City of Wichita v. Aero Holdings, Inc.

• Decision Date: 28 July 2000
• Docket Number: No. 98-1360-MLB.,98-1360-MLB.
• Citation: 177 F.Supp.2d 1153
• Parties: CITY OF WICHITA, Plaintiff, v. AERO HOLDINGS, INC., et al., Defendants.
• Court: U.S. District Court — District of Kansas

Page 1153

177 F.Supp.2d 1153

CITY OF WICHITA, Plaintiff, v. AERO HOLDINGS, INC., et al., Defendants.

No. 98-1360-MLB.

United States District Court, D. Kansas.

July 28, 2000.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert L. Driscoll, Richard L. Green, Douglas Y. Curran, Brian D. Williams, Joan K. Rowland, Stinson, Mag & Fizzell, P.C., Kansas City, MO, Joe A. Lang, Gary E. Rebenstorf, Wichita, KS, for Plaintiff.

John M. Waldeck, Niewald, Waldeck & Brown, P.C., Kansas City, MO, G. Craig Robinson, Vernon D. Just, Carl N. Kelly, Wichita, KS, John K. Power, Jerry D. Rank, Leonard L. Wagner, Husch & Eppenberger, Kansas City, Ted E. Knopp, Ted E. Knopp, Chartered, Alexander B. Mitchell, II, Klenda, Mitchell, Austerman & Zuercher, L.L.C., Charles C. Steincamp, Depew and Gillen, L.L.C., Wichita, KS, Dale F. Conde, Conde, Killoren, Bueschel & Calgaro, Rockford, IL, Gary A. Gorman, Gorman Law Office, Shannon A. Kelly, Kelly Law Offices, Kurt A. Harper, Sherwood & Harper, Calvin L. Wiebe, David G. Crockett, Crockett & Gilhousen, Van Russell Delhotal, Wichita, KS, John P. Jennings, Teresa A. Woody, Spencer, Fane, Britt & Browne, Kansas City, MO, Kasey A. Rogg, Martin & Churchill Chartered, Wichita, KS, Randy J. Curato, Neal H. Weinfield, Jeffrey B. Aaronson, Bell, Boyd & Lloyd, Chicago, IL, Richard E. Hill, Bell, Boyd & Lloyd, Washington, DC, Ross A. Hollander, Joseph & Hollander, P.A., Wichita, KS, Dennis S. Boxeur, Nash, Cohenhour, Kelley & Hunt, P.C., Oklahoma City, OK, Matthew E. Turner, Shook, Hardy & Bacon L.L.P., Kansas City, MO, Bill J. Hays, Shook, Hardy & Bacon L.L.P., Overland Park, KS, Richard C. Hite, Richard L. Honeyman, Dennis V. Lacey, Hite, Fanning & Honeyman L.L.P., Stephen E. Robison, Charles E. Millsap, Stephen M. Stark, William P. Tretbar, Scott D. Jensen, Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, KS, Charles P. Efflandt Robert J. McCully, Foulston & Siefkin L.L.P., Wichita, KS, for Defendants.

William D. Brighton, U.S. Department of Justice Environment & Natural Resources Division, Environmental Enforcement Section, Washington, DC, for Amicus.

Jeff C. Spahn, Jr., Martin, Pringle, Oliver, Wallace & Spikes, L.L.P., Wichita, KS, Douglas Y. Curran, Stinson, Mag & Fizzell, P.C., Kansas City, MO, for Movants.

Gordon Kratz, Loves Park, IL, Pro se.

Tri-State Laundry & Dry Cleaners Supply, Inc., Attn: Lindon Ford R & R Manufacturing & Supply, Inc., Oklahoma City, Pro se.

MEMORANDUM AND ORDER

BELOT, District Judge.

Plaintiff City of Wichita (City) brings this private party action against twenty-seven¹ defendants pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act (SARA) of 1986, Pub.L. No. 99-499, 100 Stat. 1613 (1986). The City seeks to recover response costs incurred in cleaning up groundwater contamination near the center of Wichita pursuant to CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B). The City alternatively seeks contribution from defendants pursuant to CERCLA § 113(f), 42 U.S.C. § 9613(f). The City also seeks declaratory relief that defendants are responsible for future response costs. According to allegations in the complaint, the harm resulting from the groundwater contamination is indivisible. (Complaint (Doc. 1) at ¶ 17).

The case is currently before the court on defendants' motions for summary judgment on two strategic issues impacting how, and whether, this litigation will proceed. In a joint motion (Doc. 553), all defendants seek summary judgment on the City's § 107(a) claims. Defendants contend the City itself is a potentially responsible party (PRP), as defined by § 107(a)(1)-(4), and is therefore prohibited by Tenth Circuit precedent from bringing any claim other than one for contribution. Defendants also seek summary judgment on all of the City's claims based on CERCLA's statute of limitations, CERCLA § 113(g), 42 U.S.C. § 9613(g).² For the reasons discussed in this opinion, defendants' motion for summary judgment on the § 107(a) claims is sustained; defendants' statute of limitations motion is overruled. This case will proceed as a contribution action.

I. SUMMARY JUDGMENT STANDARDS

The usual and primary purpose "of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Fed.R.Civ.P. 56(c) directs the entry of summary judgment in favor of a party who "show[s] 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." An issue is "genuine" if sufficient evidence exists on each side "so that a rational trier of fact could resolve the issue either way" and "[a]n issue is `material' if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citations omitted).

The moving party initially must show both an absence of a genuine issue of material fact, as well as entitlement to judgment as a matter of law. See id. at 670. The nature of the showing depends upon whether the movant bears the burden of proof at trial with the particular claim or defense at issue in the motion. If the nonmoving party bears the burden of proof, the movant need not "support its motion with affidavits or other similar materials negating the opponent's" claims or defenses. Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (emphasis in original). Rather, the movant can satisfy its obligation simply by pointing out the absence of evidence on an essential element of the nonmovant's claim. Adler, 144 F.3d at 671 (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). On the other hand, if the movant has the burden of proof on a claim or defense raised in a summary judgment motion, it must show that the undisputed facts establish every element of the claim or defense. See, e.g., United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991) (en banc).

Once the moving party properly supports its motion, the burden shifts to the nonmoving party, "who may not rest upon the mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Muck v. United States, 3 F.3d 1378, 1380 (10th Cir.1993). In setting forward these specific facts, the nonmovant must identify the facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Adler, 144 F.3d at 671. If the evidence offered in opposition to summary judgment is merely colorable or is not significantly probative, summary judgment may be granted. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 533 (10th Cir.1994). A party opposing summary judgment "cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir.1988). Put simply, the nonmoving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

In the end, the court must determine "whether there is the need for a trial— whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Accordingly, the court must review the "factual record and reasonable inferences therefrom in the light most favorable to the nonmoving/opposing party." Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir.1996); Anderson, 477 U.S. at 255, 106 S.Ct. at 2514. If sufficient evidence exists on which a trier of fact could reasonably find for the non-moving party, summary judgment is inappropriate. Prenalta Corp. v. Colorado Interstate Gas Co., 944 F.2d 677, 684 (1991).

II. FACTS³

A. HISTORY OF THE GILBERT & MOSLEY SITE

The contaminated area located near Wichita's center is commonly referred to as the Gilbert & Mosley site (the "Site"). The Site is named after the intersection of Gilbert Street and Mosley Street, which lies near the middle of the contaminated area. The boundaries of the Site have been delineated through a series of investigations conducted by the Kansas Department of Health and Environment (KDHE) and others since 1986. The area encompasses roughly four and a half miles from north to south, varies in width from one to two miles east to west, and covers around 3,850 acres of an industrial area in Wichita's downtown. Approximately 8,000 parcels of land are ensnared within its boundaries. The City itself owns over 400 properties within the Site.

KDHE first detected volatile organic compounds (VOCs) in the groundwater at a facility located within the Site in 1986. Through a Cooperative Agreement with the United States Environmental Protection Agency (EPA), KDHE conducted investigations of potential and actual contamination in accordance with CERCLA. In a November 1989 report to the EPA, KDHE recommended that a Listing Site Investigation (LSI) be conducted for evaluation of whether the Site should be included on the EPA's National Priority List (NPL) of Superfund sites. (Doc. 532, Ex. B, "Preliminary Assessment and Scanning Site Investigation"). The LSI was undertaken and finalized in an August 1990 report. The major hazardous contaminants discovered during the LSI were chlorinated solvents which are commonly used by many businesses as cleaning and degreasing agents. The four main contaminants found were perchloroethylene (PCE), trichloroethylene (TCE), 1,2-dichloroethylene (DCE) and vinyl chloride. Multiple sources of...