Roberts v. Heating Specialist Inc.
| Decision Date | 05 August 2014 |
| Docket Number | Case No. 3:12-cv-01820-SI |
| Parties | NANCY ROBERTS and GEORGE ROBERTS, as trustee of the George Tudor Strong Roberts and Nancy Jane Roberts Chapter 11 Estate, Plaintiffs, v. THE HEATING SPECIALIST INC., ROBERT GORDON, and IRS ENVIRONMENTAL OF PORTLAND, INC., Defendants. |
| Court | U.S. District Court — District of Oregon |
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Kenneth P. Dobson, CHENOWETH LAW GROUP, PC, 510 S.W. Fifth Avenue, Portland, OR 97204. Of Attorneys for Plaintiffs.
Gregory W. Byrne, BUCKLEY LAW PC, 5300 Meadows Road, Suite 200, Lake Oswego, OR 97035. Of Attorneys for Defendant The Heating Specialist Inc.
Plaintiffs Nancy Roberts and George Roberts (collectively "Plaintiffs"), trustees of the George Tudor Strong Roberts and Nancy Jane Roberts Chapter 11 Estate, seek contribution from Defendant The Heating Specialist Inc. ("Defendant" or "THS") under Section 113 of the federal Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42U.S.C. §§ 9601-9675. THS denies that it is liable under CERCLA and further argues that the service contract between the parties limits THS' liability.
The Court has jurisdiction over this matter under 28 U.S.C. § 1331. The Court held a bench trial on June 18 and 19, 2014. Having weighed and evaluated all of the evidence in the same manner that it would instruct a jury to do and having fully considered the legal arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a) ("Rule 52(a)").
The Court finds the following facts by a preponderance of the evidence.
1. Plaintiffs are New Mexico residents and trustees of their Chapter 11 bankruptcy estate administered under the case filed on January 7, 2011, in the U.S. Bankruptcy Court for the District of New Mexico entitled In re Roberts, Case No. 11-10058-j11.
2. Plaintiff Nancy Roberts is the owner of residential rental property located at 909 S.W. Washington Street, Oregon City, Oregon (the "Property").
3. Defendant THS is an Oregon corporation engaged in the business of boiler system sales, installation, and repairs.
4. In February 2011, THS replaced a boiler located in the basement of the Property pursuant to a written contract between THS and Plaintiffs. THS removed the old boiler from the Property with the intent to dispose of the old boiler.
5. The U.S. Environmental Protection Agency ("EPA") asserted a claim under § 107 of CERCLA, 42 U.S.C. § 9607, against Plaintiffs in the bankruptcy action, seeking recovery of $124,441.00 for environmental investigation and cleanup costs that the EPA incurred responding to the suspected release of mercury at the Property.
6. Defendant IRS, Inc. ("IRS")1 is an Oregon corporation engaged in the business of asbestos, lead, and hazardous substance abatement.
7. Defendant Robert Gordon is an Oregon resident and serves as the Environmental Safety Officer of IRS.
8. The Property was vacant in February 2011. Plaintiffs listed the Property for rent with a realtor. There was a lockbox on the Property.
9. THS removed and replaced the old boiler on February 17, 2011. THS gained access to the Property by using the lockbox.
10. Between February 17, 2011 and March 24, 2011, approximately 11.2 inches of precipitation was recorded at Oregon City, Oregon.
11. On March 23, 2011, Clackamas County Fire District #1 and the City of Gresham Hazmat Team #3 responded to a report of a mercury spill at the Property. An Oregon City Public Works official contacted Plaintiffs on March 24, 2011. Plaintiffs contracted with IRS to clean up and remove the mercury from the Property.
12. On March 29, 2011, EPA inspectors visited the Property to begin performing a site assessment.
13. EPA inspectors also found mercury contamination at 911 S.W. Washington Street, across the alley from the Property. A family with four children, ages 9 through 15, lives at that address.
14. Following IRS' remediation attempt, Plaintiffs attempted to clean up the mercury themselves. They were not successful in removing all of the mercury.
15. Following Plaintiffs' cleanup attempt, the EPA hired contractors to conduct the cleanup and removal. The EPA completed the cleanup on May 11, 2011.
16. Plaintiffs settled with IRS and Gordon and will assume their allocated fault.
In these findings of fact, the Court relies on the testimony of the following six witnesses who testified at trial: Nancy Roberts, Otto Loenneker, T. Jeff O'Neal II, Ron Schweiger, Daniel Brent, and David Brent. The Court also relies on the declarations of the following four individuals submitted in lieu of live testimony: Jeffrey Fowlow, Jeff Strong, Shermalee Fae Roake, and Cory Strong. Having observed and considered the testimony of each of the live witnesses, the Court concludes that all live witnesses other than Mrs. Roberts and David Brent provided fully credible testimony.2 The Court has some doubts regarding the full credibility of both Mrs. Roberts and David Brent based on contradicting testimony provided by other witnesses.
Mrs. Roberts explained the circumstances of the EPA cleanup based on her recollection, specifically stating that she fully consented to the EPA's inspection of the Property and took extensive precautions in her independent attempt to clean up the mercury. Jeffrey Fowlow, the EPA On-Scene Coordinator ("OSC") who directed and oversaw the EPA's CERCLA remediation action at the Property, however, explained that Mrs. Roberts: (1) revoked herconsent to access the Property; (2) postponed her meeting with Jeffrey Fowlow in order to undertake and attempt herself to clean up the mercury at the Property; (3) failed to get a receipt documenting that she disposed of contaminated materials at a hazardous waste site; (4) admitted that she did not wear protective equipment, including booties (shoe coverings), when she conducted her cleanup of mercury at the Property; and (5) refused either to hire a contractor or grant the EPA access to the Property after her failed cleanup efforts. The Court has no reason to doubt the veracity of Jeffrey Fowlow's declaration and finds that the contradictions noted above undermine the Court's ability fully to rely on Mrs. Roberts' testimony. This conclusion is also buttressed by the fact that Mrs. Roberts stated on several occasions that she had difficulty recalling the events at issue in this dispute.
David Brent's testimony was at times in conflict with the testimony of Mr. Loennecker and Mr. Schweiger. David Brent explained that he was in the basement of the Property during the installation of the new boiler system and that there were no parts of the old boiler system that contained mercury. Yet Mr. Loennecker testified that David Brent did not participate in the physical labor of dismantling the old boiler system and was designing the new boiler system during that time. Although David Brent may not have directly observed a component that could contain mercury in the old boiler system, his limited participation in dismantling the system means that his testimony on this issue has limited probative value. Further, David Brent's testimony that no vehicles from THS were parked in the driveway at the Property is in conflict with Mr. Schweigers' testimony. Mr. Schweiger, a neighbor living adjacent to the Property, observed a white van with a THS logo parked in the driveway of the Property while THS was removing the boiler. Mr. Loennecker also noted that Daniel Brent, a THS employee involved in the removal of the old boiler system, may have driven his van around to the drivewayimmediately behind the Property. These contradictions indicate that portions of David Brent's testimony may not accurately reflect the relevant facts in this case.
When Mrs. Roberts purchased the Property, the boiler system in use was old and outdated. The three previous owners of the Property stated that they had not replaced the boiler system. After consulting with a real estate agent, Mrs. Roberts received advice that she should update the boiler system if she ever planned to sell the home. Mrs. Roberts then consulted with several companies, including THS, in order to get bids to do the work.
On February 10, 2011, Mrs. Roberts accepted THS' proposal to remove and replace the old boiler system at the Property. THS began work on February 17, 2011, and completed the boiler removal and installation on February 18, 2011. Three THS employees were assigned to the project: (1) David Brent, certified with a State of Oregon Class 3 Boilers License and the president of THS; (2) Otto Loennecker, certified with a State of Oregon Class 1 Boilers License and an employee of THS beginning in 2004; and (3) Daniel Brent, employed by THS beginning in 2010 as a helper and installer and David Brent's son. The three people accessed the Property by using a code for a lockbox that Mrs. Roberts provided to THS. Mrs. Roberts also gave the lockbox code to a prospective tenant and a realtor. Mr. Schweiger, a neighbor, did not observe any other individuals entering or leaving the Property while it was unoccupied. At least one van owned by THS and used in the boiler removal and installation process was parked in the driveway of the Property.
During the removal process, Daniel Brent and Otto Loennecker focused their efforts on removing the old boiler system, and David Brent focused his efforts on custom designing the new boiler system. The THS personnel were in the basement during the February 17, 2011 removal of the old boiler system. The basement had dim lighting. Mr. Loennecker observed thatthe old boiler system looked very old, that the boiler had "atomic" lettering that could be from the 1960s, and that the pump that was a part of the active system probably dated back to the 1940s. Mr....
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