City of Portland v. Boeing Co.

• Citation: 179 F.Supp.2d 1190
• Decision Date: 07 March 2001
• Docket Number: No. CIV.99-1761-AS.,CIV.99-1761-AS.
• Parties: CITY OF PORTLAND, a Municipal corporation, Plaintiff, v. The BOEING COMPANY, a Delaware corporation; and Cascade Corporation, an Oregon corporation, Defendants.
• Court: U.S. District Court — District of Oregon

179 F.Supp.2d 1190

CITY OF PORTLAND, a Municipal corporation, Plaintiff, v. The BOEING COMPANY, a Delaware corporation; and Cascade Corporation, an Oregon corporation, Defendants.

No. CIV.99-1761-AS.

United States District Court, D. Oregon.

March 7, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Terence L. Thatcher, Office of City Attorney, Portland, OR, Rodney L. Brown, Gregory T. Costello, Martin & Brown LLP, Seattle, WA, for Plaintiff.

David A. Bledsoe, Perkins Coie, Aaron C. Courtney, George Wayne McKallip, Jr., Sussman Shank Wapnick Caplan & Stiles, Daniel L. Keppler, Kennedy Watts Arellano & Ricks LLP, Richard S. Pope, Jack B. Schwartz, Newcomb Sabin Schwartz & Landsverk, Portland, OR, for Defendants.

OPINION

ASHMANSKAS, United States Magistrate Judge.

Presently before the court are cross-motions for partial summary judgment. The City of Portland ("Plaintiff") asks the court to find that defendants the Boeing Company ("Boeing") and Cascade Corporation ("Cascade") collectively ("Defendants") are liable parties under the Comprehensive Environmental Responsibility, Compensation and Liability Act (42 U.S.C. § 9601 et seq.) ("CERCLA") and Oregon's "Superfund" statute (O.R.S. 465.200 et seq.) ("Superfund") for all of Plaintiff's necessary response costs to be determined at trial. Additionally, Plaintiff seeks a finding that Defendants have created, and are liable to Plaintiff for, a public nuisance. Defendants move the court for summary judgment on Plaintiff's claims for natural resource damages pursuant to Oregon's Superfund and for ultrahazardous activities. Finally, Defendants ask for a determination that Plaintiff is limited to claims for contribution under 42 U.S.C. § 9613 and O.R.S. 465.257 and for dismissal of Plaintiff's claims for cost recovery under 42 U.S.C. § 9607 and O.R.S. 465.255.

BACKGROUND

Plaintiff owns and operates a large well field in East Multnomah County which it uses primarily as an emergency back up and a supplement to the Bull Run River (the "Wells"). The Wells are located near property owned and operated by Defendants (the "Facilities"). In the mid-1980's, groundwater contamination was discovered on the Facilities near the Wells. While none of the Wells was contaminated the existence of contamination in the groundwater prevented Plaintiffs from utilizing the Wells to capacity, forcing them to obtain alternative water supplies and impose water restrictions, and caused Plaintiff to incur substantial costs in responding to the immediate threat to Plaintiff's water supply.

This court has found that Defendants use of the industrial solvent TCE resulted in the contamination of the groundwater and the Facilities and have held Defendants liable under CERCLA for such contamination. In this action, Plaintiff seeks to recover all of its damages generated by the contamination.

LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure allows the granting of summary judgment:

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). "[T]he requirement is that there be no genuine issue of material fact." Anthes v. Transworld Systems, Inc., 765 F.Supp. 162, 165 (D.Del.1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (emphasis in original).

The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is absent. Celotex v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has met its burden, the onus is on the nonmovant to establish that there is a genuine issue of material fact. Id. at 324, 106 S.Ct. 2548. In order to meet this burden, the nonmovant "may not rest upon the mere allegations or denials of [its] pleadings," but must instead "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Factual disputes are genuine if they "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. 2505. On the other hand, if after the court has drawn all reasonable inferences in favor of the nonmoving party, "the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (citations omitted).

DISCUSSION

First Claim for Relief — Nuisance

In its First Claim for Relief, Plaintiff alleges that Defendants disposal of TCE into the groundwater constitutes a public nuisance. In making this claim, Plaintiff relies on O.R.S. 448.265, which provides:

(1) It shall be unlawful for any person to do any of the following if the result would be to pollute a source of a water system or to destroy or endanger a water system:

(a) Establish or maintain any slaughter pen, stock-feeding yards or hogpens.

(b) Deposit or maintain any uncleanly or unwholesome substance.

(2) Violation of subsection (1)(a) or (b) of this section is a public nuisance and may be abated as other nuisances under the laws of this state.

In its summary judgment motion, Plaintiff cites O.R.S. 468B.020 as additional authority for its public nuisance claims. O.R.S. 468B.020 provides:

(1) Except as provided in O.R.S. 468B.050 or 468B.053, no person shall:

(a) Cause pollution of any waters of the state or place or cause to be placed any wastes in a location where such wastes are likely to escape or be carried into the waters of the state by any means.

(b) Discharge any wastes into the waters of the state if the discharge reduces the quality of such waters below the water quality standards established by rule for such waters by the Environmental Quality Commission.

(2) No person shall violate the conditions of any waste discharge permit issued under O.R.S. 468B.050.

(3) Violation of subsection (1) or (2) of this section is a public nuisance.

Plaintiff alleges that, as the owner and operator of a number of wells that have been affected by the TCE deposits, it is entitled to damages for the public nuisance created by Defendants. Plaintiff seeks summary judgment on this claim.

Defendants argue that Plaintiff is not entitled to pursue a private right of action for a public nuisance under either of the statutes quoted above. In support of this argument, Defendants point out that both of these provisions are "are included with broader statutes that establish comprehensive regulatory and enforcement regimes for state agencies" and that Judge Stewart of this court held, in City of LaGrande v. Union Pacific Railroad, CV No. 96-115-ST (Opinion issued July 18, 1997), that comprehensive regulatory schemes do not create private rights of action for damages for persons other than the State of Oregon. Judge Stewart did find that O.R.S. 466.640 did not create a private right of action but also specifically held, in that same case, that "defendant's alleged violation of O.R.S. § 468B.025(1) creates a nuisance per se," City of LaGrande, supra, at 28, and allowed the city to proceed on its common law public nuisance claim.

Even if Defendants are correct that Plaintiff may not pursue a private action to enforce the regulatory schemes set forth in O.R.S. 448.265 or O.R.S. 468B.020, it is clear from Judge Stewart that it may pursue a common law public nuisance claim based on activity declared by the state legislature to be sufficiently hazardous to qualify as a nuisance per se. This conclusion is supported by the legislative statement that the authority granted to the Environmental Quality Commission to enforce the provisions of Chapter 468B, "shall not prevent the maintenance of actions for legal or equitable remedies relating to private or public nuisances brought by any other person * * *."

Defendants also contend that Plaintiff lacks standing to assert a private claim for a public nuisance. Generally, only the state can bring a cause of action against the party responsible for the public nuisance. Frady v. Portland GE, 55 Or. App. 344, 637 P.2d 1345 (1981). However, where a private party can establish that it has suffered an injury of a special character separate and distinct from that suffered by the general public, a claim for private recovery on a public nuisance will exist. Id. at 348, 637 P.2d 1345. Oregon has held that a private party who owns land that is affected with a public nuisance will have a private action. "When a public nuisance interferes with an individual's right to use and enjoy his real property, the individual suffers special injury and may bring an action against the perpetrator of the nuisance." Id. at 349, 637 P.2d 1345.

Defendants argue that a genuine issue of material fact exists with regard to whether any of the chemicals used by Defendants are responsible for the contamination of the groundwater near the Wells and that, consequently, Plaintiff is unable to establish that it suffered a special injury as a result of Defendants conduct. However, the record is clear that Plaintiff incurred costs by engaging in action to determine the extent of Defendant's contamination and the appropriate means of protecting the Wells and groundwater from the spreading of the contamination. These costs are unique to Plaintiff as an owner of property in near proximity to Defendants' Facilities and are adequate to establish a special injury. What remains to be determined by the trier of fact is the amount of damages incurred by Plaintiff as a result of Defendants, use and disposal of TCE.

Defendants contend that...