Wilson Road Development Corp. v. Fronabarger Concreters, Inc.
Docket: Case No. 1:11-CV-84-CEJ
Court: District Court, E.D. Missouri; September 16, 2016; Federal District Court
Plaintiffs Wilson Road Development Corporation (WRDC), Brenda Diimey, Daniel Dumey, and the Brenda Kay Dumey and Daniel E. Dumey Revocable Living Trusts filed a lawsuit on May 11, 2011, seeking monetary and declaratory relief under CERCLA due to PCB contamination on their 43.5-acre property, located near a site owned by Missouri Electric Works, Inc. (MEW). The plaintiffs claim the utility defendants, Union Electric Company d/b/a Ameren Missouri and Citizens Electric Corporation, are strictly liable as "arrangers" for the contamination under 42 U.S.C. § 9607(a)(3), and seek recovery of $100,796.04 for response costs incurred, along with a declaration of future liability for additional response costs.
In response, the utility defendants have filed counterclaims asserting the plaintiffs are also liable as arrangers, which would entitle the defendants to contribution from the plaintiffs under both CERCLA and Missouri law. The case was tried without a jury on August 17 and 18, 2015, and the Court is now making findings of fact and conclusions of law.
Key facts include that Brenda Dumey acquired the Dumey property in 1989, later placing it in trust. WRDC was formed in 2011, with the Dumeys as trustees and officers. MEW operated from 1952 to 1982, handling transformers containing PCBs, which are classified as hazardous under CERCLA. The MEW site changed ownership through foreclosure and was eventually developed into a self-storage facility.
The Environmental Protection Agency (EPA) investigated MEW, which recycled transformer oil through Fuller’s earth, resulting in the generation of PCB-contaminated waste. Although 90% of the transformer oil was recycled, the filtering process left behind contaminated diatomaceous earth and produced approximately 28,000 gallons of unrecycled oil, most of which was disposed of onsite. By the mid-1980s, the EPA found over 100 drums of PCB-containing transformer oil at the MEW site, with some leaking. Soil contamination levels exceeded the EPA's action level of 10 parts per million (ppm), with concentrations reaching up to 58,000 ppm. Investigations in 1987 revealed PCB contamination had spread to adjacent properties. The EPA prohibited MEW from accepting PCB-contaminated equipment over 1 ppm in 1988, and by 1989, groundwater contamination was also discovered. The site was designated a Superfund site on February 21, 1990, after Mrs. Dumey acquired nearby property. The EPA divided the site into three operable units, with part of the Dumey property included in OU-3. From 1988 to 1991, the EPA engaged potentially responsible parties (PRPs) in settlement negotiations leading to a consent decree that obligated 42 PRPs to conduct remediation work without admitting liability under CERCLA. Each PRP’s share of costs was based on the transformers they sent to MEW during its operation.
The settling Potentially Responsible Parties (PRPs), including utility defendants known as the Missouri Electric Works Steering Committee (MEWSC) or MEW Trust, were mandated by a consent decree to conduct soil remediation and a groundwater study, as well as reimburse the EPA for oversight costs. The MEW Trust successfully completed soil remediation by 2000, which received EPA approval in its First and Second Five-Year Review Reports (2004 and 2009). A certificate of completion was issued for the remediation at Operable Unit 1 (OU-1). However, in March 2014, the EPA detected polychlorinated biphenyls (PCBs) above the 10 ppm cleanup standard on the Dumey property, indicating a potential new exposure route that necessitated further evaluation and additional sampling to confirm the extent of contamination.
Ongoing negotiations between the PRPs and the EPA concern the remediation necessary for groundwater at Operable Unit 2 (OU-2) and wetlands at Operable Unit 3 (OU-3), which remains unremediated. The Dumeys attempted to sell their property since 1991 without success. In July 2003, the MEW Trust initiated fieldwork on the Dumey property, constructing access roads and monitoring wells under a license agreement with Brenda Kay Construction, Inc. (BKC), a corporation established by the Dumeys. At the EPA's request, the Dumeys built a pond on their property to aid in monitoring and remediation, with a fence erected in February 2007 to limit access.
Environmental investigations confirmed PCB contamination on the Dumey property by at least 2003, with Mrs. Dumey acknowledging awareness of the contamination by that time. The EPA's Second Five-Year Review Report (2009) referenced ecological risk evaluations indicating PCB presence in local wildlife and elevated concentrations in stormwater drainage ditches. The Morrill defendants, who acquired the MEW site in 2008, were identified as PRPs and planned to redevelop the site for commercial use. Deed restrictions imposed by the EPA allowed for certain commercial and industrial uses of the MEW site, alongside erosion controls. The EPA planned to monitor erosion annually and opted not to establish institutional controls on the soil at the site.
The EPA was aware of Fronabarger’s ownership of the MEW site and communicated with the company before and after its acquisition of the property. On April 28, 2010, prior to the plaintiffs incurring response costs, the EPA informed Fronabarger of restrictions on the MEW site and obligations to provide access for environmental activities. The EPA recognized Fronabarger as a potentially responsible party (PRP) before the plaintiffs sought recovery for response costs.
By 2009, the EPA was negotiating with utility defendants and other PRPs for a consent decree concerning ongoing work at the Superfund site, including remedial investigations and actions for the Dumey property. The EPA indicated that a protectiveness determination for the remedy at operable unit OU-3 could not be made until further investigations were completed, which involved ecological risk assessments. The agency expected these investigations to take approximately three years, with a completion date anticipated by September 30, 2011.
The EPA issued Special Notice Letters regarding the planned investigations and conducted public outreach. Although the investigation concluded later than expected, it was completed before the EPA’s Third Five-Year Review Report in July 2014, which included test results. The EPA proposed a Statement of Work (SOW) for the remedial investigation and feasibility study (RI/FS) for OU-3, acknowledging the presence of low levels of PCBs in the soil and fish sampled from the pond. The SOW aimed to outline requirements for the RI/FS to facilitate remedy selection for human health and environmental risks, adhering to CERCLA’s regulatory framework.
The plaintiffs are seeking to recover $100,796.04 in response costs incurred from work performed by two companies, S. ME and Burnside Environmental. Specifically, S. ME conducted a limited soil investigation on the Dumey property from November 15 to November 17, 2010, before the litigation commenced. However, no witnesses from S. ME testified at trial, and the plaintiffs did not provide substantial evidence, such as deposition transcripts or contracts, regarding S. ME's work. The only evidence presented consisted of three invoices and a report generated by S. ME, with the first invoice documenting $5,800.00 in labor and $370.00 in expenses related to historical site research, but lacking further detailed descriptions of the work performed.
Exhibit A is absent from the invoice, with no explanation provided by plaintiffs regarding its content. The invoice details that eight S. ME employees collectively spent 65 hours on historical site research and unspecified work, but lacks specifics on the nature and necessity of the historical site research, its relevance to remediating the Dumey property, and the specific contributions of each employee. For example, one employee's time is divided into different roles with varying hourly rates, yet the invoice fails to clarify the tasks associated with these roles.
Additionally, $370.00 was charged for a subcontractor, Environmental Data Resources, with no testimony or evidence presented regarding the subcontractor's involvement. The distinction between historical site research and other work is not made clear. The second invoice (#444743) charges $5,235.75 for labor and $2,581.19 for supplies and expenses related to Exhibit B, which remains undefined and unintroduced in evidence. The invoice shows charges for site visits and soil assessments before and after the reported soil investigation, with no explanation for the timing discrepancies.
Block billing is used without detailing individual employee activities or justifying their necessity, and includes entertainment expenses totaling $148.38 and supply expenses with an unexplained cost multiplier of 1.15. Although 64.25 hours of work were logged, only the total hours and billing rates are documented, without clarity on the tasks performed or the professional designations of employees. The third invoice (#452263) similarly lacks informative details, billing $4,160.00 for labor and $8,301.53 for various expenses related to professional services rendered over a specified period.
S. ME invoiced plaintiffs for "drilling expenses" and "sampling equipment" for work allegedly starting after November 30, 2010, despite all related activities occurring from November 15 to November 17, with no evidence explaining this discrepancy. The third invoice lacks detail on "project research," including the personnel involved, hours worked, and necessity. There is insufficient evidence regarding "conference calls," including participants and their relevance. The supposed "senior review" of an environmental report is unsubstantiated regarding who conducted it, their qualifications, and the review's content. "Analytical costs" are also not clarified, with no details on the qualifications of the analysts or the time spent. The invoice suggests report writing expenses but does not clarify the contributions of employees not named in the report. Additionally, S. ME charged for one employee performing three roles with varying billing rates within the same timeframe, without explanation for the differing rates or duties. Plaintiffs were billed $8,224.08 for "subcontractor fees," but no evidence was provided regarding the services rendered, hours spent, or necessity for work by "miscellaneous vendors."
At trial, plaintiffs submitted S. ME's Limited Soil Investigation Report from April 2011 without supporting testimony or documentation from S. ME. Authors J. Patrick Baird and Steve S. Diamond are mentioned, but their qualifications for conducting tests and analysis are not provided. The report references work by "S&ME employees" and subcontractors without confirming the qualifications of those performing the work, which is crucial under CERCLA regulations. The report, consisting of just over twenty pages compared to the extensive EPA's Third Five-Year Review Report, lacks depth, especially given the known contamination of the Dumey property prior to the plaintiffs' testing and ongoing remedial efforts.
A comprehensive, scientifically rigorous, and CERCLA-compliant testing regimen was expected from S&ME due to their investigation coinciding with PRPs' obligations to conduct similar testing on the Dumey property for a Remedial Investigation/Feasibility Study (RI/FS). The EPA had established a deadline of September 30, 2011, for the PRPs to complete their testing, with a report due a year later. S&ME performed limited tests and produced a brief report just as the EPA mandated more extensive testing. CERCLA regulations require thorough planning for data collection, quality assurance, accurate result generation, valid assessments, and remedial design, yet S&ME's report did not meet these standards expected for an RI/FS.
S&ME's limited investigation involved taking twenty-six soil samples from the Dumey property to assess potential environmental impacts from past activities at the MEW Superfund site. However, the report failed to address any current PRPs, potential liability linked to the Morrill defendants or Fronabarger, or the impact of Fronabarger’s construction of a self-storage facility on PCB presence. Notably, the report did not mention Fronabarger or any recent activities at the MEW site.
The report was intended for use by the plaintiffs and their attorneys, and it was indicated that third parties, such as the EPA, would use it at their own risk under a non-evidenced agreement, leaving the terms of use unclear. Additionally, the report contained factual inaccuracies, stating the Dumey property was approximately 37 acres instead of the correct 43.5 acres. Quality control issues were raised as the methods for field testing the samples were inadequately described, and only samples with the highest total organic volatiles were sent for laboratory analysis, indicating a selective sampling process not supported by evidence of standard practice. There were also gaps regarding the sampling locations and depths, raising further doubts about the thoroughness of the investigation.
The Report lacks sufficient justification for the selection of testing locations and the varying depths of soil samples collected. Notably, S&ME inexplicably chose to sample from the eastern edge of the Dumey property, which is distanced from other sampling sites and has not been indicated as contaminated with PCBs, with no PCBs detected there. Although S&ME stated that samples were shipped under chain of custody to a laboratory in Atlanta, no documentation supporting this chain of custody was provided. Additionally, S&ME's quality control measures are inadequately detailed; while they mentioned using temperature blanks to ensure proper sample conditions, the relevant laboratory report is missing, and there are no specifications on what the "proper temperature" should be or confirmation that the samples met this standard. The testing methods employed by S&ME for volatile organic compounds and PCBs raise questions about their compliance with CERCLA's data quality and accuracy requirements. In contrast, the EPA's Third Five-Year Review Report offers a thorough account of its testing methods, quality assurance protocols, and documentation of data and chain of custody. S&ME's conclusions about environmental impacts on the Dumey property appear redundant, affirming prior knowledge of contamination linked to the MEW Superfund site.
On March 12, 2012, Burnside Environmental entered into an agreement to provide investigative and consulting services for the plaintiffs’ legal team, aiming to assess environmental conditions at the Dumey property. This agreement included a confidentiality clause designating all data and analysis as attorney work product, prohibiting Burnside Environmental from disclosing any findings to the EPA or the public without plaintiffs' consent. Ultimately, plaintiffs permitted Burnside Environmental to share its findings with the EPA.
Mr. Dumey provided limited testimony regarding his involvement with Burnside Environmental, stating he assisted with sampling and trench digging but did not clarify the purpose of the sampling or its necessity. Plaintiffs have not sought payment for Dumey's contributions. Photographs related to the Dumey property were mentioned but did not clarify Burnside Environmental's activities or their compliance with the National Contingency Plan (NCP). Felix Flechas was the sole employee from Burnside to testify, confirming the EPA's responsibility for remedy selection and cleanup levels at Superfund sites. He described conducting an investigation on the Dumey property, noting variations in the thickness of fill materials placed by the plaintiffs, which was deemed relevant only to liability defenses, not remediation efforts.
Flechas referenced EPA documents from the 1980s through a 2014 report, as well as the S&ME Report, but he was not involved with S&ME and lacked knowledge about their investigation. He did not mention or explain Burnside Environmental's own report. His investigation aimed to determine if hazardous substances, specifically PCBs, had migrated from the MEW site to the Dumey property, focusing on a ravine as a likely pathway. Notably, prior tests had already confirmed the presence of hazardous substances on the Dumey property.
Burnside Environmental submitted invoices for its work, many of which contained unexplained redactions. One invoice detailed charges for litigation support services related to Mr. Burnside’s expert report, while the invoices mentioned meetings with the EPA without clarifying their relevance to remediation versus litigation support. Additional charges for planning, sampling, investigations, surveys, and report writing were also included, but no evidence was provided regarding subcontractors referenced in the invoices.
No evidence was presented regarding the specifics of the sampling plan, including what was sampled, the methodology used, and its necessity in relation to prior EPA tests. Under CERCLA, the aims are to expedite the cleanup of hazardous waste sites and to allocate cleanup costs to responsible parties. To demonstrate liability, plaintiffs must prove: 1) the MEW site qualifies as a “facility”; 2) the utility defendants are “covered persons” under § 9607(a); 3) there was a release or threatened release of hazardous substances at the MEW site affecting the Dumey property; and 4) the release caused the plaintiffs to incur necessary response costs that align with the National Contingency Plan (NCP). It is acknowledged that the MEW site is a facility under CERCLA and that there was a release of PCBs from the utility defendants’ transformers. The unresolved issues include whether the plaintiffs incurred necessary response costs, if their actions were NCP-consistent, the categorization of the defendants and plaintiffs as responsible parties, and if the plaintiffs qualify for any CERCLA defenses as arrangers. CERCLA allows private parties who have incurred cleanup costs to recover those expenses, emphasizing that plaintiffs must actually spend money on cleanup before seeking reimbursement. The statute ensures that disputes are ripe for judicial review by requiring some action prior to court intervention but allows for declaratory judgments that lessen the risks of cleanup. Response costs eligible for reimbursement under CERCLA include necessary expenses incurred by any party consistent with the NCP, and plaintiffs are recognized as “other persons” eligible for recovery under § 9607(a)(4)(B). The court assumes, without deciding, that one or more plaintiffs incurred costs.
Plaintiffs are legally obligated to pay for certain response costs, which they seek to recover, including potential future costs, as outlined under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In **Wilson Rd. Dev.**, the court refused to grant summary judgment based solely on the assertion that costs were paid from a non-party's account. The **Eighth Circuit's** decision in **Trimble v. Asarco, Inc.** clarifies that a party can be deemed to have 'incurred' costs under CERCLA even if they haven’t directly paid for them. Although **Trimble** did not definitively rule on incurred costs, it suggested that certain expenditures could be necessary response costs under CERCLA. The court emphasized that plaintiffs seeking declaratory relief must demonstrate they have incurred necessary response costs in line with the National Contingency Plan (NCP).
The definition of "necessary costs" was further elucidated in **Key Tronic Corp. v. United States**, where the Supreme Court ruled that attorney's fees related to cost recovery actions are not recoverable under CERCLA. However, costs closely associated with actual cleanup efforts may be recoverable, particularly those related to identifying other Potentially Responsible Parties (PRPs), as these efforts enhance the effectiveness of cleanups and align with CERCLA’s statutory goals. The Supreme Court distinguished between recoverable costs for identifying PRPs and non-recoverable legal fees incurred during negotiations with the EPA, emphasizing that the former may serve a public interest beyond mere cost allocation.
Key Tronic's legal expenses related to identifying potentially responsible parties (PRPs) are deemed primarily protective of its own interests, thereby not qualifying as “necessary costs of response” under CERCLA, and thus are not recoverable. The Supreme Court clarified that while costs associated with identifying unknown PRPs can be recoverable if they support cleanup efforts, expenses incurred primarily to advance a party's interests, even if they assist the EPA or influence cleanup scope, do not meet this criterion. In Gussack Realty Co. v. Xerox Corp., the Second Circuit ruled that costs not closely tied to actual cleanup efforts are not recoverable, as plaintiffs identified the defendant without incurring those expenses. Further, CERCLA does not allow recovery for litigation preparation costs unless they significantly benefit the overall cleanup and serve a statutory purpose beyond cost reallocation.
The determination of whether costs are necessary for identifying a PRP is independent of the party's motives. Courts focus solely on the necessity of costs under CERCLA, encouraging timely cleanups regardless of ulterior motives. Necessary costs for discovering additional PRPs can be recovered, as well as expenses for monitoring and assessing hazardous substance releases, as outlined in 42 U.S.C. 9601. Such monitoring costs are recoverable because they can significantly benefit the overall remediation effort, ensuring that the full extent of contamination is addressed.
Investigative and monitoring costs can be recoverable under CERCLA if they are necessary for cleanup and not merely for litigation. Recovery hinges on whether expenses are reasonable in relation to the specific circumstances. Courts have emphasized the importance of the statutory limitation to “necessary” costs to prevent misuse of funds for property improvements disguised as cleanup expenses. For instance, in G.J. Leasing Co. v. Union Electric Co., the Seventh Circuit ruled that costs were not necessary when the contamination levels were low and only minimal expenditures would suffice for safety. Similarly, the Third Circuit noted that monitoring and evaluation expenses must be incurred reasonably to be recoverable. Costs incurred for needless monitoring, especially if duplicative of existing work, are not recoverable, as seen in Marcas, LLC v. Bd. of Cty. Comm’rs of St. Mary’s Cty. Moreover, testing methods must be both fiscally reasonable and scientifically valid to qualify as necessary expenses. Costs associated with oversight of another party’s remediation efforts, without direct involvement, are also not recoverable, as clarified in Black Horse Lane Assoc. L.P. v. Dow Chem. Corp.
Monitoring costs for environmental cleanup must be closely related to the actual cleanup to qualify for recovery under CERCLA, as established in Key Tronic. Costs must also be well-documented to demonstrate their necessity, supported by evidence such as detailed cost summaries, vendor invoices, and contractor bills, following the precedent in United States v. Findett Corp. Additionally, the presence of an underlying contract and testimony confirming the review of bills for accuracy can strengthen a claim for necessary costs.
The Tenth Circuit's decision in Young v. United States reinforces that costs must be connected to an actual cleanup effort to be deemed necessary. In Young, the court ruled that costs for site investigation and risk assessment were not necessary since they lacked a nexus to any actual cleanup, especially given the plaintiffs' admission that they did not intend to remediate the contamination on their property. Consequently, the court found that the plaintiffs' CERCLA claims failed as a matter of law.
In the current case, the court will evaluate whether the plaintiffs have adequately demonstrated that their incurred response costs are indeed necessary. Notably, the plaintiffs have referenced incurred costs without providing supporting evidence, such as expenses related to a request for gravel spreading by the City of Cape Girardeau.
Plaintiffs allege that Mr. and Mrs. Dumey engaged in personal efforts to address contamination on their property, including constructing a pond at the EPA's request. However, they failed to provide any financial documentation to support the value of these efforts. As a result, the court concludes that these actions do not constitute recoverable response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as they were not shown to be necessary or closely linked to actual cleanup efforts. By 2003, the contamination on the Dumey property was known, and subsequent investigations, including by Burnside Environmental, merely sought to confirm existing knowledge rather than address the contamination directly. The court notes that the plaintiffs' testing was not essential for remediation and did not contribute to the EPA’s cleanup activities. Furthermore, plaintiffs have not demonstrated any intention to remediate the property themselves or any connection between their testing and ongoing or future remediation plans by the EPA or potentially responsible parties (PRPs). The evidence indicates that Burnside Environmental was engaged to support the plaintiffs' legal efforts rather than actual cleanup activities.
The S. ME and Burnside Environmental reports are classified as attorney work-product, created in anticipation of litigation, which disqualifies the plaintiffs from recovering their response costs under CERCLA since they failed to demonstrate that these costs significantly benefited the overall cleanup efforts. The evidence presented indicates that neither S&ME nor Burnside Environmental identified the Morrill defendants or Fronabarger as new potentially responsible parties (PRPs) prior to the plaintiffs incurring costs, with the EPA already aware of these entities' potential liabilities. The plaintiffs did not provide sufficient evidence to justify the necessity of the incurred costs, as gaps in the invoices and redacted services diminished their evidentiary value. Furthermore, the work conducted by S&ME and Burnside Environmental was found to be duplicative of previous analyses performed by the EPA, aimed only at confirming known contamination rather than discovering new information. The planned EPA testing was expected to reveal the full extent of contamination on the Dumey property, making the plaintiffs’ efforts unnecessary. Lastly, the plaintiffs did not demonstrate that their costs were necessary for monitoring and assessing the PRPs' remediation efforts, as they had no direct involvement in those activities.
Plaintiffs incurred costs for unnecessary monitoring studies, rendering their response costs not closely tied to the actual cleanup of the Dumey property, and thus not necessary under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Compliance with the National Contingency Plan (NCP) is essential for a private party to recover reasonable and necessary response costs from a responsible party. Although costs cannot be inconsistent with the NCP on their own, the actions taken to incur those costs must comply with the NCP. Substantial compliance, rather than strict adherence, is required, allowing for minor deviations that do not affect the overall consistency of the cleanup. CERCLA regulations permit any person to undertake a response action, and responsible parties are liable for necessary costs incurred by others if those actions align with the NCP. A private party's response action is deemed consistent with the NCP if it substantially complies with relevant requirements and results in an effective cleanup. The document notes that plaintiffs have not clarified whether their actions are classified as "removal" or "remedial." Removal actions address immediate threats to public health and are typically less costly and quicker, while remedial actions aim for long-term solutions and usually involve greater expense and time.
The distinction between remedial and removal actions under CERCLA is significant primarily due to the procedural differences, with removal actions generally being expedited and subject to less stringent requirements. However, the Court finds that it need not determine whether the plaintiffs’ actions qualify as removal or remedial because the outcome would remain unchanged in either case.
If considered a removal action, the regulations stipulate that environmental sampling must be conducted according to approved plans that ensure sufficient data quality and quantity. These plans must include a field sampling plan detailing sample types and locations, as well as a quality assurance project plan outlining data quality objectives. Additionally, a removal site evaluation must be conducted promptly, and actions to mitigate threats should commence as soon as feasible.
Conversely, if assessed as a remedial action, the requirements are more stringent, including similar data quality standards and a requirement to initiate actions as soon as site data permits. A key step in remedial actions is the preparation of a remedial investigation/feasibility study (RI/FS) to evaluate site conditions and remedy alternatives. Case law reinforces that failure to comply with the National Contingency Plan (NCP) procedure, including the feasibility study, is significant and cannot be deemed insubstantial. Compliance with investigatory efforts is mandated by the NCP.
In Sherwin-Williams Co. v. City of Hamtramck, the court ruled that a private party's claim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was unsuccessful due to the plaintiff's failure to conduct a Remedial Investigation/Feasibility Study (RI/FS). Such failure undermines any claim of substantial compliance with the National Contingency Plan (NCP). While strict adherence to the NCP is not required, evaluations must still be consistent with its requirements. Importantly, a lack of meaningful public participation and comment during the remedial action selection process is deemed inconsistent with the NCP, regardless of a state agency's involvement in the response actions. The court emphasized that state participation does not substitute for the necessity of substantial compliance with public participation requirements.
The Tenth Circuit in Young further clarified that a plaintiff's response actions must align with NCP standards and result in a CERCLA-quality cleanup. The Young plaintiffs' claims were dismissed on similar grounds, as their response actions were found inconsistent with the NCP and did not lead to effective cleanup. The court rejected the plaintiffs' argument that they were exempt from further actions due to the hazardous substances originating from a Superfund site controlled by defendants, noting a lack of evidence linking their expenses to proper containment or cleanup efforts.
Costs incurred solely for litigation are not recoverable under CERCLA, as affirmed by the Tenth Circuit. In related case law, the court held that a plaintiff performing minimal investigations of a contaminated site failed to show substantial compliance with the National Contingency Plan (NCP) and could not demonstrate that their actions resulted in a CERCLA-quality cleanup. The classification of cleanup efforts is a legal determination for the court, not subject to expert testimony. For a plaintiff's actions to be deemed in substantial compliance with the NCP, there must be evidence that those actions began or continued towards achieving a CERCLA-quality cleanup.
Even if plaintiffs prove the necessity of their costs, the evidence does not sufficiently show that their response actions complied with the NCP. Specifically, plaintiffs were required to develop a field sampling plan and a quality assurance project plan, and to secure EPA approval for these plans. No evidence was presented that the necessary meetings with the EPA occurred or that the plans were developed and approved prior to testing. Additionally, plaintiffs failed to demonstrate the existence of sampling and analysis plans to ensure data quality and adequacy. Significant gaps in evidence regarding the quality of data collected and the adequacy of sampling were noted for both S&ME and Burnside Environmental. Furthermore, there is no indication that their work met the standards for a Remedial Investigation/Feasibility Study (RI/FS) as defined by the EPA, nor evidence that such studies are planned in the future.
Plaintiffs did not adequately engage in public participation or comply with the National Contingency Plan (NCP) in their remediation efforts for the Dumey property. They failed to provide evidence of further removal or remedial actions after environmental tests were conducted by S. ME and Burnside Environmental and did not initiate prompt site evaluations following these tests. Although the EPA's previous sampling and test results could have allowed for remediation to begin, plaintiffs did not act swiftly to address the contamination. Their limited and poorly documented actions were insufficient to demonstrate compliance with the NCP, which is critical for expediting hazardous waste cleanups under CERCLA. Consequently, even if their response costs were necessary, their claims against the utility defendants would fail legally.
Regarding arranger liability under 42 U.S.C. § 9607(a)(3), both parties sought to attribute liability to each other based on contributions to hazardous substance disposal. However, plaintiffs did not prove they incurred necessary response costs or acted in accordance with the NCP, making it unnecessary to evaluate the defendants' arranger status. The utility defendants also failed to provide evidence that plaintiffs arranged for hazardous substance disposal, effectively abandoning their counterclaims. The court ultimately ruled in favor of the utility defendants on the plaintiffs' CERCLA claims and in favor of the plaintiffs on the utility defendants’ counterclaims, with a judgment to be filed separately.
Plaintiffs have initiated legal action against Morrill Development Company, Morrill Development LLC, Alan Morrill, and Charles J. Morrill (collectively referred to as the Morrill defendants), who are currently in default. The claims against these defendants are addressed separately. The National Priorities List (NPL) identifies sites in the U.S. that require further investigation and remediation due to hazardous substance releases, as defined by CERCLA. Superfund sites, designated by the EPA, necessitate priority cleanup due to hazardous waste concerns. The parties dispute whether each transformer and the oil within it constitutes a separate facility under CERCLA's broad definition; however, this issue does not need to be resolved at this time. The plaintiffs also sought a declaration that the utility defendants must follow EPA remediation orders, but this matter is not before the Court since the EPA is not a party to this litigation. The plaintiffs' claims are limited to recovering their response costs, as specified by 42 U.S.C. 9607(a)(4)(B) and 9613(g)(2). To be deemed "consistent with the NCP," a private party's response action must comply with an EPA order or consent decree; however, the plaintiffs are not parties to the existing consent decree between the EPA and potentially responsible parties (PRPs), and the EPA did not mandate the testing for which the plaintiffs incurred costs.
