United States v. Wash. State Dep't of Transp.

UNITED STATES OF AMERICA, Plaintiff, v. WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, Defendant.

CASE NO. C08-5722RJB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

Dated: June 23, 2014

ORDER DENYING MOTION TO

ENFORCE DECLARATORY

JUDGMENT

This matter comes before the court on the United States' Motion to Enforce Declaratory Judgment (Dkt. 245). The Court is familiar with the records and files herein, the events of the trial, and documents filed in support of and in opposition to the motion. Neither side has requested oral argument.

Plaintiff brings this motion as a "subsequent action . . . to recover further response costs" pursuant to 42 U.S.C. § 9613 (g)(2) and the Amended Judgment entered herein on April 8, 2011 (Dkt. 224), as corrected by Docket Numbers 225 and 230. Plaintiff seeks Judgment for additional response costs of $3,504,177.98 plus interest. That sum includes costs incurred in2009, 2010, 2011, and 2012, and includes attorney fees and litigation expenses. It is important to note that the fees and litigation expenses are sought here as part of response costs, and not as an independent award of fees and litigation expenses.

For the reasons stated herein, the motion will be denied.

I. Findings and Judgment

Plaintiff apparently misunderstands the meaning and effect of the Findings of Fact, Conclusions of Law, and Judgments entered in this case. They were somewhat complex, and are identified and listed in the Court's Memorandum to File Regarding Findings of Fact and Conclusions of Law and Judgments (Dkt 273).

The events relative to this motion occurred as follows: On March 8, 2011, the court heard argument and entered an Oral Ruling on March 11, 2011. The Court accepted as findings, in its Oral Ruling (Dkt. 196) made pursuant to FRCP 52, "the Admitted Facts set forth at length in the Pretrial Order (Dkt. 164) in Section III." (Dkt. 196 at page 6, line 19-20.) That included the following findings at page 11, paragraphs 29 through 32 of the Pretrial Order (Dkt. 164):

29. The releases and threatened releases of hazardous substances at the Thea Foss and Wheeler Osgood Waterway Problem Areas caused the United States to incur "response" costs, and continue to cause the United States to incur "response" costs, within the meaning of CERCLA Section 101(25), 42 U.S.C. § 9601(25).

30. The response actions taken and the response costs incurred by the United States at and in connection with the Thea Foss and Wheeler Osgood Waterway Problem Areas are not inconsistent with the National Contingency Plan, 40 C.F.R. Part 300.

31. The United States has incurred $9,343,765 in unreimbursed response costs relating to the Thea Foss and Wheeler Osgood Waterways problem areas within the CB/NT Site. This sum includes: (a) EPA costs in the amount of $8,886,610, which consist of $5,850,763 in costs incurred through September 12, 2009, and $3,035,847 in prejudgment interest accrued through May 5, 2010; and (b) DOJ enforcement costs incurred through August 1, 2009 in the amount of $457,155.

32. DOJ's costs consist of costs incurred in enforcing EPA's CERCLA cost recovery claims against WSDOT.

As is reflected on Page 21 at lines 2-20 of the March 11, 2011 Oral Ruling (Dkt. 196), the amount of a final judgment for costs was not fixed in the Court's mind, and additional briefing was requested. Also, at page 23, line 8, the Court invited counsel to call additional necessary findings and conclusions to the Court's attention.

Further post trial briefing was provided (See Dkts. 199, 202 & 205), and the Plaintiff submitted a proposed Judgment (Dkt. 199-1) which contained the following language at page 2, lines 3 through 8:

The United States has incurred at least $9,343,765 in response costs. These costs are the unreimbursed response costs incurred by the United States related to the releases and threatened releases of hazardous substances at the Thea Foss and Wheeler Osgood Waterway Problem Areas within the Commencement Bay Nearshore/Tideflats Superfund Site. They are comprised of costs incurred by U.S. EPA through September 12, 2009, including interest through May 5, 2010 and costs incurred by the Department of Justice through August 1, 2009.

The reference to "at least" $9,343,765.00 did not indicate that there were more response costs to be requested, but only that the maximum the Plaintiff could document and justify was $9,343,765.00. From that briefing, and the Plaintiff's proposed Judgment, the Court concluded that no additional reimbursement for current response costs was being requested by the Plaintiff, and entered the Amended and Supplemental Findings of Fact and Conclusions of Law on April 4, 2011 (Dkt. 210). The relevant additional finding provided "the amount of response costs for which defendant is responsible is $9,343,765.00." That finding was intended to, and did, fix the total amount of response costs to the date of the Amended Judgment (Dkt. 224) entered on April 8, 2011. Plaintiff had had the opportunity to request more response costs incurred before April 4, 2011, or to request that the final amount of response costs be left open for additions incurred between the dates set forth in the Agreed Pretrial Order (Dkt. 164) (September 1, 2009, May 5, 2010, and August 1, 2009) and the date of Judgment. Plaintiff did neither.

Plaintiff's statement in its Post Trial Briefing Re: Proposed Judgment and Request for Clarification ( Dkt. 199 at page 4), referring to an earlier motion, was "that was the time for WSDOT to raise any issues it might have regarding the amount and recoverability of the United States' costs." To paraphrase that statement, the additional briefing period was the time for the United States and WSDOT to raise any issues they might have regarding the amount and recoverability of the United States' costs.

A simplification of the foregoing events can be set out as follows: Plaintiff requested response costs of $9,343,765.00 for costs to certain dates. The Court asked if that was all Plaintiff wanted. Plaintiff said yes. The Court gave Plaintiff all it wanted. It can't ask for more now.

It was the court's intent to fix, once and for all, the response costs due to the date of judgment. It did so with the Amended Findings (Dkt. 210) and the Amended Judgment (Dkt. 224) was entered. Response costs to the date of judgment were fixed. Res Judicata.

II. CERCLA and Further Response Costs

Notwithstanding the Court's Amended Judgment, the Plaintiff seeks to recover the aforementioned costs as "further response costs" through the enforcement of the Court's declaratory judgment. The language of the Declaratory Judgment provides that "Judgment is hereby further granted in favor of the plaintiff United States of America and against the defendant Washington State Department of Transportation pursuant to 42 U.S.C. 9613(g)(2): The liability of the defendant determined here is binding on any subsequent action or actions to recover further response costs." (Dkt. 225 at page 1, lines 21-24.)

CERCLA's declaratory judgment provision allows a plaintiff to recover "further response costs." 42 U.S.C. § 9613(g)(2). Plaintiff apparently defines "further response costs," as found in42 U.S.C. § 9613(g)(2) and the Judgment (Dkt. 224), to mean "additional response costs," and interprets that to encompass response costs incurred at any time and not reimbursed.

The weight of authority, however, defines "further response costs" as "future response costs" - meaning unreimbursed response costs incurred after the date of declaratory judgment entered pursuant to 42 U.S.C. § 9613(g)(2) - here April 8, 2011.

The purpose of the declaratory judgment entered pursuant to 42 U.S.C. § 9613(g)(2) is to establish liability for response costs or damages that will be binding on any subsequent action or actions to recover further response costs or damages. "Therefore, if a plaintiff successfully establishes liability for the response costs sought in the initial cost-recovery action, it is entitled to a declaratory judgment on present liability that will be binding on future cost-recovery actions." City of Colton v. American Promotional Events, Inc.-West, 614 F.3d 998, 1007 (9th Cir. 2010). "In section 113(g)(2), Congress specified a mechanism whereby a declaration of liability for costs already incurred has preclusive effect in future proceedings as to costs yet to be incurred." Id. See also Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1191 (9th Cir. 2000) (approving CERCLA declaratory relief allocating future costs).

Stated in another fashion, "[t]he purpose of this provision is to avoid the necessity of relitigating issues in subsequent litigation that have been decided in an initial action, seeking contribution of response costs incurred to date." AlliedSignal, Inc. v. Amcast Intern. Corp.,177 F.Supp.2d 713, 757 (S.D. Ohio 2001). The declaratory judgment establishes liability for all response costs incurred after the date of the judgment (post-trial). Id.

As the Ninth Circuit explained in Dant & Russell, Inc. v. Burlington Northern Railroad 951 F.2d 246, 249-50 (9th Cir.1991), the provisions of § 9613(g)(2) "envision that, before suing, CERCLA plaintiffs will spend some money responding to an environmental hazard. They canthen go to court and obtain reimbursement for their initial outlays, as well as a declaration that the responsible party will have continuing liability for the cost of finishing the job."

The Second Circuit, citing Dant & Russell, explains that CERCLA authorizes an initial action for reimbursement for costs incurred in remediation and further permits a declaratory judgment allocating "future response costs" between potentially responsible parties. Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 91 (2nd Cir. 2000). See also F.P. Woll & Co. v. Fifth & Mitchell Street Corp., 326 Fed. Appx. 658, 661 (3d Cir. 2009) (declaratory judgment ensures prompt reimbursement of reasonable response costs incurred in the future); City of Gary,...