental liability.”) (citation omitted).
Holding PRIDCO liable for response costs pertaining to
the cleanup of the cis-1, 2-DCE plume is consistent with Congress’s
intent to promote expeditious remediation at contaminated sites,
adequate compensation to public coffers, and the imposition of
accountability.
Cir. 2001).

See United States v. Davis, 261 F.3d 1, 26-7 (1st

Because PRIDCO failed to raise a genuine issue of

material fact as to whether a third-party was the sole cause of
the contamination, the United States is entitled to response costs.
See

Domenic

Lombardi

Realty,

Inc.,

290

F.

Supp.

2d

at

207

(“[U]nless Lombardi Realty can take advantage of one of CERCLA’s
defenses, it will be liable for the clean-up costs incurred by the
EPA.”).
IV.

Phase I (Liability) of this action is complete.

Phase II:
Costs

The United States Seeks $5,398,161.04 in Response

According to the United States, “there is no question of
material fact that [it] incurred at least $5,398,161.04 through
February 28, 2018 in response costs related to the cis-1, 2-DCE

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 18 of 32

Civil No. 15-2328 (FAB)
plume.”

18

(Docket No. 142 at p. 9.)

Because PRIDCO is liable for

the contaminated groundwater, the United States is entitled to
“all costs of removal or remedial action . . . not inconsistent
with the national contingency plan.”
Accordingly,

two

factors

are

42 U.S.C. § 9607(1)(4)(A).

relevant

to

the

cost

analysis:

(1) the response actions implemented by the United States, and
(2) the National Contingency Plan (“NCP”).
A.

National Contingency Plan
The NCP is “essentially the federal government’s toxic

waste playbook, detailing the steps that government must take to
identify, evaluate, and respond to hazardous substances in the
environment.”

Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc.,

596 F.3d 112, 137 (2nd Cir. 2010); 40 C.F.R. § 300.1 (“The purpose
of

the

[NCP]

is

to

provide

the

organizational

structure

and

procedure for preparing for and responding to discharges of oil
and

releases

of

hazardous

substances,

pollutants,

and

contaminants.”); United States v. Hardage, 982 F.2d 1436, 1442443 (10th Cir. 1992) (“The NCP regulates choice of response action,
not costs . . . Costs, by themselves, cannot be inconsistent with

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 19 of 32

Civil No. 15-2328 (FAB)
the NCP”). 19

19

Costs attributed to removal and remedial actions that

are inconsistent with the NCP are not recoverable.

See e.g., In

re Bell Petroleum Servs., 3 F.3d 889, 907 (5th Cir. 1993) (“Because
the decision to implement an [alternate water supply] was arbitrary
and capricious, it is inconsistent with the NCP.
EPA

is

not

entitled

to

recover

the

costs

Accordingly, the
of

designing

and

constructing the [alternate water supply].”).
The Court presumes that the United States implemented
removal and remedial actions that are consistent with the NCP.
City of Bangor v. Citizens Communs. Co., 532 F.3d 70, 91 (1st Cir.

19

The NCP requires that the EPA consider the following eight factors in
selecting a removal action:
(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
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.

40 C.F.R. § 300.415.

or

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 20 of 32

Civil No. 15-2328 (FAB)

20

2008) (“Actions undertaken by the federal or a state government
are presumed to not be inconsistent with the NCP.”). Consequently,
the burden of proving that the EPA acted inconsistently with the
NCP rests with PRIDCO. United States v. Mottolo, 695 F. Supp. 615,
630 (D.N.H.

1988)

(“Defendants

have

the

burden

to

show

that

governmental response costs are inconsistent with the NCP.”).

To

do so, PRIDCO must “identify a particular provision in the NCP
with which a specific response action is inconsistent,” and that
this inconsistency “resulted in demonstrable excess costs for
which [PRIDCO] would not be responsible.”

United States v. Am.

Cyanamid Co., 786 F. Supp. 152, 162-63 (D.R.I. 1992) (holding that
the defendants failed to establish inconsistency with the NCP
because their “claims and challenges [were] not supported by
reference to the administrative record or through testimony”);
Hardage, 982 F.2d at 1444 (“The only way a responsible party can
escape

liability

for

the

government’s

costs

incurred

at

a

particular site is to demonstrate that the government’s response
actions — i.e., removal and remedial actions – underlying the
costs, are inconsistent with the NCP.”).
The removal and remedial actions implemented by the EPA
in response to the contaminated groundwater in Maunabo are reviewed
pursuant to an arbitrary and capricious standard.

Id.; United

States v. JG-24, Inc., 478 F.3d 28, 32 (1st Cir. 2007) (“[T]he

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 21 of 32

Civil No. 15-2328 (FAB)

21

EPA’s decision whether to conduct a removal action is reviewed
under the ‘arbitrary and capricious’ standard.”).

The arbitrary

and capricious standard is “highly deferential” and “narrow;” “the
agency’s actions are presumed to be valid,” and the Court “may not
substitute its judgment for that of the agency.” River St. Donuts,
LLC v. Napolitano, 558 F.3d 111, 114 (1st Cir. 2009).
relevant

inquiry”

is

“whether

the

administrative

sufficiently supports the agency’s decision.”

“The
record

Atieh v. Riordan,

727 F.3d 73, 76 (1st Cir. 2013); Emhart Indus. v. New Eng.
Container Co., 274 F. Supp. 3d 30, 78 (D.R.I. 2017) (holding that
the “EPA certainly had to make judgment calls along the way, but
these decisions deserve deference considering EPA’s ‘technical
expertise and experience’”) (quoting Fed. Power Comm’n v. Fla.
Power & Light Co., 404 U.S. 453, 465 (1972)).
Judicial review of “any issues concerning the adequacy
of any response action” is limited to the administrative record.
42 U.S.C. § 9613(j).

The Court’s “focal point for judicial review

should be the administrative record already in existence, not some
new record made initially in the reviewing court.”

Camp v. Pitts,

411 U.S. 138, 142 (1973); JG-24, Inc., 478 F.3d at 33—34 (“Under
CERCLA, judicial review is limited to the administrative record as
it existed at the time of the challenged agency action.”); see
Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C.

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 22 of 32

Civil No. 15-2328 (FAB)
Cir.

1984)

(“To

22

review

more

than

the

information

before

the

Secretary at the time she made her decision risks our requiring
administrators to be prescient or allowing them to take advantage
of post hoc rationalizations.”) (citation omitted). 20
B.

Removal and Remedial Costs
Removal

encompassing

and

remedial

expenses

costs

incurred

are

throughout

defined
the

liberally,
course

of

decontamination efforts.

W.R. Grace & Co. –Conn. v. Zotos Int’l,

Inc.,

(2d

559

F.3d

85,

92

Cir.

2009)

(citation

Response actions are “divided into two categories:

omitted). 21
short term

20

Courts possess the discretion, however, to supplement the record “as an aid
to understanding . . . highly technical, environmental matters.”
Valley
Citizens for Safe Environment v. Aldridge, 886 F.2d 458, 460 (1st Cir. 1989)
(Breyer, J.)
(noting that expert testimony may be necessary to understand
Environmental Impact Statements issued by the EPA).
“Failure to explain
administrative action as to frustrate effective judicial review,” and a “strong
showing of bad faith or improper behavior” are additional reasons to supplement
the administrative record. See Olsen v. United States, 414 F.3d 144, 155-56
(1st Cir. 2005); Town of Norfolk v. U.S. Army of Eng’rs, 968 F.2d 1438, 145859 (1st Cir. 1992) (citing Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971)).
21

The NCP provides that:
During all phases of response, the lead agency shall complete and
maintain documentation to support all actions taken under the NCP
and to form the basis for cost recovery. In general, documentation
shall be sufficient to provide the source and circumstances of the
release, the identity of responsible parties, the response action
taken, accurate accounting of federal, state, or private party costs
incurred for response actions, and impacts and potential impacts to
the public health and welfare and the environment. Where applicable,
documentation shall state when the [National Response Center]
received notification of a release of a reportable quantity.

40 C.F.R. § 300.160.

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 23 of 32

Civil No. 15-2328 (FAB)

23

‘removal’ actions (to study and to clean up contamination), and
permanent or long term ‘remedial’ actions (‘taken instead of or in
addition to removal actions’).”

JACH v. American Univ., 245 F.

Supp. 2d 110, 113 (D.D.C. 2003); 42 U.S.C. § 9601(23) and (24). 22
Designation of a specific response as a removal or remedial action
is a question of law.

Geraghty & Miller, Inc. v. Conoco Inc., 234

F.3d 917, 925 (5th Cir. 2000) (citation omitted).
costs include indirect and oversight costs.

Recoverable

United States v.

Ottati & Goss, Inc., 900 F.2d 429, 444 (1st Cir. 1990).
also

liable

42 U.S.C.

§§

for

prejudgment

9601,

9607(a);

interest

and

Monsanto

Co.,

PRIDCO is

enforcement
858

F.2d

costs.
at

Litigation costs fall within the scope of enforcement costs.

175.
See

United States v. Northeastern Pharmaceuticals & Chemical Co., 579

22

“Removal” within the meaning of CERCLA includes the:
Cleanup or removal of released hazardous substances from the
environment, such actions as may be necessary taken in the event of
the threat of release of hazardous substances into the environment,
such actions as may be necessary to monitor, assess, and evaluate
the release or threat of hazardous substances, the disposal of
removed material, or the taking of such other actions as may be
necessary to prevent, minimize, or mitigate damage to the public
health or welfare or to the environment, which may otherwise result
from a release or threat of release.

42 U.S.C. § 9601(23).

Remedial actions are:

consistent with permanent remedy taken instead of or in addition to
removal actions in the event of a release or threatened release of
a hazardous substance into the environment, to prevent or minimize
the release of hazardous substances so that they do not migrate to
cause substantial danger to present or future public health or
welfare or the environment.
42 U.S.C. § 9601(24).

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 24 of 32

Civil No. 15-2328 (FAB)

24

F. Supp. 823, 852 (W.D. Mo. 1984) (holding that “defendants are
jointly and severally liable for, and the plaintiff is entitled to
recover, all litigation costs, including attorney fees, incurred
by [the] plaintiff” in a CERCLA action); United States v. Dico,
266 F.3d 864, 878—79 (8th Cir. 2001) (“[Defendant] therefore bears
the

burden

in

this

[CERCLA]

litigation

of

proving

that

the

government’s requested recovery fees, whether attorney fees or
otherwise, are inconsistent with the NCP.”).
C.

Summary Judgment as to Costs is Not Appropriate
Summary judgment as to costs is not warranted for two

reasons.

First, genuine issues of material fact concerning the

final amount of costs are in dispute. Second, the cost assessments
presented by the United States are inconsistent.

PRIDCO is liable

for costs that correspond to response actions.
actions

cited

by

the

United

States,

however,

The response
vary

with

the

circumstances.
1.

Issues of Material Fact Concerning the Final Amount
of Costs are in Dispute
The

evidence

proffered

by

the

United

States

bolsters the Court’s determination that summary judgment is not
proper.

In support of its motion for summary judgment, the United

States submitted declarations from Wiley Wright (“Wright”), Bill
Kime

(“Kime”),

and

Christopher

Osborne

(“Osborne”).

(Docket

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 25 of 32

Civil No. 15-2328 (FAB)
No. 142,

Exs.

accountants.

9—11.)

25
Wright

and

Id., Exs. 9 and 10.

Kime

are

certified

public

Osborne is employed by the EPA

as a Senior Financial Advisor in the Office of the Controller.
Id., Ex. 11.
The

Court

concurs

with

the

United

States

that

“affidavits and cost summaries . . . in support of summary judgment
on the issue of CERCLA cost recovery are admissible and sufficient
to establish the amount of these costs.”

Docket No. 142 at p. 11;

see Hardage, 982 F.2d at 1442 (holding that “affidavits of various
EPA

and

Department

of

Justice

(DOJ)

employees

charged

with

accumulating cost data . . . established a prima facie case that
the government is entitled to response costs in the amount of
[$5,441,201.25]”); Carson Harbor Hill, Ltd. v. Uncocal Corp., 287
F. Supp. 2d 1118, 1154 (C.D. Cal. 2003) (“While compliance with
the NCP is a fact question, it can, like any other fact question,
be

resolved

undisputed.”).

on

summary

judgment

where

the

evidence

is

Material facts, however, are in dispute.
Wright concedes that the “EPA is collecting the

work performed documents for five small dollar contracts and two
small

dollar

cooperative

agreements,

[all

of

which]

produced to all parties as soon as they are available.”
No. 142, Ex. 9 at p. 7.)

will

be

(Docket

PRIDCO is entitled to review the accuracy

of these “small” costs, and whether they reflect actions that

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 26 of 32

Civil No. 15-2328 (FAB)
comport with the NCP.

26

An incomplete record cannot sustain summary

judgment disposition, particularly when the amount of costs is
subject to exact computation.

Union Caribe Corp. v Thiokol Corp.,

89 F. Supp. 1035, 1045 (D. Ga. 1994) (“Because the NCP is a complex
set of requirements, it is necessary for the Court to have a full
factual record before it in order to determine which remedial
actions are consistent with the NCP.”) (citation omitted); Reardon
v. United States, 947 F.2d 1509, 1518 (1st Cir. 1991) (noting that
“[w]hether response costs were incurred consistently with the
national

contingency

factual”).

plan

Accordingly,

is

an

summary

issue

which

judgment

may

in

be

highly

Phase

II

is

inappropriate.
2.

The United States Fails to Designate Which Remedial
Actions Underlie Recoverable Costs
In its motion for summary judgment and motion to

limit

the

scope

of

judicial

review,

the

United

States

takes

inconsistent positions regarding the actions for which PRIDCO must
pay.

(Docket Nos. 138 and 142.)
a.

Costs Requested
Judgment

in

the

Motion

for

Summary

In its motion for summary judgment, the United
States contends that the “second phase of this litigation addresses
the United States’ past response costs.” (Docket No. 142 at p. 7.)
The United States reiterates that CERCLA permits the recovery of

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 27 of 32

Civil No. 15-2328 (FAB)

27

“all costs of removal or remedial action.”
U.S.C. § 9607(a)(4)(A)).

Id. at p. 8 (citing 42

Consequently, the United States requests

that the Court order PRIDCO to remit $5,398,161.04 in costs.
at p. 13.
three

Id.

According to the United States, this amount represents

categories

(2) contractor

of

costs:

expenses,

(1)

and

(3)

payroll
a

and

third

travel

class

expenses,

of

expenses

including indirect costs, prejudgment interest, and Department of
Justice (“DOJ”) costs.

(Docket No. 142 at p. 10.)

According

to

Kime,

the

Environmental

and

Natural Resources Division of the Department of Justice incurred
$529,441.79 in costs associated with this action. (Docket No. 142,
Ex. 10 at p. 5.)

Osborne set forth the method by which the EPA

calculates indirect costs, including expenses that “cannot be
accounted for on a site-specific basis but are necessary for both
the administration and operation of the Superfund program and for
site-specific cleanup efforts.”

(Docket No. 142, Ex. 11 at p. 4.)

Wright asserts that “total unreimbursed Site costs incurred . . .
through February 28, 2018 are $7,497,445.89.”
Ex. 9 at p. 7.) 23

(Docket No. 142,

Of this amount, the “EPA’s total unreimbursed

Site TCE-cis-1, 2-DCE Plumes costs incurred (including prejudgment
interest) through February 28, 2018 are $5,398,161.04.”

23

Wright included litigation and indirect costs in his calculations.
No. 142, Ex. 9 at p. 7.)

Id. at

(Docket

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 28 of 32

Civil No. 15-2328 (FAB)
p. 8. 24

28

Most of the costs claimed by the United States derive from
Id. at p. 13. 25

$4,183,530.36 in contractor expenses.
States

does

not,

however,

specify

what

work

the

The United
contractors

performed.
b.

Costs Requested
Judicial Review

in

the

Motion

to

Limit

The United States moves to limit the scope of
judicial review, requesting that “any challenge to the adequacy of
the response actions at the Site be evaluated on the basis of the
administrative record and that [Konard Banaszak’s] expert opinion
challenging the EPA’s selection of a response action at this Site
be

precluded

based

upon

statutory

and

administrative

law

24

Wright refers to the “TCE-cis-1, 2-DCE Plumes” in the plural, as though PRIDCO
is liable for multiple plumes of contaminated groundwater. (Docket No. 142,
Ex. 9 at p. 7.) Of the three plumes that constitute the Maunabo Area Groundwater
Contamination Superfund Site, however, this action pertains exclusively to the
plume located on PRIDCO’s property.

25

In the amended complaint, the United States also requests “all response costs,
including enforcement costs, incurred by the EPA in connection with the Site,
including interest thereon.” (Docket No. 8 at p. 9.)

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 29 of 32

Civil No. 15-2328 (FAB)
requirements.”

29

(Docket No. 138 at p. 3.) 26

Other than Banaszak’s

expert opinion, the United States makes no mention of the specific
documents it seeks to preclude from the administrative record.
Essentially, the United States opposes the Court’s consideration
of Banaszak’s expert opinion but refrains from proposing records
that are eligible for review.
PRIDCO opposed the United States’ motion to
limit the scope of judicial review, noting that the EPA conducted
soil studies on multiple occasions after issuing the Record of
Decision in 2012.
NCP,

the

(Docket No. 148 at pp. 5—7.)

administrative

record

shall

Pursuant to the

include,

inter

alia,

“[d]ocuments containing factual information, data and analysis of
the factual information, and data that may form a basis for the

26

Konrad Banaszak (“Banaszak”) is the Chief Scientist at Genesis Engineering
and Redevelopment, Inc., retained by PRIDCO to serve as an expert witness.
(Docket No. 139, Ex. 1.) Banaszak asserts that:
[1] The claim by the EPA’s expert that 1,2 dichloroethene or
trichloroethene has not been found in the soil at the PRIDCO site
because they have disappeared due to the tropical climate at Maunabo
is not supported by experience or science . . . [2] The most cost
effective and least disruptive way to take care of the 1,2
dichloroethene / trichloroethene plume is through monitored natural
attenuation.

(Docket No. 139, Ex. 1 at pp. 3—6.) The NCP requires the EPA to balance the
following five criteria in selecting a remedy: (1) long-term effectiveness and
permanence, (2) reduction of toxicity, mobility, or volume treatment, (3) shortterm effectiveness, (4) implementability, and (5) cost.
40 C.F.R.
§ 300.430(f)(i)(B); see Am. Cyanamid Co., 786 F. Supp. at 162 (“The NCP directs
EPA to prospectively choose a remedial action that EPA believes will clean-up
the site for the least cost. Once EPA validly chooses a permanent remedy for
a site, cost-effectiveness is no longer a viable challenge to the implementation
of that remedy.”).

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 30 of 32

Civil No. 15-2328 (FAB)

30

selection of a response action.”

40 C.F.R. § 300.810(a)(1).

PRIDCO posits that the Final Pre-Design Investigation in 2015 and
Pilot Study Report in 2017 were “critical in forming the basis for
the selection of the response action.”

Id. at p. 11.

Indeed,

expert witnesses retained by the United States relied on data
published in 2017. 27
Despite

previous

requests

to

recover

“all

costs” associated with the cis-1, 2-DCE plume, the United States
replied that “in this matter [it] is only seeking its past costs,
i.e., primarily the costs of investigating the contamination, in
making

the

remedy

selection,

and

in

conducting

enforcement

actions, but no costs for implementing the selected remedy.”
(Docket No. 159 at p. 1) (emphasis added).
purports

that

PRIDCO’s

arguments

regarding

The United States
the

administrative

record “are premature and should be considered only if the United
States brings a future action against PRIDCO seeking to require it
to implement or pay for the remedy for the Maunabo Site.”
p. 2.

Id. at

Curiously, the United States reiterates that:

[It] is not seeking, in this matter, an order requiring
PRIDCO to implement the 2012 remedy or to recover any
costs that the EPA itself incurs in implementing the
2012 remedy. The United States will bring such claims,
if ever, in a future action against PRIDCO.
27

Al Medine asserted that a “detailed review of Investigative contaminant data
collected at the Maunabo Groundwater Contamination Site from 2005 - 2017
confirms the presence of three separate plumes remaining at the Site, including
PCE, TCE/cis-1,2-DCE, and 1,1-DCE plumes.” (Docket No. 142, Ex. 8 at p. 168.)

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 31 of 32

Civil No. 15-2328 (FAB)

31

Id. at p. 3 (emphasis added). 28
These

statements

contradict

all

previous

pleadings submitted by the United States, including the amended
complaint and motion for summary judgment.
p. 9; Docket No. 142 at p. 8.

See Docket No. 8 at

The EPA initially estimated that

the selected remedy, i.e. air sparging for the cis-1, 2-DCE plume
and monitored natural attentional for the reaming two plumes, would
cost $4.9 million.

(Docket No. 139, Ex. 2 at p. 38.)

Wiley Wright

disclosed that the “EPA has provided the majority of work performed
(e.g. contracts, statements of work, and/or work assignment) for
the Site contractor costs.”

(Docket No. 142, Ex. 9 at p. 7.)

If

the United States is, indeed, not seeking to recover costs stemming
from air sparging (the remedy), then the costs cited by Wiley
Wright

may

need

to

be

modified.

Consequently,

the

critical

question posed by the inconsistent positions articulated by the
United Sates is:

What removal and/or remedial actions implemented

by the EPA to address the cis-1, 2-DCE plume form the basis of the

28

That the United States may sue PRIDCO in the future pursuant to the same
cause of action asserted in this litigation is highly suspect.
See United
States v. Stauffer Chemical Co., 464 U.S. 165, 169 (1984) (“[W]e agree that the
doctrine of mutual defense collateral estoppel is applicable against the
Government to preclude relitigation of the same issues already litigated against
the same party in another case involving virtually identical facts.”); United
States v. Gurley, 43 F.3d 1188, 1196 (8th Cir. 1994) (“We understand that
cleaning up hazardous wastes can be time-consuming and that in this case the
scope of the cleanup was not known until April 1986 . . . But these facts do
not relieve the EPA of its obligation to abide by the requirements of the res
judicata doctrine.”).

Case 3:15-cv-02328-FAB Document 163 Filed 03/25/19 Page 32 of 32

Civil No. 15-2328 (FAB)

32

costs requested by the United States? The United States is ORDERED
to specify which response actions (e.g. removal actions, remedial
actions) underlie the costs that it purports PRIDCO is liable for
paying.

Trial for Phase II will commence after the United States

reconciles the inconsistent cost assessments.

The United States’

motion to limit the scope of judicial review is DENIED WITHOUT
PREJUDICE.
V.

(Docket No. 138.)

CONCLUSION
For the reasons set forth above, the United States’ motion

for summary judgment is GRANTED IN PART and DENIED IN PART.
(Docket No. 142.)

PRIDCO’s motion for summary judgment is DENIED.

(Docket No. 143.)

The United States’ motion to limit the scope of

judicial review is DENIED WITHOUT PREJUDICE.

(Docket No. 138.)

The United States is ORDERED to specify which response actions
(e.g. removal actions, remedial actions) underlie the costs for
which

PRIDCO

is

purportedly

liable,

and

to

reconcile

its

inconsistent cost assessments, no later than April 25, 2019.
Trial regarding Phase II, if necessary, will be scheduled by
separate order.
IT IS SO ORDERED.
San Juan, Puerto Rico, March 25, 2019.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE