El Paso Nat. Gas Co. v. United States
| Decision Date | 22 September 2021 |
| Docket Number | CV14-8165-PCT-DGC |
| Parties | El Paso Natural Gas Company, LLC, Plaintiff, v. United States of America, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Plaintiff El Paso Natural Gas Company, LLC has filed a motion to enforce the Court's previous judgment in an environmental liability case brought against the United States under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Doc. 227. The motion is fully briefed, and no party requests an evidentiary hearing or oral argument. See Docs. 227, 231, 235. The Court will grant the motion in part and deny it in part.[1]
In 2014, El Paso filed this CERCLA action against the United States seeking costs relating to the cleanup of contamination at El Paso's former uranium mine sites in the Cameron Arizona area (“Mine Sites”). Doc. 1. Following a bench trial in 2019, the Court allocated 65% of past response costs to El Paso and 35% to the United States. Doc. 224 at 1.[2] The Court ordered the same allocation for future response costs, but did not specify a process for reimbursement. Id.
The United States subsequently reimbursed El Paso for its share of the existing cleanup costs and nearly $2.5 million in future response costs agreed to by the parties. Doc. 231 at 7. The current motion seeks to recover three categories of costs that El Paso contends are reimbursable future response costs under the judgment. These costs relate to work performed by Doug Stavinoha, an El Paso employee who supervised the contractors hired to clean up the Mine Sites; Nick Ceto, a contractor specializing in CERCLA mine site remediation who advised El Paso on working with the EPA and fulfilling its obligations under the Administrative Order of Consent (“AOC”) entered into by El Paso and the EPA; and Doug Shoop, a contractor with experience conducting government-to-government consultation with tribal nations and the EPA regarding CERCLA remediation on tribal land. Doc. 227 at 5.
The United States contends that El Paso must file a new lawsuit to recover these costs, but in any event has not provided sufficient documentation to support the costs or demonstrate that they are “necessary” under the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), a set of EPA regulations defining procedures for responding to releases of hazardous substances. See 42 U.S.C. § 9605; Doc. 231.
CERCLA permits private parties to recover response costs from those who “contributed to the dumping of hazardous waste at a site.” Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir. 1989) (citing 42 U.S.C. § 9607(a)). To recoup response costs from the United States, El Paso must affirmatively show that the costs were necessary and consistent with the NCP, which is “designed to make the party seeking response costs choose a cost-effective course of action to protect public health and the environment.” Wash. State Dep't of Transp. v. Wash. Nat'l Gas Co., 59 F.3d 793, 802 (9th Cir. 1995); see also Young v. United States, 394 F.3d 858, 863 (10th Cir. 2005) ( that a private party “bears the burden of proving any ‘response costs' were necessary and consistent with the NCP.”). Response costs are necessary when “an actual and real threat to human health or the environment exists, ” and are consistent with the NCP “if the action, when evaluated as a whole, is in substantial compliance with it.” City of Colton v. Am. Promotional Events, Inc., 614 F.3d 998, 1003 (9th Cir. 2010) (internal citations and quotation marks omitted); see also 40 C.F.R. § 300.700(c)(3)(i). The NCP requires CERCLA plaintiffs to provide “sufficient” documentation supporting any reimbursement request, including an “accurate accounting of federal, state, or private party costs incurred for response actions.” 40 C.F.R. § 300.160(a)(1).
The United States argues that a motion to enforce judgment is an improper procedural vehicle for requesting reimbursement. Doc. 231 at 11. As noted above, the Court allocated liability but did not designate the specific future response costs to be borne by each party. Doc. 224 at 1. The United States contends that El Paso must file a new CERCLA lawsuit to obtain the relief it seeks. Doc. 231 at 11-12. Awarding future costs based on El Paso's current motion, the United States argues, would allow El Paso to make an “end run” around its evidentiary burden to show that its costs were necessary and consistent under the NCP. Id. at 13.
The Court does not agree. Section 2202 of the Declaratory Judgment Act provides that “[f]urther necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.” 28 U.S.C. § 2202. In the CERCLA context, this provision authorizes courts to fix contribution amounts after previously making a judgment on liability, thus “sav[ing] litigants and courts substantial time and money, leaving for the future only the need to fix the amount of contribution and affording the court flexibility with respect to the time and manner for doing so.” New York v. Solvent Chem. Co., Inc., 664 F.3d 22, 27 (2d Cir. 2011). Requiring El Paso to file a new CERCLA complaint would negate efficiencies created by the Court's previous trial and declaratory judgment. And granting further relief in this case would not, as the United States claims, allow El Paso to make an end run around its burden of proof. State of Cal., 155 F.Supp.3d at 1096. El Paso must still prove that its actions were necessary and consistent with the NCP, and prove its costs by a preponderance of the evidence. See, e.g., Edward B. Marks Music Corp. v. Charles K. Harris Music Pub. Co., 255 F.2d 518, 522 (2d Cir. 1958) (“[Section 2202] authorizes further or new relief based on the declaratory judgment, and any additional facts which might be necessary to support such relief can be proved on the hearing provided in the section or in an ancillary proceeding if that is necessary.”). The Court accordingly will permit El Paso to proceed by motion.[3]
Response costs are “necessary” when “an actual and real threat to human health or the environment exists.” City of Colton, 614 F.3d at 1003. The United States does not dispute that Stavinoha's work was aimed at addressing a threat to human health or the environment. Instead, it claims that because Stavinoha is a corporate employee of El Paso, his work is aimed at “corporate defensive interests” and thus is not reimbursable. Doc. 231 at 14. It cites a Supreme Court case holding that litigation-related attorney fees are not recoverable “necessary costs of response” under CERCLA. See Key Tronic Corp. v. United States, 511 U.S. 809, 820-21 (1994).
Key Tronic offers no support for the United States' position. There, the Supreme Court noted that because attorney's fees were “generally . . . not a recoverable cost of litigation, ” any recovery of such fees would require clear evidence of congressional intent. 511 U.S. at 814-15. This evidence was missing from CERCLA, which contained neither a specific reference to attorney's fees nor an intent to provide for such fees. Id. at 815. At no point does Key Tronic state that a party cannot be motivated by corporate defensive interests in their cleanup efforts. In fact, the Ninth Circuit has stated that whether a party has a “business or other motive in cleaning up [a] property” is irrelevant in determining necessity under the NCP because “a private plaintiff will almost always have a business or financial motive for cleaning up a site, ” whether it be “fear of a government enforcement action, landowner liability, and even self-serving economic reasons.” Carson Harbor Village, Ltd. V. Unocal Corp., 270 F.3d 863, 872 (9th Cir. 2001) (en banc). Stavinoha's role as a corporate employee does not render his work unnecessary under the NCP.
The NCP requires that documentation be “sufficient to provide . . . [an] accurate accounting of federal, state, or private party costs incurred for response actions[.]” 40 C.F.R. § 300.160(a)(1). Courts have considerable leeway in determining what constitutes sufficient documentation. United States v. W.R. Grace & Co. Conn., 280 F.Supp.2d 1149, 1179-81 (D. Mont. 2003) (). As one court noted:
Courts have found the following documents sufficient: “detailed cost summaries”; “extensive documentation of costs in the form of time sheets and payroll documents”; “declarations from EPA Staff, attorneys, accountants, and supervisors attesting to the work they performed and time spent”; and “affidavits of government employees responsible for maintaining cost data supported by ‘summaries of cost data, '” and “time sheets sufficient to document payroll costs.”
Exxon Mobil Corp. v. United States, 335 F.Supp.3d 889, 925 (S.D. Tex. 2018) (collecting cases). The key is whether the documents are “sufficient to support the cost claim” and show the court that “costs have been proven by a preponderance of the evidence.” Id. at 924 (quoting W.R. Grace & Co., 280 F.Supp.2d at 1179-81). “[C]ourts have applied civil evidentiary standards to assess the adequacy of cost documentation supporting a CERCLA cost recovery claim, rather than imposing any additional burden.” W.R. Grace & Co., 280 F.Supp.2d at 1180.
1. Stavinoha.
In 2013, El Paso entered into the AOC with the EPA and...
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