Williams Pipe Line Co. v. Bayer Corp.
| Decision Date | 14 April 1997 |
| Docket Number | Civil No. 4-95-CV-20158. |
| Citation | 964 F.Supp. 1300 |
| Parties | WILLIAMS PIPE LINE COMPANY, Plaintiff, v. BAYER CORPORATION, Defendant. |
| Court | U.S. District Court — Southern District of Iowa |
Paul Horvath, Des Moines, IA, Claire Eagan, Tulsa, OK, for plaintiff.
Jane McAllister, Ivan Webber, Des Moines, IA, for defendant.
This case arises from Defendant Bayer Corporation's ("Bayer") refusal to allow Plaintiff Williams Pipeline Company ("Williams") to enter its property to implement Williams' planned remediation of the environmental contamination on Bayer's property. The contamination has come from spills and leaks of petroleum hydrocarbons from above-ground storage tanks, and other releases on Williams' land. Williams seeks a declaratory judgment allowing it access to Bayer's land to install monitoring and recovery equipment for remediation of Bayer's property.
Bayer has filed a counterclaim based on state-law claims of strict liability, nuisance trespass, negligence, and alleging violation of environmental protection statutes: Iowa Code § 455B.186; the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §§ 6901 et seq. (1995 & Supp.1997); and the Clean Water Act ("CWA"), 33 U.S.C. §§ (1986 & Supp.1997). Bayer seeks the full cost of cleanup of its land, compensation for other losses, abatement, and the reasonable cost of litigation, including attorney and expert-witness fees.
Trial was held on October 10 through 14, 1996. Written closing statements were filed by November 5, 1996. After the trial, the Court raised sua sponte the issue of whether it had subject matter jurisdiction over certain claims. Parties submitted written statements and supplemental authorities on February 20, 1997. At a hearing on February 26, 1997, counsel presented arguments on subject matter jurisdiction, and any related matters.
On April 10, 1997, Bayer filed a Motion to Re-open Discovery and for Additional Time to File a Motion to Re-open Evidence.
I. HISTORICAL AND PROCEDURAL BACKGROUND ............................. 1307
A. Before 1985 ................................................. 1308
B. 1985 to 1988 — First NPDES Permit Period .............. 1309
C. 1989 to 1993 — Second NPDES Permit Period ............. 1311
D. 1994 to Present — Third NPDES Permit Period ........... 1313
E. The Claims .................................................. 1315
II. FURTHER FINDINGS OF FACT AND CONCLUSIONS OF LAW .................. 1316
A. Clean Water Act Claim ........................................ 1316
1. Background ............................................... 1316
2. Citizen-Suit Provision ................................... 1317
a. Exception to Citizen Suit Provision ................. 1317
1) Violation ...................................... 1318
2) Commence an Action ............................. 1320
3) Comparable to Subsection 309(g) ................ 1323
4) Diligent Prosecution ........................... 1324
b. Alleged Violations within Scope ..................... 1325
1) Discharge to Swamp ............................. 1325
2) Seepage from Swamp ............................. 1326
c. Conclusion .......................................... 1327
B. Resource Conservation and Recovery Act Claim ................. 1327
1. Spills and Leaks without a Permit ....................... 1327
2. Placing Groundwater in Surface Impoundment .............. 1329
C. Iowa Code Chapter 455B Claim ................................. 1329
D. State Tort Law Claims ........................................ 1329
E. Damages ...................................................... 1331
1. Nature of Damages ........................................ 1331
2. Measure of Damages ....................................... 1331
a. Diminution of Market Value ........................... 1332
b. Special Damages ...................................... 1332
c. Injunctive Relief .................................... 1332
F. Claim for Declaratory Relief ................................. 1333
G. Motion to Re-open Discovery .................................. 1334
III. CONCLUSION ....................................................... 1335
V. APPENDIX A ....................................................... 1336
The Court makes the following findings of fact and conclusions of law based on the record submitted.
Williams transports petroleum products through its common-carrier interstate-pipeline system, which includes terminal facilities in several states. The Williams' facility at issue in this case lies on 100 acres in Pleasant Hill, Iowa, approximately 2,000 feet north and within the flood plain, of the Des Moines River, a navigable water of the United States. (See Appendix A at 1-2.) Williams stores and transports more petroleum compounds than any other facility in Iowa.
Bayer's facility lies adjacent to Williams' site, west and across S.E. 43rd Street. Bayer's facility encompasses about 35 acres, of which approximately five acres is contaminated. A generating station owned by Iowa Power and Electric Company extends south-west, and is located south of Bayer's property toward the Des Moines River.
A significant number of spills, leaks and other releases have occurred at the Williams site over the years.1 In one instance, tens of thousands of gallons of crude oil spilled from a pipeline break at the Williams site in approximately 1981 or 1982. Jack Clemens, director of the Iowa Department of Natural Resources' ("DNR") Environmental Protection Division Field Office 5, testified that his office responded to the spill, and he saw some of the oil settled in a wetland area, referred to as the swamp, on the southeastern end of the site. Williams was trying to clean the oil to use it again. Clemens testified the oil "was so thick they had to use special machines and front end loaders and mix straw with it, and they had to clean the straw out again." Ex. 82, Clemens Dep. at 10. He said the attempt to clean the oil in the swamp was "one of the biggest [operations] that they ever had in the state of Iowa." Id.
Concerned about pollution as a result of spills and leaks of gasoline and diesel fuels, DNR initiated an environmental investigation on the Williams site. In January 1983, DNR directed Williams to have an environmental consulting firm investigate the site and prepare a report. Leggette, Brashears & Graham, Inc. ("Leggette"), conducted a preliminary investigation of possible hydrocarbon contamination of the shallow groundwater system at Williams' Des Moines site. Leggette's report, submitted in May 1983, confirmed the presence of hydrocarbon contamination in the groundwater system.
After reviewing Leggette's report, DNR required Williams to devise a remediation plan for DNR approval, and begin remediation efforts to reduce the gasoline or petroleum compounds in the groundwater that exceeded the state's clean-up levels. DNR's rules establish clean-up goals based on Iowa Administrative Code Chapter 135 () and federal Environmental Protection Agency ("EPA") standards. Steve Grgurich, who has worked in enforcement for approximately 11 years for DNR, testified that DNR's goal for the Williams site was to have contaminant levels the same as the maximum contaminant levels for drinking water.
In compliance with DNR's directive, Williams contracted with Leggette to drill additional exploratory wells in September 1983 to further define the extent of contamination. In a January 1984 report, Leggette concluded the hydrocarbon-product contamination on the Williams site consisted mainly of gasoline in a water emulsion, and the direction of the groundwater movement was to the south and southwest, toward the Des Moines River.
The consultants determined that a test recovery well efficiently controlled the movement of groundwater within a radius of about 800 feet from the well after 50 hours of pumping.
To remediate, Leggette recommended that Williams install a permanent system consisting of a permanent recovery well; waterpumping equipment, including an underground discharge pipe extending from the well head to the burn pond2 in the swamp area; a hydrocarbon pump to be installed above the water pump; a tank to store recovered hydrocarbons; a water-discharge-and-treatment system; and water-quality monitoring from the discharge pipe and from the swamp. The report described the water-discharge-and-treatment system as follows:
1. The water discharge from the recovery well should be pumped to the swamp in the burn pond area.
2. The swamp area should be used as a retention basin for ground-water discharge.
3. The movement of water from the swamp to the Des Moines River should be controlled by the valve in the existing piping system which connects the swamp with the river.
4. The swamp water should be treated by one or more floating aeration pumps. The function of these pumps is to reduce dissolved hydrocarbon components to levels acceptable to the State of Iowa.
5. When the water quality in the swamp meets surface water discharge standards, the discharge of water from the swamp to [sic] Des Moines River should proceed.
Ex. CA at 23. Leggette's recommendations stated, "Additional water treatment should be considered in the event that the water quality in the swamp area does not meet the State of Iowa requirements." Id. at 24.
The state approved the proposed...
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