UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION WILSON ROAD DEVELOPMENT ) CORPORATION, et al., )
vs. ) Case No. 1:11-CV-84-CEJ
FRONABARGER CONCRETERS, INC., ) et al., )
MEMORANDUM Plaintiffs Wilson Road Development Corporation (WRDC), Brenda Dumey, Daniel Dumey, and the Brenda Kay Dumey and Daniel E. Dumey Revocable Living Trusts initiated this action on May 11, 2011, seeking monetary and declaratory relief under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended, 42 U.S.C. §§ 9601 et seq. The defendants, Union Electric Company d/b/a Ameren Missouri and Citizens Electric Corporation (collectively, , have filed counterclaims. The lawsuit stems from the discovery of polychlorinated biphenyls (PCBs) 43.5 acre tract of land (h located downhill from and downgradient to property owned by Missouri Electric Works, Inc., in Cape . 1
Plaintiffs assert the following CERCLA claims against the utility defendants: 1
Plaintiffs also bring this action against defendants Morrill Development Company, Morrill Development LLC, Alan Morrill, and Charles J. Morrill (collectively, Morrill defendants . The claims against the Morrill defendants, who are in default, are addressed in a separate order. for the PCB contamination on the Dumey property, pursuant to 42 U.S.C. § 9607(a)(3). Second, because they are such arrangers, the utility defendants are jointly and severally liable to plaintiffs for $100,796.04 in necessary response costs plaintiffs have thus far incurred, consistent with the National Contingency Plan (NCP), to address the contamination, pursuant to § 9607(a)(3)(B). Third, because the utility automatically entitled to a declaration that the utility defendants are strictly, jointly, and severally liable for all future necessary response costs plaintiffs incur consistent with the NCP, pursuant to 42 U.S.C. § 9613(g)(2).
The utility defendants bring identical, interrelated counterclaims against plaintiffs: First, that plaintiffs are also liable as arrangers under § 9607(a)(3), which entitles the utility defendants to recover jointly and severally from plaintiffs in contribution, pursuant to § 9613(f)(1). Second, because plaintiffs are liable as arrangers under § 9607(a)(3), the utility defendants alternatively are entitled to contribution from plaintiffs under Missouri law. See Mo. Rev. Stat. § 537.060.
On August 17 and 18, 2015, the case was tried to the Court, sitting without a jury. Having reviewed the testimony and documentary evidence, the relevant ngs of fact and conclusions of law as required by Rule 52(a)(1) of the Federal Rules of Civil Procedure.
I. FINDINGS OF FACT On March 17, 1989, Brenda Dumey acquired the Dumey property from Six Thirty Corporation in satisfaction of a debt. On March 24, 2009, she placed the
property into the Brenda Kay Dumey Revocable Living Trust and the Daniel E. Dumey Revocable Living Trust, and she and her husband, Daniel Dumey, took title as trustees. In February 2011, the Dumeys formed WRDC. [Doc. #348 at ¶ 16] Mrs. Dumey is the secretary, treasurer, and sole board member of WRDC, while Mr. Dumey serves as its president.
From 1952 to 1982, near what would become the Dumey property, MEW capac . [Doc. #269-
2 at 6] MEW United States v. Union Elec. Co., 132 F.3d 422, 429 (8th Cir. 1997); see [Doc. #269-2 at 16] (same). Many operations MEW performed involved draining and changing the oil inside of those transformers, some of which contained PCBs. The manufacture and use of PCBs was banned in the late 1970s under the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq., and PCBs are identified as a hazardous substance under CERCLA. 42 U.S.C. § 9601(14); 40 C.F.R. § 302.4.
On March 27, 2008, the Morrill defendants acquired the MEW site through a foreclosure sale. On November 12, 2009, Fronabarger became the owner of the MEW site and later constructed a self-storage facility there.
A. Investigation and Action by the Environmental Protection Agency According to the Environmental Protection Agency (EPA), transformer oil was filtered which is also called diatomaceous earth 90% of the transformer oil was recycled. [Doc. #269-2 at 6] Though the process of filtering used transformer oil through Fuller s earth allowed much of the oil to be recycled, the filtering process itself generated waste. A portion of the oil was absorbed into the diatomaceous earth during the filtering process. Each batch of Fuller s earth thus became contaminated with oil (and therefore with PCBs); it was eventually so impregnated with oil that it was no longer suitable as a filtering mechanism. MEW disposed of PCB-contaminated diatomaceous earth on the MEW site.
Transformer oil cannot be filtered and recycled ad infinitum. Recycled transformer oil can be used to lubricate and insulate a transformer, as with new oil. However, though filtering used transformer oil rids it of impurities, the filtering process does not alter the inevitable chemical progression whereby the combination of wear and time renders all such oil unrecyclable. That is so because all transformer oil eventually loses its dielectric properties among the vital qualities of such oil leaving it unfit for use in transformers. MEW is estimated to have generated 28,000 gallons of oil of which MEW disposed of onsite. Id.; see Union Elec., 934 F. Supp. at 326 27.
The EPA began investigating MEW in the mid 1980s. On October 25, 1984, the EPA discovered over 100 55-gallon drums of transformer oil at the MEW site, all of which contained PCBs. Some of those drums were leaking oil. In 1986, an EPA investigation found soil on the MEW site was contaminated with PCBs. tion in soils such as
those on the MEW site is 10 parts per million (ppm). The surface soil on the MEW site was contaminated with PCBs in concentrations of up to 58,000 ppm.
The investigation also raised concerns regarding the possible spread of PCB contamination beyond the MEW site. discovered PCB contamination in the ravine that drains onto the Dumey property.
In 1988, the EPA forbid MEW from accepting any electrical equipment containing PCBs at concentration levels higher than 1 ppm. In 1989, the EPA discovered groundwater contamination, and it found surface soil contamination on over 70% of the MEW site, including over four acres of highly contaminated surface soil. B & D Elec., 2007 WL 1395468, at *1. All transfers of transformers to MEW ceased the same year. The MEW site was designated a Superfund site and placed on the National Priorities List (NPL) 2
on February 21, 1990, shortly after Mrs. Dumey acquired the Dumey property. 3
The EPA delineated the Superfund site into three operable units (OUs), which, in short, include the soils on MEW site (OU-1), groundwater (OU-2), and a wetlands south of and downgradient to the MEW site (OU-3) that encompasses, in part, portions of the Dumey property. Though over the years they have often been referred to interchangeably, the Dumey property and OU-3 are not precisely coextensive. Eastern sections of the Dumey property are not wetland areas covered by OU-3, and the OU-3 wetlands also extend in several directions beyond the borders of the Dumey property. In any event, the contaminated areas of the Dumey property at issue here are part of OU-3.
From 1988 to 1991, the EPA sent notices to potentially responsible parties (PRPs), inviting them to participate in settlement negotiations regarding the Superfund site. The negotiations resulted in the entry of a consent decree between the United States, the State of Missouri, and a group of forty-two PRPs. The PRPs 2 The NPL substances throughout the United States, and serves to identify those sites or releases that appear to warrant further Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 608 n.2 (8th Cir. 2011) (citing 42 U.S.C. § 9605(a)). 3 , because of th United States v. Gen. Elec. Co., 670 F.3d 377, 381 n.3 (1st Cir. 2012) (quotation marks and citation omitted). who signed the consent decree were and are legally obligated to perform the work under the consent decree regardless of the cost.
Though by signing the consent decree the PRPs did not admit liability under CERCLA, the PRPs acknowledged that they had sent particular transformers to MEW during its operation. Those transformers and the responsibility units derived therefrom in turn determined each share of response costs for the removal and remediation efforts at the Superfund site. See Union Elec., 132 F.3d at 429. Among the settling PRPs were the utility defendants.
The settling PRPs were later known as the Missouri Electric Works Steering Committee (MEWSC) or the MEW Trust. The consent decree required the MEWSC to perform soil remediation and a groundwater study, and to reimburse the EPA for oversight costs. Union Elec., 934 F. Supp. at 332. The MEW Trust conducted remediation, including thermal treatment of contaminated soil on the MEW site at OU-1, and sued MEW and other PRPs for contribution. Soil remediation was completed in 2000, and approved of by the EPA in its First and Second Five-Year Review Reports, in 2004 and 2009 respectively.
The EPA issued a certificate of completion for the soil remediation at OU-1. In March of 2014, surface soil sampling detected PCBs , which
[Doc. #269-2 at 9, 24] - Id. at 9. Negotiations between the PRPs and the EPA over the scope of remediation necessary for the groundwater at OU-2 and the wetlands at OU-3 are ongoing. To date, OU-3 remains unremediated.
As early as 1991, the Dumeys began efforts to sell portions of their property. However, their efforts have been unsuccessful. In July 2003, the MEW Trust began fieldwork on the Dumey property, during which the PRPs constructed an access road and installed monitoring wells, pursuant to a license agreement with Brenda Kay Construction, Inc. (BKC), another development corporation founded by the Dumeys. At the behest of the EPA, the Dumeys later constructed a pond on the Dumey property to facilitate monitoring and remediation of the wetlands. The MEW Trust erected a fence around the pond to restrict access in February 2007. Also, Brenda Dumey testified that, after seeing the high school track team running on Wilson Road, she asked the City of Cape Girardeau to spread gravel on the road. The city agreed, and a portion of the road was closed.
Environmental investigations of the Dumey property confirmed the presence of PCBs by no later than 2003, and the Dumeys were aware of the contamination. B. Remediation Efforts by the EPA and the PRPs
As part of its Second Five-Year Review Report, published in August 2009, the EPA noted:
A June 2005 Ecological Risk Screening Evaluation and a June 2006 Expanded Ecological Risk Screening Evaluation was performed at OU[- ]3 confirming a presence of PCBs in fish and other biota associated with the pond and channel in the wetlands. Elevated concentrations of PCBs were detected in stormwater drainage ditches adjacent to the [MEW site] along Wilson Road. [Doc. #104-45 at 32] Further, Mrs. Dumey admitted she was aware the Dumey property was contaminated by July 2003. [Doc. #104-2 at 4]; see [Doc. #104-81] (licensing the MEW Trust to perform certain work on the Dumey property to -14 at 2] (informing Mrs. Dumey in July 2003 that the MEW Trust would be installing monitoring wells on the Dumey property). Thus, it was universally understood that the Dumey property was contaminated with PCBs years before plaintiffs tested it.
In the Second Five-Year Review Report, the EPA also acknowledged that the Morrill defendants acquired the MEW site in 2008, and remarked that those owners -45 at 18] That is, before plaintiffs tested the Dumey property, the EPA knew and had revealed to the public that the Morrill defendants were PRPs, because they were the owners of the MEW site. See 42 U.S.C. § 9607(a)(1). Deed restrictions placed the property. [Doc. #104-45 at 28] The EPA also put in place erosion controls. Id.
In 2009, the EPA intended to annually monitor erosion at the MEW site and to take Id. at 29, 33.
site; the company communicated with the EPA both before and after it acquired the property. [Doc. #104-21 at 16] On April 28, 2010, before plaintiffs incurred response costs, the EPA sent Fronabarger a letter explaining, inter alia, that the -71 at 2]
Consequently, before plaintiffs incurred any of the response costs they seek to recover here, the EPA was aware Fronabarger owned the MEW site, and the EPA See 42 U.S.C. § 9607(a)(1).
Further, by 2009 the EPA was already negotiating with the utility defendants -45 at 8] According to the
-]3 [could not] be made site. Id. at 9, 11. Because gathering such information was
-3. Id. at 34.
The EPA planned to conduct a CERCLA-com of decision (ROD) for OU-3. Id. at 11. When the EPA issued the Second Five-Year
- Id. at 9. The EPA anticipated that, with agency oversight, the PRPs would complete that investigation by September 30, 2011, and would prepare an ecological risk assessment for OU- Id.
-3, and took additional steps to inform the public of its plans. Id. at 30. Indeed, the investigation was completed albeit later than anticipated before the EPA issued its Third Five-Year Review Report in July 2014, which incorporates the test results and analysis. See [Doc. #269-2].
Following the investigation, the EPA drafted and submitted to the PRPs for - #341-2 at 1] Among other things, the SOW recognizes that
-3 and that PCBs have been Id. of a
remedy to eliminate, reduce, or control risks to human health and the -3. Id. regulatory framework vis-à-vis planning, testing, data quality, data analysis, report
Id. at 6 11; see, e.g., 40 C.F.R.
§§ 300.420(c)(4), 300.430(a)(1).
C. Response Costs Claimed by Plaintiffs Plaintiffs seek to recoup $100,796.04 in response costs they allegedly incurred for work performed by two companies: S&ME and Burnside Environmental.
(1) SM&E #104-42 at 1] No S&ME witness testified at trial. Plaintiffs did not introduce into
evidence at trial any deposition transcripts, affidavits, contracts between themselves and S&ME, or other records in which S&ME employees or agents explained the limited soil investigation. The only evidence plaintiffs submitted of the work S&ME conducted consists of three invoices and a report S&ME generated after its investigation.
The invoices The first invoice, which is #444742 and is dated December 7, 2010, reflects #104- hed to the invoice, and plaintiffs have offered no
explanation what that unidentified exhibit refers to. The second page of that invoice shows that eight S&ME employees spent a total of sixty-five hours performing the historical site research and the redacted work. Id. at 7.
performed, why it was necessary, the goals of the research, how those goals are
connected to remediating the Dumey property, or what specifically each S&ME employee did to facilitate that work. For example, an S&ME employee spent 17.5 Id.
But the invoice does not explain those roles, or the work that employee performed in each capacity. The first invoice also reflects $370.00 charged for expenses to a Id. (capitalization removed). No witness from that subcontractor testified at trial, nor was any deposition testimony or other record evidence offered to explain what the subcontractor did, or why it was necessary. The invoice also does not differentiate between the historical site research and the work performed for the redacted purpose.
The second invoice, which is #444743 and is also dated December 7, 2010, sportation & Lodging and
Id. at 4 (some reflects that it
- -42 at 1] But the second invoice reflects
charges for a site visit and soil assessment from November 10, five days before the investigation began, until December 1, weeks after the investigation concluded. On its face the invoice does not explain that discrepancy, nor have plaintiffs introduced evidence to resolve it. To the extent the hours expended before and after the investigation might encompass pre-investigation and post-investigation activities, no facts have been adduced so stating. Any inference that is the case also cannot be sustained on the evidence offered because the other invoices show charges for pre-investigation site research and post-investigation analysis and report writing.
The second invoice reflects block-billed hours without details of each billed were two S&ME em $148.38. Id. at 5. S& reflects $145.07 in actual expenses with a cost multiplier of 1.15, a multiplier for
which no justification has been offered. Id. performing the work in question, with the bulk of those hours expended by two employees. Id. billing rates are documented, not the actual work performed.
r hour. Id.
complexity of the work. As another example, an S&ME employee worked 0.25 ssional Id. The
invoice does not explain what either professional designation means, or why the
The third invoice, which is #452263 and is dated February 4, 2011, is similarly uninformative. Id. writing, senior review, analytical costs, drilling expenses, and sampling equipment
Id. rendered from Novemb Id. (some
capitalization removed). The first and most obvious problem is that S&ME billed purportedly beginning on or after November 30, 2010. Id. drilling and sampling occurred from November 15 through November 17. [Doc.
#104-42 at 1] No evidence of record explains that discrepancy.
who conducted it, how many hours they expended doing so, or why it was necessary. Nor is there evidence of how many hours were expended on f an environmental report might be
prudent, no evidence submitted shows who conducted that review, whether such persons were qualified to review an environmental report, what changes they made, what data accuracy or quality-assurance plan they applied (if any), or the
perform such an analysis, or how many hours they worked to conduct it.
Fu report S&ME prepared, the third invoice fails to illuminate the work done by employees whose names do not appear in that report. S&ME also charged plaintiffs for work by one employee acting in three different roles and at three different [Doc. #104-15 at 3] Plaintiffs have not explained the genesis of the billing rates or
what the employee did that was different in each role.
(errors in original, capitalization removed). Setting aside the obvious problem of char S&ME or any of those subcontractors regarding the services they performed, the hours they expended, or why any of that work was necessary to remediate the Dumey property. In sum, the S&ME invoices are bereft of critical details.
The S&ME report which it issued in April 2011. [Doc. #104-42] The S&ME Report was offered into
evidence without supporting testimony from an S&ME witness or explanatory documentation. S&ME employees J. Patrick Baird, a project manager, and Steve S. Diamond, an environmental department manager, are identified as the authors of -requested inst Id. at 2. The Report does not identify Baird or
conclusions, or write the Report.
In fact, the Report does not identify who conducted the underlying tests. See id. But the S&ME Report does not offer
assurances that the work was performed by qualified individuals and performed See, e.g., 40 C.F.R. §§ 300.415(b)(4)(ii), 300.420(c)(4), 300.430(a)(1), 300.700(c)(5).
Further, unlike the hundreds of pages of data and analysis that comprise the -Year Review Report, see generally [Doc. #269-2], the S&ME Report is just over twenty pages long, counting all figures and data tables. [Doc. #104-42] If plaintiffs had not known the Dumey property is contaminated and ht expect S&ME to have discovered. But the life of this Superfund site is well past that point. As the Court has explained, it is undisputed PCBs were discovered on the Dumey property years before plaintiffs initiated testing, and the EPA and PRPs have long been engaged in remedial efforts.
In such circumstances a more thorough, scientifically rigorous, CERCLA- compliant testing regimen and report would be expected of S&ME. That is so in part because at the time S&ME conducted its investigation the PRPs were already obliged to conduct CERCLA-compliant testing on the Dumey property to pave the way for an RI/FS of OU-3. The EPA initially set a deadline of September 30, 2011, for the PRPs to complete that testing, with a report to follow a year later. S&ME
It is also notable that the EPA and PRPs were contemporaneously negotiating to perform an RI/FS of OU- undertaking to ex-ante plan for data gathering, ensure data quality, collect data, generate accurate results, compile valid assessments, and design a remedial plan. The S&ME Report does not on its face adhere to those rigorous standards, which one would expect if the S&ME Report were aimed at filling the role of an RI/FS in an attempt to expedite the remediation effort. If S&ME followe but neglected to fully document those steps, a witness from S&ME could have so
testified. But plaintiffs offered no such evidence at trial.
As to the limited investigation S&ME actually performed, on November 15 through 17, 2010, un -six soil samples on the Dumey property. Id. at 4. potential environmental impacts to soil or sed
MEW site, at no point does the S&ME Report indicate the tests were conducted to -
storage facility exacerbated the presence of PCBs on the Dumey property. In fact, the S&ME Report does not even mention Fronabarger, the self-storage facility, or any recent activities on the MEW site.
e.g., the EPA and the public)
Id. introduced into evidence, and plaintiffs suggest it was merely an oral arrangement,
which they did not describe. It is therefore impossible to say what restrictions S&ME placed on using the Report to remediate the Dumey property.
contains some glaring factual errors. For example, it is undisputed the Dumey property is comprised of 43.5 acres. But the S&ME Report indicates the Dumey Id. at 5. Plaintiffs did not note the errors in the Report, let alone explain those discrepancies.
Casting doubt on the quality controls and methods S&ME employed, the samples it collected were tested in the field by various methods that are not described in detail. Id. at 8. Then, rather than sending all soil samples collected to field-screening readings were submitted for laboratory analysis . . . Id. In other
words, S&ME preselected certain samples to submit to the laboratory and discarded others, and it did so by employing on-site testing methods that are barely documented and inadequately described. Perhaps prescreening and discarding samples that show lower levels of contaminants is standard scientific practice in an environmental investigation, but plaintiffs adduced no evidence that is the case.
unidentified subcontractor took soil borings from thirteen locations on the Dumey property. Id. at 5. The samples were taken at depth ranges of between zero and seven feet below ground surface, at four locations. Id. at 7 8. The Report contains scant details on why those particular locations were selected for testing, and it offers no explanation why soils were tested at some depths at certain locations but not at others. Of particular note, S&ME decided for unexplained reasons to collect and test samples from the eastern edge of the Dumey property. That area is not near any other sampling location, it is on the opposite end of the property from the MEW site, and no report has ever suggested the soil there is contaminated with PCBs. See id. at 7. Indeed, no PCBs were found there. Id.
S&ME wrot a laboratory in Atlanta, Georgia. Id. But no documents evidencing that chain of custody were submitted into evidence. The Report also discusses several other omissions. Id. at 8 9. For example, S&ME remarked on its effort to control for Id. at 9. The laboratory report is not in evidence, however. And the S&ME Report
Report aver that the samples were determined t
According to the Report, the samples S&ME selected for laboratory testing -646 Method -846 Metho Id. at 5 6. It is unknown requirements for assuring data quality and accuracy. This is all in stark contrast to
-Year Review Report, which exhaustively explains the testing methods employed, the reasons for each method, the quality assurance protocols employed, documents all of the relevant data, includes reports from the laboratories employed, and provides proof of the chain of custody for laboratory samples. See generally [Doc. #269-2].
-42 at 11 12] Thus, even if the sampling and the
Report are scientifically sound and insufficient evidence proves they are the to determine, and then determined, only what plaintiffs already knew.
(2) Burnside Environmental On March 12, 2012, Burnside Environmental sent plaintiffs a letter use in developing legal advice and strategy in [this]
litigation . . . -11 at 11] The next day, plaintiffs and their counsel entered into an agreement with Burnside Environmental. Id. at 10. Burnside Id. at 2. That assessment encompassed an
Id. at 6. Burnside Environmental was forbidden from Id.
In other words, no matter how serious was the contamination Burnside Environmental discovered on the Dumey property, the company was barred from
Plaintiffs later allowed Burnside Environmental to share its information with the EPA.
Mr. Dumey testi
sampling, or why it was necessary. [Doc. #387 at 54 55] Nor have plaintiffs ever the company. Some photographs employees were also referenced at trial, but they, too, do not illuminate the work
the company did, why it was necessary, or how it was consistent with the NCP.
Felix Flechas was the only Burnside Environmental employee to testify at
Id. at 30. Flechas expl Id. at 45. But
In support of his testimony Flechas referenced documents prepared by the EPA, from reports dating to the 1980s through the Third Five-Year Review Report issued in 2014. See id. at 21 66. Flechas also mentioned the S&ME Report. Id. at 59 investigation, and he did not write the S&ME Report; he offered no testimony about
what S&ME did when it investigated the Dumey property. See id. Flechas also did not refer to let alone explain the report that Burnside Environmental generated. Nor did plaintiffs offer into evidence any of the expert reports Flechas prepared that
Rather, Flechas offered only the following explanation of what Burnside Environmental did and why:
The Burnside work was focused on whether hazardous substances had been released from the MEW site to the Dumey property. The chemical we chose to evaluate . . . to answer that question was PCBs because we knew that they were easily traced in soils, and we wanted to limit the investigation to something that we could work with easily and at a low cost. So . . . the focus was to determine whether hazardous substances had been released from the MEW site onto the Dumey property. And we focused our investigation on the ravine since that was the most logical pathway for those hazardous substances to have been released from the MEW site to the Dumey property. Id. at 65 66. But as Flechas repeatedly acknowledged, years before Burnside Environmental conducted its investigation, the EPA substances, including PCBs, were released from the MEW site onto the Dumey
property. See id. at 21 Burnside Environmental charged plaintiffs to test and analyze was one for which plaintiffs, the company, the EPA, and the PRPs already had the undisputed answer.
Burnside Environmental submitted invoices for its work, large sections of which have unexplained redactions. [Doc. #104-14] One of the invoices reflects Id. at
19. Though the invoices reference meetings with the EPA, the invoices themselves offer no insight into why those meetings were necessary to remediating the Dumey property, as opposed to gathering information in support of the litigation. Id. at 5 7, 19. The invoices also refer to charges from several other corporations presumably subcontractors but no evidence was offered from or about those
entities. See id. at 12 13, 17 18. Burnside Environmental charged plaintiffs for Id. at
2 3, 5 8, 11, 16, 18. But there was no evidence presented as to what was planned, what was sampled, how it was sampled, and why that sampling was necessary and not duplicative of tests previously conducted by the EPA.
II. CONCLUSIONS OF LAW The purpose of CERCLA is to promote the timely cleanup of hazardous waste sites, and to shift the costs of clean-up efforts to those responsible for the contamination. See Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 620 (2009). To establish a prima facie case of liability under CERCLA, plaintiffs must establish that: (1) the MEW site is a facility 4
; (2) the utility defendants are covered persons under § 9607(a); (3) there has been a release or threatened release of a hazardous substance at the MEW site onto the Dumey property; and (4) such release or threatened release caused plaintiffs to incur necessary response costs taking actions that are consistent with the National Contingency Plan (NCP). Wilson Rd. Dev., 971 F. Supp. 2d at 905 (citing United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1379 (8th Cir. 1989)). It is undisputed that the MEW site is a facility within the meaning of CERCLA and that there was a release of PCBs, a hazardous substance, transformers at the MEW site onto the Dumey property. Thus, the remaining issues
to be determined are (1) whether plaintiffs incurred necessary response costs; (2) whether were consistent with the NCP; (3) whether the utility defendants or plaintiffs fall within one of the four categories of responsible persons under § 9607(a); and (4) whether plaintiffs, if they are arrangers, qualify for one of narrow defenses to liability.
4 The parties raise several arguments about whether under CE transformer is a separate facility, and whether the mass of oil in each transformer is a separate facility. For the reasons discussed above, it is unnecessary to address those arguments.
United States v. Atl. Research Corp.,
CERCLA creates a restitutionary remedy, not a private federal cause of action for damages, and, thus, the plaintiffs must actually spend some money on the cleanup or investigation of the contamination before they may Trimble v. Asarco Inc., 83 F. Supp. 2d 1034, 1039 (D. Neb. 1999), , 232 F.3d 946 (8th Cir. 2000). CERCLA s] that, before suing, CERCLA plaintiffs will spend some money responding to an environmental hazard. They can then go to court and obtain reimbursement for their initial outlays, as well as a declaration that the responsible Id. (quotation marks and citation omitted). By requiring a plaintiff to take some positive action before coming to court, CERCLA ensures that the dispute will be ripe for judicial Id. On the other hand, by not requiring plaintiffs to perform full cleanup before coming to court, and by expressly providing for declaratory judgments, CERCLA substantially reduces the risk involved Id. (quotation marks and citation omitted).
party of response incurred by any 9607(a)(4)(B); see Burlington 9607(a)(4)(B). See Atl. Research, 551 U.S. at
States, a State, or an Indian tribe the persons listed in subp Further, because it does not change the outcome, the Court assumes without deciding that one or more plaintiffs i.e., were legally obligated to pay, the costs at issue here. See Wilson Rd. Dev., 971 F. Supp. 2d 896 (refusing to grant summary judgment that plaintiffs did not incur any response costs because those costs were paid out of non-party BKC checking account).
In addition to the costs they allegedly incurred, plaintiffs seek to recover potential future response costs. 5
See 42 U.S.C. § 9613(g)(2). In Trimble v. Asarco, Inc. a party may be found to 958 (8th Cir. 2000), abrogated in part on other grounds by Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546 (2005). Trimble did not directly address the salient issue of incurred costs presented by this case; the Eighth Circuit assume[d], without deciding, that some of [were], by their nature, necessary co Id. at 956 (quotation marks and citation omitted). Relevant here, however, Trimble recognized that § s an action for response costs incurred not to be incurred. Id. at 958 (quotation marks and citations omitted). Trimble thus held: [A] plaintiff cannot obtain declaratory relief pursuant to § 9613(g)(2) without having incurred response costs within the meaning of § Id. at 956.
9613(g)(2) is dependent on whether they incurred necessary response costs consistent with the NCP. If so, and if they further prove the utility defendants are liable, declaratory 5 In the complaint and again at trial plaintiffs also requested a declaration that the utility defendants are obligated to conduct whatever remediation activities the EPA commands. That issue is not before the Court because the EPA is not a party to this litigation. The claims plaintiffs brought do not provide for any relief beyond their response costs. See 42 U.S.C. §§ 9607(a)(4)(B), 9613(g)(2). relief follows automatically. 42 U.S.C. § 9613(g)(2). Therefore, the pertinent questions are the meaning of 42 U.S.C. § 9607(a)(4)(B), and whether plaintiffs actions qualify as such.
A. Necessary Costs
In Key Tronic Corp. v. United States, the Supreme Court addressed rong, holding that § does not provide for the award of
511 U.S. 809, 819 (1994). As relevant to the issues here, in Key Tronic the
Supreme Court also explained:
The conclusion we reach with respect to litigation-related fees does not signify that all payments that happen to be made to a lawyer are unrecoverable expenses under CERCLA. On the contrary, some closely tied to the actual cleanup may constitute a necessary cost of response in and of itself under the terms of § (a)(4)(B). . . . [T]he work performed in identifying other PRP[s] falls in this category, . . . [because] these efforts might well be performed by engineers, chemists, private investigators, or other professionals who are not lawyers. Id. at 819 20 (emphasis added). Thus, expenses Id. Among those
down other responsible . . . polluters increases the probability that a cleanup will be
effective and get paid for Id. at 820.
The Supreme Court went on to distinguish between costs incurred identifying previously unknown PRPs and the costs attorneys had incurred while negotiating its liability with the EPA:
This reasoning does not extend, however, to the legal services performed in connection with the negotiations between Key Tronic and the EPA that culminated in the consent decree. Studies that Key indeed have aided the EPA and may also have affected the ultimate scope and form of the cleanup. We nevertheless view such work as proceedings that established the extent of its liability. As such, these recoverable under CERCLA.
Id. at 820 21. Key Tronic thus holds the costs of identifying unknown PRPs are
Id. at 819 21.
CERCLA similarly [es] not include benefited the entire cleanup effort and served a statutory purpose apart from the
Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 91 92 (2d Cir. 2000) (quoting Key Tronic, 511 U.S. at 820). In Gussack, the Second Circuit held the did identify [the
defendant] as a potentially responsible party without the expenditure of any of the Id. at 92; see also Calabrese v. McHugh, 170 F. Supp. 2d 243, 267 68 (D. Conn. 2001) (same). In short, costs associated with identifying an unknown PRP fall such expenses are actually necessary to discover that PRP. See Gussack, 224 F.3d at 92.
However, the analysis whether such costs are necessary is without regard to a See Gen. Elec. Co. v. Litton Indus. Automation Sys., Inc., 920 F.2d 1415, 1418 (8th Cir. 1990), abrogated in part on other grounds by Key Tronic he motives of the private party attempting to recoup response costs under 42 U.S.C. § 9607(a)(4)(B) are irrelevant. The purpose of allowing a private party to recover its response costs is to encourage timely cleanup of hazardous waste sites. Id. Under CERCLA, courts
process, only whether the costs were necessary under the statute. Id. (citation omitted). As applicable to the search for PRPs, for example, even if a private party incurs expenses necessary to uncover a PRP for the ulterior purpose of suing that PRP, such costs remain recoverable. It is whether the costs were necessary under CERCLA, not the motive for incurring them, that is dispositive. See id.
In addition to the costs necessary to discover additional PRPs, CERCLA contemplates a private party may recoup expenses for, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances . . . 9601(23) (emphasis added) (discussing see also id. § 9601(24) ( reasonably required to assure that such actions protect the public health and welfar and includes related enforcement activities (emphasis added)). Necessary monitoring costs are recoverable because the full extent of the contamination . . . might not have been discovered and
Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 937 (8th Cir. 1995). Thus, [i]nvestigative and monitoring costs may be recoverable if they are Ebert v. Gen. Mills, Inc., 48 F. Supp. 3d 1222, 1232 (D. Minn. 2014) (citation omitted).
Whether response costs are necessary under CERCLA also hinges in part on whether those expenses are unreasonably high for the particular efforts that justifiably ought to be undertaken in a particular circumstance. For example, in G.J. Leasing Co. v. Union Electric Co., the Seventh Circuit persuasively explained bec
property and charge the expense o 386 (7th Cir. 1995). The Seventh Circuit thus determined red on the property in question and expenditure would be necessary to remove enough of the substance to make the
Id. CERCLA foreclosed recovery where the plaintiff, and to for the current very low level of contamination . . . Id.
Applying similar persuasive reasoning, the Third Circuit has explained that Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d 1209, 1219 (3d Cir.
in response were both necessary and consistent with the NCP, . . . these requirements prevent a plaintiff from recovering the costs incurred in instituting a Id. (citation omitted). Monitoring and assessment costs are needless and thus not recoverable where such efforts are
, 977 F. Supp. 2d 487, 500 because the
plaintiff had not incurred where a state
environmental protection agency and several PRPs).
Additionally Johnson v. James Langley Operating Co., 226 F.3d 957, 964
e procedures Id. While costs for fiscally reasonable and scientifically
valid testing to monitor and assess the full extent of contamination may be necessary and recoverable, moreover, such costs are distinct from testing al obligation to [remediate] Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 298 (3d Cir. 2000). As Black Horse Lane explains did not intend [§ 9607](a)(4)(B) to provide a private party with a cause of action
an environmental consultant for oversight purposes without direct involvement in
Id. at 298 99. Or, in Key Tronic 20.
Of course, testing and monitoring costs also must be adequately documented to prove they were necessary. See United States v. Findett Corp., 75 F. Supp. 2d 982, 991 92 (E.D. Mo. 1999), aff d, 220 F.3d 842 (8th Cir. 2000) (explaining that a under CERCLA if those costs are adequately documented). A plaintiff may prove expenditures for testing and monitoring were necessary by offering into evidence invoices, payment vouchers, and contractor bills . . . . City of Wichita v. Trs. of
APCO Oil Corp. Liquidating Tr., 306 F. Supp. 2d 1040, 1092 93 (D. Kan. 2003). Such information, c personnel for accuracy and consistency with the underlying contract, may demonstrate that testing and monitoring was performed in a fiscally reasonable and scientifically valid manner. Id.
Finally, as Key Tronic emphasizes s remedial scheme is aimed at promoting expedient actions must be cleanup to be necessary. 511 U.S. at
819 20. In Young v. United States, the Tenth Circuit addressed a similar set of facts to those before the Court today. 394 F.3d 858, 863 65 (10th Cir. 2005). In Young, the Tenth Circuit held that containment and cleanup of hazardous releases absent some nexus between the
alleged response cost and an actual effort to respond to environmental Id. at 863 (citation omitted).
Young Though the plaintiffs in Young consistent with th Id. at 864. A the hazardous releases because the costs were not tied in any manner to the actual cleanup of hazardous releases . Id. [the p]laintiffs expended and an actual effort to cleanup the environmental
Id. In fact, the Tenth Circuit noted, at the same time the plaintiffs in Young testified they d[id] not intend to spend any money to clean [up] the
Id. The Tenth Circuit thus held that the ] as a matter of law because their alleged response costs were not necessary to either the containment or cleanup of hazardous Id. the Court must determine whether plaintiffs have met their burden of proving that
they incurred necessary response costs.
Plaintiffs allude to having incurred response costs for which they have produced no evidentiary support. For example, there is no evidence of any expense Brenda Dumey incurred in asking the City of Cape Girardeau to spread gravel on the road between the MEW site and the Dumey property. Plaintiffs also identify several instances in which Mr. and Mrs. Dumey personally labored to respond to the contamination on the Dumey property. For example, Daniel Dumey constructed a pond on the property at the behest of the EPA. But plaintiffs produced no records ascribing any monetary value to such efforts. See Findett, 75 F. Supp. 2d at 991 92; see also City of Wichita, 306 F. Supp. 2d at 1092 93. Further, because
plaintiffs have not specifically sought to recover those implied costs, they have not demonstrated the value of such efforts was fiscally reasonable, and thereby necessary and recoverable under CERCLA. See Johnson, 226 F.3d at 964. In the absence of documented evidence of such costs, the Court finds those efforts did not result in any necessary response costs. See 42 U.S.C. § 9607(a)(4)(B); Atl. Research, 551 U.S. at 139; Key Tronic, 511 U.S. at 816 21; Trimble, 232 F.3d at 958; Aceto, 872 F.2d at 1379.
By 2003 it was known that the Dumey property was contaminated with PCBs from the MEW site. The evidence shows that in 2010 sought to prove that same information. Similarly, Flechas testified that Burnside released from the MEW site to the Dumey property, not to prove the scope of the
contamination or reveal new contamination. [Doc. #388 at 65 66] The limited thus confirms that plaintiffs incurred expenses to determine what they already knew. Applying the law to those facts, the weight of authority establishes that ere not necessary.
First, the tests plaintiffs initiated before and after filing this lawsuit cannot have been necessary if those efforts were not the Dumey property. Key Tronic, 511 U.S. at 819 20. Here, plaintiffs have
they gathered for this litigation, but not to begin removing or remediating the contamination in the years following those tests, such that the response costs were not tied in any Young, 394 F.3d at 863 65; see Key Tronic, 511 U.S. at 819 20.
Unlike the litigants in Young, plaintiffs have not emphatically rejected remediating the Dumey property themselves. But in the complaint and again at trial plaintiffs repeatedly sought a form of relief that is not available in this case an order compelling the utility defendants to remediate the Dumey property. Plaintiffs have not evinced even vague designs to remediate the property themselves, particularly where the EPA and the PRPs already plan to do so, and plaintiffs ask the Court to compel the PRPs to conduct that remediation. And no evidence exists in EPA planned to conduct and did conduct extensive, CERCLA-quality testing before
issuing the Third Five-Year Review Report, and the agency apparently had no use for the limited data given to it by plaintiffs.
In any event, whatever plans plaintiffs or the EPA may have for the Dumey property in the future, plaintiffs have not introduced any evidence tying S&ME and See Young, 394 F.3d at 863 65. Indeed, as evidenced by the Burnside Environmental engagement letter and connection with this lawsuit. Also, both the S&ME and Burnside Environmental
reports were designated as attorney work-product, indicating that they were produced in anticipation of this litigation. Consequently, because plaintiffs have not they have only succeeded in demonstrating their response costs were incurred Gussack, 224 F.3d at 91 92. Therefore, their costs are not recoverable under CERCLA.
Second, the evidence shows neither S&ME nor Burnside Environmental sought to or did identify the Morrill defendants or Fronabarger as new PRPs. See id. at 92. The EPA was aware before plaintiffs incurred response costs of both those owners of the MEW site, which is the basis of their potential liability as PRPs.
open and obvious owners of a Superfund site may be liable for the contamination thereon or migrating therefrom. See id. Consequently, plaintiffs regard are not compensable.
Third, no witness testified regarding and no other evidence of record sufficiently addresses the gaps in the invoices. See City of Wichita, 306 F. Supp. 2d at 1092 93; Findett, 75 F. Supp. 2d at 991 92. Redactions significantly undercut the evidentiary value of the S&ME and Burnside Environmental invoices to services are insufficient evidence of the work performed. See Findett, 75 F. Supp.
2d at 991 92. The invoices also reflect charges for work by unidentified or insufficiently described subcontractors, without any evidentiary support to demonstrate what each entity did and why it was necessary. See id. Because the costs incurred are insufficiently documented, plaintiffs also have not shown that any of the expenditures were necessary in comparison to the data that needed to be gathered. See G.J. Leasing, 54 F.3d at 386.
Dumey property. 42 U.S.C. § 9601(23) (24). The evidence plaintiffs introduced
ready known, that PCBs migrated from the MEW site onto the Dumey property and conducted to discover new contamination or to delineate with a greater degree of
scientific accuracy and precision the existing contamination, but only to determine whether contamination existed. Those costs were thus incurred on efforts Marcas, 977 F. Supp. 2d at 500 01. Nor is the evidence of record sufficient to show that the work testing methods that are scientifically deficient or unduly costly cannot be necessary Johnson, 226 F.3d at 964.
By the same measure, S&ME and Burnside Envir necessary to . Control
Data, 53 F.3d at 937; see Ebert, 48 F. Supp. 3d at 1232. The EPA was imminently planning to conduct CERCLA-compliant testing of the Dumey property, both in preparation for the Third Five-Year Review Report and to prepare for an RI/FS of OU-3. by the EPA
during its planned, rigorous testing. Control Data, 53 F.3d at 937.
Plaintiffs also did not establish that their costs were necessary to monitoring and assessing the work the PRPs were compelled to perform by the EPA under the consent decree. Such oversight costs are not recoverable where, as here, plaintiffs Black Horse Lane, 228 F.3d at 298 99. The evidence thus proves that
which were unnecessary. Tonolli, 4 F.3d at 1219. Consequently, because none of
Key Tronic, 511 U.S. at 819 20, of the Dumey property, their response costs were not necessary under CERCLA.
B. Consistency with the NCP -effective measures to protect public Union Pac. R.R. Co. v. Reilly Indus., Inc., 215 F.3d 830, recover its reasonable and necessary response costs from a responsible party
unless it has Id. (citations omitted). However, regulates choice of response actions, not costs. Costs, by themselves, cannot be
United States v. Findett Corp., 220 F.3d 842, 850 n.7 (8th Cir. 2000) (quotation marks and citation omitted). Thus, unlike the assessment whether expenses were necessary which hinges in part on whether the costs exceeded the need to incur them, see G.J. Leasing, 54 F.3d at 386 the actual numerical costs incurred have no bearing on compliance with the NCP. R incurring those costs are measured for compliance.
Further, substantial compliance with the NCP is the applicable standard. Reilly, 215 F.3d at 835 (quotation marks and citations r this standard, an immaterial or insubstantial deviation from the Id. (quotation mixed question of law a Id. (citation omitted).
CERC may undertake a response action to reduce or eliminate a release of a hazardous substance, 300.700(a). Where a private party chooses to do so by pursuing a cost recovery action under § Responsible parties shall be liable for necessary costs of response actions to releases of hazardous substances incurred by any other person consistent with the NCP Id. § [a] private when evaluated as a whole, is in substantial compliance with the applicable
requirements in paragraphs (5) and (6) of this section, and results in a CERCLA- Id. § 300.700(c)(3)(i). 6
Paragraph (5) in turn lists, among other 40 C.F.R. §§ 300.410, 300.415, 300.420, and 400.430. 40 C.F.R. § 300.700(c)(5).
Plaintiffs have not taken a firm position on whether their efforts constitute a under CERCLA. In short, removal actions those taken to counter imminent and substantial threats to public health and welfare, Morrison, 638 F.3d at 608 6
carried out in compliance with the terms of an order issued by EPA pursuant to section 106 of CERCLA, or a consent Id. § 300.700(c)(3)(ii). It is undisputed that plaintiffs are not parties to the consent decree between the EPA and the PRPs, and the EPA did not order plaintiffs to undertake the testing for which they incurred costs. removal action costs less, takes less time, and is geared to address an immediate nants. Id. (quotation marks and citation omitted). On the other hand, dial action, which usually costs more and takes longer, seeks to effect a permanent remedy to the release of hazardous substances when there is no immediate threat to the public health. Id. (quotation marks and citation omitted). The distinction between a remedial and removal action sometimes matters because removal actions are typically faster paced and are thus not subject to certain more onerous procedures under CERCLA. See id. Here however, for the reasons discussed below, the Court need not decide whether plaintiffs efforts are properly characterized as a removal action or a remedial action, because instance.
Assuming arguendo sured against the tions governing such an effort collecting them shall develop sampling and analysis plans that shall provide a
40 C.F.R. § 300.415(b)(4)(ii). Prior be reviewed and approved by EPA. Id. Those plans also must include the
(A) The field sampling plan, which describes the number, type, and location of samples and the type of analyses; and (B) The quality assurance project plan, which describes policy, organization, and functional activities and the data quality objectives and measures necessary to achieve adequate data for use in planning and documenting the removal action. Id. § 300.415(b)(4)(ii)(A) ulations further require that a for possible CERCLA response pursuant to § 300.415 shall, as appropriate, be undertaken . . . as promptly as Id. § determines that a removal action is appropriate, actions shall, as appropriate, begin as soon as possible to abate, prevent, minimize, stabilize, mitigate, or eliminate the threat to public health or welfare of the Unit Id. § 300.415(b)(3); see Gen. Elec. a .
Assuming arguendo regulations governing such an effort are even more stringent. Similar data quality
requirements apply to remedial actions. See 40 C.F.R. § 300.420(c)(4) (setting forth data quality requirements for field sampling during remedial actions). CER also implemented as soon as site data and information make it Id. § 300.430(a)(1).
One of the next steps a private party must take when engaging in remedial action is to prepare remedial investigation/feasibility study (RI/FS), assess site conditions and evaluate alternatives to the extent necessary to
Id. § 300.430(a)(2); see Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697, 709 -selection process . . . [,]the very heart of the NCP[,] cannot reasonably be characterized as immaterial or insubst citation omitted)); Carson Harbor Vill. v. Cty. of Los Angeles, 433 F.3d 1260, 1267 ction plan discusse[d] the
remediation goals, the process for removal, and the pollutant levels required after e costs,
Aviall Servs., Inc. v. Cooper Indus., LLC, 572 F. Supp. 2d 676, 697 (N.D. Tex. 2008) (holding investigatory efforts must be compliant with the NCP); Sherwin-Williams Co. v. City of Hamtramck, 840 F. inter alia, because the plaintiff party seeking cost recovery under CERCLA to perform an RI/FS, and all the analysis
and investigation that it implies, defeats a claim of substantial compliance with the omitted)).
Of course, because the applicable yardstick a Gen. Elec., 920 F.2d
NCP be dealt with explicitly; thus, for instance, a failure to consider explicitly the
weather conditions factor is Id. ailure to provide a meaningful opportunity for public participation
and comment in the selection of a remedial action at a particular cleanup site is Reilly, 215 F.3d at 835 (citations omitted). A plaintiff articipation and comment requirements in the selection of
Id. agency has been extensively involved in the formulation and execution of the Id. on and comment
9607(a)(4). Id. at 838 39. may fulfill the public participation requirement, . . . extensive state involvement is not a per se substitute for substantial Id. at 839 (quotation marks and citations omitted).
Finally, as the Tenth Circuit persuasively explained in Young but such consistency exists
compliance with the applicable requirements in 40 C.F.R. § 300.700(c)(5) (6), and results in a CERCLA- 394 F.3d at 864 (quotation marks, citations, and bracketing omitted). In Young, the Tenth Circuit held that also failed because their respons Id. Among other things,
result in any let alone CERCLA-quality Id. at 865.
The Young site investigation and monitoring with additional removal or response actions
because the source of the hazardous substances [was] from [a] [S]uperfund site, Id. To the contrary, the Young court the p Id. he costs appear[ed] to have been incurred in connection with
Id. The Tenth Circuit therefore affirmed summary judgment against the plaintiffs, because costs incurre for Id. (citations omitted); see
Walnut Creek Manor, LLC v. Mayhew Ctr., LLC, 622 F. Supp. 2d 918, 930 31 (N.D.
-quality cleanup ha[d] not even result[ed] in a CERCLA-quality cleanup Rhodes v. Cty. of Darlington, 833 F.
Supp. 1163, 1187 proper classification of a cleanup [was] an issue of law for the court, not an issue to
CERCLA claim failed where, inter alia, they . Consequently, a court evaluating
or, at minimum, began and are continuing in furtherance of a CERCLA-quality cleanup.
Evidence of Consistency Even if plaintiffs had succeeded in proving that their costs were necessary, the evidence is insufficient to show that , when evaluated as a whole, was substantial with the NCP. 40 C.F.R. § 300.700(c)(3)(i); Reilly, 215 F.3d at 835. First, whether characterized as a removal action or a remedial action, plaintiffs were required to develop a field sampling plan and a quality assurance project plan, and to obtain approval of the plans from the EPA. See 40 C.F.R. §§ 300.415(b)(4)(ii), 300.420(c)(4). No evidence was presented that S&ME met with the EPA, or that it developed rigorous sampling and quality assurance plans before it began testing the Dumey property. Neither have plaintiffs shown that Burnside Environmental developed such plans in advance of sampling, that it submitted them to the EPA for approval at one of its meetings with the agency, or that its plans were ever approved. Insufficient evidence was produced that plaintiffs substantially complied with those regulations.
Second, plaintiffs did not introduce evidence to confirm that they developed r obtaining data of sufficient quality and qu Id. §§ 300.415(b)(4)(ii), 300.420(c)(4). The evidence introduced at trial does not show whether such plans existed before either the S&ME or Burnside Environmental testing. Significant details missing from the S&ME Report, and which were not supplied by other if S&ME collected samples that met those needs. That is equally true of the insubstantial evidence introduced
(as the EPA defines OU-3), they have also produced no evidence that S&ME or Burnside Environmental undertook or are planning to undertake their own RI/FS in the future. See id.
§ 300.430(a)(1); LFG, 460 F.3d at 709; Carson Harbor Vill., 433 F.3d at 1267 69; Aviall Servs., 572 F. Supp. 2d at 697; Sherwin-Williams, 840 F. Supp. at 478. Nor did plaintiffs seek public participation in advance of their efforts. See Reilly, 215 F.3d at 835, 838 39. I property, those ef command to
thoroughly plan for and engage the public in the remediation effort.
Finally, plaintiffs have adduced no evidence that they took any further removal or remedial actions after S&ME and Burnsid completed. If additional sampling was required before beginning removal or
remediation in earnest, no evidence here shows plaintiffs initiated a finished its work in 2012. 40 C.F.R. § 300.410(b); see id. §§ 300.420(c)(1)(iv), 300.430(a)(1). If,
site data and information ma[d]e it possible to begin removing or remediating the contamination on the Dumey property, no evidence shows plaintiffs or remediate that contamination. Id. §§ 300.415(b)(3), 300.430(a)(1); see id. §§ 300.410(b), 300.420(c)(1)(iv); Gen. Elec., 920 F.2d at 1419.
If plaintiffs were unsatisfied with the speed or quality of the EPA CERCLA permitted them to initiate removal or
remediation on their own. But the NCP does not countenance conducting limited, poorly documented tests to prove facts long accepted, followed by no effort to further delineate, remove, or remediate the contamination in question for years while litigation runs its course. Therefore, plaintiffs have not proved that they - Dumey property. Young, 394 F.3d at 864 65; see Walnut Creek Manor, 622 F.
Supp. 2d at 940 31; Rhodes, 833 F. Supp. at 1187 89.
actions were not in substantial compliance with the NCP. See Reilly, 215 F.3d at 835. Consequently, even if their response costs had been necessary, their CERCLA claims against the utility defendants would fail as a matter of law. C. Arranger Liability The sole basis upon which both sides seek to hold the other liable is § 9607(a)(3), which imposes strict liability for environmental contamination on
any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances . . . . 42 U.S.C. § 9607(a)(3); see United States v. Dico, 808 F.3d 342, 346 51 (8th Cir. . As discussed above, the plaintiffs have failed to prove by a preponderance of the evidence that they incurred necessary response costs and that the actions they took were consistent with the NCP. Therefore, it is unnecessary to decide whether the defendan
In their counterclaims, the utility defendants contend that they are entitled to contribution because plaintiffs are liable as arrangers under § 9607(a)(3). See Morrison, 638 F.3d 594. But the utility defendants have adduced no evidence that any of the plaintiffs ever arranged for disposal of a hazardous substance within the meaning of CERCLA, an issue they did not address at trial or in their post-trial briefs. In fact, they appear to have wholly abandoned their counterclaims. Thus, the Court concludes that plaintiffs are not liable under § 9607(a)(3) and the utility 9613(f)(1) and state law contribution counterclaims fail.
III. CONCLUSION For the reasons discussed above, the Court finds in favor of the utility defendants on CERCLA claims. The Court further finds in favor of
A judgment consistent with this Memorandum will be filed separately.
____________________________ CAROL E. JACKSON UNITED STATES DISTRICT JUDGE Dated this 16th day of September, 2016.