New Mexico v. General Elec. Co., CIV991118 BSJ/KBM.

• Decision Date: 19 June 2004
• Docket Number: No. CIV991118 BSJ/KBM.,No. CIV991254 BSJ/ACT.,CIV991118 BSJ/KBM.,CIV991254 BSJ/ACT.
• Parties: State of NEW MEXICO, et al., Plaintiffs, v. GENERAL ELECTRIC COMPANY, et al., Defendants.
• Court: U.S. District Court — District of New Mexico

322 F.Supp.2d 1237

State of NEW MEXICO, et al., Plaintiffs, v. GENERAL ELECTRIC COMPANY, et al., Defendants.

No. CIV991118 BSJ/KBM.

No. CIV991254 BSJ/ACT.

United States District Court, D. New Mexico.

June 19, 2004.

ORDER RE: SUMMARY JUDGMENT

JENKINS, Senior District Judge.

TABLE OF CONTENTS

                I. IDENTIFYING TRIABLE ISSUES .......................................... 1240
                   A. Interest, Injury, Liability & Damages ............................ 1240
                   B. The Court's Tentative Statement of Triable Issues ................ 1243
                   C. The Defendants' Motions for Summary Judgment ..................... 1244
                      1. General Electric .............................................. 1244
                      2. ACF Industries ................................................ 1245
                      3. The Chevron & Texaco Defendants ............................... 1245
                      4. Plaintiffs' Response .......................................... 1246
                   D. The Bone of Contention at Plant 83
                       Static vs. Dynamic Remedial Systems ............................ 1247
                   E. Plaintiffs' "Deep, Deep" Contaminant Plume ....................... 1250
                

                II. TRIABLE ISSUES & FED. R. CIV. P. 56 ................................ 1251
                    A. Standards Governing Summary Judgment ............................ 1251
                    B. Plaintiffs' Claims & "Specific Facts" Under Rule 56 ............. 1253
                    C. Specific Facts & Plaintiffs'"Deep, Deep" Plume Theory ........... 1254
                    D. The Intended Scope of the Existing EPA Remediation .............. 1257
                    E. Summary Judgment & Plaintiffs' Damages Theory ................... 1258
                    F. Summary Judgment & the Hydrocarbon Remediation Agreements ....... 1263
                       1. Avoidable Consequences & Plaintiffs' Duty to Mitigate ........ 1264
                       2. NMED Primary Jurisdiction & Plaintiffs' Remaining Claims ..... 1265
                       3. Injury & Damages Beyond the Existing
                          Chevron/Texaco Remedial Systems ........................... 1267
                       4. The Intended Scope of Remediation Under the HRAs ............. 1267
                       5. The HRAs & the Plaintiffs' Duty to Mitigate Damages .......... 1269
                III. SUMMARY & CONCLUSION .............................................. 1270
                

Plaintiffs the State of New Mexico and the State of New Mexico ex rel. Patricia A. Madrid assert claims for statutory and common-law public nuisance and negligence under New Mexico law arising from the hazardous chemical contamination of groundwater underlying the area referred to as the South Valley Site in Albuquerque, New Mexico. The contamination allegedly resulted from decades of the Defendants' manufacturing and industrial operations at the Site. Plaintiffs allege that the contamination has rendered a significant volume of that groundwater unavailable for appropriation to its highest and best use, viz., as drinking water for human consumption, and has thus caused injury to the State's interest as trustee in making the water available for appropriation.¹ Plaintiffs filed this action seeking an award of monetary damages to compensate the State of New Mexico for the loss of use of the contaminated groundwater.

Pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"),² the South Valley Site was added to the National Priorities List (or "Superfund List") in 1983. See 48 Fed.Reg. 40,658 (September 8, 1983). The chemical contamination beneath the South Valley Site continues to be the subject of several ongoing remedial actions, some of which were ordered by the Environmental Protection Agency (EPA), others having been initiated and agreed to by the State of New Mexico's Environment Department (NMED).

Plaintiffs' claims in this action are pleaded at the periphery of these ongoing remedial actions. Plaintiffs' counsel insist that they are here not to challenge the adequacy of the ongoing remediation, but to obtain compensation for injury to the State's interest in the resource that will persist beyond the reach of the existing remedial systems.

I. IDENTIFYING TRIABLE ISSUES

From its beginning in 1999, this has proven to be a case of description and definition.

Through an extended Pretrial Conference, the court has sought to define the interest of the State of New Mexico at stake in this litigation, the injury to that interest that Plaintiffs intend to prove, the nature and scope of the Plaintiffs' liability theories, and the appropriate measure of the legal remedy for that alleged injury — all in an effort to identify and define the issues in this case, if any, that need to be decided at the first "injury and damages" phase of the trial in this action.³

On May 11 and 12, 2004, this case came before the court for the purpose of a Final Pretrial Conference. The court had set the matter down to gain the assistance of counsel in defining what triable issues remain in light of this court's Memorandum Opinion & Order, filed April 6, 2004 (dkt. no. 1067) ("April 6th Order"), and Findings and Order re: Expert Witnesses, filed May 7, 2004 (dkt. no. 1072) ("May 7th Order").

In the April 6th Order, the court undertook to (1) identify the Plaintiffs' legally protected interests at stake in this action; (2) define the alleged injury to those interests as to which a triable issue may exist; (3) delineate the scope of Plaintiffs' remaining state law claims in light of interest and injury; (4) determine the proper measure of damages based upon the nature of the injury asserted; and (5) set forth, provisionally at least, the genuine issues of fact that may remain for the first "injury and damages" phase of trial. In the May 7th Order, the court ruled upon the admissibility of expert testimony proffered by the parties at the Rule 702 hearing held in December 2003 and January 2004. The court excluded the proffered testimony of Plaintiffs' expert Dr. David S. Brookshire, and much of the proffered testimony of Dr. Dennis E. Williams and Mr. Stephen B. Johnson for lack of relevance and "fit" to the fact issues that may remain for trial.

A. Interest, Injury, Liability & Damages

The State's legally protected interest at stake in this action is the State's interest as the trustee of the public's groundwater. Under New Mexico's Constitution and laws, the State owns the groundwater resource, holding it not for itself, but for the use and benefit of the public. (April 6th Order at 22-26 & nn. 25-29; State of New Mexico's Complaint in the Consolidated Case, filed July 31, 2001 (dkt. no. 367) ("Consolidated Complaint"), at 5 ¶ 13.⁴) "The State serves as the watermaster, the gatekeeper, the overseer of the process of appropriation for beneficial use." (April 6th Order at 24.) Here,

The State is seeking reparations and compensation for that which it owns and which it holds in trust as a trustee on behalf of the public.... [T]he State of New Mexico, as trustee, acts in the interest of the citizens and all the water rights holders to protect the water available for the water-right holders to appropriate.

(Transcript of Hearing, dated August 6, 2003 ("Tr.8/6/2003"), at 1978:19-22, 1980:14-18 (Mr. Sher).)

The injury to that interest consistently asserted by Plaintiffs is the loss of use of groundwater resulting from chemical contamination traceable to the Defendants: "The STATE OF NEW MEXICO has been prevented from allowing its citizens the benefit of this natural resource" because the "contamination of this aquifer by Defendants has resulted in a loss of useable drinking water in the City [of Albuquerque] and STATE OF NEW MEXICO, [and] the reduction of available water for fire fighting, commercial, industrial and other uses to which the community customarily puts water...." (Consolidated Complaint at 14 ¶ 44, 15 ¶ 47.⁵) In particular, Plaintiffs claim that contamination has rendered in situ groundwater beneath the South Valley Site unusable as "drought reserve," as water to be kept as "stock" or "storage" to be made available for future appropriation in case of severe drought.⁶ (See April 6th Order at 30-64; Transcript of Hearing, dated February 4, 2003, at 1669:2-1672:15 (Mr. Lewis).⁷)

As to theories of liability, the Plaintiffs' remaining claims arise under the New Mexico law of public nuisance and negligence, but the scope of those claims must of necessity be defined in terms of federal law.⁸

First, because Plaintiffs have pleaded them that way.

Further, because in any event, a private defendant may not be held liable under state law for complying with an EPA order requiring remedial action, based upon Plaintiffs' claim that by the projected time of its completion the EPA remedy itself will somehow prove to be inadequate to the task at hand.

As outlined in the court's earlier opinion, Plaintiffs' operative pleading in this case states that they seek to "recover monetary damages for injuries incurred by the STATE OF NEW MEXICO" to "the extent that the damages alleged herein are either not available under Section 9607(f) of the CERCLA and/or to the extent that CERCLA does not provide adequate remedies to fully compensate the STATE OF NEW MEXICO for Defendants' pollution and contamination" at the South Valley Site. (Consolidated Complaint at 3 ¶¶ 4, 5 (emphasis in original).)

In other words, the Complaint also seeks to recover damages to the extent that damages suffered by the STATE OF NEW MEXICO are not provided for and/or are otherwise not recoverable pursuant to CERCLA, such as those damages resulting from releases that have occurred wholly before December 11, 1980, those damages resulting from releases of substances exempted under the CERCLA petroleum exclusion, and those damages incurred in excess of the damage limitation as provided by 42 U.S.C. § 9607(c).

(Id. at 3 ¶ 4.) Plaintiffs' explicitly plead that "this Complaint is not intended to and does not seek to impose any remediation or clean up requirements directed by any state or federal environmental agency, nor does this Complaint seek to collaterally attack any ongoing or past...