City of Moses Lake v. U.S.

472 F.Supp.2d 1220

CITY OF MOSES LAKE, a Washington municipal corporation, Plaintiff, v. The UNITED STATES of America, et al., Defendants.

No. CV-04-0376-AAM.

United States District Court, E.D. Washington.

January 3, 2007.

COPYRIGHT MATERIAL OMITTED

Jessica K. Ferrell, Linda Rae Larson, Steven Gary Jones, Marten Law Group PLLC, Katherine Kennedy, Timothy G, Leyh, Danielson Harrigan Leyh & Tollefson, Seattle, WA, for Plaintiff.

Christina Falk, Mary Anne Zivnuska, Quynh Bain, U.S. Department of Justice, Washington, DC, Michael James Zevenbergen, United States Department of Justice, Seattle, WA, Robert H. Foster, U.S. Department of Justice, Denver, CO, for Defendants.

ORDER DENYING MOTION FOR CLARIFICATION, OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT ON ALL REMAINING CLAIMS,

INTER ALIA

MCDONALD, Senior District Judge.

BEFORE THE COURT is Defendant Lockheed Martin Corporation's "Motion For Clarification, Or, In The Alternative, For Summary Judgment On All Remaining Claims" (Ct.Rec.365), and Plaintiff City Of Moses Lake's "Motion To Strike The Declaration Of Robert Morrison And Portions Of Lockheed's Reply In Support Of Its Statement Of Material Facts" (Ct.Rec. 396). These motions were heard without oral argument.

I. BACKGROUND

On October 16, 2006, this court entered an order (Ct.Rec.354) in which it granted summary judgment to Defendant Lockheed Martin Corporation (Lockheed), finding that Plaintiff City Of Moses Lake (Moses Lake) was barred under the CERCLA and MTCA statutes of limitations from recovering certain response costs incurred between 1989 and 1994, and also could not recover certain response costs incurred after 1994 because those costs were not "necessary."¹ This court went on, however, to address Moses Lake's motion for summary judgment of liability under CERCLA and MTCA against Lockheed for the following reason:

The court will address Lockheed's liability, even though Moses Lake's action seeking recovery for costs incurred between 1989 and 1994 is time-barred, and certain costs incurred by Moses Lake after 1994 were not "necessary" and therefore, are not recoverable. The reason is that Moses Lake has also asserted contribution claims against Lockheed, seeking to have Lockheed pay its equitable share of any response costs for which Moses Lake may be found liable. While it appears Moses Lake has yet to be found liable for any response costs, this may well change with issuance of EPA's final "remedial action plan" which is intended to address cleanup of the aquifer the "Site" as a whole.²

(Ct. Rec. 354 at p. 33).³

In its "Motion For Clarification Or, In The Alternative, Summary Judgment On All Remaining Claims," Lockheed asserts that, as a matter of law, Moses Lake has no right to contribution under either CERCLA or MTCA, and Moses Lake's "contribution claim for costs it may or may not be required to pay in the future [is] not ripe because there is no live case or controversy." Lockheed seeks a "clarification" to the effect that Moses Lake has no remaining claims against Lockheed pursuant to the court's October 16, 2006 order, or alternatively, asserts it is entitled to summary judgment to that effect.

What the court anticipated as a relatively straightforward issue about the ripeness of Moses Lake's contribution claims under CERCLA and MTCA is actually rather complicated, and furthermore, has generated an issue as to whether Moses Lake continues to maintain a 42 U.S.C. § 9607(a)(1)-(4)(B) private cost recovery claim for other response costs, including future response costs, beyond those specifically addressed in the court's October 16 order.

II. DISCUSSION

A. Overview

Moses Lake's "First Amended Complaint," filed January 17, 2006, alleges a cause of action under CERCLA for cost recovery pursuant to 42 U.S.C. § 9607(a), and a cause of action for contribution "pursuant to 42 U.S.C. § 9613(f) and federal common law." With regard to the contribution cause of action, Moses Lake alleges at Paragraph 7.2 of its "First Amended Complaint" (Ct.Rec.182):

The City denies liability for response costs under CERCLA arising out of the facts alleged herein. Pleading in the alternative, however, if the City is ultimately found liable under 42 U.S.C. § 9607 for any response costs, pursuant to 42 U.S.C. § 9613(f) and federal common law, Defendants are liable to the City for their equitable shares of the City's total response costs, including legal fees, incurred or to be incurred by the City in response to the release or threat of release of hazardous substances at the Site.

A cost recovery cause of action, as authorized by § 9607(a), permits the government or a private party who has incurred response costs to hold a PRP (Potentially Responsible Party) jointly and severally liable for those costs. That means a particular PRP can be held 100% liable for the costs, regardless of its particular contribution to the costs incurred. Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 945-46 (9th Cir.2002). Moses Lake does not and cannot assert its § 9607(a) cost recovery cause of action as a PRP. It asserts its cost recovery cause of action on the premise that it is not liable for any of the response costs associated with the Moses Lake Wellfield Contamination Superfund Site.

A PRP who is potentially liable for response costs at a site can only sue another PRP for "contribution" to share in the payment of those costs. Moses Lake recognizes this in the manner in which it has pled its contribution claim under CERCLA. As stated by the Ninth Circuit Court of Appeals in Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1301 (9th Cir.1997):

Because all PRPs are liable under the statute, a claim by one PRP against another PRP necessarily is for contribution. A PRP's contribution liability will correspond to that party's equitable share of the total liability and will not be joint and several. CERCLA simply does not provide PRPs who incur cleanup costs with a claim for the joint and several recovery of those costs from other PRPs.

(Emphasis added).

42 U.S.C. § 9613(f) provides in relevant part:

(1) Contribution

Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title.

(2) Settlement

A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.

(3) Person not party to settlement

. . . .

(B) A person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement referred to in paragraph (2).

(Emphasis added).

In Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 167-68, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), the U.S. Supreme Court held that a PRP cannot seek cleanup cost contributions from other PRPs under § 9613(f)(1) for voluntarily incurred cleanup costs. In order to assert a § 9613(f) claim, a PRP must first be compelled to incur cleanup costs through a suit for response costs under § 9606 or § 9607(a).⁴ This requirement is derived from the language in § 9613(f)(1) that "[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of his title during or following any civil action under section 9606 of this title or under section 9607(a) of this title." (Emphasis added).

In Cooper, the Supreme Court declined to address the issue of whether PRPs can sue other PRPs under § 9607(a) for joint and several liability. 543 U.S. at 169-70, 125 S.Ct. 577. The Court also declined to address whether a PRP has a judicially implied right of contribution under § 9607(a). Id. at 170-71, 125 S.Ct. 577. In Adobe Lumber Inc. v. Hellman, 415 F.Supp.2d 1070 (E.D.Cal.2006), a district court for the Eastern District of California considered how the Ninth Circuit had resolved, or would resolve, the questions the Supreme Court did not resolve. The district court concluded that whether PRPs have a cost recovery claim for joint and several liability had already been answered in the negative by the Ninth Circuit in Pinal Creek. Id. at 1076. The district court also concluded that Pinal Creek foreclosed a PRP from pursuing a § 9607 cost recovery action for some form of liability other than joint and several since Pinal Creek held that a PRP does not have a cost recovery action, but instead has only a contribution action implicitly provided by section § 9607 and regulated by the terms of § 9613. Id., citing Pinal Creek, 118 F.3d at 1305 n. 7.

Finally, in Adobe, the district court concluded Pinal Creek did not establish the existence of an independent, judicially implied right to contribution, but rather that a PRP's right to claim contribution from other PRPs is controlled by joint operation of § 9607 and § 9613. Id. at 1077. The district court found the plaintiff could not bring suit pursuant to the implied right of...