United States v. Gibson Wine Co.
| Decision Date | 25 April 2016 |
| Docket Number | Case No. 1:15-cv-1900-AWI-SKO |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. GIBSON WINE CO., Defendant. |
| Court | U.S. District Court — Eastern District of California |
ORDER GRANTING MOTION TO STRIKE AFFIRMATIVE DEFENSES
(Doc. 13)
The United States of America ("United States" or "Government") has brought the instant environmental protection action against Gibson Wine Company ("Gibson") related to its winemaking activities in Sanger, California. On February 26, 2016, Gibson filed an answer to the Government's complaint which, in addition to addressing each of the Government's causes of action, alleges thirteen affirmative defenses. Doc. 5. The United States now brings a motion, under Federal Rule of Civil Procedure 12(f),1 to strike four of the affirmative defenses alleged by Gibson. Doc. 13. That motion is now fully briefed. Specifically, United States argues that Gibson's third (statute of limitations), sixth (laches), eleventh (selective enforcement), and thirteenth (general reservation) affirmative defenses should be stricken as insufficient as a matterof law and as a matter of pleading. Gibson opposes the Government's motion as to all but Gibson's thirteenth affirmative defense, which it concedes should be stricken.
For the following reasons, the United States' motions to strike affirmative defenses will be GRANTED. Gibson will be afforded leave to amend its sixth and eleventh defenses.
Gibson owns and operates a winemaking facility in Sanger, California. Complaint at ¶ 19. In order to operate that facility, Gibson maintains refrigeration systems. Id. at ¶ 21. Those refrigeration systems require the storage and use of anhydrous ammonia, a "regulated substance" explicitly listed in Section 112(r)(3) of the Clean Air Act ("CAA"), 42 U.S.C. § 7412(r)(2)(B) & (r)(3)2 and 40 C.F.R. § 68.130 (designating regulated substances), a "hazardous substance" for purposes of Section 102 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9602 and 40 C.F.R. § 302.4 (designating hazardous substances), and an "extremely hazardous substance" for purposes of Section 304 of the Emergency Planning and Community Right-to-Know Act ("EPCRA"), 42 U.S.C. § 11002 and 40 C.F.R. Part 355, Appx. A & B.3
On September 11, 2012, the winemaking facility "experienced a 284-pound release of anhydrous ammonia from its ammonia refrigeration system." Complaint at ¶ 22; see Answer at ¶ 22.4 The Government alleges that the release "occurred when a worker attempted to defrost an ammonia chiller and opened the oil valve instead of the hot gas valve, causing ammonia to release into the environment." Complaint at ¶ 22. A cloud of ammonia formed in the winemaking facility and the facility was evacuated. Complaint at ¶ 23; Answer at ¶ 23. One of Gibson's contract employees was "overcome by the ammonia cloud" and died. Complaint at ¶ 23; see Answer at ¶ 23.
The United States alleges that the release of ammonia from the winemaking facility exceeded the 100-pound reporting threshold. Complaint at ¶ 24 (citing 40 C.F.R. § 302.4); see 40 C.F.R. Part 355, Appx. A & B. The United States further alleges that Gibson did not immediately notify the National Response Center ("NRC") or the State Emergency Response Commission ("SERC").5 Complaint at ¶ 24. Instead, it waited until 37 hours after the release to report to the NRC. Complaint at ¶ 24; but see Answer at ¶ 24 (). Gibson never reported the release to the SERC but the SERC learned of the release from the NRC. Complaint at ¶ 24.
On January 8, 2013, the Environmental Protection Agency ("EPA") "conducted an investigation of the [winemaking] [f]acility." Complaint at ¶ 25; Answer at ¶ 25. The United States alleges that it discovered the following ten violations of the CAA, one violation of EPCRA, and one violation of CERCLA during the investigation, Complaint at ¶ 25.
The United States alleges that each of the following situations violated Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1) by failing to (1) identify hazards which may result from chemical releases using appropriate hazard assessment techniques, (2) design and maintain a safe facility taking such steps as are necessary to prevent releases, or (3) minimize the consequences of accidental releases which do occur. The United States relies on publications from the "International Institute of Ammonia Refrigeration and California's Accidental Release Prevention Program to identify violations of CAA's general duty with respect to ammonia refrigeration systems." Complaint at ¶¶ 13-14.
First, the United States alleges and Gibson denies that Gibson's ammonia-carrying refrigeration piping did not contain required markers and labels. Complaint at ¶ 27; Answer at ¶ 27.
Second, the United States alleges that Gibson failed to keep an accurate inventory of the ammonia kept in and for Gibson's refrigeration system. Complaint at ¶ 29; see 19 C.C.R. § 2755.1(a)(2). Gibson admits that its maximum inventory estimate was inaccurate. Answer at ¶29. However, Gibson alleges that its inventory estimate over-reported the maximum inventory and was therefore in substantial compliance.
Third, the United States alleges that Gibson "failed to adequately document the code and standards used to design, build, and operate its ammonia process." Complaint at ¶ 31; see 19 C.C.R. § 2755.1(a)(5). In fact, the United States alleges that the ammonia system was built in compliance with a liquid petroleum standard, not applicable to an ammonia process. Complaint at ¶ 31. Gibson alleges that it relied on "state licensed refrigeration contracts to design, construct, and providing servicing of its refrigeration system." Answer at ¶ 31.
Fourth, the United States alleges and Gibson admits that Gibson failed to maintain a plug on oil drain lines when not in use, or install a deadman valve—a fail-safe mechanism that would cease to release gas if the operator released hand pressure on the valve—on the oil drain at the time of release. Complaint at ¶ 33; Answer at ¶ 33. However, Gibson contends that it was not responsible for its failure because it relied on contracts and inspectors that had informed Gibson that its refrigeration system was up to industry standards and in compliance with state regulations. Answer at ¶ 33.
Fifth, the United States alleges and Gibson denies that Gibson failed to maintain and "implement written standard operating procedures for thawing and draining oil from the ammonia chillers...." Complaint at ¶ 35; Answer at ¶ 35; see 19 C.C.R. § 2755.3. The United States alleges that "[t]he September 11, 2012 release could have been avoided if [Gibson] had maintained written standard operating procedures for thawing or draining oil from the chiller. Complaint at ¶ 35. Gibson alleges that "it had in place at the time of the release incident a written Standard Operating Procedure for thawing and draining oil from ammonia chillers. Answer at ¶ 35.
Sixth, the United States alleges and Gibson denies that Gibson "failed to adequately train and evaluate employees who operated the ammonia chiller valves and who worked in the vicinity of the ammonia chiller valves." Complaint at ¶ 37; Answer at ¶ 37; see 19 C.C.R. § 2755.4.
Seventh, the United States alleges that Gibson "failed to inspect and maintain the mechanical integrity of the [ammonia] process equipment." Complaint at ¶ 39; see 19 C.C.R. §2755.5(a)-(d). The United States further alleges that, as of September 11, 2012, Gibson had failed to conduct annual mechanical integrity inspections or five year maintenance audits. Complaint at ¶ 39. The United States additionally alleges that, on the date of the inspection, inspectors identified pressure relief equipment that was overdue for replacement. Complaint at ¶ 39. Gibson denies all of those allegations. Answer at ¶ 39.
Eighth, the United States alleges and Gibson denies that "at the time of the September 11, 2012 [ammonia] release, [Gibson] had not conducted a compliance audit within the past three years." Complaint at ¶ 41; Answer at ¶ 41; 19 C.C.R. § 2755.6.
Ninth, the United States alleges and Gibson denies that Gibson "failed to prepare and implement an adequate emergency response plan." Complaint at ¶ 43; Answer at ¶ 43. The United States described that an adequate plan must include "evacuation procedures and routes, procedures for accounting for employees, employee rescue procedures, and reporting requirements." Complaint at ¶ 43. The United States alleges and Gibson denies that Gibson's plan lacked "adequately identified escape routes." Complaint at ¶ 43; Answer at ¶ 43.
Tenth, the United States alleges and Gibson denies that Gibson "failed to prove adequate emergency response equipment and training," including "initial and refresher training, and exercises[] regarding hazards associated with ammonia, safe work practices, and the emergency response plan." Complaint at ¶ 45; Answer at ¶ 45.
The United States notes that federal law allows the Administrator of the EPA to commence a civil suit seeking "a civil penalty of up to $27,500 per day for each violation that occurred after January 30, 1997 through March 15, 2004, up to $32,500 per day for each violation that occurred after March 15, 2004 through January 12, 2009, and up to $37,500 per day for each violation that occurred after January 12, 2009." Complaint at ¶¶ 47-48.6
The United States seeks CAA penalties in the amount of "$37,500 per day for each day of violation ... of the CAA that occurred after January 12, 2009." Complaint at p. 13.
The United States alleges and Gibson denies that Gibson violated Section 103 of CERCLA when it failed to report the September 11, 2012, release of anhydrous ammonia to the NRC upon learning of the release. Complaint at ¶ 52; see 42 U.S.C. § 9603(a). The...
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