City of Moses Lake v. U.S.

458 F.Supp.2d 1198

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.

October 16, 2006.

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Steven Gary Jones, Jeffrey Barnes Kray, Jessica K. Ferrell, Marten Law Group PLLC, Seattle, WA, for Plaintiff.

Christina Falk, Mary Anne Zivnuska, Quynh Bain, U.S. Department of Justice, Washington, DC, Michael James Zevenbergen, U.S. Attorney's Office, Seattle WA, Eric S. Merrifield, Matthew D. Diggs, Mark William Schneider, Perkins Coie LLP, Seattle, WA, Robert H. Foster, U.S. Department of Justice, Environment & Natural Resources, Denver, CO, Alan N. Bick, Christeon J. Costanzo, Robert W. Loewen, Sarah M. Schlosser, Gibson Dunn & Crutcher LLP, Irvine, CA, J. Patrick Aylward, James M. Danielson, Jeffers Danielson Sonn & Aylward PS, Wenatchee, WA, for Defendants.

ORDER GRANTING DEFENDANT LOCKHEED'S, MOTION FOR SUMMARY JUDGMENT,

INTER ALIA

McDONALD, Senior District Judge.

BEFORE THE COURT are Defendant Lockheed Martin Corporation's Motion For Summary Judgment Or, In The Alternative, Summary Adjudication Of Plaintiffs CERCLA And MTCA Causes Of Action (Ct.Rec.238), and Plaintiff City Of Moses Lake's Motion For Summary Judgment Of Liability Under CERCLA And MTCA Against Defendant Lockheed Martin Corporation (Ct.Rec.242).

Oral argument was heard on September 29, 2006. Steven G. Jones, Esq., argued for City Of Moses Lake ("Moses Lake"). Robert W. Loewen, Esq., argued for Lockheed Martin Corporation ("Lockheed").

I. BACKGROUND

On December 30, 2005, this court issued an order granting summary judgment to the United States defendants on Moses Lake's Federal Tort Claims Act (FTCA) claims, finding those claims were barred by the two year FTCA statute of limitations. (Ct.Rec.180).¹ On May 4, 2006, this court issued an order granting summary judgment to defendants Boeing Company ("Boeing") and Lockheed on the common law tort claims asserted against them by Moses Lake (nuisance, trespass and negligence), finding those claims barred by applicable Washington statutes of limitations (Ct.Rec.234).

Moses Lake has also brought cost recovery and contribution claims under the Comprehensive Environmental Response, Compensation and Liability Act ("CERLA"), 42 U.S.C. § 9601 et seq., and under Washington's Model Toxics Control Act ("MTCA"), RCW Chapter 70.105D. These claims are asserted against the United States, Boeing and Lockheed. Lockheed now seeks summary judgment on the cost recovery claims, contending that as to it, those claims are barred by the statutes of limitations applicable to CERCLA and MTCA claims. Lockheed also contends that certain response costs alleged to have been incurred by Moses Lake after 1994 are not recoverable under either CERCLA or MTCA because they were not "necessary."

Moses Lake has filed a cross-motion for summary judgment, asking this court to find as a matter of law that Lockheed is liable as an "operator" and/or as an "arranger" under CERCLA and MTCA.

II. FACTS²

The City of Moses Lake is located near the former Larson Air Force Base ("LAFB"). During World War II and the Cold War, LAFB was used to assemble, station, and maintain hundreds of military aircraft. As a contractor for the United States Air Force, Boeing assembled and maintained these aircraft. LAFB was also surrounded by intercontinental ballistic missiles ("ICBMs") manufactured by Glen L. Martin Company, a predecessor to Lockheed. ICBMs and their components were assembled, fueled and maintained at LAFB and its associated facilities.

After closing LAFB, the United States conveyed almost all of the land and properties that comprised LAFB to Moses Lake in 1966. In a separate transaction in June 1967, the United States conveyed LAFB's drinking water system, a sewer system, and a waste water treatment plant. The drinking water system originally consisted of five wells (ML 21, ML 22, ML 23, ML 28, and ML 29, a.k.a. "The Larson System"), now situated within a City-defined water distribution zone known as "the Larson Zone." In 1982, Moses Lake constructed a sixth Larson Zone well known as ML 24.

In 1988, Moses Lake was informed by the Washington Department of Social and Health Services ("DSHS"), now known as the Department of Health ("DOH"), that samples taken from three of its wells tested positive for trichloroethylene ("TCE"). Moses Lake learned of the contamination through required testing and regulatory action under what is commonly known as the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300f, et seq. The testing of the wells through 1988-89 showed levels of TCE in wells ML 21, ML 22, and ML 28 at concentrations above the MCL (maximum contaminant level) of 5 ppb (parts per billion).

As a result of a July 1988 meeting between DOH and Moses Lake, DOH determined that Moses Lake should sample the three wells on a quarterly basis and notify the public of the contamination. DOH advised Moses Lake that the adequacy of the casing and sealing of the three wells should be examined. Also in July 1988, a meeting was held in Moses Lake with participants from the United States Environmental Protection Agency ("EPA"), DOH, and the Washington State Department of Ecology ("DOE") discussing TCE in the three City wells. DOH again recommended Moses Lake investigate well casing and sealing. The need for public notification and partial well sealing was reiterated by DOH in a follow up letter to Moses Lake. Although Moses Lake initially objected to both DOH recommendations, it did take ML 22 out of service in August 1988, and on December 14, 1988, published a press release advising the public of the TCE contamination and that it was "continuing] to work with DSHS, EPA and Ecology to monitor the city's water supply to determine the source of the contamination."

In 1988, Moses Lake was provided information about the initial stages of a CERLA investigation. In September 1988, DOE issued a Preliminary Assessment Report for Grant County Municipal Airport discussing the TCE contamination in relation to former occupants of the airport and concluding that DOE's work should be coordinated with DOH's ongoing investigation of drinking water contamination and the investigation by the U.S. Army Corps of Engineers ("USACE") into past practices at LAFB. In November 1988, DOE provided Moses Lake with the EPA's Potential Hazardous Waste Site Disposition Report which recommended the USACE conduct an historic site investigation of LAFB activities. DOE and DOH officials met with the City and explained this report would further the CERCLA investigation process.

On January 5, 1989, the Acting Municipal Services Director for Moses Lake provided the City Manager a plan, known as the "Larson Potable Water Supply Project" (aka "the Larson Project"), outlining the steps necessary to reduce the levels of TCE in the wells to below the MCL, while still maintaining adequate water production capacity. The plan provided that the City would line and seal the upper portions of ML 22 so that the well could draw water from the deeper, "clean" portion of the aquifer. The City would study other forms of treatment and monitoring for the other aging municipal wells. The plan also provided that anticipated lost production capacity due to the proposed sealing would be addressed by constructing an additional well, repairing an old well (ML 29)³, and constructing a reservoir to create additional storage capacity.⁴ In July 1989, Moses Lake applied for a $1.4 million loan from the State of Washington Public Works Trust Fund to construct "a reservoir, well and associated water lines on the Larson system." The application was prepared for the 1990 funding cycle and the loan was granted. By the end of 1989, the City's Municipal Services Director recommended the City retain a consultant to assist in the review of CERCLA documents and "identify the course of the contamination for potential future litigation."

In January 1990, the USACE determined that what was to become known as the Moses Lake Wellfield Contamination Superfund Site ("Site") was eligible for funding for further environmental investigation as a Formerly Used Defense Site ("FUDS") under the Defense Environmental Restoration Program ("DERP"). 10 U.S.C. § 2701. In January 1991, Moses Lake hired a consulting firm, Golder & Associates ("Golder"), to undertake an investigation to assess the contamination to the extent possible and to propose options to assure a clean water supply to the Larson System. In March 1991, Moses Lake was told the USACE had budgeted approximately $1 million for an environmental investigation at LAFB, and that the USACE anticipated starting the investigation, at the earliest, in October 1991. Also, in March 1991, USACE's lead civil investigator at the site, John Vogel, informed Moses Lake he had hired Dames & Moore to drill 20 monitoring wells to determine the extent of the TCE contamination, and that the work would begin in July or August 1991. The USACE initially targeted four possible TCE source areas for investigation, but told the City in May 1991 that its original plan "had been modified to include a wider evaluation of potential contaminant sources in the Larson area .... [and][i]f source areas are found in this initial program that can be traced to the military, then additional investigations would be undertaken." On October 28, 1991, Golder delivered its Report to the City of Moses Lake on Hydrogeological Evaluation of Larson Area, Moses Lake, Washington.

In or about March 1992, Vogel proposed the USACE take an "intermediate remedial action" ("IRA") and construct extensions to two of the City's wells so water could be drawn from the lower areas of the aquifer believed to be free of TCE contamination. In a press release, the USACE advised...