N. States Power Co. v. City of Ashland

• Decision Date: 18 March 2015
• Docket Number: No. 12–cv–602–bbc.,12–cv–602–bbc.
• Citation: 93 F.Supp.3d 958
• Parties: NORTHERN STATES POWER COMPANY, Plaintiff, v. The CITY OF ASHLAND, WISCONSIN, Ashland County, Wisconsin and L.E. Myers Company, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

93 F.Supp.3d 958

NORTHERN STATES POWER COMPANY, Plaintiff

v.The CITY OF ASHLAND, WISCONSIN, Ashland County, Wisconsin and L.E. Myers Company, Defendants.

No. 12–cv–602–bbc.

United States District Court, W.D. Wisconsin.

Signed March 18, 2015.

Albert Bianchi, Jr., Jon G. Furlow, Michael Best & Friedrich, LLP, Madison, WI, Arthur Francis Foerster, Margrethe Krontoft Kearney, Mary Rose Alexander, Brandon Keith Crase, Malorie R. Medellin, Latham & Watkins, Chicago, IL, for Plaintiff.

Richard Carlisle Yde, Jr., Ted Waskowski, Barbara A. Neider, Erika L. Bierma, Stafford Rosenbaum LLP, Madison, WI, Jon G. Furlow, Michael Best & Friedrich, Madison, WI, Christopher G. Hanewicz, Perkins Coie LLP, Madison, WI, Phillip Richard Bower, Richard J. Lewandowski, Thomas Patrick Heneghan, Whyte Hirschboeck

Dudek, Madison, WI, Mark William Schneider, Perkins Coie LLP, Seattle, WA, Teresa Gail Jacobs, Perkins Coie LLP, Portland, OR, for Defendants.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

Plaintiff Northern States Power Company has entered into agreements with the Environmental Protection Agency to clean up a site adjacent to Lake Superior in Ashland, Wisconsin, that has been subject to long-term and significant releases of hazardous substances in violation of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 –75. It has done much of the work and now seeks recovery and contribution for cleanup costs from defendants City of Ashland, County of Ashland and L.E. Myers Company, contending that they are also liable for releases of hazardous substances. Now before the court are defendants' motions for summary judgment.

I conclude that the respective statutes of limitations bar plaintiff's contribution claim under § 9607 with respect to the 2003 administrative order and all its cost recovery claims under § 9607. Defendants' motion for summary judgment will be granted on that ground. However, I am denying all defendants' motions with respect to plaintiff's remaining claims for contribution under the 2012 consent decree. I am also denying as moot plaintiff's motion for leave to file a brief in surreply, dkt. # 303, because the arguments in that brief make no difference to the outcome of this case. Finally, plaintiff has filed what it calls an “emergency motion to exclude certain supplemental expert reports.” Dkt. # 335. In it, plaintiff asks the court to “exclude” expert reports that defendants have served on it but that have not been filed with the court. Id. Plaintiff says its request is an “emergency” because trial is nearing. However, plaintiff's motion is merely a motion in limine, the deadline for which has not arrived. Plaintiff is free to file its motions early, but defendants' response deadline remains the same, as set forth in the amended scheduling order. Dkt. # 102. Therefore, plaintiff's motion will be considered in the ordinary course of deciding motions in limine.

From the parties' proposed findings of fact and the record, I find the following facts to be undisputed.

UNDISPUTED FACTS

The property at issue is a site of approximately 40 acres adjacent to Lake Superior in Ashland, Wisconsin. It is, and has been, subject to CERCLA and environmental enforcement actions from state and federal entities because it contains polycyclic aromatic hydrocarbons and volatile organic compounds in the soils, sediment and groundwater. (The parties agree that these are hazardous substances under CERCLA.) The Ashland site has four areas of concern: (1) Chequamegon Bay; (2) Kreher Park; (3) the Upper Bluff and Filled Ravine; and (4) Copper

Falls Aquifer. Surface water flows north from the Upper Bluff and Filled Ravine area to the Kreher Park area.

A. Upper Bluff and L.E. Myers

From 1885 to 1947, a manufactured gas plant operated on the more inland Upper Bluff and Filled Ravine area of the Ashland site. Ashland Light, Power & Street Railway Company owned the plant from 1896 to 1922, when Lake Superior District Power Company became the owner. Plaintiff owns that portion of the site and gained ownership as a result of its merger with Lake Superior District Power Company in 1986. It has never operated a gas plant there.

Defendant L.E. Myers Company is a Delaware corporation devoted to “the construction and operation of public utilities.” Between 1917 and 1922, Lewis Myers served as president and a director of defendant L.E. Myers and owned a total of 650 shares of defendant's stock out of more than 2400 issued and outstanding shares. Plaintiff has asserted claims against defendant L.E. Myers related to its alleged operation of the gas plant from 1917 to at least 1922.

Not surprisingly, the parties lack documentation for much of what happened from 1917–1922. Plaintiff has attempted to fill in the evidentiary blanks with newspaper articles showing that defendant L.E. Myers took action that would make it liable to plaintiff. This is permissible under Fed.R.Evid. 803(16). Plaintiff has also introduced records of regularly conducted activities under Fed.R.Evid. 803(6).

On January 31, 1917, the Ashland Daily Press reported that Mr. Myers and his company were “the new owner[s]” of the “Appleyard interests in Ashland” and “will be in control of these properties.” The article also reported that defendant L.E. Myers was “one of the largest operators of light and power public utilities.”

At a special board meeting on February 15, 1917, the directors of Ashland Light, Power & Street Railway Company adopted a unanimous resolution to instruct its officers to enter into a contract with defendant L.E. Myers, “covering all this company's construction work and equipment for the period of three years from February 1, 1917, including such contracts for construction materials or apparatus as have not yet been shipped either in whole or in part.” Dkt. # 181, exh. # 18 at 3. On March 14, 1917, the Ashland Daily Press reported that “the local organization of the Light Company is being re-organized and developed to the high standard required by the new owners.” The article also noted that the success of Ashland Light during a snowstorm “is a practical demonstration of what the L.E. Myers company propose[s] to give in the way of service.” A March 29, 1917 article entitled “New Company Will Improve Local Service” reported that “[t]he L.E. Myers company which purchased the Appleyard interests in the Ashland Light, Power and Street Railway are showing their belief in Ashland by planning substantial improvements for their local plants.” Dkt. # 219, exh. # 5 at 3.

On April 12, 1917, defendant's board of directors “approved, ratified and confirmed” a three-year contract dated February 1, 1917 between Ashland Light and defendant L.E. Myers, whereby defendant L.E. Myers agreed “to provide, and install supplies and apparatus, and perform labor and furnish other service, all set forth in said contract.” (The parties have not located a copy of the contract itself.) On the same day, the Ashland Daily Press reported that the “new officials” of Ashland Light “made a tour of inspection of their local plants” and that “the company is planning extensive improvements to their local plants ... and will spend several thousand dollars.” Dkt. # 219, exh. # 6 at 3. The article noted specifically that “L.E. Meyers (sic), president of the company which bears his name and now controls Appleyard interests,” and secretary L.M. Boisen were present. Id. On August 21, 1917, the Ashland Daily Press reported that Ashland Light, Power and Street Railway had begun construction of a new coal gas apparatus, and work would probably be completed in November. Dkt. # 221, exh. # 5. The company's 1917 and 1918 annual operating reports show that the construction included a tar extractor and condenser, and removed a washer, scrubber and boiler. Dkt. # 221, exh. 4 and 9.

On June 6, 1917, the Ashland Daily Press reported that “J.S. Donald, assistant manager of the Ashland interests of the L.E. Meyers Construction Company, has resigned” and will depart after the “arrival of General Manager Boysen [sic] from Chicago, who has charge of all the companies controlled by the L.E. Meyers [sic] Company.” Dkt. # 219, exh. 7 at 3.

The 1917 to 1922 editions of Brown's Directory of American Gas Companies include entries for defendant L.E. Myers in a section that is entitled “Parent or Operating Companies” from 1917 to 1919 and “Holding and Operating Companies” from 1920 to 1922. Under the heading “Companies Operated,” the directory entries for defendant L.E. Myers refer to Ashland Light. The directory does not define the term “Parent or Operating Company,” “Holding and Operating Companies,” or the term “Companies Operated.” Between 1917 and 1922, Ashland Light's letterhead listed “L.E. Myers Co.” as “managers.”

Between 1917 and 1922, three individuals were officers of both defendant L.E. Myers and Ashland Light: Lewis E. Myers (president of both corporations), Lars Boisen (vice president) and William Weston (secretary and treasurer). Although Ashland Light and defendant L.E. Myers did not have identical boards of directors, Lewis Myers and Lars Boisen served as directors for both corporations between 1917 to 1922 and William Weston served as a director for both corporations from September 1919 to April 1921. Boisen appeared at an Ashland gas rate hearing on behalf of Ashland Light in 1918. Also between 1917 and 1922, F. Winders and W. Hodgkins were general managers and F. Englund was a manager of the gas department of Ashland Light. Winders had been defendant's employee (a superintendent) in 1916. At some point between 1927 and 1928, Hodgkins was both an agent and attorney for defendant L.E. Myers and vice president and a director of Lake Superior, which owned Ashland Manufactured Gas Plant at that time.

B. Kreher Park, City and County

In the 1880s, lumber companies set up operations on the waterfront portions of the Ashland site (Kreher Park and the Bay). Around this time, the lumber...