Boeing Co. v. Cascade Corp.
| Decision Date | 06 February 1996 |
| Docket Number | No. CV. 89-119-MA.,CV. 89-119-MA. |
| Citation | 920 F. Supp. 1121 |
| Parties | The BOEING COMPANY, Plaintiff, v. CASCADE CORPORATION, Defendant. |
| Court | U.S. District Court — District of Oregon |
COPYRIGHT MATERIAL OMITTED
Paul T. Fortino, David A. Bledsoe, Perkins Coie, Portland, OR, Mark W. Schneider, Perkins Coie, Seattle, WA, for Plaintiff.
Garr M. King, George W. McKallip, Kennedy, King & Zimmer, Portland, OR, for Defendant.
Plaintiff The Boeing Company (Boeing) filed this action under the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C. § 9601 et seq (CERCLA) and analogous Oregon environmental statutes seeking contribution from defendant Cascade Corporation (Cascade) for investigation and response costs to remedy contaminated groundwater. Plaintiff also seeks a declaratory judgment establishing each party's percentage share of future costs.
A bench trial was held December 4-20, 1995. The following constitutes my findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).
This case is about a contaminated groundwater plume for which both plaintiff and defendant are partially responsible. While the central issues of the case are relatively simple, the geological, hydrogeological, chemical, and scientific issues set the stage for a challenging and complicated factual dispute. Thankfully, both parties were represented by superior attorneys, and each presented their respective positions through well prepared memos, exhibits and knowledgeable experts. The parties shared scientific data, exchanged experts' testimony and fully explored each others' theories without the acrimony that often infects litigation in the 1990s.
The proximity of the two properties involved, the complicated migration and intermixing of contaminants with varied and insidious qualities, and the unique geologic characteristics of the two properties make precise determination of the amount of contamination attributable to each party extremely difficult if not impossible. The mass, scope, and magnitude of the contamination eludes exactitude despite more than ten years of concerted investigative efforts. Each party has expended considerable resources and time attempting to investigate and remedy this very complex situation. Further, all of this activity occurs amid intricate regulatory and statutory requirements, as well as intensive governmental scrutiny.
While factually complex, the legal issues in this case are fairly straightforward. First, I must determine whether defendant is liable for a portion of plaintiff's expenditures to date and, if so, what portion. Second, I must determine whether defendant is liable for a fixed percentage of future response costs. Finally, I must decide whether plaintiff's settlement with prior landowners and operators must be factored into the computation, thereby reducing plaintiff's recovery.
To accomplish this task, I begin by examining the parties and their properties, the geology and hydrogeology of the area, the contaminant plume, contamination within the plume, and the parties' investigations.
Boeing currently owns real property located at 19000 N.E. Sandy Boulevard, Gresham, Oregon, on which it manufactures and refurbishes airplane parts. Boeing began leasing the property in 1974 and ultimately purchased it in 1979. Prior to and during Boeing's ownership of the property, the site was operated by a number of companies, including ESC (from 1964-1971); Radiation International, Inc. (1971-1974); Datron Systems, Inc. (1971-1983); and ElecSpec International, Inc. (1983-1985).
The Boeing property consists of approximately 151 acres. As shown on Figure 1, three buildings are located from the center to the eastern side of the property: Building 85-120 is located near the northeast corner of the Boeing property, Building 85-001 is located west and slightly south of building 85-120, and Building 85-105 is located near the southeast corner of the Boeing property, southeast of Building 85-001 and southwest of Building 85-120.
Cascade manufactures lift truck attachments at its facility at 2201 N.E. 201st Avenue, Gresham, Oregon, located southeast of the Boeing property. The Cascade manufacturing facility occupies approximately 6 acres,1 which Cascade has owned since 1956. (See Figure 1).
The Environmental Protection Agency (EPA) and the Oregon Department of Environmental Quality (DEQ) are actively involved in supervision and oversight of investigation and remediation of regional contamination. The ultimate remedial action and the extent of the remediation are controlled by these two agencies either through consent decrees or mandate.
Both parties agree that to understand and determine the extent and sources of contamination at the site, I must first examine the geologic and hydrogeologic subsurface beneath the area. Water within geologic units below the surface of the ground is called groundwater. The flow of groundwater through geologic units is measured on a spectrum. At one end of the spectrum are aquifers, which are underground geologic layers that store and transmit water at sufficient rates to supply wells and springs. At other end of the spectrum are aquitards or confining units, which are relatively impermeable layers which inhibit, and sometimes prohibit, the flow of water through layers which surround them.
Groundwater moves through units from areas with high groundwater levels to those with lower groundwater levels, which generally means in a downward direction. The direction and rate at which groundwater moves between geologic units is influenced by the capacity of each layer to allow water to pass through the layer2 and the layer's thickness, the hydraulic gradient,3 and the amount of interconnected pore space within each layer.4
As illustrated on Figure 2, the geology of the Boeing and Cascade properties is comprised of five primary layers. The first layer underneath the mantle of surface deposits is the Troutdale Gravel Aquifer (TGA). Underneath the TGA is CU1, an aquitard comprised of silt and clay which inhibits downward flow from the TGA into the layers below. The third layer, beneath CU1, is the Troutdale Sandstone Aquifer (TSA), which consists of two distinct sub-layers: the TSA-sandstone (upper) and the TSA-conglomerate (lower). The TSA-sandstone has a fairly uniform grain size, while the TSA-conglomerate consists of rock with a wide variation in grain size. While these two sub-layers of the TSA are distinct, they are not separated by a confining unit and, therefore, function as one unit. The fourth layer, Confining Unit 2 (CU2), is another aquitard. The fifth layer is the Sand and Gravel Aquifer (SGA).5
Historically, the area has been subjected to erosion and other stresses, which has resulted in geologic layers of varying thickness and permeability. In addition, the individual layers often contain "lenses" or isolated anomalies within them. These lenses or zones within layers often have lower conductivity than the layer as a whole, and water which moves into a low conductivity zone will sometimes "perch" on that zone. Water moves laterally along the perched zones, eventually working its way over the edge of the lens and down to the aquifer below. (See Figure 3.)
Erosion and geologic stresses have completely removed the TGA and CU1 in some areas, leaving the TSA as the first level aquifer directly beneath the surface deposits. North of the Cascade property and through the northeastern portion of the Boeing property, CU1 narrows to nonexistence. Over the northeast portion of the Boeing property and north of the Cascade property, CU1 terminates at a line called the truncation. (See Figure 4).
Because groundwater in this area generally flows northward toward the Columbia River, water flowing north from the Cascade property in the TGA that reaches the truncation flows over the edge of CU1 and directly into the TSA. In addition, some easterly/northeasterly flow of groundwater in the TGA from the Boeing site may also pour over the edge of CU1 into the TSA.
As water flows over the truncation into the TSA at the Cascade site, it encounters a structural high6 which causes a groundwater mound in the TSA.7 (See Figure 5). Groundwater escapes the mound by flowing outward radially, first moving south, then splitting into two separate pathways, one pathway flowing northeasterly, away from the Boeing property, then northerly, and the other pathway flowing northwesterly, under the Boeing property and then northerly. (See Figure 5a). These flow patterns enable the parties to divide the plume into several sections. Boeing acknowledges that it is responsible for the westernmost section of the plume, and Cascade acknowledges responsibility for the easternmost section of the plume. The central portion of the plume is the area of dispute for allocation purposes. Resolution requires an examination of the sources, quantity, and nature of groundwater flow from each property into the TSA.
As shown in Figure 4, two surface springs flow from the TGA as it approaches the edge of the CU1 truncation: Taggart Spring and Shepard Spring. Taggart Spring is located south of the CU1 truncation, but north of the Cascade property, and Shepard Spring is east of Taggart Spring, north of the Cascade property and just north of the CU1 truncation. The Taggart Spring flow is currently diverted into a storm sewer, to reduce overall flow into the mound, and thus contaminant distribution, north of the Cascade property. Thus, Taggart Spring is not a significant ongoing source of contamination to the TSA, although Shepard Spring continues to flow into the TSA.
The Boeing property contains a subsurface geologic trough, which runs north/south through the Boeing property in the area of the 85-001 building. The trough exists only in the TSA8,...
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Case summaries.
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