Idaho Waste Sys. v. U.S. Air Force

• Decision Date: 27 January 2020
• Docket Number: Case No. 18-cv-0229-SRB-WJE
• Parties: IDAHO WASTE SYSTEMS, INC., Plaintiff, v. U.S. AIR FORCE, et al., Defendants.
• Court: U.S. District Court — District of Idaho

IDAHO WASTE SYSTEMS, INC., Plaintiff, v. U.S. AIR FORCE, et al., Defendants.

Case No. 18-cv-0229-SRB-WJE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

January 27, 2020

REPORT AND RECOMMENDATIONS

Pending before the Court are five related motions: Defendant U.S. Air Force's (USAF) combined Motion to Dismiss and Motion for Summary Judgment (Doc. 53), Plaintiff Idaho Waste Systems, Inc.'s (Idaho Waste) Motion for Partial Summary Judgment (Doc. 54), Defendant Snake River Rubbish, L.L.C.'s (Snake River) Motion for Summary Judgment (Doc. 57), Defendant ProTech Coatings, Inc.'s (ProTech) combined Motion for Summary Judgment and Joinder (Doc. 71), and Snake River's Motion for Summary Judgment on ProTech's Cross Claim (Doc. 74). All of the above motions are now ripe for consideration as the parties have fully briefed each respective motion.¹ The Court recommends dismissing all state law claims against the USAF and dismissing the continuing nuisance claim against Snake River and ProTech. It is further recommended that Plaintiff's motion for summary judgment be denied (Doc. 54) and Snake River's motion for summary judgment seeking indemnity and contribution be denied. (Doc. 74).

I. BACKGROUND

The following facts are undisputed for the purposes of this summary judgment motion.² This case arises from the disposal of allegedly hazardous material. The USAF contracted ProTech to remove and resurface flooring within a U.S. Air Force base. (Docs. 53-2; 55; 57-2; 70-1). The terms of the contract apparently required ProTech to test all waste generated during the USAFproject. (Doc. 53-2). Snake River was thereafter contracted to transport waste generated from the USAF project site for disposal. (Docs. 57-2; 70-1). In December 2016, ProTech collected samples from the waste generated during the project. (Docs. 53-2; 57-2; 70-1). ProTech did not send these samples to be tested for chromium until later and received the results in March 2017. (Docs. 57-2; 70-1). Meanwhile, ProTech loaded the waste from which it took samples along with other construction debris into "plastic garbage sacks," and placed them into a roll-off container for Snake River to transport for disposal (Subject Waste). Id. In February 2017, Snake River delivered the Subject Waste to Plaintiff's landfill. Id.

In March 2017, ProTech's test results from sampled construction debris allegedly indicated chromium concentrations qualifying as hazardous waste. Id. Plaintiff's landfill was not capable of receiving hazardous waste. (Doc. 53-2). ProTech notified the USAF, which in turn notified the Idaho Department of Environmental Quality (IDEQ). Id. In either March or April 2017, the IDEQ informed Plaintiff's President, Jack Yarborough, that the Subject Waste needed to be removed. (Doc. 57-2). While the IDEQ would change its mind a few months later regarding removal, in the meantime Plaintiff hired at least one contractor to begin addressing the Subject Waste. Id.

Sometime in March or April 2017, Plaintiff retained Olympus Technical Services, Inc. (Olympus) to complete work related to the Subject Waste. (Docs. 53-2; 57-2; 61-2). Olympus apparently completed some type of testing for chromium within the landfill around that same timeframe. Id. According to Mr. Yarborough, such testing found no hexavalent chromium. (Doc. 61-2). Olympus may have also created a plan to address the Subject Waste, but competent, supportive evidence is sparse. The record does not otherwise show what type of work this contractor completed. In May 2017, Plaintiff halted remedial efforts and resumed normal business operations. (Doc. 57-2). Later in 2019, Plaintiff hired Project Delivery Group (PDG) to complete a leachate³ monitoring report. (Doc. 53-2, p. 164). The report, issued in March 2019, ultimately found chromium levels to be "negligible to non-detect." Id. at 167.

Defendants have retained a total of three experts to examine and analyze the Subject Waste. (Doc. 53-2). The USAF hired the first expert after prodding from the IDEQ, employing AGEISS, Inc. to determine the best means of handling the Subject Waste. Id. On July 7, 2017, AGEISS determined the waste constituted .014% of the total volume of Cell 2A of Plaintiff's landfill. Id.Based on a finding that Subject Waste posed "no unacceptable risk to human health and the environment," AGEISS recommended leaving it in place. Id. The IDEQ reviewed AGEISS's findings and concurred that the Subject Waste should not be removed. Id. In a July 20, 2017, letter, the IDEQ cited four reasons for leaving the waste undisturbed:

1) the low probability of locating the dispersed waste; 2) the nature and quantity of the waste is not expected to adversely affect the integrity of the liner or leachate collection system if left in place; 3) the potential health and safety concerns posed by retrieval activities and the wastes with which the waste is now co-mingled; and 4) the potential compromise of the liner is a greater risk to human health and the environment than allowing the waste to remain in place based on landfill design and construction.

Id.

Subsequently, the USAF hired Dr. Remy J.-C. Hennet, an expert in geochemistry and hydrogeology, to review the facts and data surrounding the chromium disposal. Id. In a June 2019 expert report, Dr. Hennet concluded that the chromium levels found in leachate were substantially lower than limits set by federal law. Id. He further opined that the concentration of chromium was too low to threaten groundwater quality, and the Subject Waste had "no measurable effect on the chemical composition" of Plaintiff's landfill. Id. He went on to state that the IDEQ's decision to keep the Subject Waste in place was reasonable. Id. ProTech retained expert Bradley D. Harr, who prepared a July 8, 2019, report concurring with Dr. Hennet's conclusions. (Docs. 57-2; 58-7, pp. 53, 56; 70-1). Lastly, an appraisal prepared for the USAF and ProTech concluded the Subject Waste's disposal did not reduce the valuation of Plaintiff's landfill. (Doc. 58-7, p. 27).

In May 2018, Idaho Waste brought suit against all Defendants and subsequently filed an amended complaint alleging six total counts: (1) Continuing Nuisance; (2) Continuing Trespass; (3) Equitable Indemnity and Contribution; (4) Negligence and Negligence Per Se; (5) Cost Recovery under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA); and (6) Contribution under CERCLA. The instant motions were thereafter brought by Plaintiff and Defendants. (Docs. 53, 54, 57, 71, 74). Sixteen months later, in September 2019, the Court sanctioned Plaintiff monetarily for discovery violations, explaining Idaho Waste had repeatedly missed discovery deadlines, including failing to file initial disclosures, failing to disclose specific damages, failing to answer interrogatories, and failing to produce any emails or other internal communications. (Doc. 65). Idaho Waste now seeks the following costs and damages: $5,300 for "[m]itigation and environmental risk evaluation," purportedly paid to PDG;approximately $27,000 purportedly paid to Olympus for "[e]nvironmental consulting"; and diminution in property value, which Mr. Yarborough later estimated to be at minimum $2,000,000. (Doc. 53-3, p. 91).

II. STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate when the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine dispute of material fact occurs when "there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party." Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015) (quoting Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)). "[T]he mere existence of some alleged factual dispute between the parties will not defeat [a] . . . motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis omitted). Moreover, while "all reasonable inferences which can be drawn from the evidence must be drawn in a light most favorable to the non-moving party, the Court is not required to adopt unreasonable inferences from circumstantial evidence." Oldcastle Precast, Inc. v. Concrete Accessories of Ga., Inc., No. 4:17-CV-00164-BLW, 2019 WL 403865, at *6 (D. Idaho Jan. 31, 2019). When reviewing cross-motions for summary judgment, the Court is required to consider each motion on its own merits. Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).

"[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." IP Glob. Invs. Am., Inc. v. Body Glove IP Holdings, LP, No. 2:17-CV-06189-ODW (AGR), 2018 WL 5983550, at *8 (C.D. Cal. Nov. 14, 2018), amended, No. 2:17-CV-06189-ODW (AGR), 2019 WL 121191 (C.D. Cal. Jan. 7, 2019) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Similarly, "[s]ummary judgment is appropriate where [Plaintiff] offers no expert witnesses or designated documents providing competent evidence from which a jury could fairly estimate damages." Weinberg v. Whatcom Cty., 241 F.3d 746, 751 (9th Cir. 2001) (quoting McGlinchy v. Shell Chem. Co., 845 F.2d 802, 808 (9th Cir. 1988)); see also Copart, Inc. v. Sparta Consulting, Inc., 277 F. Supp. 3d 1127, 1143 (E.D. Cal. 2017).

III. DISCUSSION

Idaho Waste seeks summary judgment on its CERCLA and trespass claims. Defendants seek summary judgment on or dismissal of each of Plaintiff's claims. The Court begins by examining Plaintiff's CERCLA claim related to all Defendants. The Court then analyzes the USAF's sovereign immunity for all tort claims under state law. Thereafter, the Court turns to Plaintiff's tort claims under state law directed...