Port of Ridgefield, Mun. Corp. v. Union Pac. R.R. Co.
| Decision Date | 07 February 2019 |
| Docket Number | CASE NO. CV14-6024RBL |
| Parties | PORT OF RIDGEFIELD, a Washington municipal corporation, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant. |
| Court | U.S. District Court — Western District of Washington |
Following the bench trial in this matter beginning November 26, 2018 to December 19, 2018, the Court makes the following Findings of Fact and Conclusions of Law:
I. FINDINGS OF FACT
1. From 1964 to 1993, Pacific Wood Treating ("PWT") operated a wood pressure-treating facility and manufacturing facility on the Lake River Industrial Site ("LRIS") in Ridgefield, Clark County, Washington.
2. The LRIS is generally located at 111 West Division Street in Ridgefield, Washington. Itis bounded on the east by a Burlington Northern Santa Fe Railroad ("BNSF") main line, on the west by a portion of Lake River, on the north by Carty Lake and the Ridgefield National Wildlife Refuge, and on the south by the Port's marina property, Railroad Overpass property and a portion of McCuddy's Marina. The larger Site is "defined by the extent of contamination caused by the release of hazardous substances at the Site," and includes an off-property area to the east of the BNSF main line.
3. PWT's operations included pressure-treating wood with oil-based solutions containing creosote, pentachlorophenol ("PCP"), and chromated copper arsenate ("CCA"), which is a mixture of copper, chromium and arsenic.
4. PWT and its parent company Niedermeyer-Martin declared bankruptcy and ceased operations in August 1993. PWT's president Edward Niedermeyer, also declared bankruptcy. He is now deceased.
5. The Port owned, and leased to PWT during 1964-1993, 24 acres of the LRIS. PWT owned 11.4 acres of the LRIS during its operations. The Port acquired this land in the PWT bankruptcy. The City of Ridgefield ("City") owned, and leased to PWT during 1964-1993, approximately 0.5 acres of the LRIS. The Port acquired this land in 2010. Union Pacific owned, and leased to PWT during 1964-1993, approximately 2 acres at the LRIS. The Port acquired this land in May 2013. The Port also owns the Railroad Avenue properties (.62 acre), Marina property (1 acre) and the Railroad overpass property (1.35 acres).
6. PWT's operations on the properties it leased from the Port's (and City) included the following: "retorts" used for chemically treating lumber and poles, a drip pad, untreated wood storage areas, treated lumber storage and shipping areas, a truck scale, rail spur and tram tracks, an unlined surface impoundment, a concrete pond, a French drain, a sludge incinerator, and, beginning in the 1980s, a wastewater treatment plant. These areas were later designated as Cells 1 and 2 in an Ecology Agreed Order. Cell 4, also known as the North Pole Yard, was usedfor debarking poles and storing untreated and treated poles. Cells 1, 2 and 4 are all located north of Division Street at the Site.
7. Union Pacific owned and leased to PWT an approximately two-acre parcel. It is located at the southeastern portion of the Site, south of Division Street. It comprises approximately 24 percent of the South Pole Yard (later designated Cell 3). This parcel was used for storing untreated scaffolding planks, a rail spur and, beginning in about 1968, areas for storing and shipping treated poles, an office, and tram tracks. A drip trough was installed on this property in 1988.
8. The Port owned the remainder of Cell 3 and leased it to PWT from 1964-1993. It included an area for inspecting newly-treated poles, areas for storing treated poles and lumber, a barge loading ramp, and storing discarded scraps of treated wood.
9. Former PWT employees testified that the most contaminated part of the Site was the area of the retorts and drip pad, on the Port- and City-owned portions of the Site.
10. Most of the contamination at the Site occurred during the "Vietnam Order." This was an intense 2-3 year period of operations in the mid-1960s, during which PWT supplied treated lumber and plywood to the federal government for construction projects in Vietnam. This contamination occurred primarily in the retort, drip pad and yard areas of Cells 1 and 2 (the Port and City property). This finding is based on the testimony of former PWT employees, and is corroborated by aerial photographs, imagery analysis and other evidence.
11. During the Vietnam Order, wood treating operations were 24/7. Treated lumber was loaded directly on trucks in Cell 2, which then left the Site still dripping chemicals. Division Street—the truck route from the Site through the residential neighborhood to the east—was wetwith chemicals, and the drip pad and adjacent yard area in Cell 2 were so saturated that the chemicals caused PWT employees' boots to deteriorate.
12. Trucks or barges transported Vietnam Order products to nearby seaports for shipment to Vietnam. Trucks were loaded near the drip pad and "yard" in Cell 2 (the Port's property), and barges were loaded in the western portion of Cell 3 (also the Port's property).
13. During the Vietnam Order, the tram tracks did not extend from the Cell 2 drip pad to the Union Pacific property on Cell 3. Nor was that property used for the storage or shipment of treated wood products. Those uses of those areas began in about 1968.
14. Deliveries of wood treating chemicals, raw wood and other freight during the Vietnam Order, and thereafter, occurred by truck or by rail on the spur near the retorts and tank farm in Cell 2 (the Port's property). (Dep. Designation at 25:15-28:9 (Foster); 12/6/18 Tr. at 30:14-34:8, 35:7-36:6 (Ryf); 12/6/18 Tr. at 86:12-89:20 (Carel)).
15. After the Vietnam Order, PWT expanded and diversified its operations to include fabrication of laminated beams, guitar backs and other types of untreated wood products. It constructed new fabrication facilities on the western portion of Cell 2, and hired additional personnel to operate the new facilities.
16. After the Vietnam Order, PWT began to use the South Pole Yard (Cell 3), including the Union Pacific property, for inspecting, sorting and shipping treated poles. Poles were taken from the North Pole Yard (Cell 4) to the retorts on trams and treated. They were allowed to remain on the drip pad outside the retorts until they cooled and the chemicals were absorbed. The poles would then be transported to an inspection area in the western portion of Cell 3 (the Port's property) before storage throughout Cell 3.
17. According to former PWT employees, the inspection area was the most visibly contaminated part of Cell 3 but, overall, Cell 3 (including the Union Pacific property) was much less contaminated than the tank farm, retort, drip pad and yard areas in Cells 1 and 2.
18. Throughout PWT's operations, it stored and shipped treated lumber (as opposed to poles) primarily from the "yard," southwest of the retorts and north of Division Street on the Port's property in Cell 2. Lumber was delivered to the yard by truck or rail, treated in the retorts, and (after the Vietnam Order) allowed to remain on the drip pad outside the retorts until it cooled and the chemicals were absorbed. The treated lumber would then be stored in areas of the yard west of the drip pad, on Cell 2, before being loaded on trucks in that area for shipment offsite.
19. According to the former PWT employees, there was little drippage from treated lumber or poles after the Vietnam Order, although some chemical spills occurred, primarily in the retort area in Cells 1 and 2.
20. According to the former PWT employees, there was no significant tracking of chemicals by vehicles within the Site after the Vietnam Order but, as former PWT Environmental Manager Bryant Adams, Ph.D. explained, any tracking of chemicals that did occur was from the retort area to the Union Pacific property.
21. Ecology Cleanup Project Manager Craig Rankine similarly testified that any tracking would have been from areas of higher contamination to less impacted areas, not the other way around, and that any tracking from Cell 3 did not cause additional remediation requirements or costs elsewhere at the Site
22. Union Pacific expert witnesses Robert Sterrett, Ph.D. (Itasca), and Mark Larsen (Anchor QEA) similarly testified that concentrations of PCP, arsenic and dioxin in soil samplestaken at the Site do not support vehicle tracking from the former Union Pacific property causing any additional remediation requirements or costs elsewhere at the Site.
23. The Port's consultant and expert witness, Jim Maul, acknowledged at trial that, despite working on the Site for more than 20 years none of Maul Foster & Alongi ("MFA") reports referenced vehicle tracking from the former Union Pacific property causing contamination elsewhere at the Site. He testified that there is "no way of knowing" the extent of any contribution, and that he did not develop the tracking theory until after he learned of Ecology's proposed de minimis settlement with Union Pacific.
24. The BNSF main line and rail spurs in Cell 2 were used for delivering and shipping freight, chemicals, and untreated and treated lumber products. After the Vietnam Order, the rail spur on the Union Pacific property in Cell 3 was used to ship treated poles from the Site. The Port and its other customers and lessees also used the BNSF main line and rail spurs in Cells 2 and 3.
25. It is undisputed that BNSF and Union Pacific provided freight services at the Site as common carriers. Neither the Port nor Union Pacific was an operator at the Site as that term is used under MTCA.
26. PWT provided $1,787,334.00 to the EPA for cleanup activities and for natural resource damage assessment and restoration. These funds were placed in an EPA Drip Pad Trust Fund account. After PWT's bankruptcy, these funds were transferred to Ecology, and ultimately were made available to the Port for investigation or cleanup of the Site.
27. Following PWT's bankruptcy,...
To continue reading
Request your trial