Seattle Times Company v. LeatherCare, Inc.

Filing 52

STIPULATION AND ORDER re parties' 50 Stipulation on Liability Under CERCLA and MTCA between Leathercare and TB, by Judge Thomas S. Zilly. (SWT)

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The Honorable Thomas S. Zilly 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 SEATTLE TIMES COMPANY, NO. 2:15-cv-01901-TSZ 10 Plaintiff, 11 v. 12 13 LEATHERCARE, INC.; STEVEN RITT, an individual, and the marital community composed of STEVEN RITT and LAURIE ROSEN-RITT STIPULATION AND ORDER ON LIABILITY UNDER CERCLA AND MTCA BETWEEN LEATHERCARE, INC. AND TB TS/RELP LLC 14 Defendants and Third Party Plaintiffs 15 v. 16 17 18 19 TOUCHSTONE SLU LLC, a Washington limited liability company; TB TS/RELP LLC, a Washington limited liability company; AMERICAN LINEN SUPPLY CO., a Washington corporation; Does 1-20 20 Third Party Defendants. 21 22 STIPULATION AND ORDER 23 24 LeatherCare, Inc. (“LeatherCare”) and TB TS/RELP LLC, by and through their undersigned attorneys, hereby stipulate to and request the Court to enter the following Order 25 26 STIPULATION AND ORDER ON LIABILITY UNDER CERCLA AND MTCA BETWEEN LEATHERCARE INC. AND TB TS/RELP LLC- 1 Case No. 2:15-cv-01901-TSZ 51608939.1 FOSTER PEPPER PLLC 1111 THIRD AVENUE, SUITE 3000 SEATTLE, WASHINGTON 98101-3296 PHONE (206) 447-4400 FAX (206) 447-9700 1 regarding liability in this action under the Comprehensive Environmental Response, 2 Compensation, and Liability Act (“CERCLA”) and the Model Toxics Control Act (“MTCA”). 3 4 Based on the mutual stipulation of LeatherCare, Touchstone SLU LLC and TB TS/RELP LLC, the Court hereby ORDERS that: 5 1. LeatherCare and TB TS/RELP LLC enter into this stipulation for the limited 6 purpose of establishing certain elements of claims under CERCLA and MTCA that would 7 otherwise have to be proved in this case. 8 2. Regarding the real property referred to as the Troy Block at interest in this matter, 9 there has been a “release” or threatened release of “hazardous substances” from a “facility” as 10 those terms are defined under CERCLA, 42 U.S.C. §9601(9), (14), (22) and MTCA, RCW 11 70.105D.020(8), (13), (32). 12 13 3. LeatherCare is a “former operator” as defined under CERCLA, 42 U.S.C. §9607(a)(2), and MTCA, RCW 70.105D.040(1)(b). 14 4. Touchstone SLU LLC is a prior owner and operator of the facility. Touchstone 15 SLU LLC entered into Agreed Order No. DE 8996 with the Washington State Department of 16 Ecology on May 12, 2012 (“Agreed Order”). Pursuant to the Agreed Order, Touchstone SLU 17 LLC is a Potentially Liable Person under the Model Toxics Control Act, Chapter 70.105D RCW, 18 in connection with the Troy Laundry Site. Touchstone entered into a First Amendment to the 19 Agreed Order on or about August 28, 2013. 20 21 5. On March 28, 2013 Touchstone SLU LLC conveyed the Troy Block property to TB TS/RELP LLC via Special Warranty Deed. 22 6. Touchstone SLU LLC is a member of TB TS/RELP LLC. 23 7. TB TS/RELP LLC is the current “owner or operator” as defined under CERCLA, 24 42 U.S.C. §9607(a)(1), and MTCA, RCW 70.105D.040(1)(a). 25 26 8. Touchstone SLU LLC and TB TS/RELP LLC have incurred “necessary costs of response” under CERCLA, 42 U.S.C. §9607(a)(4)(B), and “remedial action costs” under MTCA, STIPULATION AND ORDER ON LIABILITY UNDER CERCLA AND MTCA BETWEEN LEATHERCARE INC. AND TB TS/RELP LLC- 2 Case No. 2:15-cv-01901-TSZ 51608939.1 FOSTER PEPPER PLLC 1111 THIRD AVENUE, SUITE 3000 SEATTLE, WASHINGTON 98101-3296 PHONE (206) 447-4400 FAX (206) 447-9700 1 RCW 70.105D.080. Any response costs or remedial action costs incurred by Touchstone SLU 2 LLC are now considered response costs or remedial action costs incurred by TB TS/RELP LLC. 3 9. The elements of liability under both CERCLA and MTCA as described in 4 paragraphs 2 through 8, infra, are hereby established for purposes of LeatherCare’s claims 5 against TB TS/RELP LLC, and for purposes of TB TS/RELP LLC’s claims against LeatherCare. 6 10. LeatherCare and TB TS/RELP LLC acknowledge that the amount (if any) that 7 each party is liable for any “response costs” or “remedial action costs,” and/or whether a claimed 8 cost meets the definition of a “response cost” or “remedial action cost” under CERCLA or 9 MTCA, are issues to be tried in this case. By entering into this mutual stipulation of liability, the 10 parties do not intend to waive any defenses they may have other than the elements set forth in 11 this stipulation. The parties do not waive any rights they may have to seek contribution from 12 each other or from any other liable parties, under CERCLA, 42 U.S.C. §9607(a) or §9613(f), or 13 MTCA, RCW 70.105D.080. 14 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 15 DATED this 25th day of May, 2017. 16 A 17 18 Thomas S. Zilly United States District Judge 19 20 21 22 23 24 25 26 STIPULATION AND ORDER ON LIABILITY UNDER CERCLA AND MTCA BETWEEN LEATHERCARE INC. AND TB TS/RELP LLC- 3 Case No. 2:15-cv-01901-TSZ 51608939.1 FOSTER PEPPER PLLC 1111 THIRD AVENUE, SUITE 3000 SEATTLE, WASHINGTON 98101-3296 PHONE (206) 447-4400 FAX (206) 447-9700 1 Presented by: 2 RYAN SWANSON & CLEVELAND, PLLC 3 4 s/ Jo Flannery Jo Flannery 1201 Third Avenue, Suite 3400 Seattle, Washington 98101 Phone: 206-447-4400 Fax: : 206-447-9700 Email: flannery@ryanlaw.com Attorneys for Defendants and Third Party Plaintiffs LeatherCare, Inc., Steven Ritt and Laurie Rosen-Ritt 5 6 7 8 9 10 FOSTER PEPPER PLLC 11 /s/Ken Lederman__________________ /s/Jeremy R. Larson________________ /s/Alexandra Gilliland____________ Ken Lederman, WSBA #26515 Jeremy R. Larson, WSBA #22125 Alexandra Gilliland, WSBA #44163 FOSTER PEPPER PLLC 1111 Third Avenue, Suite 3000 Seattle, Washington 98101-3292 Telephone: (206) 447-4400 Facsimile: (206) 447-9700 Email: ken.lederman@foster.com jake.larson@foster.com alexandra.gillilland@foster.com Attorneys for Defendants TOUCHSTONE SLU LLC, a Washington limited liability company, and TB TS/RELP LLC, a Washington limited liability company, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 STIPULATION AND ORDER ON LIABILITY UNDER CERCLA AND MTCA BETWEEN LEATHERCARE INC. AND TB TS/RELP LLC- 4 Case No. 2:15-cv-01901-TSZ 51608939.1 FOSTER PEPPER PLLC 1111 THIRD AVENUE, SUITE 3000 SEATTLE, WASHINGTON 98101-3296 PHONE (206) 447-4400 FAX (206) 447-9700

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