Siltec Corp. v. Commonwealth Aluminum Corp.

No. 90-6183-JO (D. Or. December 16, 1991)

The court holds that a present owner of land on which tanks containing asbestos and a small quantity of hazardous materials were disposed of is entitled to recover from the previous owner under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107. The court first holds that the United States, the original owner, is not liable for contribution to the previous owner under CERCLA § 113(f), because its use of asbestos in the construction of a building at the site was productive, and thus, does not constitute disposal of hazardous substances. The court next holds that the CERCLA statute of limitations commencement date, and not the state statute of limitations, applies and thus, the present owner may still bring a claim against the previous owner. The applicable commencement date is when the plaintiff is first aware that damages it sustained were caused by the hazardous substance. The court holds that the present owner's claim is contingent upon the exact date of the present owner's knowledge; a question for the factfinder. The court next holds the previous owner liable for the present owner's cleanup costs. The court finds that asbestos was affirmatively discarded as waste by the previous owner, and that the tanks are a "facility," not a consumer product because they are no longer commercially useful. Moreover, the previous owner disposed of a hazardous substance. The court finally holds that the issue of the present owner's noncompliance with the national contingency plan is not a potential basis for finding liability, but goes only to the issue of damages. The court declines to enter summary judgment against the present owner's negligence and nuisance claims, and the previous owner's claim for contribution from the present owner.

Counsel for Plaintiff
Leslie Swanson
808 S.W. 3d Ave., Ste. 400, Portland OR 97204
(503) 228-1838

Counsel for Defendant
Daniel Skerritt
222 S.W. Columbia St., Ste. 1800, Portland OR 97201
(503) 226-1191

Jones, J.

[23 ELR 20230]

Jones, J.:

Opinion and Order

Siltec Corporation ("Siltec") brings this complaint against Commonwealth Aluminum Corporation and Martin Marietta Corporation (collectively "Martin") under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675. The court has jurisdiction under 42 U.S.C. § 9613(b) and pendent jurisdiction over the state claims of negligence and nuisance.

The complaint involves real property located in Salem, Oregon. Siltec alleges the following claims: (1) liability for response costs under 42 U.S.C. § 9607(a) of CERCLA; (2) liability for remedial action costs under ORS 466.567; (3) liability for damages under ORS 466.205; (4) liability for damages under ORS 466.640; (5) nuisance; (6) negligence; (7) common law indemnity; (8) breach of contract; and (9) declaratory relief.

Martin filed a third-party complaint against the United States of America. After successful motions to dismiss, the only claim asserted in the third-party complaint is statutory contribution under CERCLA. Additionally, Martin Marietta has agreed to indemnify Commonwealth if Commonwealth is adjudged liable to Siltec.

I. CERCLA

To prevail in a CERCLA action for private cost recovery, plaintiff must show: 1) the tanks are a "facility"¹; 2) a "release" or a "threatened release" of a hazardous substance from the tanks has occurred; 3) the release or threatened release has caused plaintiff to incur "response costs" that were "necessary" and "consistent with the national contingency plan"; and 4) the defendants fit within the definition of a covered person within 42 U.S.C. § 9607(a). 3550 Stevens Creek Assoc. v. Barclays Bank, 915 F.2d 1355, 1358 [21 ELR 20011] (9th Cir. 1990), cert. denied, 111 S. Ct. 2014 (1991).

Title 42 U.S.C. § 9607(a), in relevant part, provides that the following parties are liable for cleanup costs: "(1) the owner and operator of a . . . facility, [and] (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of. . . ."

Applying equitable factors, the court may allow "contribution from any other person who is liable or potentially liable under section 9607(a) of this title. . . ." 42 U.S.C. § 9613(f)(1).

II. Standards

"A party against whom a claim . . . is asserted . . . may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof." Fed. R. Civ. P. 56(b).

The nonmoving party cannot rely upon his pleadings, but must, through affidavit, or otherwise, demonstrate that genuine issues of material fact remain for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). There is a need for a trial where "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). There is no genuine issue of material fact and summary judgment is appropriate if

a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . [because] a . . . failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other material fact immaterial.

Celotex, 477 U.S. at 322-23.

III. Motions

Siltec moves for summary judgment (#48). Siltec requests the following:

(1) a ruling that Martin's 1972 disposal of asbestos and other hazardous substances at a burial pit makes Martin liable for Siltec's cleanup costs under CERCLA;

(2) a ruling that because Siltec had no knowledge of the burial site until 1989, the Oregon ten-year statute of limitations, which would [23 ELR 20231] bar Siltec's negligence and nuisance claims, is replaced by 42 U.S.C. § 9568 of CERCLA; and

(3) an order compelling Martin to produce documents and answer interrogatories that may lead to the discovery of admissible evidence relevant to Siltec's negligence and nuisance claims.

Siltec filed a certificate of compliance (#50). In an exhibit to the certificate of compliance, it is apparent that the motion to compel is essentially resolved once the statute of limitations issue is resolved. That is, Martin resisted discovery on Siltec's negligence and nuisance claims, believing that those claims are barred by the statute of limitations.

Siltec further moves that the court waive the interrogatory limitation (#74) stated in Local Rule 230-1(a). "Unless otherwise permitted by the court, or by stipulation, no party shall serve more than twenty (20) interrogatories, including sub-parts." Local Rule 230-1(a). Martin counts 46 submitted by Siltec. See Declaration of Larry Setchell (#63), Attachment.

Martin moves for summary judgment (#58). Martin seeks a ruling that CERCLA does not provide a cause of action to Siltec. Even if CERCLA does provide a cause of action, Martin moves for a dismissal of Siltec's CERCLA claim based on Siltec's failure to comply with the National Contingency Plan ("NCP").² If the court grants one of the two above requests, then Martin requests the court to dismiss Siltec's pendent state claims. If the court does not dismiss Siltec's federal claim, the CERCLA claim, then Martin requests that (1) Siltec is liable for contribution under CERCLA because of its parking lot construction; and (2) Siltec's claims for negligence and nuisance be dismissed. Martin also requests a protective order "restricting the scope of discovery as to its negligence claim to a reasonable scope." Martin's Motion for Summary Judgment (#58); see Declaration of John C. Peterson (#61), p. 3-5 ("These requests for 'all documents' are so broad and unlimited I would hardly know where or how to begin to look for them, let alone track them down with assurance.").

The United States moves for summary judgment (#71) on the third-party complaint's only remaining claim: CERCLA liability.

IV. Facts

The United States owned the property during the World War II period, constructing an experimental alumina plant.³ Alumina is the raw material essential for the production of aluminum. The plant included six large concrete filtration tanks. The tanks were built of reinforced concrete. The walls of the tanks were lined with a 1/16" thick asbestos sheet immediately next to the concrete, covered by an 8" lead sheet, a 3/8" resilion thermoplastic layer, and a 4 1/2" lining of acidproof brick. Each tank was 60' in diameter and 10' 4" tall, covered by a wood and tar paper roof.

In 1954, Harvey Aluminum Company purchased the property from the United States to explore the feasibility of the plant and its experimental alumina process. Harvey later was acquired by Martin Marietta Aluminum Inc. In 1984, Martin Marietta Aluminum Inc. was sold and renamed Commonwealth Aluminum Corporation. Martin Marietta Corporation accepts responsibility for the alleged conduct of Harvey, Martin Marietta Aluminum Inc. and Commonwealth Aluminum Corporation.

The tanks were present on the property when the United States sold the property to Harvey. The general condition of the tanks had deteriorated, but there is no evidence of any damage to the asbestos.

In 1965, by which time Harvey determined that the plant was not feasible, Harvey contracted for the salvage and demolition of the plant. The contractor, Mr. Ritter, took off the roofs of the tanks and salvaged the brick and lead linings from the tanks, leaving the 1/16" lining of asbestos.

On July 7, 1972, the Fire Marshal of the City of Salem sent Commonwealth a notice that the tanks could pose a "public hazard." On August 4, 1972, Commonwealth responded that is [sic] was making arrangements with a contractor to demolish the tanks.

In August of 1972, Commonwealth contracted to have the tanks demolished. The portions of each tank that extended above the ground were knocked in, that is, the tanks were collapsed into themselves, this broke portions of the concrete walls into pieces, and dislodged asbestos fiber from the concrete walls. The remaining tanks and pieces dislodged by demolition were covered by dirt and buried.

Commonwealth graded the property so that the burial pit was level with the surrounding area. Asbestos lining mixed with the soil at the burial site. Siltec contends that a number of drums were present in the tanks at the time of demolition, which were buried with the asbestos. The drums contained small amounts of hazardous materials. Mr. Ritter, the contractor, however, is certain that he just left water in the tanks and no drums. However, Martin does not dispute that Siltec paid $ 1,700.00 for the disposal of two drums containing hazardous substances.

Commonwealth sold the property on March 7, 1977. Siltec acquired possession of the property in 1979.

In June of 1989, Siltec began construction of a parking lot on the property. Construction uncovered the remains of the tanks and exposed some of the asbestos to the air. Prior to June of 1989, Siltec submits it had no knowledge or any reason to know that Commonwealth had buried asbestos and other hazardous substances at the property. The defendants dispute this, claiming that Siltec had knowledge because of a site survey warning of demolition debris and an aerial photo showing exposure of the six tanks in the summer of 1985. Siltec contends that prior to 1989, it only had knowledge of non-hazardous construction debris.

The asbestos was friable, making emissions of asbestos fibers into the air threatened. According to Martin, however, "approximately 70% [of the asbestos was] intact, remaining adhered to the original tank structures." Statement of Defendants (#60), p. 5. Martin submits that the risk was slight and that the asbestos could have remained buried without harm to the environment. See Statements of Defendants (#60), Exhibit J, p. 10 ("If material was covered over with clean fill, it wouldn't be an exposure hazard at that time."); Id., Exhibit N, p. 1 ("To the best of your professional knowledge and experience, is it dangerous when it's [asbestos] is buried in the ground? . . . No."); Id. at 4 ("[A]sbestos doesn't wiggle through the ground like a worm, right? . . . Right.").

The contents of the buried drums were analyzed by Siltec and found to contain, among other things, toluene, ethylbenzene, and zylenes, which confirmed an analysis done for Commonwealth. The water in one of the tanks contained cadmium, chromium, and lead at concentrations exceeding drinking water standards. The soil inside on the tanks was also contaminated. Martin disputes the above paragraph as an "improper interpretation of fact." Statement of Defendants (#60), p. 3.

V. United States' Motion

Martin alleges that the United States is liable for contribution under 42 U.S.C. § 9613(f) because the United States is liable as "any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of." 42 U.S.C. § 9607(a)(2).⁴

The United States submits that it is not liable under 42 U.S.C. § 9607 and therefore cannot be held liable for contribution because (1) the use of asbestos materials in constructing a building does not constitute "disposal" and (2) a building made from materials containing asbestos is not a "facility" from which a release of asbestos occurs.

CERCLA provides that "disposal" "shall have the meaning provided in section 1004 of the Solid Waste Disposal Act [42 U.S.C.A. [23 ELR 20232] § 6903]." 42 U.S.C. § 9601(29). Title 42 U.S.C. § 6903(3) defines "disposal" as

the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous substance into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwaters.

The Ninth Circuit recently discussed the CERCLA definition of "disposal." In 3550 Stevens Creek Assoc. v. Barclays Bank, 915 F.2d 1355 [21 ELR 20011] (9th Cir. 1990), the Ninth Circuit addressed the question whether a private party could recover its response costs for asbestos cleanup installed in a commercial building.

The facts of Stevens Creek were as follows: In 1963, First Valley Corporation built the building, using asbestos insulation and fire retardants. In 1969, Barclays acquired the building. Barclays sold the building to Stevens Creek in 1984. Stevens Creek spent more than $ 100,000.00 in removing the asbestos. Stevens Creek brought their suit against Barclays under 42 U.S.C. § 9607(a)(2), the provision under which Martin brings its third-party complaint against the United States.

Two arguments were proffered by Barclays: 1) Asbestos was not disposed of and 2) § 104 provides that the removal of building materials containing asbestos is outside the scope of CERCLA. Section 104(a)(3) states that "[t]he President shall not provide for a removal or remedial action . . . in response to a release or threat of release . . . (B) from products which are part of the structure of, and result in exposure within . . . business or community structures." This is the only CERCLA provision that addresses the issue of removal of substances that are part of the structure of buildings. The Ninth Circuit was not persuaded by the second argument and held that "the limitation on governmental response in section 104 is not dispositive." Stevens Creek, 915 F.2d at 1358-59.

What was held to be dispositive by the Ninth Circuit was the definition of the term "disposal," the first argument. "On its face 'disposal' pertains to 'solid waste or hazardous waste,' not to building materials which are neither." Stevens Creek, 915 F.2d at 1361.

Continuing, the Ninth Circuit stated

[t]here is no suggestion that Barclays or its predecessors-in-interest discarded asbestos insulation and fire retardants; rather they were used to construct the building. Nor can the construction of a building using these materials fit into "the discharge, deposit, injection, . . . or placing into or on any land or water" specified in the definition. There is no question that the asbestos materials in this case were built into the structure, not placed "into or on any land or water."

Id. Moreover, "courts in other circuits have construed 'disposal' . . . as referring only to an affirmative act of discarding a substance as waste, and not to the productive use of the substance." Stevens Creek, 915 F.2d at 1362.

As further support for its holding, the Ninth Circuit, while recognizing CERCLA's remedial goals, recognized that "CERCLA was designed to deal with the problem of inactive and abandoned hazardous waste disposal sites." Stevens Creek, 915 F.2d at 1363. The Ninth Circuit also cited legislative history that stood for the implication that Congress did not intend for CERCLA to include removal or remedial action resulting from building materials in a structure causing contamination. See Stevens Creek, 915 F.2d at 1364.

A recent district court opinion expanded upon Stevens Creek. In Anthony v. Blech, 760 F. Supp. 832 (C.D. Cal. 1991), the district court discussed two distinctions between Anthony and Stevens Creek: the basis of liability in Anthony was premised upon § 9607(a)(1), not (a)(2)⁵ and Anthony involved the removal of asbestos because of a fire, not the voluntary removal during remodeling. The district court found that neither distinction mandated a different decision than Stevens Creek.

The fact that subsection (a)(1) does not contain the term "disposal" was not dispositive because of the definition of the term "facility." The definition of the term "facility" "does not include any consumer product in consumer use." 42 U.S.C. § 9601(9). Because "[a]sbestos installed in and in current use in a building would appear to be such a 'consumer product in consumer use.'" Anthony, 760 F. Supp. 836, the district court found that "since the definition itself [of "facility"] excludes an in-use consumer product from CERCLA coverage, it was unnecessary to engraft a further 'disposal' requirement under subsection (1)." Anthony, 760 F. Supp. 836.

Discussing legislative history, the court found that "no liability was intended to be imposed on an 'owner and operator of a . . . facility' at which hazardous substances were not disposed, but at which such substances constituted nothing more than currently used building materials." Anthony, 760 F. Supp. at 836.

The Anthony court further rejected the distinction proffered by plaintiff based upon the voluntary removal and the removal after fire. "The 'asbestos dust' plaintiff removed resulted from the release of asbestos fibers that were originally part of the structure of the building. Whether the asbestos dust is removed as dust, or directly from the building materials themselves, its source is the same." Anthony, 760 F. Supp. at 836. The district court held that CERCLA did not provide a cause of action to the plaintiff in Anthony.

In the present case, the United States argues that

It is undisputed that the asbestos found at the site was originally part of the lining of the tanks that the United States built on the property. The asbestos was part of the structure, just like the asbestos that was part of the building in Stevens Creek. . . .

. . . There is no evidence concerning the general condition of the tanks when the United States sold the property in 1954 that indicates that the asbestos linings inside the tanks were exposed to the environment. In fact, the asbestos lining was covered by a sheet of lead and acidproof bricks, both of which were still in good condition eleven years after the United States sold the property. . . . Additionally, the tanks were protected by tar-paper roofs that were not removed until 1965 [when Martin removed the roofs, the lead linings, and the acidproof bricks].

United States Motion for Summary Judgment (#72), p. 11-12. The United States submits that it did not dispose of asbestos. See Dayton Indep. School Dist. v. U.S. Mineral Prods. Co., 906 F.2d 1059, 1065 [20 ELR 21464] (5th Cir. 1990) (manufacture of building materials containing asbestos not considered "disposal" for CERCLA purposes).

The United States also argues that the tanks do not constitute a "facility" because of the consumer product exception. "The tanks were a necessary part of the experimental alumina process for which the plant was built and for which Harvey bought the plant to determine if it was commercially feasible." United States Motion for Summary Judgment (#72), p. 15. See Dayton, 906 F.2d at 1065 n. 4 (building materials are consumer products); Vernon Village, Inc. v. Gottier, 755 F. Supp. 1142, 1149-51 [21 ELR 21186] (D. Conn. 1990) (drinking water is not [sic] "facility" because [sic] is a consumer product); Electric Power Bd. v. Westinghouse Elec. Corp., 716 F. Supp. 1069, 1080 (E.D. Tenn. 1988), aff'd, 879 F.2d 1368 (1989), cert. denied, 493 U.S. 1022 (1990) (transformer not [sic] "facility" because [sic] is a consumer product); but see CP Holdings, Inc. v. Goldberg-Zoino & Assocs., 769 F. Supp. 432 (D.N.H. 1991) (holding seller of building containing asbestos liable under CERCLA because court held that "disposal" of hazardous substances could occur and because the demolition of the building was "fully contemplated" by the seller and the buyer, unlike in present case where plant sold to Harvey to determine feasibility of continued use).

Martin

. . . agree[s] with the United States as to the controlling legal authority in this matter. The Ninth Circuit Court of Appeals decision in 3350 Stevens Creek Assoc. v. Barclays Bank, 915 F.2d 1355 [21 ELR 20011] (9th Cir. 1990), cert. denied, 111 S. C[t]. 2014 (1991), as recently applied in Anthony v. Blech, 760 F. Supp. 832 (C.D. Cal. 1991), controls the fundamental issue as to whether . . . CERCLA . . . applies to the abatement of asbestos from a commercial building site. . . .

. . . [T]he court [in Anthony] found that congressional intent underlying CERCLA was not to regulate the cleanup of ACM from a commercial structure, even though the structure had been destroyed.

Reply of Martin (#84), p. 2-3. Martin requests that the court dismiss Siltec's asbestos claim and then dismiss the third-party complaint against the United [23 ELR 20233] States. "If the court determines that Siltec has a CERCLA cause of action for the abatement of asbestos from the huge tank structures . . . then we respectfully submit the motion of the United States should be denied on the same basis." Reply of Martin (#84), p.3.

Regarding contribution under 42 U.S.C. § 9613(f), Martin draws the court's attention to Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 [20 ELR 20281] (5th Cir. 1989).

While the United States agrees that if Siltec's complaint is dismissed against Martin, then Martin's complaint against the United States should be dismissed, the United States does not agree that even if Siltec's complaint is not dismissed, then Martin's complaint against the United States should not be dismissed.

In particular, we take no position concerning whether Martin Marietta disposed of asbestos within the meaning of CERCLA section 120(a)(1) and Stevens Creek, either when its predecessor exposed the asbestos linings . . . in 1965 . . . or when it demolished and buried the tanks in 1972. . . .

StevensCreek requires the dismissal of the remaining count . . . against the United States even if this Court finds that Martin Marietta has disposed of hazardous wastes within the meaning of CERCLA section 120(a)(1), 42 U.S.C. § 9620(a)(1). . . . [I]n Stevens Creek the Ninth Circuit held that the use of asbestos materials in constructing a building does not constitute "disposal" of asbestos. . . . The court contrasted the affirmative act of discarding a substance as waste with the productive use of a substance: the former is a disposal, the latter is not. . . .

Martin Marietta argues that the United States disposed of the asbestos when it ceased using the tanks as commercial structures. . . . Martin Marietta has admitted, however, that its predecessor acquired the property from the United States for the purpose of determining whether commercial operation of the alumina facility was feasible. . . . The tanks were built for use in the alumina process. . . . Thus, when the United States sold the property, it did so with the expectation that the plant — including the sandwasher tanks — would be used again.

While the United States takes no position on Martin's actions constituting "disposal," this court will. However, for purposes of the United States' motion for summary judgment on the third-party complaint, this court need not reach that issue. The United States is entitled to summary judgment on the third-party complaint because as a matter of law the United States cannot be liable under section 9607(a). The United States did not "dispose" of any hazardous substance. The court does not reach the issue whether the tanks were facilities.

There is no dispute that the United States is not liable to Martin for contribution for the removal of the two drums because the cost of removing the drums was not reportable, as the cost was less than $ 2,000, and because the disposal does "not amount to anything more than a deminimus [sic], trivial item." Reply of Martin (#84), p. 5. Martin does not seek contribution from the United States for the drum removal.

The United States' motion for summary judgment is granted and this action is dismissed against it.

VI. Siltec's and Martin's Motions for Summary Judgment

A. Statute of Limitations

ORS 12.115 provides "[i]n no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act or omission complained of." Siltec filed this action on May 2, 1990. Siltec claims that it did not have knowledge of the asbestos until 1989.

Title 42 U.S.C. § 9658 provides that

In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance . . . released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute.⁶

(footnote not in original). The "federally required commencement date" is "the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages . . . were caused or contributed to by the hazardous substance." 42 U.S.C. § 9658(b)(4)(A). Section 9658 only changes when the statute begins to run, not the length of time the statute runs.

Siltec submits that Martin's refusal to comply with Siltec's discovery requests does not merely go to the negligence and nuisance claims, but "goes to the heart of this case — whether CERCLA encompasses actions involving the removal of asbestos from underground burial pits." Plaintiff's Memorandum in Support (#49), p. 5.

Siltec argues

a cleanup of friable asbestos that has been dumpted in a hole and buried in the ground is so fundamentally different from an asbestos removal from a standing, in-use commercial building that it defies belief that [d]efendants can even argue in good faith that the building abatement cases even apply. . . . [A]lthough in the absence of CERCLA, Oregon's statute of repose would bar our state law nuisance and negligence claims, the statute of repose is irrelevant here. Because the cleanup of asbestos from a burial pit is within the scope of CERCLA, Section 309 of CERCLA displaces the Oregon statute of repose by mandating a federal discovery rule that makes Siltec's state law claims timely.

Plaintiff's Memorandum in Support (#49), p. 5-6.

The CERCLA commencement date applies because the necessary elements have been met, as described below. Siltec suffered property damage caused by exposure to asbestos, a hazardous substance, that was released into the environment when Martin demolished the tanks, [sic] the facility.

Contrary to Martin's assertion, Siltec need not have a viable CERCLA claim to invoke section 9658. However, the CERCLA commencement date itself is an issue of fact based upon Siltec's knowledge or when Siltec reasonably should have known.⁷ Siltec argues that it did not have knowledge until 1989. Martin strenuously disagrees.

Yet, this case's viability in this court turns on whether Siltec possesses a CERCLA claim because the court will decline to exercise pendent, now supplemental, jurisdiction over the state claims if the federal claim is dismissed.

B. CERCLA Liability

According to Martin, Siltec's CERCLA claim must fail because Commonwealth disposed of the asbestos in the manner that Commonwealth was supposed to dispose of asbestos; by burying it. Siltec counters this with State of Arizona v. Motorola,Inc., 22 Chem. Waste Lit. Rptr. 702 (D. Ariz. June 27, 1991) (rejecting argument that because defendants had disposed of asbestos consistent with existing regulation, defendants had not "disposed" of asbestos).⁸ Siltec submits that Commonwealth did not bury the asbestos properly. In any event, even assuming Martin disposed of the asbestos properly, this does not absolve it of liability.

Regardless that the Clean Air Act and regulations promulgated pursuant to the Clean Air Act provide for the disposal of asbestos by burial and regardless that CERCLA is less than an eloquent and precise statute, "[i]t seems clear that the fact a defendant may have exercised due care in packaging its waste or complied with all laws and regulations is no defense to [CERCLA] liability." State of Arizona v. Motorola, Inc., 22 Chem. Waste Lit. Rptr. 702, 704-05 (D. Ariz. June 27, 1991).

Martin further submits that asbestos is not a hazardous waste. Therefore, argues Martin, because the definition of disposal only [23 ELR 20234] Therefore, argues Martin, because the definition of disposal only provides for solid waste or hazardous wastes, asbestos cleanup cannot go through CERCLA. 42 U.S.C. § 6903(3).

Asbestos is a hazardous substance. 42 U.S.C. § 9601(14); Stevens Creek, 915 F.2d at 1360. If the term "disposal" within CERCLA is only read to apply to solid waste and hazardous waste, then the frequent mention of hazardous substances within CERCLA serves no purpose; one would have to ignore the plain terms of CERCLA. "Absent any evidence of legislative intent to the contrary, this court adopts the more liberal reading of section 9607 to include disposal of all hazardous substances." CP Holdings, Inc. v. Goldberg-Zoino & Assocs., Inc., 769 F. Supp. 432, 437 (D.N.H. 1991).

Further, and most significant for this case, the asbestos in the tanks was affirmatively discarded as waste; the asbestos was not in productive use. See Stevens Creek, 915 F.2d at 1362. CERCLA has been and may be employed with regard to asbestos cleanups in situations such as the present. In any event, while asbestos cleanup is the bulk of this lawsuit, the suit also involves hazardous wastes.⁹

The tanks are a facility; not consumer products. While Siltec admits that the tanks were originally built as commercially useful structures, Siltec submits that the tanks lost their character as commercially useful structures once defendants knocked them in and buried the rubble. The court agrees.

Siltec correctly submits that a "release" of a hazardous substance into the "environment" occurred when Martin demolished and buried the tanks. See 42 U.S.C. § 9601(22) & (8); Stevens Creek, 915 F.2d at 1359-60 & 1363. This case does not involve the release of asbestos fibers within a building, but into the environment.

Siltec incurred response costs. Cf. First United Methodist Church v. United States Gypsum Co., 882 F.2d 862 [19 ELR 21451] (4th Cir. 1989), cert. denied, 493 U.S. 1070 (1990) (asbestos contained within walls of building). Even if the tanks at one time were commercial structures, they lost that characteristic after Martin bulldozed and buried them. There was no productive use left for the asbestos lining. Accord CP Holdings, Inc. v. Goldberg-Zoino & Assocs., 769 F. Supp. 432 (D.N.H. 1991) (when seller knew buyer buying building to destroy building, seller could be liable under CERCLA).

Contrary to the successful argument proffered by the United States, Martin did dispose of a hazardous substance. Martin is a party covered by § 9607(a)(2).

Martin proffers another argument for dismissal of Siltec's CERCLA claim: Siltec's failure to comply with the NCP.¹⁰

The plan shall specify procedures, techniques, materials, equipment, and methods to be employed in identifying, removing, or remedying releases of hazardous substances. . . . Following publication of the revised national contingency plan, the response to and actions to minimize damage from hazardous substances releases, shall to the greatest extent possible, be in accordance with the provisions of the plan.

42 U.S.C. § 9605(a) (emphasis added — regarding the above discussion, CERCLA obviously intended to apply to hazardous substances).

According to Martin,

Siltec never notified the EPA or the National Response Center of the alleged "release" of a hazardous substance at its site. Siltec did not perform a remedial investigation/feasibility study of the type required by the NCP. Siltec held no public hearings, and provided no opportunity for public comment as to its remedial action. . . .

Defendants' Statement (#59), p. 2-3. According to Martin, the reason Siltec ignored the NCP was because under a deal with the City of Salem, the City of Salem waived its new fire code, thereby, allowing Siltec to build a new hazardous material storage facility under expired codes, provided Siltec started the job within 120 days.¹¹ Martin argues that "Siltec voluntarily elected to characterize its ACM cleanup as an abatement plan under ORS . . . 468.875, et seq., relating to the abatement of ACM from commercial structures." Summary Judgment Memorandum (#62), p. 8.

Martin also submits that Siltec never informed them of Siltec's proposed actions: Siltec only informed them of "remedial action," not "removal action."¹²

Siltec disagrees.

. . . Siltec and its consultant did conduct cleanup as a removal action in accordance with relevant principles of the National Contingency Plan. As soon as potentially hazardous materials were found at the [p]roperty, DEQ advised Siltec to stop work immediately on its construction project until the materials could be characterized. Siltec submitted its analytical results to DEQ. Siltec's consultant, Russ Fetrow Engineering ("RFE"), was familiar with CERCLA and has commonly been called upon to review the law and submit reports to comply with it. RFE performed a thorough site assessment to evaluate the nature of contamination found at . . . Siltec's property, which included a visual inspection of the [p]roperty and an analysis of hazardous materials found there. Siltec promptly notified [d]efendants of the contamination in order to involve them in the response, and [d]efendants' representatives were on-site within days. . . .

Siltec's consultant was not aware of any need to notify the National Response Center concerning the discovery of environmental contamination at Siltec's [p]roperty. There is no evidence in the record to indicate that such notification was required under the law.

Plaintiff's Statement in Opposition (#78), p. 3-4. Siltec disputes any special deal with the City of Salem.

Siltec further submits that

. . . [d]efendants verbally waived requirements of the NCP that might apply if the cleanup were viewed as a remedial action rather than a removal. Defendants agreed that holding a public hearing complying with other NCP requirements did not make economic sense. Only after [d]efendants were asked to confirm their agreement in writing did [d]efendants change their mind about this issue.

Plaintiff's Statement in Opposition (#78), p. 6. Martin, of course, disputes that it waived NCP compliance.

"The NCP is a series of regulations promulgated by the EPA." Channel Master Satellite Sys., Inc. v. JFD Elecs. Corp., 748 F. Supp. 373, 381 [21 ELR 20297] (E.D.N.C. 1990). "The NCP defines procedures and standards for waste site cleanups, and its purpose 'is to give some consistency and cohesiveness to response planning and actions.'" Channel Master, 748 F. Supp. at 381.

[23 ELR 20235]

Martin argues that Siltec must show strict compliance with the 1985 National Contingency Plan (NCP). Martin cites to County Line Inv. Co. v. Tinney, 933 F.2d 1508, 1513 [21 ELR 21299] (10th Cir. 1991); cf. Con-Tech Sales Defined Benefit Trust v. Cockerham, No. 87-5137 (E.D. Pa. Oct. 9, 1991), 1991 U.S. Dist. LEXIS 14624 (substantial compliance with NCP the proper standard — case is attached to Notice of Recent Decision (#90)).

There are two types of actions under CERCLA: removal and remedial. "Removal" and "remedial" actions have different compliance standards. See 40 C.F.R. § 300.71(a)(2)(i) & (ii). The standard is more strict for remedial actions.

"Removal" is defined at 42 U.S.C. § 9601(23). "Remedial action" is defined at 42 U.S.C. § 9601(24). "Remedial action" "means those actions consistent with permanent remedy taken instead of or in addition to removal actions. . . ." 42 U.S.C. § 9601(24).

Martin submits that there is no question that Siltec did not perform a remedial action as contemplated by the NCP. Siltec did not prepare a Remedial Investigation/Feasibility Study ("RI/FS") required by 40 C.F.R. § 300.68, did not hold public hearings and provided no opportunity for public comment. 40 C.F.R. § 300.71(a)(2)(ii)(D). Martin contends that to the extent Siltec argues it performed a remedial action, this CERCLA claim must be dismissed as failing to comply with the NCP. County Line Inv. Co. v. Tinney, 933 F.2d 1508 [21 ELR 21299] (10th Cir. 1991); Amland Properties Corp. v. Aluminum Co. of Am., 711 F. Supp. 784 [19 ELR 21180] (D.N.J. 1989); Channel Master Satellite Sys., Inc. v. JFD Elecs. Corp., 748 F. Supp. 373 [21 ELR 20297] (E.D.N.C. 1990).

To the extent Siltec argues it performed a removal action, Martin also argues its CERCLA claim must be dismissed. Martin proffers the statements of Siltec's own counsel and submits that burying the debris at another site is permanent and thus remedial as contemplated by CERCLA. Indeed, proffers Martin, Siltec's environmental consultants were not aware of the NCP. Martin also argues that because the health risk was so slight, Siltec's actions cannot be deemed a removal action. Martin argues that the only urgency was with respect to Siltec's parking lot, not to public health.

Siltec vigorously argues that the NCP issue is not appropriate for summary judgment. The court completely agrees.

"In this circuit, . . . it has been specifically held that a failure to comply with the NCP is not a defense to liability, but goes only to the issue of damages." Mid Valley Bank v. North Valley Bank, 764 F. Supp. 1377, 1389 (E.D. Cal. 1991); Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 695 [18 ELR 20470] (9th Cir. 1988). "[I]nconsistency is not a basis for granting summary judgment." Mid Valley Bank, 764 F. Supp. at 1390. Martin's lengthy protestations to the contrary do not allow this court to dismiss Siltec's complaint based upon its alleged failure to comply with the NCP.

Martin argues that this case is distinguishable because a lengthy and intensive factual record has been developed. See, e.g., Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1575 [18 ELR 21348] (5th Cir. 1988) ("The issue of consistency cannot be resolved on the pleadings alone, but must await development of relevant evidence."); Carlyle Piermont Corp. v. Federal Paper Bd. Co., Inc., 742 F.2d 814, 819 (S.D.N.Y. 1990) ("[C]onsistency with the NCP is a peculiarly fact intensive question that can normally only be determined at trial, or at least after a full pretrial record has been prepared.").

What Martin ignores is Mid Valley Bank and the explicit statement in Cadillac that "the question whether a response action is necessary and consistent with the . . . contingency plan is a factual one to be determined at the damages stage." Cadillac, 840 F.2d at 695 (emphasis added). That is, not at the liability stage.

Because the parties are not asking for a determination as to damages, but a determination as to liability, the issue of NCP compliance is not properly before this court, notwithstanding Martin's extensive arguments in favor of Siltec's alleged failure to follow the NCP. The court expressly does not determine whether Siltec's actions were a removal or remedial action and whether Siltec complied with the appropriate NCP requirements.

C. Negligence and Nuisance

Regarding the negligence and nuisance claims, Martin moves for summary judgment on the ground that the tank demolition was carried out following the appropriate standard of care. Mr. Ritter was careful to avoid leaving a hazard and neither federal nor state law provides a standard for burial. Siltec counters Martin's assertions: Although Commonwealth knew of the presence of asbestos, Commonwealth's "contractor — Ed Ritter — in 1972 acted without regard to the presence of asbestos in the tanks." Plaintiff's Statement in Opposition (#78), p. 8.

The question of the reasonableness of a tortfeasor's conduct is usually left to the finder of fact. That is, the court should not rule as a matter of law on a motion for summary judgment. Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987). The court declines to enter summary judgment against Siltec's negligence claim.

Regarding the nuisance claim, Oregon law does not prevent a present owner from suing a previous owner, although the court recognizes that this is not the traditional application of nuisance law. See ORS 105.505; Denora v. Fischer Eng'g & Maintenance Co., Inc., 55 Or. App. 448, 638 P.2d 490 (1982) (suit against present and former owners of neighboring land dismissed because of statute of limitations, not because of parties). The court cannot enter summary judgment on Siltec's nuisance claim.

D. Contribution

Finally, Martin submits that Siltec is liable under CERCLA because Siltec "illegally dumped the excavated demolition debris in a sensitive wetland" and because Siltec, at the time of the "release" was the "operator" of a "facility." Defendants' Statement (#59), p. 5. "What slight risk there was had to do with the fact that Siltec's construction equipment had spread pieces of the . . . [asbestos] throughout the site, and left it exposed. The wind could arguably have blown . . . [asbestos] into the air, in a way that people might have inhaled it." Declaration of William T. Renfroe (#64), p. 3.

Siltec challenges each of Martin's assertions regarding Siltec's alleged CERCLA liability. Siltec submits that "the release or threatened release with respect to which Siltec has incurred response costs occurred at the time [d]efendants were the owners and operators of the facility." Plaintiff's Statement in Opposition (#78), p. 9. Regarding Martin's allegations of Siltec's illegal dumping, Siltec responds that this is a legal conclusion, not a statement of fact. Finally, Siltec proffers that

Siltec stopped all excavation activities on June 23, 1989, the same day potentially hazardous substances were discovered at Siltec's property. Any additional "digging" at the property was done either that day or the day before, and was conducted solely to determine the extent of the demolished tanks and other materials buried at the property.

Plaintiff's Statement in Opposition (#78), p. 9-10.

The court simply cannot grant Martin's motion for summary judgment on the issue of Siltec's alleged contribution liability. The evidence simply does not show as a matter of law that Siltec meets all the CERCLA requirements for liability.

VII. Summary

The court orders that Martin is liable for Siltec's cleanup costs under CERCLA. The issue of damages/contribution is disputed; for example the issues surrounding Siltec's alleged failure to comply with the NCP. The issue of Siltec's liability for contribution is disputed.

The issue of Siltec's knowledge of the burial site is disputed. If a fact finder decides that Siltec had knowledge before May 2, 1980, then Siltec's claims for negligence and nuisance are barred.

Siltec's request for an order compelling Martin to produce discovery regarding the negligence and nuisance claims is granted, but will be monitored by the court by telephone conference to assure discovery is kept to a reasonable scope. Siltec's request for relief to file more than twenty interrogatories is denied; Siltec shall resubmit to Martin the twenty interrogatories Siltec wishes Martin to answer.

The United States' motion is granted.

VIII. Conclusion

Plaintiff's motion for summary judgment & compel (#48) is GRANTED in part and DENIED in part. Martin's motion for summary judgment (#58) is DENIED, but Martin's request for a protective [23 ELR 20236] order is GRANTED. The United States' motion for summary judgment (#71) is GRANTED. Plaintiff's motion for relief (#74) is DENIED. This case is DISMISSED against the United States.

1. Facility is defined as "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located." 42 U.S.C. § 9601(9). Hazardous substance is defined at 42 U.S.C. § 9601(14).

2. At no time did I [John C. Peterson] or Martin Marietta Corporation waive any part of the duty of Siltec to comply with the National Contingency Plan. I determined, in my opinion, based on advice from a competent environmental engineering firm, that there was no environmental hazard or risk posed by the condition of the tanks. I determined that Siltec's cleanup decisions were being rushed in haste to complete construction of its parking lot. In the absence of an environmental risk analysis showing significant environmental risk, I determined Siltec's decisions were purely voluntary, and not motivated by concern for the environment or respect for the NCP.

Declaration of John C. Peterson (#61), p. 2. According to Martin, Siltec did not clean up the site with reference to CERCLA or the NCP, but performed an asbestos abatement plan under ORS 468.875. See Statement of Defendants (#60), p. 4.

3. The plant was designed to extract alumina from clay and other soils. The plant's purpose was to provide a domestic supply of alumina safe from World War II attacks. World War II ended before the plant began operation.

4. The court agrees that there is no basis or evidence to support Martin's allegations of liability based upon 42 U.S.C. § 9607(a)(4)(B), which provides for liability for "any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or [other] site. . . ."

5. Subsection (a)(1) does not contain the term "disposal."

6. The elements are: 1) property damage 2) caused or contributed by exposure to a hazardous substance 3) that was released into the environment 4) from a facility. The elements have been met as discussed below.

7. Siltec submits that even if issues of fact remain regarding Siltec's knowledge, Siltec's discovery requests should still be granted. See Fed. R. Civ. P. 26(b)(1). The court agrees.

However, Siltec submits that because statute of limitations is an affirmative defense and because Martin cannot proffer evidence to dispute Siltec's discovery date of 1989, summary judgment ought to be granted in Siltec's favor on the statute of limitations issue. The court disagrees. Siltec's knowledge is properly a question for the factfinder because a fact finder could reasonably find for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

8. The court disagrees that Motorola and CP Holdings "are not very well reasoned, and have no authoritative value." Summary Judgment Memorandum (#62), p. 18. Martin's conclusory statements are of little value to this court.

9. Martin contends that no hazardous wastes or substances were buried on the property because Commonwealth removed all the drums. Siltec, however, provides strong evidence that it paid for the removal of the drums, which contained hazardous wastes.

10. The whole reason we follow the National Contingency Plan in an environmental case where there has been a release or a threat of release of a hazardous substance to the environment is to require professional evaluation of environmental risks, in order to make sure that any remedy is thoroughly thought out from an environmental and human point of view. In this case, that was simply not done. In my opinion, the chosen remedy, excavating the entire site which had not been previously excavated, together with that portion of the site which had been disturbed, created a substantially greater environmental and human health risk. The reason I say this is that in excavating the balance of the site which had not been previously exposed, Siltec disturbed the friable ACM [asbestos containing material] and entrained it in the air. In my opinion the excavation activities should have been halted on several occasions due to unacceptable wind velocities which caused excessive material to be blown out of the exclusion zone.

Declaration of William T. Renfroe (#64), p. 3-4.

11. Siltec disputes Martin's characterization of the facts as a "special deal." "Siltec's primary concern in responding quickly to the contamination at the [p]roperty had far more to do with protecting against environmental and health risks than with any financial considerations relating to completion of its hazardous materials storage project." Declaration of Russell M. Gregoire (#80), p. 6.

In about December of 1988, Siltec was advised by DEQ that its facility was in violation of requirements for on-site storage of hazardous materials and advised by the City of Salem that its facility did not have a valid occupancy permit and was in violation of local fire and building code requirements. The cost difference between complying with the 1985 and the 1988 fire code in the proposed storage building was about $ 400,000 to $ 500,000. However, "[t]o the best of my knowledge, the City still has not adopted the 1988 fire code, which means that Siltec could still take advantage of the 1985 code provisions even had it delayed submission of its project application until now." Declaration of Russell M. Gregoire (#80), p. 5.

12. Siltec disputes this. On about August 16, 1989, Michele B. Corash, one of Siltec's attorneys, telephoned Martin to put Martin "on notice of the fact that Siltec had discovered hazardous substances buried at the [p]roperty and that Siltec intended to mo[v]e forward promptly with appropriate investigatory and response actions." Declaration of Michele B. Corash (#81), p. 2. "The NCP's requirements governing either remedial actions or removal are nowhere even mentioned." Id. at 3. The phrase "remedial action" was only used in the generic sense. Id. Significantly, Ms. Corash "invited Mr. Peterson to 'bring to our attention objections which warrant postponing the remedial work proposed. . . .'" Id.