CITY OF BANGOR v. CITIZENS COMMUNICATIONS COMPANY

2004 | Cited 0 times | D. Maine | March 11, 2004

RECOMMENDED DECISION ON CITIZENS COMMUNICATIONS COMPANY'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND ORDER ON MOTION TO DEEM FACTS ADMITTED

The City of Bangor has filed suit against Citizens CommunicationsCompany seeking, among other relief, (1) a judgment ordering Citizens to"pay all of the costs" incurred by the City to date in association withits ongoing, voluntary "investigation, corrective action and otherresponse actions" to remediate hazardous substances associated with acertain tar slick on the bottom of the Penobscot River and (2) adeclaration that Citizens is "jointly and severally liable for all futureresponse costs the City incurs in connection with" the same. Theserequests are set forth in the first two counts of the City's SecondAmended Complaint (Docket No. 175) and are premised on sections 107 and113(g)(2) of the Comprehensive Environmental Response, Compensation andLiability Act (CERCLA), 42 U.S.C. § 9607, 9613(g)(2). In thealternative,Page 2the City has requested, in its third and fourth counts, an orderthat Citizens pay an equitable share of past, present and futureenvironmental response costs pursuant to CERCLA § 113(f) & (g),42 U.S.C. § 9613(f), (g). Citizens moves for summary judgment onlyagainst counts one and two, contending that the City is itselfpotentially responsible for the tar slick and, therefore, is barred frompursuing full recovery of its costs as a matter of law. I recommend thatthe Court grant the motion by finding that no genuine issue of materialfact exists but that the City is itself potentially responsible for thetar slick and therefore, as a matter of law, may not obtain a judgmentthat imposes liability on Citizens for all of the City's costs,reserving for a later date the question of whether a lesser remedy mightbe available to the City under CERCLA § 107.1

Facts2

With its CERCLA claims the City of Bangor seeks to impose on CitizensCommunications Company "all of the costs the City has incurred [and willincur] in connection with investigation, corrective action, and otherresponse costs associated with releases of hazardous substances at thetar slick in the Penobscot River." (Second Amended Complaint, prayers forrelief, at 9-10 & 11.) The tar slick at issue, according to thecomplaint, "begin[s] at the outfall of [an] Old Stone Sewer flowing from[a former manufactured gas plant] Site and extend[s] at least 1,500 feetdownstream." (Id., 22.) To date, the City has incurred "atleast $1,000,000.00 in investigating the tar slick." (Docket No. 206,¶ 15.)Page 3

Citizens is the successor of a series of corporate entities that ownedand operated the gas plant beginning in approximately 1852 and continuingthrough 1963. (Docket No. 206, ¶¶ 25-27; Docket No. 227, ¶¶ 25-27.)In 1852, the City assented to the operation of the plant by the BangorGas Light Company, on condition that the company "construct, maintain anduse a covered drain, extending from their works to the Penobscot River tobelow low water mark, of sufficient capacity to carry off all theresiduum of filth of said works." (Docket No. 206, ¶ 2, Ex. I.)3There is no indication that the company constructed such a drain. Rather,in 1860 the company requested that the City construct — and theCity undertook to have constructed — a "public sewer" for thispurpose. (Docket No. 181, ¶ 8; Docket No. 227, ¶ 2, Exs. 3, 4& 5.)4Page 4Four decades later, in 1901, the company complained to the City ofdamage to its property as a consequence of the City's connection of apublic sewer system to the company's "private drain," in effectcharacterizing at least a portion of the sewer (commonly described as the"Old Stone Sewer" or the "Davis Brook Sewer")5 as the company'sprivate property (Docket No. 206, ¶ 3 Additional) and furtherrevealing that sometime between 1860 and 1901 the outflow of the sewerbegan discharging wastewater originating not only from the gas plant, butalso from a broader municipal sewer system (Docket No. 181, ¶¶ 6, 9& Ex. 12 at 135 (Deposition testimony of the City's expert witness,James Ring).) The City's expert witnesses opine that the sewer was theconduit through which the company discharged tar-laden wastewater, basedon, among other things, the presence of the tar plume or slick in thePenobscot River that appears to originate at the outfall of the Old StoneSewer and a trail of tar deposits in the soil underneath the sewer thatcan be traced back to the "former tar water separator tank" of the formergas plant. (Docket No. 206, ¶¶ 4-12 Additional.) It is undisputed thattar is classified as a "hazardous substance" for purposes of CERCLA.(Id. ¶ 9 Additional; Docket No. 227, ¶ 9.) It is alsoundisputed that tar isPage 5a byproduct of manufactured gas operations. (Docket No. 206, ¶16 Additional; Docket No. 227, ¶ I6.)

The former gas plant property is not adjacent to the Penobscot River,but is roughly 1000 feet away, with the Main Street of Bangor runningbetween the property and the River. (Docket No. 206, ¶ 17 Additional;Docket No. 227, ¶ 17.) In 1978 the City acquired the parcel on whichthe gas plant operated and sold the parcel in 1995, after demolishing theremaining fixtures and "addressing" contamination at the parcel. (DocketNo. 181, ¶¶ 10, 11; Docket No. 206, ¶ 21 Additional.) This parceland an adjacent parcel, now known as the Second Street Park, wereacquired by the City under a community development program thatauthorized the City to exercise its development powers to acquireproperty by purchase or by eminent domain. (Docket No. 206, ¶ 19Additional.) The City currently owns substantial riverfront property onthe opposite side of Main Street along the Penobscot River (theriverfront property), including that location along the banks where theOld Stone Sewer discharged into the River. (Docket No. 181, ¶ 1.) TheCity's title in this property extends to the mean low water mark.(Id., 2.) Tar produced at the gas plant is currently present inthe inter-tidal zone of the riverfront property. (Docket No. 181, ¶4; Docket No. 206, ¶ 14 Additional.)

The Maine Department of Environmental Protection (MDEP) has certifiedits approval of completions of Voluntary Remedial Action Plans for theformer gas plant property, the Second Street Park, and the portion of theCity's riverfront property upland of the inter-tidal zone.(Id., ¶ 24 Additional.) Both the MDEP and the United StatesEnvironmental Protection Agency (EPA) have opined that contamination atthe former gas plant property is no longer discharging into the River.(Id. ¶¶ 21-22 Additional.)Page 6

The City's Motion to Deem Facts Admitted

The City has filed a motion captioned "Motion to Deem Facts AdmittedPursuant to Local Rule 56(e), for Failure to Controvert PlaintiffsStatement of Additional Facts." (Docket No. 249.) With this motion, theCity seeks to have the Court treat several of its statements ofadditional material fact as "admitted by Citizens for all purposes inthis litigation." (Id. at 2.) In particular, the City refers toits additional statements numbered 1, 3-8, 10-16 and 28. In reply tomany, but not all, of these additional statements, Citizens's offered adenial, followed by a statement to the effect that the City's additionalstatement is immaterial to the issues presented in Citizens's motion forpartial summary judgment. Citizens's denials are not backed up withrecord citation. (Docket No. 227, ¶¶ 4-8, 10-12, and 15.) In otherinstances, Citizens has admitted, partially admitted, or qualified theCity's statements without record citation. (Id. ¶¶ 1, 13-14,16.) In two instances, Citizens has qualified the City's statements byreferring the Court to the record citation offered by the City (3), andby criticizing the terminology used by the City to characterize the legalramifications of certain facts (28). According to the City, Citizens's"refusal to admit facts that it does not properly dispute serves to wastethe parties resources as well as the limited resources of the court, andthreatens additional unjust delay in this litigation." (Docket No. 249 at1.)

Nowhere in the City's motion is there a reference to FederalRule 56(d), as opposed to Local Rule 56(e). Federal Rule 56(d) authorizes theCourt, in cases not fully adjudicated on motion, "at the hearing of themotion, by examining the pleadings and the evidence before it and byinterrogating counsel" to make "an order specifying the facts that appearwithout substantial controversy" and to deem such facts established forpurposes of trial. Although the Court might be inclined to engage in suchan investigation, I am not inclined to engage in that process forPage 7purposes of a trial that I will not be conducting, nor does thepresent motion for partial summary judgment appear to be the appropriatecontext for the Court to establish what facts "appear without substantialcontroversy." With the exception of one statement of fact pertaining toCitizens's "corporate history," the City's statement of additionalmaterial facts sets forth factual assertions that are not easy to assesswithout the aid of expert testimony. Moreover, many of the factualstatements offered by the City, although helping to explain the basis forthe City's claims against Citizens, are not material to the narrow legalquestion raised by this motion for partial summary judgment on the claimsfor "full recovery" pursuant to CERCLA § 107. Thus, it would beentirely unproductive for the Court to sift through statements ofmaterial facts and record citations that, ultimately, would not bematerial to the determination of the narrowly-focused partial summaryjudgment motion that is before it. Finally, I observe that the discoverydeadline for the City has been repeatedly extended and remained openthroughout the pendency of this motion6 I can see no good reason whythe City could not have pursued the admissions it wants through thenormal channel: Rule 36. The motion to deem facts admitted "for allpurposes" is DENIED.7

Summary Judgment Discussion

Summary judgment is warranted only if "the pleadings, depositions,answers to interrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgment as amatter of law." Fed.R.Civ.P. 56(c); United States Steel v. M.DeMatteo Constr. Co.,Page 8315 F.3d 43, 48 (1st Cir. 2002). According to Citizens, it is entitled tosummary judgment on the first two counts of the City's complaint becausethe City is a potentially responsible party when it comes to the tarslick and, as such, cannot maintain claims for a full recovery of itsresponse costs as a matter of law.

The Comprehensive Environmental Response, Compensation and LiabilityAct (CERCLA), 42 U.S.C. § 9601-9675 (1995 & Supp. 2003), is a"comprehensive statute" that "was enacted in response to the seriousenvironmental and health risks posed by industrial pollution."United States v. Bestfoods, 524 U.S. 51, 55 (1998). "It is. . . designed to protect and preserve public health and theenvironment." United States v. Kayser-Roth Corp., 910 F.2d 24,25 (1st Cir 1990). In addition to providing a mechanism for the federalgovernment to clean up hazardous-waste sites, CERCLA incorporates civilaction provisions that enable local governments and private parties whoundertake cleanups to "impose[] the costs of cleanup on those responsiblefor the contamination." Pennsylvania v. Union Gas Co.,491 U.S. 1, 7 (1989); see also 42 U.S.C. § 9607, 9613(f).Importantly, CERCLA's definitional provisions make it clear that localgovernments are liable along with everyone else for cleanup costsrecoverable under CERCLA. 42 U.S.C. § 9601(20)(D). "The remedy thatCongress felt it needed in CERCLA is sweeping: everyone who ispotentially responsible for hazardous-waste contamination may be forcedto [pay for] the costs of cleanup." Id., at 21 (pluralityopinion of Brennan, J., quoted with approval in Bestfoods, 524U.S. at 56 n.1).

According to the First Circuit Court of Appeals, CERCLA provides two"actions," or remedies, by which the costs of responding tohazardous-waste contamination can be reallocated among private parties inlitigation: "actions for recovery of costs" and "actions forcontribution." United Tech. Corp. v. Browning-Ferris Indus.,33 F.3d 96, 99 (1st Cir. 1994),Page 9cert. denied, 513 U.S. 1183 (1995) ("UTC"). Actions forrecovery of costs are available only to "innocent parties that haveundertaken cleanups." Id. Actions for recovery of costs enablean innocent party that engages in a clean-up "to recoup the whole of[its] expenditures" from any non-innocent party. Id. at 100.Actions for contribution, on the other hand, enable a non-innocent partyto recover only "that portion of his expenditures which exceeds its prorata share of the overall liability." Id. (referring toCERCLA's § 113(f) remedy). Whether a CERCLA plaintiff is "innocent"depends on whether that party is itself potentially liable forenvironmental contamination under CERCLA § 107. The label customarilyused by courts and counsel to describe a non-innocent plaintiff is"potentially responsible party" or "PRP." As a matter of law, PRPs areprecluded from pursuing a "full recovery" under § 107(a) and mustmake do with contribution, or equitable apportionment, in accordance withCERCLA § 107(a)(4)(B) and/or § 113(f), 42 U.S.C. § 9613(f).Id. at 99-101; Dico, Inc. v. Chem. Co., 340 F.3d 525,530 (8th Cir. 2003) (collecting circuit court precedents).8

CERCLA § 107 provides the standard for CERCLA liability. Section107(a) sets forth four categories of "covered persons" who are liable forhazardous-waste releases and the associated costs and damages. The fourcategories are: (1) "owner and operator of a vessel or facility"; (2) "any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of;

(3) "any person who by contract, agreement, or otherwise arranged for disposal . . . of hazardous substances"; andPage 10

(4) "any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities . . . from which there is a release, or a threatened release which causes the incurrence of response costs."42 U.S.C. § 9607(a)(1)-(4). Importantly, the subsection (a)(4)phrase "from which there is a release, or a threatened release whichcauses the incurrence of response costs, of a hazardous substance" isgenerally understood to modify paragraphs (1) through (3), as well asparagraph (4). Control Data Corp. v. S.C.S.C. Corp.,53 F.3d 930, 934-35 & n.7 (8th Cir. 1995) (citing State of New York v.Shore Realty Co., 759 F.2d 1032, 1043 n. 16 (2d Cir. 1985)).9Those parties falling within one of the four categories set out in §107(a) "shall be liable for [inter alia] all costs of removalor remedial action incurred by . . . a State10 . . . notinconsistent with the national contingency plan," and "any other costs ofresponse incurred by any other person consistent with the nationalcontingency plan." 42 U.S.C. § 9607(a)(4)(A) & (B).

The national contingency plan is a series of regulations, promulgated by the [EPA], that establish the procedures and standards for government and voluntary response actions to hazardous substances. Those regulations provide that a remedial action is consistent with the national contingency plan if it results in a "CERCLA quality cleanup." 40 C.F.R. § 300.700(c)(3)(ii). A"CERCLA-quality cleanup," in turn, is defined as a cleanup that is "protective of human health and the environment . . . and . . . cost effective." 55 Fed. Reg. 8666, 8793 (1990).Blasland, Bouck & Lee. Inc. v. City of N. Miami,283 F.3d 1286, 1295 (11th Cir. 2002). Despite this relatively unqualifiedindication that those parties associated with hazardous wastecontamination are "liable" to those parties who clean it up, the courtshave superimposedPage 11sluiceways to channel CERCLA plaintiffs, the gates to which willopen or close depending on the plaintiff's ability to meet certaincriteria, the most important of which is "innocence." Which gate openshas a direct impact on the burden of proof the plaintiff must carry andwhat reward it might attain for its cleanup activities. The sluicewayevery plaintiff wants to ride readily admits only those plaintiffs whoare "innocent" of contamination, that is, those plaintiffs who are notthemselves PRPs. UTC, 33 F.3d at 99-100. Assuming theirresponse costs were incurred consistent with the national plan, theseplaintiffs can obtain a judgment imposing strict and "full" liability forresponse costs on a defendant polluter based on a relatively simpleshowing that one of the four § 107(a) categories describes thatdefendant. Centerior Serv. Co. v. Acme Scrap Iron & MetalCorp., 153 F.3d 344, 348 (6th Cir. 1998). It is unclear whether a"non-innocent" plaintiff can ever gain access to this sluiceway becausecourts have characterized § 107's remedy as a "full recovery,"something that plaintiffs falling within any one of the four categoriesof PRP defined in § 107(a) paragraphs (1) through (4) are notentitled to unless they can prove that one of the three statutorydefenses are applicable.11 See, e.g., UTC, 33 F.3d at 100("`Actions for recovery of costs,' suggests full recovery; and it issensible to assume that Congress intended only innocent parties-notparties who were themselves liable-to be permitted to recoup the whole oftheir expenditures."). Instead, courts seem generally inclined to channelnon-innocent plaintiffs down a second sluiceway, one that leads to CERCLA§ 113(f), 42 U.S.C. § 9613(f). Section 113(f) permits "[a]nyperson [to] seek contribution from any other person who is liable orpotentially liable under section 9607(a) . . . during or following anycivil action under section 9606 . . . or under section 9607(a)." But apotential problem arises with this approach, becausePage 12not all PRP-plaintiffs12 who incur response costs do so inresponse to a "civil action." Some PRP-plaintiffs incur response costsvoluntarily, or at least independent of administrative enforcement orother civil action. Thus, they are not seeking contribution "during orfollowing any civil action under section 9606 . . . or under section9607(a)." Id., § 9613(f). The courts appear to be dividedabout whether these "volunteer" PRP plaintiffs should be sluiced:

(1) Through § 113(f), regardless of the "during or following"language and based on the § 113(f) "savings clause" that "[n]othingin this subsection shall diminish the right of any person to bring anaction for contribution in the absence of a civil action under section106 or section 107" and a liberal construction of what constitutes a"contribution" action, see Aviall Servs., Inc. v. Cooper Indus.,Inc., 312 F.3d 677 (5th Cir. 2002) (en banc) (Barksdale, Garza andSmitt, JJ., dissenting), cert. granted, 124 S.Ct. 981 (2004);

(2) Through § 107(a)(4)(B), albeit without the availability of"full recovery" and with the additional burden of proving up whatproportional share of the plaintiff's response costs should be imposed onthe defendant, cf. UTC, 33 F.3d at 99 n.8 ("It is possiblethat, although falling outside the statutory parameters established foran express cause of action for contribution, . . . a PRP whospontaneously initiates a cleanup without governmental prodding might beable to pursue an implied right of action for contribution under42 U.S.C. § 9607(c).");13 orPage 13

(3) Down the drain, see E.I. Du Pont De Nemours and Co. v. UnitedStates, 297 F. Supp.2d 740, 750-53 (D. NJ. Jan. 5, 2004) (holdingthat Congress did away with any judicially recognized "contribution"action under § 107 when it created § 113(f), that a PRP whovoluntarily incurs response costs cannot maintain an action for mere"recoupment or reimbursement," that "a contribution action requires twoparties who are jointly and severally liable to some third-party," thatthe contribution claimant was compelled to incur the costs in question,and that the contribution claimant has discharged the entire underlyingclaim).

In sum, if Citizens can establish, for purposes of summary judgment,that the City is a PRP, then pursuant to UTC, the City cannotobtain a "full recovery" under CERCLA § 107(a) as a matter of law,but may be able preserve some form of § 107(a)(4)(B) claim forcontribution or a similar equitable remedy.14 UTC, 33 F.3dat 99, cert. denied, 513 U.S. 1183. According toPage 14Citizens, the City is a PRP because it is liable (1) as an owner ofthe contaminated riverfront property through which tar migrated andcontinues to migrate on its way to the River, (2) as a former owner ofthe gas plant, (3) as an operator of the sewer lines through which tarwas allegedly discharged into the Penobscot River and (4) as an arrangerof disposal by virtue of its involvement in the establishment andcreation of the sewer in the mid-1800s. (Citizens's Mot. Partial Summ.J., Docket No. 176, at 8-12.)

1. The City's ownership of the riverfront property (§107(a)(1)).

Pursuant to CERCLA § 101, "[t]he term `owner or operator' means. . . in the case of an onshore facility . . . any person owning oroperating such facility." 42 U.S.C. § 9601(20)(A). "Facility" isdefined as "(A) any building, structure, installation, equipment, pipe orpipeline (including any pipe into a sewer . . .) . . . or (B) anysite or area where a hazardous substance has been deposited, stored,disposed of, or placed, or otherwise come to be located." Id.§ 9601(9).

Citizens argues that the tar slick in the River, the City's riverfrontproperty, the former gas plant site and the intervening land throughwhich the sewer passed must be understood as one unified facility forpurposes of CERCLA. So understood, says Citizens, the City is potentiallyliable as an owner because it is the current owner of the riverfrontproperty, part ofPage 15the facility.15 However, the City has limited its CERLCA actionto recover costs associated only with the River "facility." In its SecondAmended Complaint, the City's § 107 "prayers for relief all seek anorder that Citizens pay the response costs the City has "incurred inconnection with investigation, corrective action, and other responseactions associated with releases of hazardous substances at the tar slickin the Penobscot River." (Docket No. 175 at 9-10 & 11.) Furthermore,in opposition to summary judgment, the City asseverates that "the`facility' properly before the court under section 107 is Dunnett's Covein the Penobscot River," evidencing the limitation the City has placed onits cause of action. (Docket No. 205 at 9.)

As with all things CERCLA, the facility issue is puzzling. On the onehand, at least one Court of Appeals has suggested that "the bounds of afacility should be defined at least in part by the bounds of thecontamination." United States v. Township of Brighton,153 F.3d 307, 313 (6th Cir. 1998). See also Axel Johnson, Inc. v. CarrollCarolina Oil Co., 191 F.3d 409, 417 (4th Cir. 1999) (observing thata contrary approach might be illogical when taken to the extreme becauseit "would mean that each barrel in a landfill is a separate facility-aproposition . . . aptly described as ridiculous.") (quotation marksand citation omitted). On the other hand, a facility is a location "fromwhich there is a release, or a threatened release which causes theincurrence of response costs . . . consistent with the nationalcontingency plan." 42 U.S.C. § 9607(a); Control Data Corp.,53 F.3d at 934-35 & n.7 (concerning the manner in which qualifyinglanguage in § 107(a)(4) modifies all four liability provisions of§ 107(a)); Carson Harbor Village, Ltd, v. Unocal Corp.,270 F.3d 863, 871 (9th Cir. 2001) ("Remediation costs are recoverable underCERCLA only if `necessary.' It is generally agreed that this standardrequiresPage 16that an actual and real threat to human health or the environmentexist before initiating a response action."), cert. denied,535 U.S. 971 (2002); United States v. Northeastern Pharm. & Chem.Co., 810 F.2d 726, 743 (8th Cir. 1986) ("In the present case. . . the place where the hazardous substances were disposed of andwhere the government has concentrated its cleanup efforts is the Denneyfarm site, not the [originating] NEPACCO plant. [Thus,] [t]he Denney farmsite is the `facility.'"). Thus, there appears to be incorporated into§ 107(a)(1)'s concept of facility ownership an understanding thatownership pertains to the facility where response costs are beingexpended, not ownership of any facility causally connected to thedeposition of hazardous substances at the facility where response costsare being expended.16 Thus the City's prior ownership of the GasPlant site and even the sewer (if indeed it ever did own the sewerthrough which the tar passed) do not provide a basis for § 107(a)(1)liability.

In this case, the available summary judgment facts, construed mostfavorably to the City, support a finding that the River and the uplandriverfront property have come to be distinct depositories of the formergas plant's tar, with only the River, including the inter-tidal zone,requiring the expenditure of response costs. The summary judgment recordis otherwise undeveloped with respect to whether the riverfront propertyoutside of its inter-tidal zone is presently a facility that releases orthreatens the release of hazardous materials into the River, orelsewhere, so as to justify the incurrence of response costs consistentwith the national contingency plan.17 However, the City concedes inits memorandum that it holds an ownershipPage 17interest in the inter-tidal zone and that "the intertidal zone. . . is part of the `facility.'" (Docket No. 205 at 15). Thus, underits own version of the facts the City clearly meets the definitionallanguage of § 107(a)(1) in that it is the owner of a portion of thefacility in question This makes the City a PRP, unless it can establish adefense to liability under § 107(b).

The City maintains that its § 107(a)(1) liability is negated by the§ 107(b)(3) third-party defense, 42 U.S.C. § 9607(b)(3), becausethe release of hazardous substances there did not occur in connectionwith a "contractual relationship" between the City and any party thatdischarged the waste in question. The City's focus on the "contractualrelationship" issue is a red herring. For purposes of the application ofthe third-party defense in this case, the question is simply this: Hasthe City produced facts that could support a finding by a preponderanceof the evidence that the release or threat of release of a hazardoussubstance at the riverfront property's inter-tidal zone was "causedsolely by . . . an act or omission of a third party?"42 U.S.C. § 9607(b)(3). The answer to this question is "no" and is addressedbelow in section 3, where I discuss the legal significance of the City'spast sewer activities.

Even if the City's third-party defense did turn in some way on §107(b)(3)'s "contractual relationship" concept, that concept is definedin § 101(35)(A) to include land contracts and deeds, unless (1) theparty acquired the property "after the disposal or placement of thehazardous substance on, in, or at the facility," and (2) at least one ofthree other circumstances is "established by a preponderance of theevidence." 42 U.S.C. § 9601(35)(A). With respect to the riverfrontproperty,18 the additional circumstance that the City points torequires proof that "[a]tPage 18the time the [City] acquired the facility the [City] did not knowand had no reason to know that any hazardous substance which is thesubject of the release or threatened release was disposed of on, in, orat the facility." 42 U.S.C. § 9601(35)(A)(i). According to the City,it is an "innocent purchaser" and "innocent owner" of the riverfrontproperty because it acquired the property after the placement ofhazardous substances there and "because it acquired the [property] afterthe DEP had certified the VRAP clean-up of that parcel."19 (DocketNo. 176 at 16.) These arguments bear little resemblance to the statutorytest, which concerns a purchaser's knowledge of the pastdisposal of hazardous substances at the facility and the City does notcite any authority supporting this kind of deviation from the statute.For obvious reasons, the City has not attempted to disavow knowledge onits part of disposals "on, in, or at" the riverfront property. The onecase cited by the City, New York v. Lashins Arcade Co.,91 F.3d 353 (2nd Cir. 1996), supports the proposition that the mereconveyance of contaminated property is not the kind of "contractualrelationship" that precludes the acquiring landowner from raising thethird-party defense unless the contract related in some way to hazardoussubstances or otherwise exerted control over a past owner's activities. Id.at 360 (citing Westwood Pharms., Inc. v. Nat'l Fuel Gas Distrib.Corp., 964 F.2d 85, 91-92 (2d Cir. 1992). However, resolution of theappeal in Lashins "turn[ed] upon the validity of the districtcourt's ruling that Lashins was entitled to summary judgment on thequestion whether Lashins `exercised due care with respect to thehazardous substance concerned . . . in the light of all relevant factsand circumstances' within the meaning of § 9607(b)(3)." Id.at 360-61. Because Lashins's only connection to the facilitycame after the discharge of hazardous waste there and because the EPA andNew York State Department of Environmental Conservation were alreadyoverseeing an approved "RemedialPage 19Investigation/Feasibility Study of the facility the court concludedthat Lashins could be deemed to have exercised due care. Id. at362 ("[T]he cases cited by New York do not require the negation ofLashins' `due care' defense. None involved a defendant who played norole in the events that led to the hazardous waste problem and cameon the scene after public authorities were well along in a program ofinvestigation and remediation.") (emphasis added). As discussed below insection 3, the City played an important role in connection with thedischarge of hazardous substances at the facility.

2. The City's prior ownership of the gas plant (§107(a)(2)).

The City owned the former gas plant site from 1978 to 1995. Accordingto Citizens, "`The continuing spread and migration of HazardousSubstances' was occurring on the . . . property before the Citypurchased it." (Docket No. 227, ¶ 12.) According to Citizens, thismakes the City liable as a "`person who at the time of disposal of anyhazardous substance owned or operated' a facility." (Docket No. 176 at 11(citing § 107(a)(2)).) Thus, Citizens's argument is that thepassive20 spread and migration of hazardous substances deposited by aformer owner constitutes "disposal" for purposes of determining asubsequent owner's liability under § 107(a)(2). In response, the Cityappropriately takes Citizens to task for asking the Court to infer theexistence of post-1978 migration based on an assertion of pre-1978migration. (Docket No. 205 at 19.) Drawing such inferences for a movantis not appropriate in thePage 20summary judgment context. The City then argues that, even ifpassive migration of hazardous substances did take place during itsownership of the gas plant parcel, passive migration is not "disposal" asa matter of law. (Id. at 19-20.)

CERCLA's definition of "disposal" incorporates by reference thedefinition provided in the Resource Conservation and Recovery Act,42 U.S.C. § 9601(29). That definition states: The term "disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.42 U.S.C. § 6903(3). Although the definition describes twopotentially "passive" agencies of disposal in the terms "spilling" and"leaking," see Nurad, Inc. v. William E. Hooper & Sons Co.,966 F.2d 837, 844-45 (4th Cir. 1992) (holding that passive spilling andleaking from underground storage tanks constituted disposal), all of theterms nevertheless suggest some new introduction of hazardous substancesto the environment. The summary judgment record that is before the Courtdoes not contain evidence of hazardous substances being placed into or onany land or water at the parcel during the City's ownership of it.Because Citizens has not properly produced evidence of a "disposal"during the City's ownership of the former gas plant site, there is nobasis in the summary judgment record for finding the City potentiallyresponsible for the tar slick pursuant to § 107(a)(2)'s ownershiplanguage. Furthermore, the City correctly states that passive migrationwould not constitute "disposal," even if there were clear evidence thatpassive migration was occurring during this timeframe. See CarsonHarbor, 270 F.3d at 874-79 (discussing several circuit precedentsconsistent with this conclusion and holding "that the gradual passivemigration of contamination through the soil that allegedly took placeduring [aPage 21prior owner's] ownership was not a `discharge, deposit, injection,dumping, spilling, leaking, or placing' and, therefore, was not a`disposal' within the meaning of § 9607(a)(2)").21

3. The City's "operation " of the sewer line or "arrangement"of disposals vis-à-vis the sewer line (§ 107(a)(2) or(3)).

Ultimately, Citizens's motion turns on the legal significance of oneundisputed fact: that the City constructed or otherwise attended to theconstruction of a sewer to transport the gas plant's "residuum of filth"to the Penobscot River. Citizens argues that this fact makes the City aPRP because the City was an "operator" of thehazardous-substance-releasing sewer facility at the time of disposal andan "arranger" of the hazardous-substance disposal.22 (Docket No. 176at 9-11.) The City disavows this contention, arguing that "[c]ourts haveuniformly rejected claims that local governments may be held liable underCERCLA for mere construction or routine maintenance of a sewer system,absent some showing that the municipality had knowledge that the effluentcontained hazardous substances and issued a permit or otherwiseparticipated in the discharge of the hazardous substances." (Docket No.205 at 10.)

Pursuant to § 107(a)(2), CERCLA liability attaches to "any personwho at the time of disposal of any hazardous substance owned or operatedany facility at which such hazardous substances were disposed of."42 U.S.C. § 9607(a)(2). The definition of "facility" includes any "pipeor pipeline" or "ditch." Id. § 9601(9). The definition of"operator" is tautological: "anyPage 22person . . . operating such facility." Id. §9601(20)(A). In United States v. Bestfoods, 524 U.S. 51 (1998),the Supreme Court held that "an operator must manage, direct or conductoperations specifically related to pollution, that is, operations havingto do with the leakage or disposal of hazardous waste." Id. at66.

The Nineteenth Century installation of the so-called Old Stone Sewer orDavis Brook Sewer in this case constituted an "operation," and it isapparent that the installation had to do with the disposal of hazardouswaste. The language of § 107(a)(2) is considerably broader than thelanguage of § 107(a)(1); § 107(a)(2) concerns "any person"operating "any facility" where and when the subject hazardous waste isdisposed of. Thus, owner/operator status under § 107(a)(2) is notrestricted to ownership or operation of the facility at which responsecosts are being incurred, but turns on where and how the hazardoussubstances at issue were disposed of. Here, the City's theory of the caseprevents the City from denying that the sewer was "a" facility at whichthe hazardous substances at issue were disposed. The only conceptualobstacle raised by the City is, essentially, that a sewer functionspassively, therefore the City did not really "operate" it. But thisreasoning is strained, because the sewer came to be as a consequence ofthe City's exercise of the power of eminent domain. Such an exercisewould seem to rise to the level of operation, for the sewer facilitycould not have operated but for its installation.

The arranger argument is also attractive, and does not suffer fromsimilar conceptual problems. Pursuant to § 107(a)(3), liabilityattaches to "any person who by contract, agreement, or otherwise arrangedfor disposal . . . of hazardous substances owned or possessed . . .by any other party or entity, at any facility . . . owned or operatedby another party or entity and containing such hazardous substances."42 U.S.C. § 9607(a)(3). Although this language is perhaps most oftenutilized to impose liability on the generators of hazardous waste whentheirPage 23generating facility is remote from the disposal facility,23see, e.g., Northeastern Pharm. & Chem. Co., 810 F.2d 726,there is no logical reason why this expansive language does not extend tothe circumstances of this case. "[C]ourts have concluded that a liberaljudicial interpretation [of § 107(a)(3)'s "arranged for" language] isconsistent with CERCLA's `overwhelmingly remedial' statutory scheme."United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1380& n.8 (8th Cir. 1989) (discussing how Congress's adoption of thelanguage, "arranged for," rather than the competing language, "caused orcontributed to," is "consistent with the imposition of strictliability"). Here the City exercised its power of eminent domain toarrange for the installation of a sewer to drain hazardous substancesfrom the former gas plant facility into the Penobscot River facility(i.e., it "otherwise arranged for disposal").

Nothing in the cases cited by the City suggests that it is immune fromliability for such sewer activities. The leading case on state agency ormunicipal liability under CERCLA for sewer operations is WestfarmAssocs. Ltd. Partnership v. Washington Suburban Sanitary Comm'n66 F.3d 669 (4th Cir. 1995), cert. denied, 517 U.S. 1103 (1996).In Westfarm, the Fourth Circuit Court of Appeals reviewed asummary judgment determination that the Washington Suburban SanitaryCommission (WSSC) was liable for response costs based on releases (leaks)from a poorly constructed or maintained sewer line. Id. at 673.Although the basis for § 107 liability was WSSC's present ownershipof the facility at issue, among the issues squarely addressed on appealwas WSSC's "most prominent" contention: that public policy required theCourt to recognize an exemption for sewer operators "from [CERCLA]liability for damage caused by wastes dumped in the sewers by thirdparties." Id. The Court considered thePage 24contention and rejected it, observing that CERCLA was clearlyintended to impose legal obligations on both public and private entities,including liability for cleaning up environmental contamination.Id. at 678. As for crafting a public policy exception, theWestfarm Court concluded, "While the public policy argumentsraised by WSSC may be meritorious, we can only presume that thosearguments were weighed and rejected by Congress when it enacted CERCLAwithout including a broad exemption for state and local governments ortheir [publicly owned treatment works]." Id. at 680, cert.denied, 517 U.S. 1103 (1996). Also persuasive is Unites Statesv. Union Corp., 277 F. Supp.2d 478 (E.D. Penn. 2003), in which theDistrict Court for the Eastern District of Pennsylvania concluded thatthe City of Philadelphia would be a potentially responsible party underCERCLA if its combined stormwater/sanitary sewer outfall "releasedcontaminants into the mudflat" (a part of the contaminated site at issuein the case). Id. at 488. See also Carson Harbor Village,Ltd v. Unocal Corp., 287 F. Supp.2d 1118, 1194 (C.D. Cal. 2003)(declining to find municipal defendant liable as operator based merely onevidence that they "regulated and maintained [a] storm drain systemleading to the [contaminated] property" in the absence of evidence thatthey did "anything more than `stand by and fail to prevent thecontamination.'") (quoting Long Beach Unified Sch. Dist. v. DorothyB. Godwin Living Trust, 32 F.3d 1364, 1368 (9th Cir. 1994)).

In my assessment, the City of Bangor qualifies as a PRP with respect tothe tar slick facility not only because it owns the inter-tidal zone, butalso by virtue of its Nineteenth Century connection (quite literally) tothe disposal of hazardous substances from the former gas plant into thePenobscot River. The summary judgment facts make it apparent that theCity exercised its powers of eminent domain to effectuate or facilitatethe construction in the middle part of the Nineteenth Century of anenclosed sewer drain that was installed specifically for the purpose ofPage 25carrying away the waste of the private company that owned andoperated the former gas plant Not only did the City thereby facilitatethe alleged 100-plus years of hazardous waste disposal of which it nowcomplains, but it also designated the Penobscot River as the appropriatedisposal facility. As a consequence, the City would be potentially liablefor the tar slick in a suit commenced by the United States or an innocentparty who performed a clean up because the City exercised control overthe sewer installation, an "operation" specifically related to pollutionand an "arrange[ment] for disposal24 or . . . for transport25for disposal" of hazardous substances from the generating facilitydirectly to the River facility. 42 U.S.C. § 107(a)(3). This is morethan standing by and failing to prevent contamination, as described inCarson Harbor, This is contribution toward contamination on parwith that present in Westfarm and implicates CERCLA's strictliability regime. And although the activity seems rather stale, dating asit does to the mid-Nineteenth Century, there is no bar to the impositionof retroactive liability under CERCLA. "CERCLA by its terms has unlimitedretroactivity. Indeed, every court of appeals to consider the questionhas concluded that Congress intended CERCLA to apply retroactively."Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1351(Fed. Cir. 2001) (citing Northeastern Pharm. & Chem. Co.,810 F.2d at 732 and United States v. Monsanto, 858 F.2d 160,174 (4th Cir. 1988)). It seems beyond peradventure that the City would bea PRP under § 107 if it arranged today for the installation of apipeline to discharge a manufacturer's hazardous waste directly into thePenobscot River in order to obtain public utilities for the benefit ofits citizens. Such direct arrangement of and contribution towardhazardous wastePage 26disposal also effectively prevents the City from seeking refuge inthe third-party defense, 42 U.S.C. § 9607(b)(3).26 See,e.g., Westfarm 66 F.3d at 682-83, ("WSSC had the power to abate theforeseeable release of [hazardous substances], yet failed to exercisethat power."), cert. denied, 517 U.S. 1103 (1996). I thereforerecommend that the Court find that the City is a PRP with respect to thetar slick in the Penobscot River.

4. Sovereign immunity.

In the event that the Court should find PRP status based on the City'sconnection to the sewer, as recommended, the City argues that it isentitled to sovereign immunity for sewer activities because, as a matterof law, its Nineteenth Century sewer activities were conducted in agencyto the State, which is protected from CERCLA liability pursuant to theEleventh Amendment. (Docket No. 205 at 13-14 (citing Seminole Tribeof Fla. v. Florida, 517 U.S. 44 (1996) (overruling Pennsylvaniav. Union Gas Co., 491 U.S. 1 (1989)).) The obvious answer to thisargument is that the City is forgetting who the plaintiff is in thisaction. Nothing about this case exposes the City or the State toliability to a private party. This is a case brought by the City againsta private party. Furthermore, the mere determination that the Cityqualifies as a PRP and therefore cannot maintain a federalcause of action could not possibly offend the Eleventh Amendment. In anyevent, "a political subdivision of a state cannot claim sovereignimmunityPage 27under the Eleventh Amendment." United States v. Township ofBrighton 153 F.3d 307, 324 n.2 (6th Cir. 1998) (citing Monellv. Dep't of Soc. Servs., 436 U.S. 658, 691 n.54 (1978)).

Conclusion

For the reasons stated herein, I DENY the City's Motion toDeem Facts Admitted (Docket No. 249) and RECOMMEND that theCourt GRANT Citizens's Motion for Partial Summary Judgment(Docket No. 176) by entering a judgment that the City is precluded fromobtaining a "full recovery"27 of all of its response costs fromCitizens in its CERCLA § 107 claims (Counts I and II), as a matter oflaw, but not dismissing Counts I and II to the extent that they can beread as requesting the imposition of more limited, equitable liability onCitizens's part, assuming for present purposes that such relief isavailable.

NOTICE

1. For reasons that will become apparent herein and in the companionRecommended Decision on the Army Corp of Engineers's motion for judgmenton the third-party claims, this issue concerns much more than just thescope of the City's damages, particularly insofar as the third-partydefendants are concerned.

2. The factual statement recited herein is drawn from the parties'Local Rule 56 statements of material facts in accordance with the LocalRule. The factual statement construes the available evidence in the lightmost favorable to the non-movants and resolves all reasonable inferencesin their favor. Thames Shipyard & Repair Co. v. UnitedStates, 350 F.3d 247, 276 (1st Cir. 2003).

3. The entire 1852 "Resolve" of the "Common Council" of the City ofBangor reads as follows: A Resolve granting the assent of the City Council to the location of the works of the Gas Light Company. Resolved, that the assent of the City Council of said city, be and is hereby given to the Bangor Gas Light Company to erect, establish and continue, proper and sufficient works for the manufacture of Gas, upon the lot of land in and adjoining "[unknown] Brick Yard" in said City, in the rear of Main Street, recently purchased by said Company for that purpose. And also to lay down in and through any of the Streets of said City, such pipes for the conveyance of Gas as may be necessary for carrying into effect the objects of the Incorporation of said Company, Subject to the restrictions and provisions contained in the Charter of said Company and to all the By Laws and ordinances of the City. Provided however, and this assent is upon condition that, said Company shall construct, maintain and use a covered drain, extending from their works to the Penobscot River to below low water mark, of sufficient capacity to carry off all the residuum of filth of said works. Provided further, that in laying their pipes through the streets and sidewalks, they shall replace the each and sidewalks in as good condition as they found them, and to the acceptance of the Mayor of the City.

4. On July 9, 1860, the Bangor Board of Aldermen "met according toadjournment" and passed the following: "ORDERED, That the Mayor and Aldermen deem it necessary for public convenience and health, that a public Drain or Sewer be laid out and constructed as recommended in the Report of the Committee to whom was referred the petition of the Bangor Gas Light Company, and that notice be given agreeably to law, to all persons interested in the premises which said Sewer will cross to be heard in damages. Passed: The Mayor and Aldermen thereupon issued the following notice and ca[u]sed the same to be posted up and published according to law: "The undersigned, Mayor and Aldermen of the City of Bangor, hereby give notice, that in pursuance of a petition of the Bangor Gas Light Company, dated May 7, 1860, and in pursuance of a report of a Committee of the Board of Mayor and Aldermen, to whom was referred said petition, and [illegible]."On the same day, Mayor Stetson made the following order: Ordered that the Mayor & Aldermen deem it necessary for public convenience & health, that a public drain or sewer be laid out & constructed as recommended in the report of the Committee to whom was referred the Petition of the Said Gas Light Company & that notice be given . . . to all persons interest[ed] in the premises, which said Sewer will cross, to be heard in damages.(Docket No. 227, Ex. 4.) The Mayor further ordered on August 6,1860: "That the Mayor and Alderman Leighton be a Committee to employ some competent Engineer to survey & return a plan for a public Sewer from the vicinity of the Gas Works to tide water, at the Rail Road Wharf, as prayed for, by said Gas Company.(Id. Ex. 5.)

5. The parties sometimes refer to a physical drain installationexisting down grade from the gas plant and extending into the River asthe "Davis Brook Sewer" or the "Old Stone Sewer." It appears that theearliest drainage installation involved a full or partial enclosure of anexisting, natural drainage route (Davis Brook) with stone. (See DocketNo. 181, ¶ 6; Docket No. 206, ¶ 6, ¶ 2 Additional.)

6. The deadline for the City and Citizens to complete discovery onthe complaint was February 23, 2004. (Report of Tel. Conf., Order on Misc.Mots, and Am. Sched. Order, Docket No. 200, at 3.) The City filed itsmotion to deem facts admitted for all purposes on December 19, 2003.

7. Although I deny the motion to deem facts admitted "for allpurposes," it will be evident to the parties that I have credited some ofthe City's statements of additional material facts for purposes ofCitizens's motion for partial summary judgment, to the extent I havedeemed those statements to be both relevant to my discussion and"supported by a record citation." D. Me. Loc. R. 56(c).

8. It is sometimes said that a PRP cannot pursue a § 107(a)claim, only a § 113(f) claim. Actually, "any person may seek torecover costs under § 107(a), but . . . it is the nature of theaction which determines whether the action will be governed exclusivelyby § 107(a) or by § 113(f) as well." Centerior Serv. Co. v.Acme Scrap Iron & Metal Corp., 153 F.3d 344, 353 (6th Cir. 1998)(citing UTC, 33 F.3d at 101).

9. According to the Second and Eighth Circuit Courts of Appeals, theclause was meant to appear on a separate line from subsection (4) but didnot on account of a printer's error. Control Data Corp., 53F.3d at 934 n.7; Shore Realty, 759 F.2d at 1043 n.16.

10. There is an open question whether municipalities automaticallyqualify as states for purposes of § 107(a)(4)(A), but the weight ofauthority suggests they do not. Fireman's Fund Ins. Co. v. City ofLodi, 296 F. Supp.2d 1197, 1215 n.33 (E.D. Cal. 2003); City ofNew York v. Chemical Waste Disposal Corp., 836 F. Supp. 968, 977(E.D. N.Y. 1993); Rockaway v. Klockner & Klockner,811 F. Supp. 1039, 1048 (D. N.J. 1993). The more likely source of amunicipality's cause of action is under § 107(a)(4)(B), which imposesliability on polluters for response costs incurred by "any otherperson."

11. These are the so-called act of God, act of war, and third-partydefenses found at § 107(b)(1)-(3). The City raises the §107(b)(3) third-party defense, discussed below in sections 1 and 3 ofthis Recommended Decision.

12. A § 113(f) claim may also be utilized by, and perhaps wascreated for, a CERCLA defendant to cross-claim against co-defendants orto launch a third-party action against PRPs not named by the CERCLAplaintiff in its first-party action.

13. The First Circuit's citation to authority in UTC readsas follows: See Key Tronic Corp. v. United States, 128 L.Ed.2d 797, 114 S.Ct. 1960, 1966 (1994) (explaining that CERCLA now "expressly authorizes a cause of action for contribution in [§ 9613] and impliedly authorizes a similar and somewhat overlapping remedy in [§ 9607]"); cf. In re Hemingway Transp., Inc., 993 F.2d 915, 931 (1st Cir.) (stating in dictum that "in the event the private-action plaintiff itself is potentially `liable' to the EPA for response costs, and thus is akinto a joint `tortfeasor,' section 9607(a)(4)(B) serves as the pre-enforcement analog to the `impleader' contribution action permitted under section 9613(f)"), cert. denied 114 S.Ct. 303 (1993).UTC, 33 F.3d at 99 n.8 (emphasis added). See alsoCity of Fresno v. ML Indus., Inc., No. 93-5091.1995 WL 641983, *2,1995 U.S. Dist. LEXIS 15534, *10-14 (E.D. Cal. July 9, 1995) (collectingcases that address "the issue of whether an action brought by one PRPagainst another must be characterized as one for contribution under §113")

14. See footnote 13, supra The First CircuitCourt of Appeals's characterization of the § 107(a) remedy asproviding a "full recovery" appears to be based on the § 107(a)(4)(A)language, "shall be liable for . . . all costs." But this language isused in conjunction with liability to the United States, a state or anIndian tribe. By contrast, § 107(a)(4)(B) describes liability for"any other necessary costs of response incurred by any otherperson." 42 U.S.C. § 9607(a)(4)(B) (emphasis added). Currently before the Supreme Court is the question, not raised by theparties herein, of whether a polluter who incurs response costsvoluntarily, i.e., in the absence of a civil action orenforcement proceeding by the United States or a state, see42 U.S.C. § 106 & 107(a)(4)(A), has standing to pursue acontribution remedy pursuant to § 113(f), the remedy requested by theCity in its third and fourth counts. The countervailing arguments arethoroughly set forth in Aviall Servs., Inc. v. Cooper Indus.,Inc., 312 F.3d 677 (5th Cir. 2002) (en banc) (Barksdale, Garza andSmitt. JJ., dissenting), cert. granted, 124 S.Ct. 981 (2004)and in E.I. Du Pont De Nemours and Co. v. United States,297 F. Supp.2d 740 (D.N.J. Jan. 5, 2004) (presenting an alternative to the twopositions set forth in Aviall). This issue focuses on the nature of acontribution action as one in which the contribution plaintiff hasalready extinguished the contribution defendant's liability and on thelimiting temporal language used by Congress in section 113(f): Any person may seek contribution from any other person who is liable or potentially liable under section 107(a) [42 USCS § 9607(a)], during or following any civil action under section 106 [42 USCS § 9606] or under section 107(a) [42 USCS § 9607(a)].42 U.S.C. § 9613(f) (emphasis added). See alsoAviall, 312 F.3d at 682-83 (discussing precedents indicating that"prior government involvement [is] not a prerequisite to recoupment of§ 107 response costs by one group of PRPs against other PRPs");Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298,1301-02 (9th Cir. 1997) (holding that "only a claim for contribution liesbetween PRPs," observing that section 113(f) governs where one PRP bringsa section 107 action against another PRP, and citing cases). On a related note, I have some concern as to whether section 107(a)really authorizes even an "innocent" private party plaintiff to obtainprospective relief, i.e., a declaration as to a defendant'sfuture liability when the plaintiff has not already completed, or evenstarted, cleaning up the contamination at issue. I raise this concernbecause the City is asking the Court to, among other things, make anallocation of costs that have yet to be expended and therefore cannotnecessarily presently be evaluated as both "necessary" and "consistentwith the national contingency plan." 42 U.S.C. § 9607(a)(4)(B). In any event, if this Court agrees with the recommendation containedherein, that the City is itself also potentially responsible for the tarslick and therefore cannot obtain a "full recovery" in its first twocounts, and if the Supreme Court holds that a polluter who voluntarilyincurs response costs cannot maintain a claim for contribution againstfellow polluters pursuant to section 113(f), then it would seem that theCERCLA component of this litigation would be concluded.

15. In Citizens's own words. "While the City's Second AmendedComplaint . . . characterize[s] only the Penobscot River as afacility, based on the City's allegation that the [former gas plant] wasthe source and the Old Stone Sewer the conduit . . . those areas alsoconstitute parts of the `facility' in question." (Docket No. 176 at7-8.)

16. Of course, what is sauce for the goose is sauce for the gander.If this rationale is credited by the Court, as the City advocates, thenthe City cannot establish, in its case-in-chief, § 107(a) liabilityon the part of Citizens based solely on Citizens's (and its predecessors)ownership of the former gas plant.

17. The evidence that is properly before the Court suggests thatboth the MDEP and the EPA have opined that contamination at the formergas plant site is no longer migrating into the River. It is also worthnoting that subterranean migration of tar, in and of itself, would notnecessarily generate CERCLA liability on the part of the City, as isdiscussed below in section 2.

18. The City also argues that the facts pertaining to itsacquisition of the Second Street Park and the gas plant property througha process akin to the exercise of eminent domain powers also implicate§ 101(35)(A). Were this case directed at releases on thoseproperties, I would address these arguments, but because the "facility"under consideration is narrowly construed as the River, including theinter-tidal zone, the method by which the City acquired the Park and thegas plant properties is irrelevant.

19. In its statement of material facts, the City indicates that theVRAP certification only applies to that portion of the riverfrontproperty that is upland of the inter-tidal zone (Docket No. 206, ¶24), but the City's title extends to the mean low water mark. (Docket No.206, ¶ 2.)

20. The evidence cited in support of Citizens's statement concerningthe continuing spread and migration of hazardous substances is aninterrogatory answer provided by the City. The City's interrogatoryanswer does not indicate that any affirmative disposal activities tookplace at the site during the City's ownership. In its memorandum of lawCitizens relates what "appears" to be other evidence of leaks and spillsfrom a storage tank on the property during the City's ownership, but theevidence it points to was never incorporated into Citizens's statement ofmaterial facts. On this record, I find that there is no evidence, forpurposes of summary judgment, of any leak or spill during the City'sownership that contributed to the presence of hazardous substances in thesoil or water beneath the former gas plant site. I also observe that,even if this evidence were credited, there is no evidence that any leakor spill that might have occurred at the former gas plant site during theCity's ownership and cleanup of the site contributed to the incurrence ofany of the response costs associated with the tar slick in the PenobscotRiver, the "releasing" facility that this suit is directed toward.

21. The Carson Harbor Court articulated several additionalreasons for its holding, including effectuation of the statutory purposethat "responsible" persons pay for cleanups and the desire to ensureinternal consistency within CERCLA. Carson Harbor, 270 F.3d at880-84.

22. Citizens's argument that the City has "arranger" status is foundin a footnote in its primary memorandum. It appears to have been offeredto cover all the bases, although Citizens does not argue that the Cityqualifies as a person "who accepted any hazardous substances fortransport to disposal" under section 107(a)(4). (Docket No. 176 at 11n.12.). "Arranger" status most commonly relates to "generators of waste"and there is no evidence in the summary judgment record that the Citygenerated any of the tar residue. However, there are a number of casesthat address the issues surrounding non-generator liability pursuant to§ 107(a)(3). See William B. Johnson, Annotation,Arranger Liability of Nongenerators Pursuant to § 107(a)(3) ofComprehensive Environmental Response, Compensation, and Liability Act(CERCLA) (42 U.S.C.A. 9607(a)(3)), 132 A.L.R. Fed. 77, 103-04(1996). The City's predicament is certainly novel, but could well fallwithin the general category.

23. Note that persons who transport hazardous wastes from agenerator facility to a disposal facility are generally considered notsubject to section 107(a)(3) "arranger" liability where the transporter"ha[s] not selected the disposal site." United States v. Davis,1 F. Supp.2d 125, 130-31 (D. R.I. 1998) (discussing cases and citingJohnson, supra, note 22, at 103-104).

24. I think it is appropriate for the Court to pin PRP status on theCity based on both § 107(a)(3) "arranger" status and (a)(2)"operator" status because both concepts fit comfortably with the factspertaining to the City's involvement with, participation in orfacilitation of this particular sewer installation.

25. The term "transport" is defined as the "movement of a hazardoussubstance by any mode." 42 U.S.C. § 9601(26).

26. This entire case has to be placed in its historical context.Imagine a municipality today exercising its municipal authority to obtainan easement over others' property in order to enable a privatemanufacturing company to discharge its "residuum of filth" directly intothe Penobscot River and then arguing in court that it was entitled toassert the third-party defense under CERCLA because the current releaseof the tar in the river was "caused solely . . . by the act oromission of a third party." 42 U.S.C. § 9607(b)(3). Yet everythingthat happened in this case vis-à-vis the actual generation of thetar at the gas plant happened before Citizens discontinued its operationof the plant in 1963. By 1972, the year in which the Clean Water Act waspassed and Senator Edmond Muskie observed that we had ignored for toolong "the grim realities of lakes, rivers, and bays where all forms oflife have been smothered by untreated wastes," the tar residue at issuein this case was already either deposited in the Penobscot River ormigrating underground toward the river. 118 CONG. REC. 33,692 (1972),reprinted in 2 LEGISLATIVE HISTORY OF THE WATER POLLUTIONCONTROL ACT AMENDMENTS OF 1972, at 161-62(1973); see also 92Cong. Senate Debates 1972, at 33,692 (LEXIS). Within CERCLA's statutoryframework, retroactive responsibility for clean up costs is assigned tothose who are historically responsible for the current release. I just donot see how that does not include the City of Bangor, the current ownerof the riverfront inter-tidal zone where the tar now rests and the former"operator/arranger" of the sewer installation that brought it there.

27. Citizens refers to these claims as the City's "joint liabilityclaims." (Docket No. 176 at 12.) I characterize them as "full recovery"claims, as did the First Circuit Court of Appeals in UTC, 33F.3d at 99.

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