The Bd. of County Commissioners of The County of La Plata v. Brown Group Retail Inc.

• Citation: 84 Fed. R. Evid. Serv. 1169,768 F.Supp.2d 1092
• Decision Date: 03 March 2011
• Docket Number: Civil No. 08–cv–00855–LTB–KMT.
• Parties: The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LA PLATA, COLORADO, Plaintiff,v.BROWN GROUP RETAIL, INC., Plummer Precision Optics Co., Blue Jaunte Company, Inc., and Plummer Precision Optics Western Division, Inc., Defendants.
• Court: U.S. District Court — District of Colorado

768 F.Supp.2d 1092

84 Fed. R. Evid. Serv. 1169

The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LA PLATA, COLORADO, Plaintiff,

v.BROWN GROUP RETAIL, INC., Plummer Precision Optics Co., Blue Jaunte Company, Inc., and Plummer Precision Optics Western Division, Inc., Defendants.

Civil No. 08–cv–00855–LTB–KMT.

United States District Court, D. Colorado.

March 3, 2011.

Ann M. Rhodes, Asimakis D. Iatridis, Josh Adam Marks, Berg Hill Greenleaf & Ruscitti, LLP, Boulder, CO, for Plaintiff.Gail L. Wurtzler, Jeffrey Ralph Pilkington, Kenzo Sunao Kawanabe, Robert Winston Lawrence, Davis Graham & Stubbs, LLP, Denver, CO, for Defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

BABCOCK, District Judge.

Trial to the Court in this environmental contamination case was held from October 4 through October 22, 2010. Based upon the parties' stipulations and written submissions, the evidence presented at trial, and the deposition testimony designated by the parties, I make the following findings of fact and conclusions of law:

I. Findings of Fact

I find the following facts based upon a preponderance of the evidence:

A. The Parties

1. La Plata County (“La Plata”) is a County of the State of Colorado, a political subdivision of the State.

2. Defendant Brown Group Retail, Inc. (“Brown Group”) is a Pennsylvania corporation authorized to do business in the State of Colorado. Through a series of corporate transactions, Brown Group is the successor in interest to and/or the same company via a name change as Brown Group Recreational Products, Inc. Brown Group is also a successor in interest to a company known as Outdoor Sports Industries, Inc. (“OSI”).

3. Defendant Blue Jaunte Company, Inc. (“Blue Jaunte”) is a Pennsylvania corporation with a registered office of 220 W. Gay Street, West Chester, PA 19380. Blue Jaunte was formerly known as and is the successor in interest to Defendant Plummer Precision Optics (“PPO”) and Defendant Plummer Precision Optics Western Division, Inc. (“Plummer Western”). Defendant Plummer Western was a wholly owned subsidiary of Defendant PPO. Blue Juante, PPO, and Plummer Western are collectively referred to herein as “the Plummer Defendants” or “Plummer.”

4. On April 17, 2009, I entered default judgment against each of the Plummer Defendants when they failed to plead or otherwise defend after being properly served. See Doc. No. 92. By its terms, this default judgment is subject to a final decree consistent with a final adjudication of the claims against Brown Group, the remaining defendant in this case. The Plummer Defendants are separate entities from Brown Group and likely have no assets with which to satisfy any monetary judgment entered against them.

B. General Background

5. This case concerns the contamination of property located at 742 Turner Drive in Durango, Colorado (“the Property”). The Property was formerly the site of a rifle lens manufacturing plant (the “Plant”) and is now the site of the La Plata County Detention Center (“the Jail”).

6. The Property sits on an upper hillside of the Bodo Industrial Park. Just down the hill from the Property are additional businesses along Suttle Street that are also located in the Bodo Industrial Park.

7. All property within the Bodo Industrial Park is, and has always been, zoned for industrial and commercial use. For some uses, the applicable covenants permit a custodial dwelling to be located on the property. However, no such dwellings have ever been built. The buildings in the Bodo Industrial Park are, and have always been, connected to City of Durango water and sewer services.

8. In 1975, OSI acquired the Property as vacant land and built the Plant on it. For purposes of simplicity, “Brown Group” is hereinafter also used to refer to OSI and its corporate successors.

9. From 1975–76 to 1979, Brown Group operated the Plant to produce optical lenses incorporated into rifle scopes and to assemble rifle scopes.

10. In September of 1979, Brown Group leased at least a portion of the Property and the Plant to Plummer. Brown Group also sold a substantial portion of its lens manufacturing equipment, material, and inventory to Plummer.

11. From 1979 to 1982, Plummer continued to operate the Plant using the same or similar processes as Brown Group. A number of Brown Group employees were also Plummer employees. Brown Group remained owner of the Property and the Plant and purchased lenses from Plummer throughout Plummer's tenancy.

12. Plummer closed the Plant in 1982. After Plummer exited the premises, Brown Group prepared the Property for sale and put it on the market.

C. Operations at the Plant

13. Trichloroethylene/trichloroethene (“TCE”); 1,1,1–trichloroethane (“TCA”); and 1,4 dioxane (collectively the “Solvents”) were used in the lens manufacturing process at the Plant and disposed of in unknown quantities by both Brown Group and Plummer.

14. The Solvents were used in one or more vapor degreasers that cleaned the lenses produced at the Plant. The vapor degreasers are generally described as metal containers several feet wide by several feet long and several feet high containing heated liquid Solvent and vapors. Trays of lenses were either lowered into the liquid Solvent or the layer of vapor above it or were sprayed with Solvent via a hose and sprayer attachment over the degreaser.

15. At times, Solvents dripped onto the Plant's concrete floors from the lenses that had been cleaned in the vapor degreaser. Most of these drips evaporated quickly. Some, however, were washed into floor length trench drains along with other substances when the floors were cleaned at the end of a shift. Plant employees also occasionally dumped water used to clean the floors, including drips of Solvent, down sinks at the Plant. From the Plant's trench drains and sinks, Solvents and other substances entered the plumbing underneath the Plant.

16. Drums of new and waste Solvents were stored on a loading dock located on the east side of the Plant. There is insufficient evidence to support a finding that Solvents in any significant amount spilled or leaked from these drums or that spills or leaks from these drums caused contamination at the Property or offsite.

17. Rags used to wipe up Solvent drips and spills were disposed of in a dumpster located outside the Plant near the loading dock on the east side of the Plant. There is insufficient evidence to support a finding that Solvents spilled or leaked from this dumpster or that any spills or leaks from this dumpster caused contamination at the Property or offsite.

18. Stella Silva, a former Plant employee, testified that she and other employees dumped pans of unknown substances on the ground on the east side of the Plant to the north of the loading dock. There is insufficient evidence to support a finding that the pans being dumped contained Solvents. Instead, based on the duties Ms. Silva performed at the Plant, it is likely that the pans being dumped contained acetone. Acetone is not a chemical of concern in this case.

19. Perry Barnes, another former Plant employee, testified that on two or three occasions he mixed a liquid that was the same black color as that contained in the vapor degreaser with another substance that he was told would neutralize the liquid and produce salt water. Mr. Barnes testified that combining the two substances produced heat and 4–6 inches of foam that was light brown in color. Mr. Barnes testified that he dumped the mixture on the ground to the east of the loading dock on the west side of a berm located near the eastern boundary of the Property. According to Mr. Barnes, the dumped mixture traveled south less than 50 feet and was absorbed into the soil.

20. The weight of expert testimony on this issue indicates that the mixture dumped by Mr. Barnes contained, at most, low concentrations of Solvents. Specifically, the foaming reaction described by Mr. Barnes would not result from adding a neutralizing substance to Solvents nor would this process produce salt water. Instead, Mr. Barnes description is more consistent with neutralizing a predominantly water based solution with acid. In addition, the soil gas readings in the area where Mr. Barnes dumped the mixed substance do not show the significant levels of Solvents that would be expected if Mr. Barnes was neutralizing essentially pure Solvent. The dumping described by Mr. Barnes therefore did not contribute to Solvent contamination at the Property or offsite.

D. State of Practice/Standard of Care During the Plant's Operations

21. During the time the Plant was in operation, Solvents were commonly used in manufacturing operations and were a common ingredient in cleaning products. During this time, there was a growing awareness that TCA and TCE were potentially dangerous chemicals though there was little regulation relating to the handling and disposal of these Solvents.

22. Plant employees received little to no training on the dangers of Solvents or appropriate methods for handling and disposing of them. Nonetheless, there is insufficient evidence to support a finding that Brown Group's management and handling of Solvents during the applicable time period did not meet the standards of care in the industry that existed at that time in the State of Colorado.

E. La Plata's Purchase of the Property

23. On December 20, 1982, La Plata entered into a contract to buy the Property from Brown Group for $650,000.

24. Prior to entering into the sale contract, representatives of La Plata including former County Commissioner Sara Duncan and former County Attorney David Dickinson toured the Plant after Plummer had ceased manufacturing operations. Ms. Duncan and Mr. Dickinson did not recall observing any evidence of possible chemical contamination at the Property but acknowledged that they were not actively looking for such evidence and had no experience or expertise at that time with environmental concerns relating to real estate transactions.

25. Ms. Duncan...