Public Service Co. of Colorado v. Gates Rubber Co., No. 98-1015

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore PORFILIO, MCKAY and BRISCOE; JOHN C. PORFILIO
Citation175 F.3d 1177
Docket NumberNo. 98-1015
Decision Date26 April 1999
Parties, 1999 CJ C.A.R. 2483 PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation, Plaintiff-Appellant, v. GATES RUBBER COMPANY, a Colorado corporation; Gates Energy Products, Inc., a Colorado corporation; The Gates Corporation, a Delaware corporation; The Denver and Rio Grande Western Railroad Company, a Delaware corporation, Defendants-Appellees.

Page 1177

175 F.3d 1177
48 ERC 1682, 1999 CJ C.A.R. 2483
PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation,
Plaintiff-Appellant,
v.
GATES RUBBER COMPANY, a Colorado corporation; Gates Energy
Products, Inc., a Colorado corporation; The Gates
Corporation, a Delaware corporation; The Denver and Rio
Grande Western Railroad Company, a Delaware corporation,
Defendants-Appellees.
No. 98-1015.
United States Court of Appeals,
Tenth Circuit.
April 26, 1999.

Page 1178

Kathryn A. Elzi, Koncilja & Associates, P.C., Denver, Colorado, for Plaintiff-Appellant.

Roger L. Freeman and Dean C. Miller on the brief, Davis, Graham & Stubbs, LLP, Denver, Colorado, for Defendant-Appellee The Denver and Rio Grande Western Railroad Company.

Thomas C. Reeve (Linda J. Swanson and Kathleen E. Craigmile, with him on the brief), Bennington Johnson & Reeve, P.C., Denver, Colorado, for Defendants-Appellees The Gates Corporation, d/b/a The Gates Rubber Company and Gates Energy Products, Inc.

Kathleen M. Snead, Denver, Colorado, on the brief for Defendant-Appellee The Denver and Rio Grande Western Railroad Company.

Before PORFILIO, MCKAY and BRISCOE, Circuit Judges.

JOHN C. PORFILIO, Circuit Judge.

After cleaning up a site contaminated by hazardous substances, Public Service Company of Colorado (PSCO) filed suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601--9675, to hold the Gates Rubber Company and the

Page 1179

Denver and Rio Grande Western Railroad Company (Defendants) jointly and severally liable and for contribution to its response costs. However, finding PSCO's cleanup was not consistent with the National Contingency Plan (NCP), the district court granted summary judgment for Defendants. Public Service Co. of Colo. v. Gates Rubber Co., 22 F.Supp.2d 1180 (D.Colo.1997). In this appeal, PSCO contends the court erred in failing to recognize that the state of Colorado's extensive involvement in its cleanup of the site was tantamount to compliance with the NCP. Although the proposition may be sustainable under certain circumstances, the facts here permit no such conclusion. We therefore affirm.

I.

From the 1940's through the 1980's, the Barter Machinery and Metals Company (Barter), a metal salvaging business, bought scrap iron and copper, electrical equipment, transformers, 1 and old batteries from PSCO and some other companies. Barter was located just northeast of the intersection of South Santa Fe Drive and West Bayaud Avenue in Denver, Colorado, and was comprised of five parcels of land: 100 South Santa Fe Drive (Lot A); 101 South Santa Fe Drive (Lot B); 701 West Bayaud Avenue (Lot C); 60 Inca Street (Lot D); and 60-68 Inca Street (Lot E) (collectively, the Site). In 1990, the Environmental Protection Agency (EPA) placed Lot C, the largest of the parcels comprising Barter, on the Superfund Comprehensive Environmental Response, Compensation and Liability Information System (CERCLIS), an inventory of sites targeted for EPA planning and tracking. Barter then hired an environmental consulting company which performed limited soil sampling and analyzed the heavy metals content of oil and iron stained areas and sludge in a drain pit. This initial investigation confirmed the presence of PCBs and lead contamination in the limited areas tested. Recognizing its potential liability for cleaning up the contamination, 2 PSCO agreed to share Barter's costs for a more comprehensive investigation of the site. In 1992, PSCO and Barter negotiated PSCO's cleaning up the Site in exchange for title to the property. It then planned to sell the Site to recoup its cleanup expenses. As contamination surfaced on additional lots, PSCO included those lots in the cleanup.

In that effort, PSCO retained ERM-Rocky Mountain, Inc. (ERM) which evaluated the soil and ground water conditions of Lots A, C, and D and found elevated levels of heavy metals including lead in high concentrations and polychlorinated biphenyls (PCBs) exceeding Colorado Basic Ground Water and federal hazardous waste standards. The ERM study was followed by a "Proposal for Remedial Action," dated November 6, 1992, submitted by United States Pollution Control, Inc. (USPCI), which PSCO retained to clean up Barter. In that proposal, USPCI set its objective "to remediate the areas within the site known to contain PCB contamination ..., mixed PCB/lead contamination (as yet undefined), and lead contaminated areas (as yet undefined)." USPCI proposed "[r]emediation will consist of decontamination or removal of large surface debris, followed by the removal, treatment, and disposal of contaminated soil." USPCI's cleanup began on November 30, 1992, and included constructing a fence and gate

Page 1180

around the property. 3 On the fence, PSCO posted English-only signs reading "Any Questions about Site Activities, please call 294-8488." USPCI proceeded to excavate soil, pocking the area with piles of potentially contaminated soil which it planned to decontaminate on site by feeding the excavated material into a pug mill. Once the "stabilized material" was "staged in discrete piles," USPCI proposed to transport the substance to a "selected disposal facility." However, the piles alerted the Colorado Department of Health (CDH) to the cleanup. 4

On March 5, 1993, Walter Avramenko, a Corrective Action Unit Leader at CDH, wrote PSCO acknowledging the work plan to stabilize lead contaminated soil on site; requesting further testing and information; and questioning the facility where PSCO planned to transport the materials. Although agreeing with PSCO's initial goals and methods, Mr. Avramenko told PSCO "to modify the plan to address the concerns and recommended changes," and noted the anticipated consent agreement between the parties would address additional matters.

On April 22, 1993, PSCO responded to CDH, acknowledging "the regulatory driven concerns behind CDH's inquiry," as balanced against its own need to remove the contamination in a cost effective manner for its rate payers "while ensuring protection of human health and the environment." It dubbed its proposed solution a " 'win-win' situation for all." However, on May 26, 1993, Frederick Dowsett, CDH's Chief of Monitoring and Enforcement of Hazardous Material, responded, enumerating CDH's "serious concerns" about the cleanup plan and urging PSCO to enter into a Compliance Order on Consent "to resolve the regulatory issues" related to investigation, management, and remediation of the Barter Site. The resulting Order on Consent, signed on September 20, 1993, catalogued the work CDH expected PSCO to perform, particularly to ensure the proper management of waste stockpiles and to continue soil and water sampling to track levels of contamination. CDH ordered PSCO to submit monthly progress reports and a final report documenting all soil removal activities. Eventually, PSCO completed the cleanup in early 1996.

In June 1993, PSCO notified Defendants of their potential liability for a proportionate share of the $9 million expended to clean up the Site. When Defendants balked, PSCO filed the underlying action seeking cost-recovery under CERCLA, 42 U.S.C. § 9607(a); CERCLA contribution, 42 U.S.C. § 9613(f); a declaratory judgment Defendants are liable for any future necessary response costs consistent with the NCP, 28 U.S.C. § 2201, 42 U.S.C. § 9613(g)(2); and recovery under state law for nuisance and joint and several liability under the Uniform Contribution Among Tortfeasors Act (UCTA).

On cross motions for summary judgment, the district court held as a matter of law PSCO's cleanup was a remedial action which did not substantially comply with the NCP. 22 F.Supp.2d at 1194. With that conclusion, the court disposed of all of PSCO's CERCLA-related claims and refused to exercise supplemental jurisdiction over the state law claims.

Because the record before the district court was fully developed, it was appropriate for it to decide whether PSCO met its prima facie burden of establishing NCP consistency. County Line, Inv. v.

Page 1181

Tinney, 933 F.2d 1508, 1517-18 (10th Cir.1991). 5 We review that determination de novo applying our summary judgment jurisprudence to view the entire record through PSCO's lens, drawing all reasonable factual inferences in its favor to assure there is "no genuine issue as to any material fact" meriting trial. Fed.R.Civ.P. 56(c).

II.

In 1980, Congress enacted CERCLA, 42 U.S.C. §§ 9601-9675, in the wake of the Love Canal disaster, "to establish a comprehensive response and financing mechanism to abate and control the vast problems associated with abandoned and inactive hazardous waste disposal sites." H.R.Rep. No. 96-1016, pt. I, at 1 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6125. In 1986, Congress amended CERCLA, passing the Superfund Amendments and Reauthorization Act (SARA) to fortify its broad, remedial purpose "to facilitate the prompt cleanup of hazardous waste sites and to shift the cost of environmental response from the taxpayers to the parties who benefitted from the wastes that caused the harm." OHM Remediation Services v. Evans Cooperage Co., 116 F.3d 1574, 1578 (5th Cir.1997).

CERCLA's cost-shifting scheme is found in § 107(a), 42 U.S.C. § 9607(a), which imposes strict liability on four classes of "potentially responsible parties. (PRPs)." 6 United States v. Colorado & Eastern R. Co., 50 F.3d 1530, 1535 (10th Cir.1995). Section 9607(a) provides, in part:

(4) any person who accepts or accepted any hazardous substances ... shall be liable for-

. . . . .

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan.

To facilitate the cost-shifting to all PRPs, Congress added § 113(f)(1) under SARA to provide, "[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of [CERCLA]" for its costs of recovery. The present...

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45 practice notes
  • Trinity Indus., Inc. v. Greenlease Holding Co., Civil Action No. 2:08–1498.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • August 5, 2014
    ...with that plan may determine whether a right to contribution exists under § 9613(f)(1). Public Serv. Co. of Colorado v. Gates Rubber Co., 175 F.3d 1177, 1181, n. 5 (10th Cir.1999). Plaintiffs were not sued under § 9607(a)(4)(B). (ECF No. 223 ¶ 26.) Their claims for contribution are based on......
  • U.S. v. W.R. Grace & Co., No. 03-35924.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 1, 2005
    ...as permanent remedies to threats for which an urgent response is not warranted. See, e.g., Pub. Serv. Co. of Colo. v. Gates Rubber Co., 175 F.3d 1177, 1182 (10th Cir.1999) ("In broad contrast, a remedial action seeks to effect a permanent remedy to the release of hazardous substances when t......
  • Chevron Mining Inc. v. United States, No. 15-2209
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 19, 2017
    ...categories of persons as PRPs, by definition liable to other persons for various costs."); Pub. Serv. Co. of Colo. v. Gates Rubber Co. , 175 F.3d 1177, 1181 & n.6 (10th Cir. 1999) ("The categories of PRPs broadly include current and former owners and operators of a facility or vessel involv......
  • Am. Premier Underwriters Inc. v. Gen. Elec. Co., Case No. 1:05cv437.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • March 31, 2012
    ...“may overlap and semantics often obscure the actual nature of the cleanup performed.” Public Serv. Co. of Colo. v. Gates Rubber Co., 175 F.3d 1177, 1182 (10th Cir.1999). In fact, “[a] response action may constitute both a removal and a remedial action, and a court is not constrained to find......
  • Request a trial to view additional results
45 cases
  • Trinity Indus., Inc. v. Greenlease Holding Co., Civil Action No. 2:08–1498.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • August 5, 2014
    ...with that plan may determine whether a right to contribution exists under § 9613(f)(1). Public Serv. Co. of Colorado v. Gates Rubber Co., 175 F.3d 1177, 1181, n. 5 (10th Cir.1999). Plaintiffs were not sued under § 9607(a)(4)(B). (ECF No. 223 ¶ 26.) Their claims for contribution are based on......
  • U.S. v. W.R. Grace & Co., No. 03-35924.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 1, 2005
    ...as permanent remedies to threats for which an urgent response is not warranted. See, e.g., Pub. Serv. Co. of Colo. v. Gates Rubber Co., 175 F.3d 1177, 1182 (10th Cir.1999) ("In broad contrast, a remedial action seeks to effect a permanent remedy to the release of hazardous substances w......
  • Chevron Mining Inc. v. United States, No. 15-2209
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 19, 2017
    ...of persons as PRPs, by definition liable to other persons for various costs."); Pub. Serv. Co. of Colo. v. Gates Rubber Co. , 175 F.3d 1177, 1181 & n.6 (10th Cir. 1999) ("The categories of PRPs broadly include current and former owners and operators of a facility or vessel inv......
  • Am. Premier Underwriters Inc. v. Gen. Elec. Co., Case No. 1:05cv437.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • March 31, 2012
    ...“may overlap and semantics often obscure the actual nature of the cleanup performed.” Public Serv. Co. of Colo. v. Gates Rubber Co., 175 F.3d 1177, 1182 (10th Cir.1999). In fact, “[a] response action may constitute both a removal and a remedial action, and a court is not constrained to find......
  • Request a trial to view additional results
2 books & journal articles
  • The Supreme Court Opens a Door in ARCO v. Christian, Part Two
    • United States
    • Environmental Law Reporter Nbr. 51-4, April 2021
    • April 1, 2021
    ...a case-by-case basis. No one characteristic of the cleanup is usually dispositive. See Pub. Serv. Co. of Colorado v. Gates Rubber Co. , 175 F.3d 1177, 1182 (10th Cir. 1999) (“Elements of either response action may overlap and semantics often obscure the actual nature of the cleanup performe......
  • The Site Cleanup Processes
    • United States
    • Superfund Deskbook -
    • August 11, 2014
    ...danger to present or future public health or welfare or the environment.”); see, e.g. , Pub. Serv. Co. of Colo. v. Gates Rubber Co., 175 F.3d 1177, 1182 (10th Cir. 1999) (“In broad contrast, a remedial action seeks to efect a permanent remedy to the release of hazardous substances when ther......

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