Public Service Co. of Colorado v. Gates Rubber Co., CIV. A. 96 N 1922.

• Decision Date: 16 December 1997
• Docket Number: No. CIV. A. 96 N 1922.,CIV. A. 96 N 1922.
• Citation: 22 F.Supp.2d 1180
• Parties: PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation, Plaintiff, v. GATES RUBBER COMPANY, a Colorado corporation, Gates Energy Products, Inc., a Colorado corporation, The Gates Corporation, a Delaware corporation, Denver and Rio Grande Western Railroad, a Delaware corporation, Defendants.
• Court: U.S. District Court — District of Colorado

22 F.Supp.2d 1180

PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation, Plaintiff, v. GATES RUBBER COMPANY, a Colorado corporation, Gates Energy Products, Inc., a Colorado corporation, The Gates Corporation, a Delaware corporation, Denver and Rio Grande Western Railroad, a Delaware corporation, Defendants.

No. CIV. A. 96 N 1922.

United States District Court, D. Colorado.

December 16, 1997.

Garry R. Appel, Howard Kenison, Doherty, Rumble & Butler, P.C., Denver, CO, for Plaintiff.

Thomas C. Reeve, Linda J. Swanson, Bennington Johnson Ruttum & Reeve, Denver, CO, for Gates Defendants.

Kathleen M. Snead, Union Pacific Railroad Company, Denver, CO, for Defendant D & RGW.

Roger L. Freeman, Dean C. Miller, Davis, Graham & Stubbs, Washington, DC, for Defendant D & RGW.

ORDER AND MEMORANDUM OF DECISION

NOTTINGHAM, District Judge.

This is an action under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C.A. §§ 9601 to 9675 (West 1995 & Supp.1997). Plaintiff Public Service Company of Colorado ("PSCO") alleges that Defendants Gates Rubber Company, Gates Energy Products, Inc., and The Gates Corporation (collectively, "the Gates defendants"), as well as Defendant Denver and Rio Grande Western Railroad ("D & RG"), are liable for the costs associated with the cleanup of five parcels of land formerly used as the site of a metal salvaging business, and currently owned by PSCO. The matter is before the court on: (1) "The Gates Defendants' Motion for Summary Judgment" filed May 29, 1997; (2) "[D & RG's] Motion for Summary Judgment" filed June 27, 1997; (3) "[D & RG's] Motion for Summary Judgment" filed August 4, 1997; (4) "The Gates Defendants' Second Motion for Summary Judgment" filed August 4, 1997; and (5) "The Gates Defendants' Third Motion for Summary Judgment" filed August 4, 1997. Jurisdiction is based on 28 U.S.C.A. §§ 1331, 1346, and 1367 and 42 U.S.C.A. § 9613(b) (West 1993).

FACTS

From the 1940's until the mid-1980's, Barter Machinery and Metals Company ("Barter") operated a metal salvaging business in Denver, Colorado, generally located north and east of the intersection of South Santa Fe Drive and West Bayaud Avenue. (Final Pretrial Order, Stipulations ¶ 1 [tendered Oct. 1, 1997] [hereinafter "Stipulations"].) The site is comprised of five separate parcels of land located at 100 South Santa Fe Drive ("Lot A"); 101 South Santa Fe Drive ("Lot B"); 701 West Bayaud ("Lot C"); 60 Inca Street ("Lot D"); and 45 and 60-68 Inca Street ("Lot E"). Id. For more than twenty-five years, PSCO sold scrap metal to Barter, including scrap iron, copper, and electrical equipment. (The Gates Defs.' Br. in Supp. of their Mot. for Summ. J., Statement of Undisputed Material Facts ¶ 2 [filed May 29, 1997] [hereinafter "Gates' First Br."]; admitted at Pl.'s Br. in Opp. to Gates' Mot. for Summ. J., Resp. to Statement of Undisputed Material Facts ¶ 2 [filed June 23, 1997] [hereinafter "Pl.'s Resp. to Gates' First Br."].) PSCO also sold Barter oil-filled electrical transformers containing the hazardous substance polychlorinated biphenyls ("PCBs") during the period from 1963-75. (Gates' First Br., Statement of Undisputed Material Facts ¶ 2; admitted at Pl.'s Resp. to Gates' First Br., Resp. to Statement of Undisputed Material Facts ¶ 2.)

In 1989, Barter retained ATEC Environmental Consultants ("ATEC") to do some environmental testing on the Barter site. (Pl.'s Br. in Opp. to D & RG's Mot. for Summ. J., Statement of Additional Disputed Material Facts ¶ 1 [filed Aug. 27, 1997] [hereinafter "Pl.'s Resp. to D & RG's Second Br."], admitted at [D & RG's] Reply Br. in Supp. of its Mot. for Summ. J., Resp. Concerning Disputed Facts ¶ 1 [filed Sept. 10, 1997] [hereinafter "D & RG's Second Reply"].) On November 16, 1989, ATEC issued a preliminary assessment entitled "Phase I Environmental Report" which included "limited soil sampling" and analyzed "several oil stained areas" for PCBs. (Id., Statement of Additional Disputed Facts ¶ 1; admitted at D & RG's Second Reply, Resp. Concerning Disputed Facts ¶ 1.) In addition, ATEC sampled "iron stained soil" and "sludge in the drain pit" and then analyzed the "heavy metals" content of those samples. (Id., Statement of Additional Disputed Facts ¶ 1; admitted at D & RG's Second Reply, Resp. Concerning Disputed Facts ¶ 1.) ATEC found PCBs in the oil-stained areas of the soil and detected lead contamination in the areas tested. (Pl.'s Resp. to D & RG's Second Br., Statement of Additional Disputed Facts ¶ 1; admitted at D & RG's Second Reply, Resp. Concerning Disputed Facts ¶ 1.)

As of March 28, 1990, PSCO knew that the Barter site was contaminated with PCBs and recognized itself to be a potentially responsible party ("PRP") under CERCLA with respect to that cleanup. (Pl.'s Resp. to Gates' First Br., Resp. to Statement of Undisputed Material Facts ¶ 3; admitted at The Gates Defs.' Reply Br. in Supp. of their Mot. for Summ. J., Reply Concerning Undisputed Facts ¶ 3 [filed July 7, 1997] [hereinafter "Gates' First Reply"].) On April 25, 1991, Barter and PSCO reached an agreement to fund the cost of an in-depth investigation to ascertain the location and extent of the environmental contamination at the Barter site. (Pl.'s Resp. to D & RG's Second Br., Statement of Additional Disputed Material Facts ¶ 3; admitted at D & RG's Second Reply, Resp. Concerning Disputed Facts ¶ 3.) Defendants allege that the agreement was also negotiated because other contamination, including lead, was found at the site. (D & RG's Second Reply, Resp. Concerning Disputed Facts ¶ 3.) In 1992, PSCO proposed that title to the Barter properties be transferred to it in exchange for PSCO paying off tax and creditor's liens on the properties and cleaning up the parcels. (Gates' First Br., Statement of Undisputed Facts ¶ 5; admitted at Pl.'s Resp. to Gates' First Br., Resp. to Statement of Undisputed Material Facts ¶ 5.) PSCO intended to sell the site once it was cleaned up. (Id., Statement of Undisputed Facts ¶ 5; admitted at Pl.'s Resp. to Gates' First Br., Resp. to Statement of Undisputed Material Facts ¶ 5.) Barter and PSCO entered formal title agreements with respect to the Barter site on January 29, 1993; August 1993; and December 1993. (Pl.'s Resp. to Gates' First Br., Statement of Additional Disputed Facts ¶ 1; admitted at Gates' First Reply, Resp. Concerning Disputed Facts ¶ 1.)

PSCO commissioned an environmental assessment ("Environmental Assessment") of the site from ERM-Rocky Mountain, Inc. ("ERM"). (Pl.'s Resp. to Gates' First Br., Statement of Additional Disputed Facts ¶ 2; admitted at Gates' First Reply, Resp. Concerning Disputed Facts ¶ 2.) On or about September 25, 1992, PSCO received the Environmental Assessment of Lots A, C, and D. (Id., Statement of Additional Disputed Facts ¶ 2; admitted at Gates' First Reply, Resp. Concerning Disputed Facts ¶ 2.) On October 30, 1992, PSCO received a supplementary assessment of Lots A and E. (Id., Statement of Additional Disputed Facts ¶ 2; admitted at Gates' First Reply, Resp. Concerning Disputed Facts ¶ 2.)

The Environmental Assessment recommended cleanup levels and a preferred remedial approach. (Gates' First Br., Statement of Undisputed Facts ¶ 4; admitted at Pl.'s Resp. to Gates' First Br., Resp. to Statement of Undisputed Material Facts ¶ 4.) No other document was created to evidence alternative remedial methods for the Barter site beyond that provided in the ERM Environmental Assessment. ([D & RG's] Br. in Supp. of its Mot. for Summ. J., Statement of Undisputed Material Facts ¶ 6 [filed Aug. 4, 1997] [hereinafter "D & RG's Second Br."]; admitted at Pl.'s Resp. to D & RG's Second Br., Resp. to Statement of Undisputed Material Facts ¶ 6.) PSCO contends that, upon receiving the Environmental Assessment, it determined that the Barter site presented an "imminent threat" to the public health, safety, and welfare, particularly given the site's accessibility to children in the surrounding residential community. (Pl.'s Resp. to Gates' First Br., Statement of Additional Disputed Facts ¶ 3; disputed at Gates' First Reply, Resp. Concerning Disputed Facts ¶ 3 and D & RG's Second Br., Statement of Undisputed Material Facts ¶ 1.) PSCO's planned environmental cleanup or "response action"¹ at the Barter site was intended to effect a long-term, permanent remedy to the contamination at the site. (D & RG's Second Br., Statement of Undisputed Material Facts ¶ 7; admitted at Pl.'s Resp. to D & RG's Second Br., Resp. to Statement of Undisputed Material Facts ¶ 7.) The parties dispute whether PSCO ever gave the public an opportunity to comment on the process of hiring ERM to do an Environmental Assessment. (Gates' First Br., Statement of Undisputed Facts ¶ 4; Pl.'s Resp. to Gates' First Br., Resp. to Statement of Undisputed Material Facts ¶ 4.) The parties agree, however, that PSCO never solicited comments from any businesses or other PRPs prior to choosing its site action levels.² (Gates' First Br., Statement of Undisputed Facts ¶ 19; admitted at Pl.'s Resp. to Gates' First Br., Resp. to Statement of Undisputed Material Facts ¶ 19.)

PSCO selected United States Pollution Control, Inc. ("USPCI") to perform the cleanup, and USPCI's cleanup work at the Barter site began on November 30, 1992. (Pl.'s Resp. to Gates' First Br., Statement of Additional Disputed Facts ¶ 5; admitted at Gates' First Reply, Resp. Concerning Disputed Facts ¶ 5.) Construction of a security fence also began on this date. (Pl.'s Resp. to D & RG's Second Br., Statement of Additional Disputed Material Facts ¶ 14; admitted at D & RG's Second Reply, Resp. Concerning Disputed Facts ¶ 14.) On the day the clean-up began, PSCO posted a few English-only signs around the Barter site. (Gates' First Br., Statement of Undisputed Facts ¶ 13; admitted at Pl.'s Resp. to Gates' First Br., Resp. to Statement of Undisputed Material Facts ¶ 13.) The signs were identical to each other and simply read,...