Thursday, December 30, 2010

Ten Year Battle Over Dry Cleaner Contamination Ends with Court Ordering Specific Performance

The saga over the aptly named Battle Ground Plaza shopping mall finally came to a resolution when a Washington state the appeals court upheld an order for specific performance but remanded the matter to the trial court to fine-tune the components of the remedy.

In Battle Ground Plaza, LLC v Douglas M. Ray et al, 2010 Wash. App. LEXIS 2190 (Ct.App. 9/27/10), the plaintiff agreed to purchase the Battle Ground Shopping Center from the defendant for $3.29 million in December 2000. Paragraph 21(n) of the purchase and sale agreement (PSA) which was drafted by the manager of Battle Ground Plaza LLC (BCP), granted BGP a 90-day due diligence period. The seller also warranted in paragraph 30(N) that property did not contain any "hazardous material or conditions."

After a phase 1 recommended additional investigation in the vicinity of a dry cleaner and the mini-mart gas station, BGP waived its due diligence contingency in exchange for a reduction in the purchase price to $3MM. The closing date was also extended provided the sellers were not in default or breach of the PSA.
In May 2001, BCP was notified by its lender that its loan application could not be accepted until a number of business issues were clarified and the receipt of the phase 2 investigation. In June 2001, the phase 2 requested by the bank revealed contamination at the dry cleaner and the mini-mart gas station. The bank notified BCP that it would reconsider the loan application when the business and environmental issues are resolved. After the closing was again extended, the seller implemented remedial measures and obtained a no further action letter from the Washington Department of Ecology (Ecology).

However, the contamination from the dry cleaner turned out to be more extensive than originally thought. Contaminated vapors were detected in two of the tenant spaces and the plume of contaminated groundwater appeared to have migrated at least 700 feet within proximity of the municipal drinking water wells. As a result, Ecology withdrew its NFA letter.

BGP filed suit for breach of contract, specific performance, and damages. The defendant argued that BGP waived the environmental warranty of paragraph 30(N) when it waived the due diligence contingency of paragraph 21(n) and tendered additional earnest money to extend closing to August 1 with knowledge of the environmental conditions. However, the trial court ruled that BCP had not waived the provisions of the environmental warranty. Since the defendant had been in breach of this warranty, the court ruled that BCP had not been obligated to close. The trial court then issued an order of specific performance whereby BGP would tender the purchase price less $510K in stigma damages and the defendant would be required to complete remediation of the property to the court's satisfaction. The order also provided that the closing would take place no later than 60 days after the court determined the remediation had been completed.

On appeal, the court agreed that the language of the addendum unambiguously indicates that the August 1, 2002 closing date was contingent on lack of default or breach. Because Sellers were in breach of the environmental warranty in paragraph 30(N), the agreement specifies no definite closing date and the court said a reasonable closing date could be implied. Moreover, the court found that the correspondence did not reveal an intent to waive the warranty, pointing to a February 26, 2001 waiver letter where BGP expressly stated it did not waive any other provisions of the PSA, including paragraph 30(N). The court also said that paragraph 19 of the PSA stated that Purchaser would accept the premises `as is' subject to the representations and warranties of the Seller as contained in Section 30" of the PSA.

Turning to paragraph 30(N), the court said by defining "hazardous material or conditions" as "any condition that requires remedial work of the property owner under either Federal or Washington law", the PSA contemplated remediation to the satisfaction of the relevant regulatory agencies.

However, the appeals court remanded the case to the trial court for a reconsideration of the remedy. The appeals court said requiring remediation to the satisfaction of the court and BGP instead of Ecology, effectively re-wrote the clause. Moreover, because only BGP could ask the court to certify that remediation was complete under the order, the appeals court said this created a mechanism to allow BGP to avoid its obligations since it would not have to tender funds and make no commitments. The appeals court suggested it was unfair to grant an award of specific performance where the party seeking the relief is not required perform after contract conditions are satisfied was unfair.

Finally, the appeals court found the trial court erred when it reduced the purchase price by $510K for stigma damages. The court noted that the valuation expert testified at trial that the rate of diminution in value decreases as remediation goes forward, and that cleaning up the property tends to eliminate any stigma. By awarding the full stigma value, the appeals court said the lower trial not only treated stigma as a permanent diminution in which was inconsistent with the evidence in record. By requiring that defendant remediate the property while also reducing the purchase price based on pre-cleanup stigma amounted to a double recovery for BGP, the appeals court concluded.
 

Wednesday, December 29, 2010

Seller Not liable For Failing to Disclose Wetlands Report

In Harshman II Development Co., LLC v Meijier Stores Limited Partnership, 2010 Ohio App. LEXIS 314 (2/5/10)  the defendand purchased a 19.23 acre parcel  in Dayton, Ohio in 1992 to build a wholesale store. Prior to acquiring the property, the defendant obtained a phase 1 and phase 2 along with letter from Woolpert Consultants  The Woolpert Report identified five isolated wetland areas on the property totaling approximately 0.293 acres. The Woolpert Report concluded that because of the limited acreage of the wetlands,  the wetlands could be filled pursuant to nationwide permit # 26 and without filing notification to the Army Corps of Engineers. For other reasons, the defendant abandoned its plans to build the store, and the property was never developed.

In 1994, the defendant retained a former commercial real estate realtor/broker  to list the property for sale. As a promotional tool to aid in the sale of the property, the defendant drafted a Site Evaluation Information Sheet ("SEI") that identified the three environmental reports

In 2004, the Ohio Environmental Protection Agency  ("OEPA") obtained permission from the defendant’s real estate manager to enter the property and determine if a specific type of salamander was present on the property. The agency subsequently issued a report identifying the property has having three Category 3 wetland areas. This category is reserved for the most important wetlands under the state wetlands program and  may only be disturbed upon a showing of a”demonstrated public need”. The OEPA did not provide the report or its findings to the defendant, nor was the report made available to the public.

In 2005, the plaintiff entered into a real estate option contract to purchase the property for $1.470MM. The agreement provided the property was being sold "as is" but allowed plaintiff to conduct its own inspection of the property In connection with its due diligence, the plaintiff requested all environmental reports pertaining to the property. Defendant provided copies of the phase 1 and phase 2 reports but did not forward the Woolpert Report prior to the closing. The Phase I and II reports did not identify the existence of jurisdictional wetlands on the property. The cover letter forwarding the environmental reports specifically stated "please note that neither Meijer nor its consultant make any representations or warranties to you or your firm concerning the accuracy or completeness of the enclosed report, and you should independently verify the information to your own satisfaction.” The plaintiff retained ERAtech, Inc. to conduct a Phase I Environmental Report which disclosed the existence of low-lying wet areas on the property but did not evaluate if the wetlands were “jurisdictional wetlands”.

Shortly after purchasing the property in January 2006, the plaintiff began clearing the property to construct a mall and began to fill in the wet areas. OEPA subsequently issued an order halting the work and charged the plaintiff with illegally disturbing jurisdictional wetlands without a permit.

The plaintiff filed a lawsuit against the defendant for fraud and breach of contract, arguing that that the existence of the jurisdictional wetlands was a latent defect in the property which Meijer had failed to disclose by intentionally withholding production of the Woolpert Report. The trial court granted the defendant’s motion for summary judgment in its entirety. 

The appellate court held that the plaintiff had failed to establish that seller fraudulently concealed the existence of the wetlands on the property by failing to provide the buyer with the report regarding the discovery of such. The court noted that the broker had sent a letter to the defendant raising the possibility of a “wet land issue", and while acknowledging that this raised some issues regarding whether the plaintiff was aware of the existence of wetlands on the property, the court said it could not ignore the fact that the plaintiff was had experienced, knowledgeable, and sophisticated commercial real estate lawyers and developers.

The court also found that the presence of jurisdictional wetlands on the property was an open and obvious condition that the buyer who had unimpeded access to the property could have discovered upon reasonable inspection. The court noted that the National Wetlands Inventory Map not only revealed the existence of jurisdictional wetlands on the property but was used by the consultant retained by the plaintiff after development was halted on the property by the EPA to confirm the presence of wetlands. Moreover, the court pointed out that the plaintiff even attempted to use the presence of the wet areas to negotiate a lower purchase price.

The court also found that the 1992 Woolpert Report would not have been relevant to the plaintiff because the state wetlands program  had become much more restrictive in 2001 and the size of the wetlands had changed-growing to approximately .82 acres of the property. The court also found persuasive the testimony of two of the defendant’s employees that a wetlands assessment was a separate and distinct inquiry from the Phase I and II environmental reports, and they thought that the plaintiff was only seeking to obtain copies of those report. 

The plaintiff had originally named ERATech as a defendant but agreed to dismiss the consultant from the case and try to resolve its claim through an arbitration proceeding. The state Supreme Court declined to hear an appeal of this case in June

Developer of Former Landfill Qualifies Qualifies as Innocent Owner and May Proceed with Cost Recovery for Methane Mitigation

In Frontier Recovery, LLC v Lane County, 2010 U.S.Dist. LEXIS 61857 (D.Ore. 4/14/10), the defendant owned the site from 1974-1978, and operated it as a solid waste landfill. Defendant transferred the site to Lane Plywood, Inc. in 1978 who primarily used it to stockpile logs.  The plaintiff was the successor to Lane Plywood and wanted to develop the site for light industrial and commercial use.
During pre-development activities, the plaintiff discovered methane gas concentrations and other contamination required mitigation. The plaintiff entered into a voluntary cleanup agreement to implement the mitigation measures under the supervision of the Oregon Department of Environmental Quality (DEQ). The plaintiff then filed a lawsuit against the county seeking to recover its costs and the county filed a motion for summary judgment.
            The denied the county’s motion on the plaintiff’s cost recovery claim. The court said the plaintiff had introduced evidence that it developed the site in reliance on statements from the defendant and DEQ that the County had properly operated and closed the landfill and that there were no serious environmental problems at the site. As a result, the court found that a reasonable trier of fact could conclude that plaintiff conduced all reasonable inquiries prior to purchasing the property and thus did not know nor reasonably could have known of the methane gas issues. Interestingly, in so holding, the court did not address successor liability,  examine if the plaintiff's predecessor qualified for the innocent landowner defense and the impact of any failure to qualify for the defense would have on the plaintiff. 
The court also denied the defendant’s motion for summary judgment on the statutory contribution claim. The county had argued that the plaintiff’s statutory contribution claim was barred because the costs were incurred pursuant to a voluntary cleanup agreement. The plaintiff responded that the relevant case law only required some form of DEQ involvement. Moreover, the plaintiff asserted that it entered into the voluntary agreement to avoid an enforcement action that could have resulted in civil penalties. The court agreed with plaintiff, holding that was a question of fact regarding whether plaintiff was required to undertake such action and therefore, summary judgment is not appropriate on this claim.

Tuesday, December 28, 2010

Are the E2600 Critical Search Distances Inadequate?

The critical distances used in the ASTM E2600 Vapor Encroachment Standard to screen out sites for further investigation. The distances were supposed to based on data developed by VI experts to provide a 95% confidence certainty.
However, if one looks at the length of plumes in ever growing number of vapor intrusion lawsuits, the E2600 distances used to suggest the sites do not pose a risk of vapor encroachment to a target property seem extremely over-optimistic. Granted, the lawsuits are only a small universe of the total number of sites that are impacted by chlorinated solvents but but this random sampling would suggest that critical distances may not provide as much confidence as is claimed.

Developing data on plume lengths from lawsuits can be tricky since this information is usually not in the court opinios but buried in  pleadings and brief. Moreover, the focus is usually on whether the plaintiffs have been exposed, not how far they are located from the source of the contamination.  However, to advance the conversation, I have listed below some plume lengths I have been able to obtain from some of the more active vapor intrusin lawsuits.

The lawsuits seem to involve vapors migrating from shopping centers with dry cleaners, industrial facilities and landfills.

Maryland Square (Nv):  4,000 ft groundwater plume from shopping center (and crossed beneath major blvd)
White Swan Cleaner (NJ)- 2.5 mile groundwater plume from former dry cleaner (now bank branch office)
Bozeman Solvent Site (Mt)- plume from dry cleaner is several lengths of shopping center (appears to be at least mile long)

Raytheon (Fl)- at least 1,000 ft groundwater plume from industrial facility

Behr (Ohio)- at least 1500 plume from industrial facility

Ringwood (Ill)- plume "several thousand feet" from industrial lagoons
Pompton Lake (NJ)- neighborhood impacted from plume from industrial facility

There are many more sites that I will post as I get time to evaluate the pleadings and briefs. You will see that the sites above are evenly divided between industrial facilities and dry cleaners. Despite the fact that the latter are small businesses, they have used significant quantities of solvents. Studies have shown that between 75% to 90% of dry cleaners in operation before the turn of the century have suffered releases. Many of these are unreported and unremediated, thus able to continue to migrate. 

I would suggest that consultants who cling to the E2600 distance for screen out dry cleaners will underestimate the potential impacts of these facilities at their own risk.

Monday, December 27, 2010

Heating Oil Tank Leak Creates Liability for Former Washington Home Owner

The Washington Court of Appeals ruled that former home owner did not qualify for the state innocent landowner defense because the heating oil tank had leaked during its ownership. Defendants argued they had not intentionally or negligently caused the release but court found that their use of tank contributed or caused the release. Also rejected argument plaintiffs had assumed liability in purchase agreement. Grey v. Leach (Ct.App- 12/13/10)

Obscure Michigan Reporting Requirement Spells Trouble for Property Owner

Most state remedial programs have well defined release or spill reporting requirements that are usually described in separate sections of the applicable law or regulation. However, sometimes there may be other reporting requirements that could not only eviscerate state liability protection but also the CERCLA landowner liability requirements as well.

A recent Michigan appeals court illustrates this issue. In 1031 Lapeer LLC v Ricky L. Rice, 2010 Mich. App. LEXIS 1511 (Ct. App. 8/5/10), the plaintiff agreed to lease a gas station in May 2006 from the defendant. Apparently, the defendant had been aware that the site was contaminated as far back as 1996 but had not disclosed this information to the plainitff. When the plaintiff learned from the state Department of Environmental Quality (DEQ) that the site was contaminated, the plaintiff filed a lawsuit, asserting fraud, breach of lease and violation of statutory obligations.

The trial court found the lease was void because the defendant had not complied with its statutory notice requirements under the Michigan Natural Resources and Environmental Protection Act (NREPA). Under part 201 of NREPA, a person who has knowledge that their property is a "facility" must provide written notice to a purchaser or other person to whom the property is transferred. A "facility", in turn, is defined as" any area, place or property" where a hazardous substance in excess of the cleanup standards but does not include such property where response actions have been completed. 

The appeals court affirmed the trial court decision voiding the lease and denying the defendants motion for summary judgment. The appeals court said that  "contracts founded on acts prohibited by a statute or contracts in violation of public policy are void". Because the defendant was prohibited from transferring any interest in the property without first providing the mandated written notice that the property was a "facility", the court said the leases was founded on an act prohibited by a statute and thus void.
The court went on to say that public policy supported such a voiding as well. The court said "one who obtains ownership or becomes an operator of a facility risk exposure to potentially significant, unanticipated costs and liability,  public policy dictates that enforcement of a contract made without the disclosure mandate found in MCL 324.20116(1) would be against public policy."

The defendant argued that because the contract had a number general references to contamination, particularly an indemnity for pre-existing contamination as well as defendant's agreement to perform any mandated tank upgrade. The court did acknowledge that the plaintiff learned about the contamination just a few months after taking possession of the propertyand that it could be reaosnably argued that the plaintiff could have learned about the contamination prior to the lease. However, the court said the defendant had actual notice of the existing contamination and did not unequivocally advise the plaintiffs in writing of that fact. Regardless whether the plaintiff should have been placed on notice by the lease terms or the exercise of diligence, the defendant had a statutory obligation that it failed to comply with prior to transferring the property. Since there were questions of fact as to the fraud claim, the appeals court said that the lower court had correctly denied the defendants motion for summary judgment. Moreover, the fraud issue was submitted to the jury and the defendant did not appeal the jury verdict itself, that verdict would stand.   

CERCLA has two provisions that could cause a party who has achieved the landowner liability protections to lose its liability immunity. First, owners of property who qualify for the landowner liability protections not only have post-acquisition obligations to comply with all state and federal reporting obligations. Thus, failure to comply with an obligation like that under NERPA could cause a landowner to forfeit CERCLA liability protection.

Second, CERCLA has what I have called an "innocent seller" disclosure requirement. An owner that qualifies for the innocent landowner defense is required to notify a subsequent purchaser of any information that the owner/seller has learned about releases during its ownership.

NY Bankruptcy Court extends Apex rationale to state cleanup orders.

 

New Mexico issued order under Water Quality Act. Since that law did not provide for cost recovery, court found no dischargeable claim. Court found it did not matter that state could have pursued cost recovery under another law. Focus was on the law that the state elected to use. Also broad interpretation of "ongoing pollution". In re Mark Industries, 2010 Bankr. LEXIS 3587 (Bankcy. S.D. 10/21/10)

This decision suggests that Apex decision which Supreme Court declined to hear may displace 2nd Circuit's 1991 LTV decision in importance.

Retail Pharmacy Chain Agrees to Conduct Vapor Intrusion Study Of Homes To Determine Impacts by Former Dry Cleaner .

 

The plume is at least 20 years old. CVS became embroiled when it acquired the Osco Drug Chain in 2006 which owned the shopping center that was serviced by a septic system in the past. Wonder what kind of diligence was done?
1 month ago

Residential Homebuilder Settles Clean Water Act Violations in 21 States

DOJ Announces that Beazer Homes USA, Inc. has agreed today to pay a $925,000 civil penalty to resolve alleged Clean Water Act violations at its construction sites in 21 states.

Indiana State Court Rules Landlord not liable for common law claims filed by neighboring property owner.

Tenants had conducted industrial dry cleaning operation. Court found landlord had no actual notice of contamination despite observing drums, concern about "sloppy housekeeping" and phase 1 report generated during refinancing. Neal v Cure, 2010 Ind. App. LEXIS 2218 (Ct. App. 11/24/10)

Drug Retailer Fined for Improper Management of Photodeveloper Waste

We have periodically posted on the risks posed by improper mananagement of photo-processing and spent x-ray developing solutions at commercial and retail properties. Phase 1 reports often overlook how these chemicals are managed and discharged. A settlement between CVS and the CT DEP last week illustrates the importance of this issue.

CVS agreed to pay $268,900 and implement major improvements in its environmental practices. The CT DEP said that CVS failed to obtain permits for discharging photographic processing chemicals, pharmaceuticals and wastewater into on-site septic systems and sewers. One store lacked the proper maintenance records for the silver recovery systems associated with photo-processing machines, the department said.

The department found that 19 CVS locations were discharging photo-processing wastewaters without a permit in the last three years, 101 stores were not monitoring the influent and effluent of the silver recovery systems and 20 stores disposed of wastewater that violated the permitting limit for silver effluent.

Under the settlement, CVS agreed to make changes to its business practices, including implementing standard procedures for disposing of wastewater and obtaining the proper permits, posting workplace signage and training staff to dispose of the materials properly.

CVS also agreed to stop discharging silver-bearing photo-processing wastewater at its Connecticut stores and to conduct regular statewide audits.

CT DEP announcement is at: http://www.ct.gov/dep/cwp/view.asp?Q=468994&A=3847

Insurer Required to Pay for Demolition of House With Contaminated Groundwater from Heating Oil UST

GW Remediation would have required either demolition of house or use of structural supports. Insurer argued house demolition and restoration was first party claim subject to owned property exclusion. Trial court agreed but appellate division reversed, holding house was not "damaged" by the contamination and demolition was simply most cost-effective remedial option. The Proformance Insurance Co. v Riggins, Inc. et al., 2010 NJ Super. Unpub. LEXIS 918 (App Div 4/27/10). What do you think?

Vapor Intrusion and Old Landfills

As a child, I remember summer vacations at my uncle's cottage in the Catskill Mountains (or bungalow in the parlance of the region) where one of the fun trips was going to the local town dump where garbage was burned.

Towns across the country had local dumps  but were forced to close these "open dumps" following the passage of the 1965 Solid Waste Disposal Act which became Subtitle D of RCRA in 1976. The precise locations of the dumps were usually not recorded and with the passage of time, the lines became very blurred. Indeed, as metropolitan areas expanded, many of these once-rural towns became bedroom communities and home builders bought up what now looked like undeveloped fields for new suburban developments.

The discovery of vapor intrusion by the plaintiffs bar coupled with the economic downturn seems have resulted in an increasing number of lawsuits projects that were built on or near former landfills. A recent example involves the lawsuit in the Rochester area of New York where residents have sued former home builders and the local government over vapor intrusion eminating from an old solid waste landfill.

In Schroder v Ontario Properties, et al, the complaint alleges that a variety of hazardous materials were disposed at the Old Rochester City Landfill from the mid-1950s until it was closed in 1964 although the plaintiffs claim additional illegal dumping occurred for another decade. In 1980, the state of New York placed the landfill on the state superfund list but delisted it in 1994. In 2009, a developer sought to enroll the site into the state brownfield program but the application was initially denied. To buttress its case, the developer collected vapor intrusion samples which identified a variety of VOCs and concentrations of methane above explosive lower limit were present in the soil gas near and below homes that had been built in the 1980s. Some of the plaintiffs homes also allege that a portion of the old landfill extends beneath their residences based on the presence of waste material that was observed during advancement of the soil vapor probes.

The plaintiffs are alleging the defendants failed to take reasonable precautions with respect to the contaminants and failred to detect or disclose the presence of the contaminants to the plaintiff home owners. The plaintiffs are seeking property damages and medical monitoring and restitution of expenses to remediate the contamination. They also assert an inverse condemnation claim against the local government.   

Consultants who fail to identify the presence of a former landfill or raise concerns about potential impact of a former landfill located near a property could find themselves subject to a malpractice action. One of the leading examples was the case I discussed in the November 2007 issue of the Schnapf Environmental Law Journal (available from my website at http://www.schnapflaw.com/).

In Watco v. Pickering Environmental Consultants, Inc., 2007 Tenn. App. LEXIS 364 (Ct. App. 6/5/07), a state appeals court affirmed a ruling by a trial court granting a judgment in favor of a consultant-defendant. In this case, the plaintiff agreed in December 1994 to purchase a 169-acre tract of undeveloped wooden land from National Bank of Commerce (NBC), acting as trustee for the Norfleet Charitable Remainder Uni-Trust (Norfleet Trust),  for $880, 588. The purchase was contingent on a satisfactory phase 1 that conformed to the ASTM E1527-94. At the time of the phase 1, the land adjacent to the west was county park. The defendant completed the Phase 1 in July 1995 and provided an opinion letter to plaintiff acknowledging that the report was in connection with the sale of the property and expressly provided that the plaintiff could rely on the report. The letter went on to state that the defendant had not identified any “hazardous materials or environmental conditions” associated with current of former uses, and that no “significant environmental concerns” were identified in the surrounding areas that would represent a  “significant environmental concern” to the property.  As a result, the letter indicated that further environmental review was not recommended.

As it turned out, the county park had formerly an unlicensed municipal landfill that had operated from approximately 1955 to the mid-1970s. The land containing the unlicensed landfill had actually been owned by the Norfleet Trust and NBC had conveyed the land to the Shelby County Conservation Board pursuant to two deeds in 1980 and 1986.

During grading operations for a residential subdivision in March 2004, the plaintiff discovered garbage buried at a depth of 3 to 5 feet under approximately 30 acres of the western portion of the property. The plaintiff incurred substantial costs removing the garbage, and had to delay development while the solid waste was excavated and replaced with clean fill. The plaintiff then sought damages for professional negligence and negligent misrepresentation. The defendant filed a claim against NBC seeking indemnity under the Phase 1 contract but the court granted NBC’s motion to dismiss on the grounds that the contract provided that disputes between the parties were to be resolved through arbitration.
     
In its claim for negligent misrepresentation, the plaintiff claimed that the defendant made a false statement when it stated it had complied with ASTM E1527-94. The parties also agreed that the ASTM E1527-94 established the standard of care for the professional negligence claim. The plaintiff’s expert witness testified that the Phase 1 did not identify the former landfill, that he was able to learn about the existence of the former landfill by contacting local officials and that defendant’s failure to interview additional persons constituted a breach of its professional standard of care. The defendant’s expert testified that the defendant had reviewed the standard database records provided by Vista Environmental Information and that the landfill was not identified in any of these records. Thus, the expert concluded that the records were not reasonably ascertainable or practically reviewable. The trial court found that both experts were equally qualified, informed and credible. In its decision, the court noted the plaintiff had the burden to prove that the defendant did not conform to the applicable professional standard. Because the proof was equally balanced as to whether the defendant had a duty to conduct further interviews than those required in the ASTM E1527-94, the court found in favor of the defendant.

On appeal, the court reviewed three components of the ASTM E1527-94 that environmental consultants were required to satisfy: Records Review, site reconnaissance and interviews.The plaintiff’s expert testified that he his own record search uncovered minutes of a 1978 meeting held by the Shelby County Conservation Board where the residential landfill had been discussed. He asserted that the defendant could have easily obtained this record and therefore discovered the prior existence of the landfill. However, on cross-examination he admitted that the minutes did not precisely describe the name or location of the landfill and that the landfill had not been identified in any of the standard public records. He admitted that the defendant had reviewed all of the standard records and that the Vista system used by the defendant was an acceptable method for reviewing the standard sources of records required to be reviewed under ASTM E1527-94.

The site inspection had been performed by an intern who had been supervised by a senior member of the defendant. The inspector had noted undulating terrain that was consistent with a previously known use as a quarry and observed some construction debris on an adjacent property. The parties agreed that the construction debris observed by the intern would not have resulted in the discovery of buried garbage located on a different adjacent parcel The plaintiff’s expert admitted that the site inspection would not by itself had resulted in any evidence of an recognized environmental condition at the property or that the park had formerly been used as a dump. However, he testified that because the adjacent site was a county park, the defendant should have contacted the conservation board since that would have “probably lead to further information”.     
           
Prior to phase 1, NBC had advised the defendant that the real estate broker should be contacted for information about the prior uses of the property and other information. The plaintiff’s expert testified that the broker did not good knowledge of the uses and physical characteristics of the property and therefore could not qualify as a “key site manager” that the defendant was required to interview. Instead, the plaintiff’s expert asserted that the defendant was obligated to conduct interviews of additional persons such as the former owner or adjoining property owners. However, on cross-examination ne conceded that the ASTM E1527-94 did not require interviews of former owners of the property or adjoining landowners.

The court concluded that while the ASTM E1527-94 standard directed the consultant to make an initial inquiry of contacting a key site manager, the standard allocated to the user the task of identifying the key site contact. Since NBC designated the broker as the key site contact, it was reasonable for the defendant to infer that the broker had good knowledge of the uses and physical characteristics of the property for purposes of complying with the interview component of the standard.

Regarding section 10.5.1 of ASTM E1527-94 providing that the consultant make a reasonable attempt to interview at least one staff member of one a local fire department, health agency or local/regional office of a state agency having jurisdiction over hazardous waste disposal or other environmental matters, the defendant produced evidence that it had called and sent a follow-up letter to the state environmental agency and that the local office responded that the property was not on any known state list of sites with known or suspected releases of hazardous substances, and that none were identified within a four-mile radius. One of the defendant’s employees also testified that it had contacted the local office of the USDA Soil Conservation Service which was unaware of any environmental problems with the property. The court noted that both experts agreed that these agencies were appropriate sources of knowledgeable government officials and that these interviews technically satisfied the ASTM standard. Accordingly, the court found that the plaintiff failed to establish by a preponderance of the evidence that the defendant had provided false information when it stated it had complied with the ASTM standard and affirmed the judgment entered by the trial court dismissing the claim of negligent misrepresentation.

On the professional negligence claim, the appeals court began its analysis by stating that a standard of care is “that level of care and diligence ordinarily employed by the average firm practicing in the same area and at the same time. A ‘standard’ such as ASTM E1527 only become the ‘standard of care’ if it us embraced as the ordinary way things are done” The court also note that the ASTM standard is by definition a flexible standard so that the way it will be applied will vary between consultants in different areas and at different times. The court discussed a 2000 study by the local Association of Soil and Foundation Engineers (ASFE) indicating that 73% of phase 1 proposals evaluated stated they would conform to ASTM and that not a single report was in strict conformance to the standard.

Based on this study and the totality of both experts’ testimony, the court concluded that the standard of care and ASTM standard were not equivalent at the time of the 1995 Phase 1. As a result, the court said it would not limit its focus to the defendant’s conformance to ASTM in determining if defendant was negligent. The plaintiff’s expert testified that he had not conducted a formal study of the standard of care for Shelby County and similar communities in 1995 and that his testimony was based on his years of experience with consulting firms.

When asked if the defendant had complied with the standard of care for conducting phase 1 ESAs in Shelby County, the plaintiff’s expert simply indicated that it was his opinion that the defendant had breached the standard because they should have made some effort to find a knowledgable person to interview about the past uses of the land around the site since they knew it had been a quarry, there were “little tell-tale” signs that it had occurred right to the boundry, that there was level ground which means it had been filled and defendant needed to find a person who could discuss what was used to fill the land.

In contrast, the defendant’s expert specifically testified that he had reviewed six other environmental reportds that had been conducted in Shelby County in 1995 and that based on this review, the defendant’s report has conformed to the standard of care. He said the defendant was provided the name of a person to contact by the landowner, the contact indicated that the adjacent land had been used as a quarry, no evidence of dumping was observed during the site reconnaissance and the standard of care in effect in 1995 in Shelby County did not require the defendant to interview prior owners or adjacent owners. As a result, the court affirmed the trial court’s ruling that the plaintiff had failed to establish by a preponderance of the evidence that the defendant had breached the applicable standard of care.

This case is full of nuggets for environmental consultants, attorneys and their clients. First, although this case came to trial 20 years after the CERCLA innocent purchaser defense was enacted at a time, the case illustrates that real estate developers, lenders and attorneys should not assume that the ASTM E1527 will necessarily serve as the standard of care for the environmental consulting industry. In some cases, the local due diligence practices may vary and not rise to the level that may be required to successfully assert liability defenses. In other instances such as New Jersey, the ASTM E1527 will not satisfy the requirements of the state innocent purchaser defense. Nevertheless, the case does show how the ASTM E1527 protocol has evolved and improved over the years.  

2010 Green Building Litigation In Review

 Since the green building movement gained traction in the mid-part of this decade, real estate and construction lawyers have been warning building owners, contractors and other design professionals that green buildings were ripe for lawsuits. Until 2010, the wave of lawsuits that was predicted did not materialize. However, perhaps because of the lingering effects of the sour economy as well as a critical mass of green buildings finally coming on line, 2010 was the year that the green building litigation floodgates finally opened.
 So what were the most interesting green building lawsuits?

 I. Decision-

 Air Conditioning, Heating and Refrigeration Institute v. City of Albuquerque, No. 8-633 (D.N.M. 9/30/10) – In this case, the plaintiff trade organizations challenged proposed revisions to the local energy code on grounds that it was pre-empted by the federal National Appliance Energy Conservation Act of 1987 (NAECA). The plaintiffs argued they would be damaged for among reasons because they had equipment inventory that they could not use and that compliant products were not easily available. The court issued a permanent injunction for the prescriptive portions of the code.

 II. Complaints:

 Pre-emption Litigation
 Building Industry Association of Washington v Washington State Building Council (W.D.Wash.)- This case is similar to Albuquerque case. The plaintiff trade associations challenge the state energy code on grounds that it was pre-empted by federal Energy Policy and Conservation Act of 1975 (NPCA), NAECA and Energy Policy Act of 1992.

 PACE Litigation

 Town of Babylon v Federal Housing Finance Authority, et al, (E.D.N.Y. 10/26/10); State of California v Federal Housing Finance Authority, No. C10-03084 (N.D.CA.); NRDC v Federal Housing Finance Authority, 10-cv-7647 (S.D.N.Y. 10/5/10)- These are the leading complaints that have filed against the FHA for instructing Fannie Mae and Freddie Mac not to buy mortgages with PACE liens on the grounds that these energy efficiency liens were akin to tax liens that would be superior to mortgages. The plaintiffs allege the FHA action was arbitrary and capricious since it did not engage in rulemaking for this change, and also violated NEPA for failing to first perform an EIS.
LEED Heretic-

Gifford v USGBC, No. 10-cv-7747 (S.D.N.Y. 10/8/10) - This is the class action lawsuit filed against the USGBC that stirred the green blogosphere last month. The plaintiff alleges that USGBC engaged in Deceptive Advertising, Unfair Trade Practices and other unlawful conduct for promoting misleading claims about energy efficiency of LEED-certified buildings. Even if the complaint has merits over the relative energy efficiency of LEED-certified buildings, personally naming some of the founders of USGBC along with including a RICO count was simply over-the-top.

BUYER’S REMORSE COMPLAINTS-

 This final category involves complaints where plaintiffs are alleging failing to comply with green building standards among other claims to avoid having to close on condo units that have lost significant value since the plaintiffs signed their purchase agreement.

 Barber v West Chelsea Development Partners LLC, No. 1G104645 (NY Sup. Ct.  4/8/20)-Plaintiff seeks rescission based on breach of contract and fraud for failing to attain LEED certification and comply with state energy code.

 Guidumal and Keeley v Site 16/17 Development LLC et al, No. 1010598 (NY Sup. Ct. 5/6/10) - Plaintiff alleges breach of contract, misrepresentation for heating system with 49% deviation from LEED. The complaint also includes professional malpractice claims against the architect.

EPA Seeking Comment on Integrated Cleanup Initiative

EPA has initiated a three-year strategy, called the Integrated Cleanup Initiative, to identify and implement improvements to the Agency’s land cleanup programs. The Initiative will identify and implement opportunities to integrate and leverage the Agency’s land cleanup authorities to accelerate cleanups, address a greater number of contaminated sites, and put these sites back into productive use while protecting human health and the environment.

Item 2B indicates  that the evaluation to determine if VI should be expressly addressed in the HRS has been made and that a notice will be issued in January to begin the public process of moving forward with this revision.
Item 3 also indicate that regional offices will be expected to perform more robust PRP searches and that metrics will be established to measure progress on this goal
Items 12A/B and 13 reaffirm the enforcement first policy and suggests this will be done earlier in the remedy process

EPA Finalizes Carbon Sequestration Rules



EPA finalized two rules related to the capture and sequestration of carbon dioxide.

One rule was issued pursuant to the Underground Injection Control (UIC) program of the Safe Drinking Water Act (SWDA). The rule that sets requirements for geologic sequestration of carbon dioxide, including the development of a new class of injection well called Class VI, that are designed to ensure that wells used for geologic sequestration of carbon dioxide are appropriately sited, constructed, tested, monitored, and closed. The rule is available at: http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm

The second rule requires facilities that carry out geologic sequestration to comply with the greenhouse gas reporting requirements under the Clean Air Act. This rule is available at: http://www.epa.gov/climatechange/emissions/ghgrulemaking.htm

Extended SOL May Apply For Consultant Malpractice Case

In Plato Associates LLC v Environmental Compliance Services, 2010 Conn. LEXIS 400 (11/9/10), the plaintiff retained the defendant in 2000 to perform a phase 1and phase 2 in connection with a financing for an acquisiiton of a property and construction loan. One of the conclusions of the defendant's report was that the property did not contain an "establishment", the existence of which would have triggered compliance with the Connecticut Transfer Act (CTA).
The plaintiff closed on the construction loan and received the first advancement under the loan. During the proces of refinancing the loan in 2007,  the plaintiff discovered documentation showing that a former tenant of the property had generated thousands of hazardous wastes at the site, thereby causing the property to be considered an "establishment" and triggering compliance with the CTA.
Plaintiff filed a breach of contract and malpractice claim shortly thereafter. Defendant moved for summary judgment on grounds that the breach of contract claim was barred by the six-year statute of limitations (SOL) and the malpractice claim by the applicable two-and three-year SOLs. The plaintiff argued that the seven-year SOL for professional engineering services rendered in connection with an improvement to real property applied (Conn. Gen. Stat. 52-584(a)). The trial court granted the defendant's motion and plaintiff appealed.
On appeal,  the defendant's argued that (1) they had not provided "professional engineering services", (2) that any services were not provided in connection with any real estate improvements but in connection with a bank loan and (3) that the monitoring wells did not qualify as "improvements" because they added no value to the property.  The Connecticut Supreme Court rejected these arguments and reversed the lower court.
On the first issue, the court found there was a genuine issue of material fact whether the services performed constituted "professional engineering services". The court noted the defendant identified itself as a professional engineer and licensed environmental professional and that the definition of "professional engineer" was broad enough to encompass the services provided by the defendant.
On the issue of the purposes of the services, the court found there was a genuine issue of material fact if the services were rendered in connection with the "planning" for improvements since the report was key to obtaining the financing to construct the improvements. The court noted that the report expressly stated that it purpose was to identify conditions that might impose environmental liability or restrict the use of the property, and did not mention that it was one to facilitate a bank loan.
Finally, the court rejected the notion that the monitoring wells could not be an  "improvement" because they did not add value and were simply to to assist the plaintiff in obtaining a loan. The court said the term has been defined to include any alteration or development of property to enhance or promotes its use for a particular purposes. The court noted the construction of the wells and testimony of the plaintiff that without the wells it would not have been able to secure its financing. According, the court said it could not rule as a matter of law that the wells were not an improvement to property for purposes of the seven-year SOL.   

Brownfield Developer Settles Case Over Contaminated Dust

Essex Insurance Co. v. Lueron Dixon, et al., 2010 U.S.Dist. LEXIS 98681 (S.D.Fla. 9/21/10), Dania Distribution Centre Ltd purchased a 15.5 acre site located in the City of Dania Beach in 2001 to construct a distribution center. The site had formerly been used as landfill for dredged sand and medical waste.

Pre-acquisition groundwater sampling revealed presence of  benzene, napthalene, lead, diesel and chlorinated solvents. In May 2002, the Dania defendants obtained a six-month GCL policy from Essex Insurance Company that covered the property as vacant land. Soil samples collected approximately 18 months after the purchase in November 2002 and after the expiration of the policy  detected heavy metals and asbestos. The  *** levels were below commercial standards but twice the allowable levels for residential properties.

Dania began construction activity in September 2003 after obtaining a building permit. However, despite the sampling results, Dania apparently failed to control dust. 90 Nearby residents and workers then filed a lawsuit alleging bodily injury and property damage claims.  The insurer refused to defend or participate in settlement. After the settlement, the insurer seeks declaratory judgment and Dania defendants counterclaim for breach of contract and bad faith. Federal district court grants motion for summary judgment that pollution exclusion barred covered.

My question is- who does not implement a community air monitoring plan and dust control when developing a contaminated site? To borrow from a popular commercial-"I mean, really?"

Telecommunications Company May Be Liable for Pipeline Contamination

In a number of posts, I have suggested that petroleum pipelines may soon become the new USTs. An interesting case from Missouri illustrates the dangers that easement holders may face for historic spills from pipelines--much line property owners may be liable for historic contamination from old UST.

In Henke v Arco Midcon LLC, 2010 U.S.Dist, LEXIS 116314 (E.D.Mo. 11/2/10), an 8-inch cast iron pipeline was used from early 1900s to until mid-1990s to transport petroleum. The Sinclair Oil Company owned and operated the easement and pipeline.  In 1950, the easement and pipeline was conveyed to the Sinclair Pipeline Company which changed its name to ARCO Pipeline Company in 1969. In 1994, ARCO sold the pipeline and easment to Williams Pipeline Company ( now Magellan Pipeline Company). Prior to the sale, Williams employees reviewed records of past leaks and the list was attached to the Pipeline Sale and Purchase Agreement. As part of the deal, Williams agreed to a "no look" clause whereby Williams would not conduct any soil or groundwater sampling in connection with the past leaks. Following the sale,  Williams Communications Company (now Wiltel Communicatios), a subsidiary of Williams Pipeline,  acquired the easement and operated the  pipeline for fiber optic cable. There is no evidence that any of the Williams entities performed any remediation after taking title to the easement and pipeline. 

At some point, owners of property along the pipeline route discovered soil and drinking water contaminated with petroleum and benzene. Plaintiffs then filed their lawsuit against Magellan, Wiltrl and ARCO alleging that the defendants had a duty to stop the leaks from the pipelines and easement, to investigate for past and present leaks including using "intelligent pigs" to inspect the pipeline, to warn the plaintiffs about the contamination and to remediate the contamination.

The Telecommunication defendants file motion for summary judgment, arguing they did not own easement at the time the pipeline was used to transport petroleum, and therefore could not have caused the spill. The plaintiffs responded that their claims were not limited to the original leaks but also based on the continued migration of the contamination from the easement along with the defendant's failure to prevent the migration.

Relying on the Section 824 of the Second Restatement of Torts, the court dismissed nuisance claim on the grounds that the plaintiffs did not allege any actions that set in motion the chain of events resulting in the damage. The court also found that under Missouri law, petroleum pipelines were not as a matter of law an abnormally dangerous activity, and dismissed the strict liability claims. However, the court allowed the plaintiffs' claim for negligence on the grounds that they had sufficiently alleged that the defendants had a duty to stop the migration and such failure was the cause of their damages. The court also allowed the trespass claim to survive based on the defendants' knowledge about the leaks and failure to act.  

A motion to dismiss is not a ruling on the merits of a case. Instead, the court simply decides after assuming the facts alleged as being true whether the plaintiff claims are plausible.  The parties will now presumably move to discovery and then file a motion for summary judgment.

Foreclosing Lender Settles Claims for Contamination Caused by Salvagers

Harwood Investment Company vs. Wells Fargo National Association, Inc (N.D.Ca) seems to combine the facts of the infamous 1988 Fleet Factors case and the HSBC case from New York, a lender agreed to settle claims that its agents caused releases of hazardous substances following foreclosure.

The defendant bank extended a $16MM loan to the Harwood Products, Inc. a lumber mill. The loan was leguaranteed by the plaintiff and the promissory note was secured by the property and equipment owned by the lumber mill. After the bank asserted that it was in default of its loan in the amount of $2.6MM, Harwood Products filed for bankrtupcy. In September 2008, the lumber mill defaulted on its loan and the bank retained an auctioneer to conduct a sale of the borrower's assets.

In December 2008, a contractor retained to provide security and dismantle equipment allegedly caused hydraulic fluid and other hazardous substances to be release. Later, the Mendoncino Couty Department of Environmental Health conducted an inspection and observed abandoned drums without secondary containment and wastewater overflowing from a dip tank along with evidence of staining on floors and near floor drains. The MCDEH determined the conditions posed an imminent and substantial endangerment and notified the regional water quality control board.

In January 2009, a purchaser of certain equipment located in the planer building was using a blow torch to dismantle equipment when a spark ignited that engulfed the building. Water from the fire suppression system and from fire fighting actions of the local fire department caused the hazardous substances to flow into surface water and the stormwater system containment system. and pread into the soil and groundwater. Following the fire, the regional water quality control board issued an abatement order requiring the borrower to implement remedial actions.

The bankruptcy case was then converted to a chapter 7 liquidation and the bankruptcy court authorized the abandonment of the facility to Willits Financial Company, Inc. in April 2009. The plaintiffs then filed a contribution and cost recovery action, alleging the bank and its agents took possession of the lumber mill in september 2008 and were responsible for the releases of hazardous substances.

The defendants filed a motion to dismiss and the parties reached a settlement. According to sources, the lumber mill was the largest employer in this rural area and the bank did not want to run the risk of having a trial before such a jury pool.

Bank Kept In Case On Claims For Incomplete Disclosure of Environmental Issues

In Ironwood Homes v Bowen, 2010 U.S. 58750 (D.Or. 6/14/10), purchasers of farm land subsequently discovered that the property had been used as a disposal site for tannery waste.   Plaintiffs asserted a variety of federal and state law claims against a range of defendants, including two banks that had a history of involvement in the site.

One bank served as the trustee that managed the affairs of the tannery owner, while the other bank provided financing to the plaintiffs.  The lender bank reviewed an environmental report concerning the property, but misstated the conclusions contained in the report to the plaintiffs.  In particular, the bank’s employee incorrectly described the environmental risk associated with the property as “low” and also stated that the report had concluded that no further environmental investigation was warranted.

The court denied motion to dismiss by bank on claims for fraudulent concealment and reckless misrepresentation, negligent misrepresentation, and non-gratuitous negligent advice. The court also denied the lender motion to dismiss that an indemnification in loan modification agreements released plaintiffs’ claims against the bank, ruling that if plaintiffs agreed to the modifications because they had been unaware of the bank’s knowledge about the true environmental condition of the property, the release might be considered unconscionable and therefore unenforceable. 

The court also rejected a state contribution claim brought by the trustee bank against the lender bank, holding that the contribution claim was barred because the trustee bank failed to allege that the lender bank “in any way ‘caused, contributed to, or exacerbated the release’ of contaminants or ‘hinder[ed] or relay[ed] entry to, investigation of, or removal or remedial action at’ the contaminated property.”

Renewal Ebergy Accounted for 92% of Power Plant Projects in 2010

According to the Edison Electric Institute, renewable energy accounted for 92 percent of all projects that were announced during the first seven months of 2010. In addition, 6,800 megawatts of coal generation were  canceled or postponed through the end of September, compared to a total of 11,500 megawatts in 2009. EEI said twice as much coal-fired capacity came online this year as in 2009 from construction projects that had started several years ago.

According to the Sierra Club, 38 coal plant projects were dropped or delayed in 2010 compared to 26 in 2009 and 27 in 2008. The retirements announced this year would take 4 percent of the nation's total coal-fired capacity off the grid.

Owner Fined For Failing to Report Transformer Spill

In TWC Storage, LLC v State Water Resources Control Board, 2010 Cal. App. LEXIS 801 (Ct.App-6th Dist. 6/3/10), plaintiff purchased property in 2004 that had been used for semiconductor manufacturing in 1970s and 1980s. In 1987, the site had been placed on the state superfund list for presence of VOCs in groundwater and had been vacant since 1991.

Plaintiff retained general contractor to demolish two-story building that had two pad-mounted transformers. The transformers were also located just 30 feet from a day care center. A subcontractor removed the transformers before they were drained and spilled dilectric fluids containing "Perclene" when the excavator damaged one of the transformers. The damaged transformer had a PCB label affixed to its exterior.The subcontractor then placed the damaged transformer on top of a soils pile to let it drain before removing it to another area to more fully drain. A total of approximately 50 gallons of PCE fluids drained from the transformer.

Subcontractor notified owner who retained an envirronmental consultant two days later to perform a limited cleanup. However, owner did not notify any governmental authority until the local public safety inspector arrived at the site four days later to observe dust control measures for demolition and inquired about the drums that had hazardous waste markings.  PCE was later detected in groundwater near the location of the former transformers at concentrations exceeding 12,000 ppb.

In 2006, the Regional Board assessed the owner $40K for tardy notification under the state Water Code. The fine was later reduced to $25K but the owner then filed a lawsuit challenging the fine. The owner said it could not be liable because it did not cause the spill. However, court said that liability and the duty to take affirmative action flowed not from the landowner's active responsibility, knowledge or intent to cause contamination. Instead, the court said owner liability was based simply on its "very possession and control of the land in question". The court said that section 13350 of the Water Code imposes liability on any person who causes or permits a discharge without regard to intent or negligence. There was substantial evidence, the court said, that the plaintiff had caused or permitted the discharge to occur by engaging contractors to perform the demolition activity that resulted in the discharge.

The court also rejected the notion that the plaintiff should not be liable because the discharge was a result of the negligent acts of an independent contractor. However, the court said the administrative fine was not based on notions of tort liability but on the water code.

   

Partial Disclosure Keeps Seller In Lawsuit

In Metropolitant Group v Meridan Industries, Inc., 2010 U.S.Dist. LEXIS 128795 (W.D.N.C. 12/6/10), plaintiff purchased commercial property from defendant. Defendant disclosed there had been a release from a heating oil tank that had been reported to the state but made representations that there were no other hazardous substances at the site.

The facts are slim in the opinion but it appears that after the closing plaintiff discovered presence of asbestos  asbestos and other chemicals at the site. Claiming that defendant had knowledge of these other conditions and intentionally failed to disclose to cause plaintiff to overpay for property, Plaintiff filed lawsuit asserting breach of contract, fraud and unfair trade practices among other claims.

The court said that the plaintiff's pleading that defendant had intentionally made false representations that were reasonably calculated to deceive plaintiff were sufficient to survive motion to dismiss. Court said that plaintiff need not PROVE intent to deceive to survive motion to dismiss. Questions about whether defendant actually perpetrated fraud, if plaintiff was inducted to forego its own investigation and if its reliance on those representations was reasonable were questions for jury, the court held..

The court also found that the complaint satisfied the heightened pleading standard of FRCP 9(b) because the allegations set fortht eh time, place and contents of the false representations along with the benefit gained by the defendant. The court said the complaint identified the particular false representations in the specific contract, that the plaintiff paid an inflated purchase price as a result of the misrepresentation that not only injured the plaintiff but resulted in windfall profit for seller.

Finally, the court rejected the claim that the fraud count was nothing more than a breach of contract. At this stage of the lawsuit, the court said, there complaint contained sufficient allegations that went beyond merely failing to perform contractual obligations.

It will be interesting to see if this case turns out to be a more a matter of buyer's remorse for purchasing a property just before one of the worst economic downturns in history than failure to disclose existence of materat environmental.       

Driller May Be Liable As CERCLA Operator

In KFD Enterprises v City of Eureka, 2010 U.S.Dist. LEXIS 125135 (N.D.Ca11/12/10 ), a consultant was retained to install five monitoring wells. Two of the wells were installed in upper and lower water-bearing zones that were separated by an aquitard or low-permeability layer. Apparently, the driller installed well screens in a manner that allowed PCE to migrate from the upper water zone to the more permeable lower zone which allowed the contamination to become more wodespread.

The plaintiff filed lawsuit against the driller alleging it was liable under CERCLA as an operator and transporter. The consultant argued it could not be liable as an operator because it did not control the initial activity that caused the pollution. However, the court found that the plaintiff had sufficiently pled that the driller had control over the drilling and extraction procedures which was the activity that exacerbated the  contamination and allowed it to spread to previously non-contaminated areas. Therefore, the court denied the driller's motion to dismiss on the operator claim.

On the CERCLA transporter claim, the court said that transporter liability was not predicated on moving hazardous substances across a boundry but could be imposed for moving pollutants from a contaminated area to a non-contaminated area within a single site. However, the court found that the plaintiff did not allege that the driller had picked up contaminants for transport but simply allowed the contaminants to seep through the well. The court said this was similar to the situation in Southern California Water Co v. Aerojet-General Corp, 2003 U.S.D.st. LEXIS 26534 (C.D. Ca. 4/1/03) where a party was not liable for as transporter for pumping groundwater contaminated water for treatment. Accordingly, the motion to dismiss the transporter claim was granted with leave to amend the complaint.

Likewise, the court dismissed the City of Eureka's CERCLA arranger claim against the driller because the complaint failed to plead any intentional steps to dispose the hazardous substances that is required in the wake of the US Supreme Court decision in Burlington Northern v US, 129 S.CT. 1870 (2009).