Seattle Times Co. v. Leathercare, Inc.
| Decision Date | 15 August 2018 |
| Docket Number | C15-1901 TSZ |
| Parties | SEATTLE TIMES COMPANY, Plaintiff, v. LEATHERCARE, INC. ; Steven Ritt; and the marital community composed of Steven Ritt and Laurie Rosen-Ritt, Defendants/Third-Party Plaintiffs, v. Touchstone SLU LLC; and TB TS/RELP LLC, Third-Party Defendants. |
| Court | U.S. District Court — Western District of Washington |
Jeffrey Barnes Kray, Bradley M. Marten, Jessica K. Ferrell, Marten Law Group, Seattle, WA, for Plaintiff.
Jo M. Flannery, Kristin Nealey Meier, Ryan Swanson & Cleveland, Ellen Alexandra Gilliland, Kenneth Lederman, Foster Pepper PLLC, Jeremy Robert Larson, Dorsey & Whitney, Seattle, WA, for Defendants/Third-Party Plaintiffs/Third-Party Defendants.
THIS MATTER came on for trial on January 9, 2018, before the Court, sitting without a jury. Seattle Times Company ("Seattle Times") was represented by Jeff Kray and Jessica Ferrell of Marten Law PLLC. LeatherCare, Inc. ("LeatherCare"), Steven Ritt, and the marital community composed of Steven Ritt and Laurie Rosen-Ritt were represented by Jo Flannery and Kristin Meier of Ryan, Swanson & Cleveland, PLLC. Touchstone SLU LLC and TB TS/RELP LLC (collectively, "Touchstone") were represented by Jeremy (Jake) Larson of Dorsey & Whitney LLP and Kenneth Lederman of Foster Pepper PLLC.
Trial proceeded for eighteen (18) days and ended on February 7, 2018, at which time the Court took the matter under advisement. Having considered the testimony of the witnesses,1 the exhibits admitted into evidence,2 the documents and PowerPoint slides offered for demonstrative purposes, the facts on which the parties have agreed to the extent they are supported by the record, see Pretrial Order (docket no. 154) [hereinafter "PTO"], and the arguments of counsel, the Court now enters these Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a).3
This action concerns the remediation costs associated with hazardous substances, including PCE or Perc4 and various petroleum products, released on real property bounded by Fairview Avenue North, Thomas Street, Boren Avenue North, and Harrison Street in Seattle, Washington (the "Property"). The Property was contaminated as a result of dry-cleaning and other operations conducted by LeatherCare, which previously leased a portion of the Property, and Troy Laundry Co., which became Troy Linen and Uniform Service, Inc. in 1981 ("Troy"), see Ex. 1150, and which owned the Property. Seattle Times purchased the Property from Troy in 1985, and sold it to Touchstone in 2011. After acquiring the Property, Touchstone redeveloped it into a commercial complex. As part of construction efforts, Touchstone's contractors excavated over 100,000 tons of contaminated soil, which was transported to appropriate waste facilities. In addition, Touchstone had a series of injection wells installed at the Property to address groundwater contamination.
In this action, Touchstone seeks to recover over $9.88 million in connection with its remedial activities.5 Touchstone has already recovered $4,783,434.17 from Seattle Times pursuant to a contract between the parties, and it seeks the balance of almost $5.1 million from Seattle Times or LeatherCare. Touchstone also requests a judgment declaring the parties' respective responsibilities for future response costs. Seattle Times seeks to recover from LeatherCare and/or Mr. Ritt, the current President of LeatherCare, see Ritt Decl. at ¶ 2 (docket no. 61), substantially all of what it has paid, or will be liable to pay, to Touchstone. LeatherCare and Mr. Ritt ask for declaratory relief, as well as contribution, contending that Mr. Ritt cannot be held personally liable and that the Court should equitably apportion the expenses at issue among all of the parties. Seattle Times asserts its claims against LeatherCare and Mr. Ritt under both federal and state statutes relating to environmental cleanup, while Touchstone relies solely on state law.
The Property consists of two tax parcels, covering approximately 2.5 acres of land, in a neighborhood of Seattle just south of Lake Union, as shown on the following map.
Troy acquired a portion of the Property in 1925, and owned the entire block by 1951. When Seattle Times purchased the Property from Troy in 1985, the Property had three improvements, as shown in Figures 2 and 3, namely a vintage warehouse built in 1925, located at 334 Boren Avenue North (Building 1),6 a vintage industrial facility constructed by 1927 and expanded between 1943 and 1966, bearing an address of 307-311 Fairview Avenue North (Building 2), and a vintage structure erected in 1960, designated as 333 Fairview Avenue North (Building 3).7 Ex. 107 at 10-11; Ex. 115 at 147-58.
Troy operated in Building 2 both an industrial laundry and a dry-cleaning plant. Troy also fueled and serviced its fleet of vehicles at the Property. In 1957, LeatherCare's predecessor, Seattle Fur Services, began leasing a portion of Building 2 from Troy. In 1981, LeatherCare also became a tenant of Building 3. LeatherCare continued to lease from Troy until March 5, 1985, when Troy sold the Property to Seattle Times for $3.5 million. From March until September 1985, LeatherCare leased space in Building 2 from Seattle Times, and LeatherCare occupied Building 3 until 1999. See infra p. 1027–28. On June 10, 2011, Seattle Times sold the Property to Touchstone for $18.4 million. As a result of Touchstone's redevelopment efforts, the Property is now occupied by a two-building complex with a five-story, underground parking garage. Figure 4 shows the new office space in the final stages of construction.
This matter involves two types of hazardous substances, namely (i) halogenated hydrocarbons,8 and (ii) petroleum products.
PCE or Perc, which is a halogenated hydrocarbon, is a synthetic chemical that is not known to occur in nature. See Tab 11 to Dale Report (docket no. 183-13 at 19 & 22). During the period when LeatherCare leased Buildings 2 and 3 from Troy, PCE was commonly used as a solvent in the dry-cleaning industry, and it was the dominant synthetic solvent. See Dale Report, Ex. 210 at 2 (). Because of its tendency to transition from a liquid to a gaseous state at normal temperatures, PCE is considered a volatile organic compound ("VOC"). See Tab 11 to Dale Report (docket no. 183-13 at 41 & 47). PCE is also described as a dense non-aqueous phase liquid ("DNAPL"), meaning that it has a higher specific gravity (i.e. , it is heavier) than water, and that it will separate from water, in a manner similar to how oil and vinegar, or the fat and juice of roasted meat drippings, will settle into different layers. See id. (docket no. 183-13 at 40-41).
PCE can degrade into trichloroethylene or trichloroethene ("TCE"), as well as other compounds, including vinyl chloride
(C2 H3 Cl). Chronic inhalation exposure to these substances can lead to neurological disorders, kidney or liver disease, and/or reproductive dysfunction. See PCE Fact Sheet, Ex. 457; see also Toxicological Profiles (available at www.atsdr.cdc.gov). The United States Environmental Protection Agency ("EPA") has classified PCE as "likely to be carcinogenic" and both TCE and vinyl chloride as "carcinogenic to humans."
See https://www.epa.gov/fera/risk-assessment-carcinogenic-effects (Table 1). In addition to being a degradation product of PCE, TCE is frequently an original component of water and stain repellants, vehicle brake part and carburetor cleaners, sizing materials, spotting and degreasing agents, lubricants, battery terminal protectants, and printing inks like those used by Seattle Times. Morrill Report at §§ 4.2.1.2.1 & 4.8 and App'x J, Ex. 1141 (); see also https://www.epa.gov/sites/production/files/2015-01/documents/printing.pdf.
The Washington Department of Ecology ("Ecology") has established "cleanup" levels for certain chlorinated hydrocarbons, which are the concentrations "in soil, water, air, or sediment" that are "determined to be protective of human health and the environment under specified exposure conditions." WAC 173-340-200. The "cleanup" concentrations relevant in this litigation are as follows:
Substance In Soil In Groundwater
PCE 0.05 mg/kg 5 µg/liter
TCE 0.03 mg/kg 5 µg/liter
Vinyl Chloride N/A 0.2 µg/liter
WAC 173-340-900 at Tables 720-1, 740-1, & 745-1.
Other contaminants of concern at the Property were Stoddard solvent, gasoline, and diesel fuel. Like PCE, Stoddard solvent was once a popular compound in the dry-cleaning industry. Stoddard solvent is a flammable, volatile liquid, which is insoluble in water and smells similar to kerosene or gasoline. It is not generally regarded as carcinogenic, but very few studies have been done on the effects in humans of inhalation exposure
to Stoddard solvent. See Toxicological Profile for Stoddard Solvent (June 1995), Ex. 452 at 23. Stoddard solvent is considered a gasoline-range petroleum hydrocarbon ("GRPH"). At the Property, Stoddard solvent was stored in underground tanks. Gasoline for use in Troy's fleet of vehicles and diesel fuel for use presumably as heating oil were also stored underground. Ecology has set a "cleanup" level for GRPH of 100 mg per kg of soil. See WAC 173-340-900 at Tables 740-1 & 745-1.
In this matter, the parties have stipulated that, as a result of dry-cleaning operations, PCE was released into the subsurface soil and migrated to the groundwater beneath the Property. See Stip. & Order at ¶ 2 (docket no. 41); Stip. & Order at ¶ 2 (docket no. 52). The parties also agree that the contamination occurred primarily in two ways. First, it resulted from placing PCE-saturated materials in the back of a dump...
To continue reading
Request your trial
-
Thomas Ctr. Owners Ass'n v. Robert E. Thomas Trust
...party's equitable share of liability, the trial court considered the equitable factors set forth in Seattle Times Co. v. LeatherCare, Inc., 337 F. Supp. 3d 999, 1072-73 (W.D. Wash. 2018), which included as an equitable factor the existence of any indemnification agreement. Indeed, the trial......
-
In re Kaiser Gypsum Co.
...Co., 566 F.3d 1203, 1207 (10th Circ. 2009)]. MTCA also precludes a double recovery of costs [See, e.g., Seattle Times Co. v. LeatherCare, Inc., 337 F.Supp. 3d 999, 1077 (W.D. Wa. 2018) (reduced judgment by the amount recovered from another potentially responsible party); Port of Ridgefield ......
-
Riverkeeper v. Pruitt
... ... C17-289RSM United States District Court, W.D. Washington, at Seattle. Signed October 17, 2018 337 F.Supp.3d 990 Bryan Hurlbutt, Pro Hac Vice, ... R. Civ. P. 56(a) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Material ... ...
-
Seattle Times Co. v. LeatherCare, Inc.
...element ofCERCLA § 107(a) liability to which Seattle Times and LeatherCare did not stipulate. See Seattle Times Co. v. LeatherCare, Inc., 337 F. Supp. 3d 999, 1048-49 (W.D. Wash. 2018); AmeriPride Servs. Inc. v. Texas E. Overseas Inc., 782 F.3d 474, 489 (9th Cir. 2015) (stating that "[t]o p......