ORDER GRANTING GOVERNMENTS' CROSS-MOTION FOR SUMMARY JUDGMENT ON THE "INNOCENT LANDOWNER DEFENSE"
BRYAN, District Judge.
THIS MATTER comes before the court on a cross-motion of the United States and the State of Washington for an order granting summary judgment on the issue
The Court now concludes the Governments' cross-motion should be granted. The Court's reasoning follows.
I. Applicable Law.
42 U.S.C. § 9607 defines liability under CERCLA. 42 U.S.C. § 9607(b) provides in relevant part:
42 U.S.C. § 9601(35) is a new section of CERCLA that was enacted in 1986 for the purpose of protecting innocent landowners from liability. It supplements the definition of "contractual relationship" found in 42 U.S.C. § 9607(b)(3), and provides in relevant part:
In the case at bar, Time Oil, in asserting this defense pursuant to subsection (i) has a burden of prudent inquiry in that it
II. Summary Judgment Burdens.
The 42 U.S.C. § 9607(b)(3) defense (hereinafter the "(b)(3) defense") is an affirmative defense, and Time Oil has the burden of establishing by a preponderance of the evidence that it is entitled to this defense. In a motion for summary judgment, the Governments have the burden of showing there is no genuine issue as to any material fact, and that the Governments are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In responding to a summary judgment motion, the adverse party may not rest upon the mere allegations or denials of its pleading, but must respond by setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). In the motion at bar, Time Oil has the burden to make a showing sufficient to establish the existence of each element in the innocent landowner defense on which Time Oil would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A failure of proof offered by Time Oil concerning an essential element of the innocent landowner defense will result in summary judgment for the Governments. Celotex. The evidence must be viewed in the light most favorable to Time Oil. Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir.1985).
III. Discussion of Elements of the § (b)(3) Defense and the Evidentiary Showings of the Parties.
First, the court is satisfied that the underlying condition of a release of hazardous substance on the property has been shown.
A release of such a hazardous substance for CERCLA purposes is broadly defined as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment." (42 U.S.C. § 9601(22), U.S. v. Metate Asbestos Corp., 584 F.Supp. 1143, 1148 (D.Ariz.1984).)
A substance is defined as a hazardous substance under CERCLA if it is designated in 42 U.S.C. § 9602, or if it is listed under any of several other legislative acts, including § 3001 of the Solid Waste Disposal Act, several sections of the Clean Water Act of 1977, and the Toxic Substances Control Act.
It is undisputed that sampling done on the Time Oil property has revealed the presence of substances considered hazardous under CERCLA. Groundwater sampling conducted for the Environmental Protection Agency detected transdychloroethylene ("DCE") and trichloroethylene ("TCE"). Separate groundwater sampling done for the EPA and for Time Oil showed large amounts of 1, 1, 2, 2 tetrachloroethane ("TCA"). Soil samples at several depths have revealed the presence of the following substances:
Phenol Hexachloroethane 2, 4 Dimethylphenol 1, 1, 2, 2 Tetrachloroethane Pentachlorophenol Trichloroethylene 2, 4, 6 Trichlorophenol 1, 2 Trans-Dichloroethylene Perchloroethylene Nitrobenzene 2, 4 Diethyl Phthalate Hexachlorobenzene Bis 2 EthylHexyl Phthalate Butyl Benzyl Phthalate Dibutyl Phthalate Dioctyl Phthalate Benzo G, h, i Perylene Hexachlorobutadiene Acenaphthene Lead Chrysene Cadmium Pyrene Chromium Fluorene Zinc Anthracene Fluoranthene Benzo (a) Anthracene (Affidavit of Philip M. Wong in Support of Motion, p. 9.)
A. There has been an insufficient showing that the release has been caused solely by a third party.
In the Court's statement to counsel following oral argument on January 15, 1988, the Court indicated as follows:
The Court's subsequent review of the evidence indicating the presence of hazardous substances on the Time Oil property has resolved to the Court's satisfaction that there clearly has been a "release" within the meaning of CERCLA on the subject property. The Court further concludes that the issue of whether Drexler, in particular, released any of these hazardous substances is not dispositive to deciding the Governments' cross-motion for summary judgment on the innocent landowner defense. It is enough that the substances are there, and it is not necessary for purposes of this motion to trace their release to one entity or another. Rather, it becomes Time Oil's burden in asserting the affirmative (b)(3) defense to present evidence sufficient to show the Court that there remain specific factual issues as to whether the releases of hazardous substances were caused solely by an act or omission of someone other than a Time Oil employee or agent, or someone other than a person acting in connection with a contractual relationship with Time Oil. Celotex.
As the Court noted in its oral statement on January 15, 1988, Time Oil has raised issues as to whether Time Oil knew, or had reason to know, if the property was contaminated at the time of purchase. The defendant has also raised questions as to whether Time Oil's subsidiary, National Oil Company, contributed to the releases of hazardous substances; or whether Time Oil itself contributed to the releases of hazardous substances. The resolution of the issues of National Oil's and Time Oil's alleged contributions apparently will be primarily dependent upon this Court's resolution of whether the waste oil and other materials stored and used on the property contained the hazardous substances later found on the property. The evidence on this issue is circumstantial. Affidavits from experts have been submitted by both the plaintiffs and the defendant, and the experts' assertions have been challenged in turn. In a motion for summary judgment, the court is reluctant to base conclusions on such competing assertions of experts. Accordingly, resolution of this issue will occur at a later time. However, concerning the issue of National Oil's contamination of the property, the court notes that it is not disputed that National Oil deposited filter cake on the property. It is alleged the filter cake contained lead, cadmium, and chromium. (Brinkman Affidavit, p. 9.) Time Oil does not dispute this, but argues it is irrelevant. (Time Oil's Memorandum in Opposition, p. 7, footnote 7.) It is not irrelevant. Rather, it is an indication that Time Oil cannot successfully assert the section (b)(3) defense with respect to the activities of National Oil because Time Oil cannot offer proof that the release was caused solely by a third party for whom Time Oil is not responsible.
The last operator on the property was Time Oil's sublessee, Drexler. As mentioned
B. There has been an insufficient showing that Time Oil exercised due care or took precautions with respect to the property.
The final elements Time Oil must show in order to assert the innocent landowner defense are that it exercised due care and took precautions with respect to the hazardous substances concerned, taking into consideration the characteristics of the hazardous substances in light of all relevant facts and circumstances. This is a burden Time Oil has failed to meet. Although the Court is not prepared at this time to say that all the releases of hazardous substances on the property can be directly linked to the waste oil operations of National Oil, Time Oil, or Drexler, it is clear Time Oil allowed Drexler to run a sloppy operation. Time Oil did not exercise due care to prevent the property from becoming contaminated by this sublessee.
The defendant has failed to make showings sufficient to carry its burdens with respect to the release of hazardous substances by a third party, and an exercise of due care. It is not necessary for purposes of this motion to determine exactly how much blame may be apportioned to each of the entities which operated reprocessing facilities on the property. It is enough to note that the innocent landowner defense cannot be available to Defendant Time Oil, when Time Oil has failed to present specific facts to indicate that some other party having no employment, subsidiary, or contractual connection with Time Oil is solely responsible for releasing all of the hazardous substances which have come to be found on the subject property.
For the foregoing reasons, it is now
ORDERED the Governments' Cross-Motion for Summary Judgment on the "Innocent Landowner Defense" is GRANTED.