Seattle Times Co. v. Leathercare, Inc.
Seattle Times Co. v. Leathercare, Inc.
Opinion of the Court
THIS MATTER came on for trial on January 9, 2018, before the Court, sitting without a jury. Seattle Times Company ("Seattle Times") was represented by Jeff Kray and Jessica Ferrell of Marten Law PLLC. LeatherCare, Inc. ("LeatherCare"), Steven Ritt, and the marital community composed of Steven Ritt and Laurie Rosen-Ritt were represented by Jo Flannery and Kristin Meier of Ryan, Swanson & Cleveland, PLLC. Touchstone SLU LLC and TB TS/RELP LLC (collectively, "Touchstone") were represented by Jeremy (Jake) Larson of Dorsey & Whitney LLP and Kenneth Lederman of Foster Pepper PLLC.
Trial proceeded for eighteen (18) days and ended on February 7, 2018, at which time the Court took the matter under advisement. Having considered the testimony of the witnesses,
Background
A. Introduction
This action concerns the remediation costs associated with hazardous substances, including PCE or Perc
In this action, Touchstone seeks to recover over $9.88 million in connection with its remedial activities.
1. The Property
The Property consists of two tax parcels, covering approximately 2.5 acres of land, in a neighborhood of Seattle just south of Lake Union, as shown on the following map.
Troy acquired a portion of the Property in 1925, and owned the entire block by 1951. When Seattle Times purchased the Property from Troy in 1985, the Property had three improvements, as shown in Figures 2 and 3, namely a vintage warehouse built in 1925, located at 334 Boren Avenue North (Building 1),
*1010Troy operated in Building 2 both an industrial laundry and a dry-cleaning plant. Troy also fueled and serviced its fleet of vehicles at the Property. In 1957, LeatherCare's predecessor, Seattle Fur Services, began leasing a portion of Building 2 from Troy. In 1981, LeatherCare also became a tenant of Building 3. LeatherCare continued to lease from Troy until March 5, 1985, when Troy sold the Property to Seattle Times for $3.5 million. From March until September 1985, LeatherCare leased space in Building 2 from Seattle Times, and LeatherCare occupied Building 3 until 1999. See infra p. 1027-28. On June 10, 2011, Seattle Times sold the Property to Touchstone for $18.4 million. As a result of Touchstone's redevelopment efforts, the Property is now occupied by a two-building complex with a five-story, underground parking garage. Figure 4 shows the new office space in the final stages of construction.
*10112. The Hazardous Substances
This matter involves two types of hazardous substances, namely (i) halogenated hydrocarbons,
a. Halogenated Hydrocarbons
PCE or Perc, which is a halogenated hydrocarbon, is a synthetic chemical that is not known to occur in nature. See Tab 11 to Dale Report (docket no. 183-13 at 19 & 22). During the period when LeatherCare leased Buildings 2 and 3 from Troy, PCE was commonly used as a solvent in the dry-cleaning industry, and it was the dominant synthetic solvent. See Dale Report, Ex. 210 at 2 (filed as docket no. 118-1). Because of its tendency to transition from a liquid to a gaseous state at normal temperatures, PCE is considered a volatile organic compound ("VOC"). See Tab 11 to Dale Report (docket no. 183-13 at 41 & 47). PCE is also described as a dense non-aqueous phase liquid ("DNAPL"), meaning that it has a higher specific gravity (i.e. , it is heavier) than water, and that it will separate from water, in a manner similar to how oil and vinegar, or the fat and juice of roasted meat drippings, will settle into different layers. See id. (docket no. 183-13 at 40-41).
PCE can degrade into trichloroethylene or trichloroethene ("TCE"), as well as other compounds, including vinyl chloride (C2 H3 Cl). Chronic inhalation exposure to these substances can lead to neurological disorders, kidney or liver disease, and/or reproductive dysfunction. See PCE Fact Sheet, Ex. 457; see also Toxicological Profiles (available at www.atsdr.cdc.gov). The United States Environmental Protection Agency ("EPA") has classified PCE as "likely to be carcinogenic" and both TCE and vinyl chloride as "carcinogenic to humans."
*1012See https://www.epa.gov/fera/risk-assessment-carcinogenic-effects (Table 1). In addition to being a degradation product of PCE, TCE is frequently an original component of water and stain repellants, vehicle brake part and carburetor cleaners, sizing materials, spotting and degreasing agents, lubricants, battery terminal protectants, and printing inks like those used by Seattle Times. Morrill Report at §§ 4.2.1.2.1 & 4.8 and App'x J, Ex. 1141 (filed as docket nos. 117-1 & 117-13); see also https://www.epa.gov/sites/production/files/2015-01/documents/printing.pdf.
The Washington Department of Ecology ("Ecology") has established "cleanup" levels for certain chlorinated hydrocarbons, which are the concentrations "in soil, water, air, or sediment" that are "determined to be protective of human health and the environment under specified exposure conditions." WAC 173-340-200. The "cleanup" concentrations relevant in this litigation are as follows:
Substance In Soil In Groundwater PCE 0.05 mg/kg 5 µg/liter TCE 0.03 mg/kg 5 µg/liter Vinyl Chloride N/A 0.2 µg/liter
WAC 173-340-900 at Tables 720-1, 740-1, & 745-1.
b. Petroleum Products
Other contaminants of concern at the Property were Stoddard solvent, gasoline, and diesel fuel. Like PCE, Stoddard solvent was once a popular compound in the dry-cleaning industry. Stoddard solvent is a flammable, volatile liquid, which is insoluble in water and smells similar to kerosene or gasoline. It is not generally regarded as carcinogenic, but very few studies have been done on the effects in humans of inhalation exposure to Stoddard solvent. See Toxicological Profile for Stoddard Solvent (June 1995), Ex. 452 at 23. Stoddard solvent is considered a gasoline-range petroleum hydrocarbon ("GRPH"). At the Property, Stoddard solvent was stored in underground tanks. Gasoline for use in Troy's fleet of vehicles and diesel fuel for use presumably as heating oil were also stored underground. Ecology has set a "cleanup" level for GRPH of 100 mg per kg of soil. See WAC 173-340-900 at Tables 740-1 & 745-1.
3. PCE Emissions from Dry-Cleaning Operations
In this matter, the parties have stipulated that, as a result of dry-cleaning operations, PCE was released into the subsurface soil and migrated to the groundwater beneath the Property. See Stip. & Order at ¶ 2 (docket no. 41); Stip. & Order at ¶ 2 (docket no. 52). The parties also agree that the contamination occurred primarily in two ways. First, it resulted from placing PCE-saturated materials in the back of a dump truck, which was owned and used by Troy to haul waste to a transfer station, and which was left, uncovered at times, in the partially-unpaved loading dock, thereby allowing rain water to soak through the rubbish and solvent to infiltrate the soil. See PTO at 10, ¶ 22. Second, PCE was discharged into the subsurface soil because of degradation of the drainpipes and side sewers
a. Components of a Dry-Cleaning System
To fully comprehend the parties' stipulations concerning how PCE was released at the Property, knowledge about dry-cleaning operations is required. The term "dry cleaning" is a misnomer because the clothes still get wet during the process; however, they are immersed in a liquid other than water. Whether the liquid is PCE, Stoddard, or another non-aqueous solvent, the principal steps are identical to those of laundering in water: (i) one or more washes (baths) in the solvent; (ii) extraction of the solvent by spinning; and (iii) drying by tumbling in an air stream.
*1014Because PCE is both expensive and toxic, PCE systems include additional equipment designed to capture and reuse the solvent. As illustrated in Figure 5, a basic PCE system has the following extra components (tinted in red): (i) a filter to separate particulates from the used solvent; (ii) a distillation unit (or still), which heats the recycled PCE to vaporize it; (iii) a condenser, which cools the purified gas and converts it to liquid form; and (iv) a separator to divide from the reclaimed PCE any water that has entered the system. See id. at 16 (Fig. 2-1); see also Dale Report, Ex. 210 at 3-4; cf. Morrill Rebuttal & Supp. Report at Fig. 3-1, Ex. 1145 at 19 (filed as docket no. 117-15) (indicating that an operation using Stoddard solvent would likewise have, in addition to a washer/extractor and dryer, a filter, still, condenser, and separator); Ex. 392 at 17 (Fig. 2-1) (filed as Tab 72 to Krasnoff Report, docket no. 189-20). A PCE plant with emission control would also have a carbon adsorber, sometimes called a sniffer, along with an additional condenser and another separator, to collect solvent fumes from the air. See Ex. 270 at 16-17; see also Ex. 210 at 3 (Fig. 1). These extra, emission-control elements are highlighted in green in Figure 5.
The parties agree that LeatherCare's PCE dry-cleaning system had reclamation elements (filter, still, condenser, and separator), as well as emission-control components (adsorber and additional condenser and separator). See PTO at 9, ¶ 18. For the reasons discussed later, the Court finds that Troy also operated a PCE dry-cleaning plant at the Property, and that Troy's facility was equipped with a reclamation *1015unit, but had no emission control. See infra pp. 1019-21. PCE-reclamation and emission-control devices generate waste in two forms: (i) PCE-laden solid materials, like filter muck, filter cartridges, and still residue, that was, in connection with Troy's and LeatherCare's operations, deposited into the dump truck parked in the loading dock, and (ii) PCE-contaminated waste water, which in this matter ran through the side sewers before leaving the Property. The parties have offered disparate views concerning the quantity of PCE released at the Property via its disposal with solid waste and/or waste water.
b. Quantifying PCE Releases
In its 1978 report, a copy of which was admitted as Exhibit 270, the EPA provided estimates concerning typical PCE emissions from dry-cleaning facilities. The amount of PCE lost each year depends on the quantity of PCE used annually, which correlates with the size of the dry-cleaning operation. For purposes of its study, the EPA defined three types of dry-cleaning facilities: (i) independent or franchise stores offering coin-operated, self-service systems, which processed roughly 7,200 kg (16,000 lbs) of clothes per year; (ii) "commercial" operations, including neighborhood shops and specialty cleaners handling leather and other fine goods, which would each handle about 23,000 kg (60,000 lbs) of clothes per year; and (iii) "industrial" plants involved in supplying uniforms or other items to commercial customers, which would typically clean 240,000 to 700,000 kg (600,000 to 1,500,000 lbs) of clothes per year. Ex. 270 at 13. The parties agree that LeatherCare's PCE-based system at the Property was a "commercial" dry cleaner. As explained later, see infra p. 1021, the Court finds that Troy's PCE dry-cleaning operation was also "commercial" in scope.
When the EPA issued its report in 1978, the typical "commercial" PCE plant had a 14-27 kg (30-60 lb) capacity washer/extractor and an equivalent-sized dryer (reclaiming tumbler). Ex. 270 at 17. Surveys conducted in the mid-1970s revealed that only 35-to-50% of "commercial" dry cleaners had carbon adsorbers (sniffers). Id. According to the EPA, a well-operated PCE system without a sniffer (like Troy's) was estimated to lose, through various emissions, between 8 and 21 kg of solvent per 100 kg of clothing laundered, while an adsorber-equipped plant (like LeatherCare's) was believed to experience less than 5 kg of solvent loss per 100 kg of clothing laundered. Id. at 18-19. The EPA identified the following primary mechanisms of PCE loss: (i) evaporation at the washer and dryer, which is minimal if a sniffer is employed; (ii) retention in the filter muck, which can be reduced by cooking the muck to reclaim the solvent; (iii) retention in filter cartridges, which can be reduced by drying them in a cabinet vented to an adsorber; (iv) retention in the still residue; and (v) leaks from pumps, valves, flanges, seals, and storage vessels. Id. at 17-18.
The EPA also recognized that carbon adsorbers and muck cookers are not perfect emission-control technologies. PCE vapor would still be released through a sniffer's exhaust, but at an estimated rate of only 0.3 kg per 100 kg of clothing laundered (as compared to evaporation losses without an adsorber of 4-to-7 kg per 100 kg of clothes in the aggregate at the washer/extractor and dryer). Id. at 18. A filter muck cooker could substantially reduce PCE loss, but not below 1 kg per 100 kg of clothing laundered. See id. Thus, even with the then state-of-the-art control technologies, a "commercial" dry cleaner operating during the timeframe at issue in this case could expect to lose about 1,150 kg (194.6 *1016gal)
Seattle Times contends that LeatherCare experienced much higher losses of PCE than was estimated by the EPA to be typical for "commercial" dry cleaners, relying on the opinion of its expert Bruce E. Dale, Ph.D. Dr. Dale's calculations depended on the assumption that, to replace the PCE lost during dry-cleaning operations, LeatherCare purchased 1,977 gallons of PCE per year; Dr. Dale rounded this figure up to 2,000 gallons of PCE per year. Ex. 210 at 8 & 12 (filed as docket no. 118-1). Of those 2,000 gallons of PCE lost per year, Dr. Dale believes that 30% (600 gallons of PCE per year) was released to the sewer, while the remaining 70% (1,400 gallons of PCE per year) was discharged with filter muck, filter cartridges, and still bottoms. Id. at 12.
Dr. Dale's numbers are inconsistent with those of Bernard Tod Delaney, Ph.D., P.E., BCEE, another expert retained by Seattle Times, but in the related insurance coverage dispute, Seattle Times Co. v. Nat'l Sur. Corp. , W.D. Wash. Case No. C13-1463 TSZ. The experts in this case discussed Dr. Delaney's opinions in the other case, and his report was admitted into evidence as Exhibit 1140. The Court concludes that Dr. Dale's analysis is flawed because it ignores the amount of PCE released to the air. The Court further observes that Dr. Delaney's estimates
Dale Delaney Morrill EPA Gallons of PCE Lost Per Year 1,977 1,977 1,681 469 Lost in Filter Muck, Filter Cartridges, and Still Bottoms 70% 25-27% 17.4% 27% Lost in Waste Water 30% <1% <1% <1% Lost to Air 0% 73-74% 82.55% 72.9%
B. Troy Linen and Uniform Service, Inc. f/k/a Troy Laundry Co.
To resolve the parties' disputes concerning the extent to which Troy is responsible for the PCE contamination at the Property and whether Troy, in addition to LeatherCare, operated PCE-based equipment at the Property, Troy's history and the nature of its use of the Property must be understood.
1. Troy's Development of the Property
When Troy began to acquire the Property in 1925, it was already developed with perhaps as many as fifteen (15) residences.
In 1964, Troy commenced work on a new two-story structure, in the southwest segment of the Property, which had a parking garage designed to accommodate Troy's fleet of vehicles. To make room for this 1964 addition, Troy removed a concrete laundry-loading shed with a ramp that had been built in 1950, and vacated the southern portion of an alley that ran through the Property, parallel to Boren and Fairview Avenues, and that had been in existence since at least 1893. See Ex. 107 at 16; see also Ex. 115 (493) at 23-24. In 1966, more space was added to the northeast of the existing plant. Ex. 107 at 16; Ex. 115 (493) at 24. Together, Troy's original laundry facility, the four structures built between 1943 and 1948, including the fur vault, and the 1964 and 1966 additions formed what has been designated as Building 2.
The configuration of Buildings 1, 2, and 3 remained generally unchanged from 1966 until 2011, when the Property was purchased by Touchstone. See Ex. 107 at 16. In 1970, City Dry Cleaners Company bought Building 3 for $123,840. See Ex. 115 (493) at 25; Ex. 115 at 183; Ex. 188. City Dry Cleaners Company had previously been associated with Troy, but whether it still was, as of the date it purchased Building 3, cannot be determined from the record before the Court. In 1996, Building 2 was designated as a Historical Landmark by the City of Seattle Landmarks Preservation Board. Ex. 107 at 165-90; Ex. 115 (493) at 26. Figure 6 illustrates the progression of improvements on the Property.
*10192. Troy's Operations on the Property
a. Industrial Laundry
From 1927 until 1985, Troy operated an industrial laundry at the Property, in Building 2. See PTO at 7, ¶¶ 9 & 12. The parties have stipulated that Troy's industrial laundry facility used approximately 150,000 gallons of water per day, which it drew from an on-site well. PTO at 9, ¶ 17; see also Ex. 115 (493) at 25 (indicating that, in 1971, Troy obtained a permit to appropriate up to 1,000 gallons of water per minute from the supply well). Troy's industrial laundry cleaned linens, like napkins and table cloths, for hotels, restaurants, and other industrial clients. PTO at 9, ¶ 17.
b. "Industrial" Dry-Cleaning (Stoddard)
After the 1964 addition was completed in 1965, Troy also ran an "industrial" dry-cleaning plant at the Property, which used Stoddard solvent to launder uniforms and other items for various businesses. See id. at 8, ¶¶ 14 & 15. According to Jack Ross, who worked for Troy from 1963 until 1984, see Ross Dep. (Vol. 1) at 15:18 (docket no. 226), and became its Chief Engineer in the mid-1970s, id. at 43:2-5, Troy had two 400-pound Stoddard machines, through which it would process at least 6,000 pounds of clothing (roughly eight loads per machine) each day, five days per week, id. at 59:3-7, 59:14-15, & 60:10-15. These figures indicate that, from 1965 until 1985, Troy's Stoddard equipment handled roughly 1.5 million pounds of clothing each year, which is consistent with the EPA's 1978 estimate concerning the quantum of work typically performed by "industrial" dry cleaners. See supra p. 1015.
*1020c. "Commercial" Dry-Cleaning (PCE)
Mr. Ross further testified that, between 1965 and about 1972, Troy also operated a PCE-based dry-cleaning system for retail customers. During that timeframe, Troy would send its vans to residences to pick up items to be dry cleaned and then deliver them after processing. Ross Dep. (Vol. 1) at 17:2-8. This part of Troy's business was called the "family laundry service" or the "family routes." See id. at 27:24-28:3. Troy also received clothing to be dry cleaned at a call center on the Property (in Building 3). Ross Dep. (Vol. 2) at 243:4-16 & 252:14-22 (docket no. 227). Mr. Ross recollected that Troy's PCE machines, namely a 30-pound washer, a 60-pound washer, and one or more dryers, had been at Troy's facility known as City Laundry, and that the PCE equipment was moved to the Property when the 1964 addition was finished. Ross Dep. (Vol. 1) at 19:1-22, 22:17-25, & 24:9-20; Ross Dep. (Vol. 2) at 210:9-24 & 214:4-11.
After the PCE system was relocated to the Property and other consolidation efforts were accomplished, Troy closed both the City Laundry facility and a linen-supply plant in Ballard. See Ross Dep. (Vol. 1) at 24:23-25:9. At its peak, Troy's family laundry service had approximately 20 routes, involving about 25 vans. Id. at 32:16-33:3. In the early 1970s, Troy sold the city routes and reduced its retail business. Id. at 47:13-14. Sometime between 1970 and 1974, Troy ceased its PCE operations. Id. at 27:18-23; see Ross Dep. (Vol. 2) at 165:11-15, 243:13-19, & 244:9-20. According to Mr. Ross, LeatherCare subsequently installed new PCE machines in the same area of Building 2 where Troy's PCE equipment had been located. Ross Dep. (Vol. 1) at 28:11-29:6 & 114:21-25; see also Exs. 65 & 1009.
Seattle Times and Touchstone challenge Mr. Ross's credibility. The Court, however, finds that Mr. Ross's memory was reliable and that his testimony was not controverted. Although Steven Ritt and Mark Chose did not believe that Troy ever had PCE equipment at the Property, neither of them worked at the facility during the time when Troy was engaged in a retail dry-cleaning business; Mr. Ritt was employed elsewhere from 1967 until 1974, Ritt Dep. (Aug. 5, 2015) at 19:13-18 (docket no. 141), and Mr. Chose did not start working for Troy until 1972, Chose Dep. at 8:22-23 (docket no. 225). As Chief Engineer for Troy, Mr. Ross had more opportunity and incentive to understand the nature of Troy's dry-cleaning operations; Mr. Ritt was concerned with LeatherCare's operations, not Troy's, while Mr. Chose's primary role at Troy related to the maintenance of its fleet of vehicles, see id. at 11:22-12:23, 13:3-18, 53:22-54:2, 62:22-63:17.
Moreover, Mr. Ross's explanation that Troy moved its PCE-based "family routes" operation to the Property from City Laundry as part of a consolidation plan is supported by other evidence in the record. A 1950 Certified Sanborn Map shows that City Dye Works Co. Inc. (which Mr. Ross called "City Laundry") was located at the corner of Fifth Avenue North and John Street, but a 1969 Certified Sanborn Map indicates that the same building was, by that time, vacant, see Ex. 186, lending credence to Mr. Ross's testimony that the business had been relocated and the premises had been abandoned in 1965. The accuracy of Mr. Ross's memory is further substantiated by an advertisement
Mr. Ross's description of Troy's PCE system was also consistent with the EPA's later observations in 1978 concerning the typical "commercial" dry-cleaning plant, which was likely to have a 30-to-60 pound per load capacity and no emission control. See supra p. 1015. In addition, the two plumes of PCE-contaminated soil that were discovered during Touchstone's redevelopment efforts, in an area used exclusively by Troy,
Having viewed a portion of the video recording of Mr. Ross's deposition, and having read the entire transcript of his testimony, the Court finds that Mr. Ross was a credible witness with no motive to fabricate information or obfuscate the facts. The Court finds that, for five to seven years after the 1964 addition was built, Troy had a PCE plant with throughputs (and PCE losses) comparable to those of the average "commercial" dry-cleaning facility (without emission control) as defined by the EPA in 1978, i.e. , handling approximately 23,000 kg (60,000 lbs) of clothes per year and losing between 8 and 21 kg of PCE per 100 kg of clothing laundered. See supra p. 1015.
3. Troy's Underground Storage Tanks
During its tenure as owner of the Property, Troy installed and/or maintained at least 18 underground storage tanks ("USTs"). PTO at 8, ¶ 16. As indicated in Figure 7, on the next page, the various USTs included:
• four USTs of 8,000-gallon, 3,000-gallon, 1,000-gallon, and 350-gallon capacities, respectively, located near or under the 1964 addition, the first three of which contained Stoddard solvent, and the last of which held "Sta Dri," a spotting agent containing PCE; see Ex. 115 (493) at 25 & 77 (Fig. 3); Morrill Report, Ex. 1141 at 35-36 & 645-46 (App'x J) (filed as docket nos. 117-1 & 117-13);
• one 7-barrel (~ 300-gallon) UST containing heating oil, which was located approximately 110 feet south of Harrison Street and under the Boren Avenue North right-of-way; Ex. 115 (493) at 23 & 26; two 12,000-gallon USTs and one 1,000-gallon UST containing heating oil, which were located under a parking lot north of the boiler room in Building 2; Ex. 115 (493) at 25;
• one 550-gallon UST, labeled as UST # 1 by Touchstone's consultant, which was discovered under the approximate *1022location of the 1943 addition, and which was associated with petroleum-contaminated soil; Ex. 126 (458 & 491) at § 5.11.1.1; Ex. 126 (491) at Fig. 14;
• four 2,000-gallon USTs containing gasoline, located near or under the 1966 addition, three of which were unearthed during Touchstone's redevelopment efforts and denominated as USTs # 2, # 3, and # 4; the fourth UST was not found during excavation and might have been removed when the 1966 addition was constructed; Ex. 126 (458 & 491) at § 5.11.1.3; Ex. 107 at Fig. 2; see Ex. 115 (493) at 24;
• a 750-gallon UST, identified by Touchstone's consultant as UST # 5, which was uncovered in the soil under the east side of the 1964 addition, and which was empty and in good condition with no visible holes or pitting; no further assessment was conducted; Ex. 126 (458 & 491) at § 5.11.1.4; Ex. 126 (491) at Fig. 14;
• one 8,000-gallon UST containing gasoline, which was located under the parking lot adjacent to Building 3; Ex. 115 (493) at 25; and
• one 10,000-gallon UST of unknown content and location, which was listed in tax records as an improvement for Building 3; Ex. 115 (493) at 24.
By 1985 or 1986, shortly after it purchased the Property from Troy, Seattle Times learned of some, but not all, of the USTs, and it removed the 8,000-gallon Stoddard tank, which was under the driveway to the loading dock and therefore easily accessible. See Ex. 103 at 4 & 10-11. In contrast, the 3,000 and 1,000-gallon USTs containing Stoddard solvent, as well as the 350-gallon "Sta Dri" tank, were emptied, tested with air for leaks (using three pounds-force per square inch (3 psi) for ½ hour), filled with sand, and left in place. Id. at 4-5 & 10. Seattle Times was also aware of the three USTs north of the boiler room that had been used to store heating or fuel oil (with 12,000 or 1,000-gallon capacities) and of the 8,000-gallon *1023gasoline tank associated with Building 3, but it took no steps at that time to remove those USTs, indicating that it would "determine whether likely future use of the building makes it worthwhile to retain them." Id. at 11.
In 1988, during the course of a telephone-line installation, the 7-barrel heating-oil UST was discovered under the Boren Avenue North right-of-way, and Seattle Times obtained a permit to allow the tank to remain in place. Ex. 115 (493) at 26. When that same UST was opened in 2010, it contained approximately one inch of heating oil, floating on about one foot of water. Ex. 107 at 21. The 8,000-gallon UST containing leaded gasoline was apparently closed in place in 1996. Ex. 115 (493) at 26. During the course of excavation related to Touchstone's redevelopment efforts, three distinct plumes of petroleum-contaminated soil were discovered, one on the west side of the Property, near the latitude of the 7-barrel heating oil UST (Plume 1), one in the southwest quadrant of the Property, under the footprint of the 1964 addition, which was also contaminated with PCE (Plume 2), and one in the northern portion of the property, in the vicinity of the decommissioned 8,000-gallon UST that had housed gasoline (Plume 3).
Figure 8, on the next page, shows the three plumes of petroleum-contaminated soil. Although Seattle Times and Touchstone have asserted to the contrary, the Court finds that the plume of petroleum-only contaminated soil ("PCS") in the northern section of the Property (Plume 3) was not caused by LeatherCare's operations at the site. Troy undisputedly installed, maintained, and used the 8,000-gallon gasoline tank under the parking lot of Building 3, and no evidence has been offered that LeatherCare fueled its vehicles from or was otherwise associated with the UST that was the source of Plume 3, consisting solely of gasoline-range petroleum hydrocarbon.
*10244. Troy's Acquisition and Dissolution
On March 1, 1985, American Linen Supply Co., a Washington corporation, d/b/a Maryatt Industries ("Maryatt"), acquired all of the issued and outstanding stock of Troy, and Troy became a wholly-owned subsidiary of Maryatt.
The Court concludes that, with respect to any liability on Troy's part, the "orphan share" doctrine applies. See, e.g., United States v. Kramer ,
C. Seattle Fur Services and LeatherCare, Inc.
Seattle Fur Services was a business initially run by Steven Ritt's parents, Al and Rhea Ritt, that provided wholesale fur-cleaning and storage services to retail stores in the Seattle area. Ritt Dep. (Aug. 5, 2015) at 8:14-22 & 20:18-23 (docket nos. 141 & 228). When Seattle Fur Services began leasing from Troy in 1957, it operated solely in the area of Building 2 known *1026as the fur vault. See PTO at 7, ¶ 10. After LeatherCare was incorporated in April 1960, see Ex. 1, the company continued operating as Seattle Fur Services, and it also starting using the brands PillowCare, FabriCare, and Certified Restoration Dry Cleaning Network, see Ritt Dep. (Aug. 5, 2015) at 12:1-25 & 20:8-12. Under the LeatherCare name, the business offers wholesale leather and suede cleaning to dry cleaners throughout Washington and Oregon. Id. at 21:5-7.
Beginning in 1965, after the 1964 addition was completed, LeatherCare began using the excess capacity of Troy's Stoddard-based dry-cleaning equipment. PTO at 8, ¶ 15. A finishing area on the west end of the 1964 addition was also made available for LeatherCare's exclusive use. Id. In March 1972, LeatherCare and Troy entered into a written lease pursuant to which LeatherCare was provided non-exclusive use of the dry-cleaning room, which at that time contained inter alia two 85-pound washers, as well as drying equipment. Exs. 91 & 1153. Pursuant to the lease, Troy would furnish Stoddard solvent, machines, electricity, and all other utilities needed by LeatherCare in the conduct of its business. Id.
In August 1979, LeatherCare purchased new PCE-based dry-cleaning equipment and installed it in the 1964 addition, to the west of the Stoddard dry-cleaning area and near the loading dock. See PTO at 9, ¶ 18. The new PCE system included two Marvel washing machines, five Hoyt reclaimers (Solv-O-Misers), a Hoyt sniffer (Sniff-O-Miser), and a still.
*1027As was recommended in the EPA's 1978 report, Ex. 270, LeatherCare drained its filter cartridges and dried them in its reclaimers to recover as much PCE as possible before disposing of them. See PTO at 9-10, ¶ 21. LeatherCare disposed of the spent filter cartridges, as well as the still bottoms or muck, in the back of the dump truck provided for such purpose by Troy, into which Troy also placed its waste. Id. at 10, ¶¶ 22 & 23. Troy (and specifically, Mark Chose) drove the dump truck to a transfer station when needed. Id. at 10, ¶ 22; see also Chose Dep. at 37:9-16 & 38:3-12 (docket no. 225). Troy provided this garbage service, as well as other utilities, to LeatherCare under the terms of the parties' lease. PTO at 10, ¶ 22.
In 1981, Troy and LeatherCare negotiated a new lease. See Ex. 92. The new lease described the portion of the 1964 addition that was occupied by LeatherCare as "Parcel A," the fur vault as "Parcel B," and Building 3 or the "call office" as "Parcel C." Id. at ¶ 1. Parcel A was to be used for conducting a wholesale leather cleaning and restoration business, Parcel B was to be used exclusively for fur cleaning, storage, restyling, and repair, and Parcel C was to be used in connection with retail laundry and dry-cleaning operations. Id. at ¶ 2; see also Ritt Dep. (Aug. 5, 2015) at 43:9-44:3 (docket no. 141) (indicating that garments brought by customers to the call office were cleaned elsewhere and that Building 3 had no laundering equipment).
With respect to Parcel C, LeatherCare was assigned ten abutting customer parking spaces and allowed to use the associated neon sign. Ex. 92 at ¶ 1(c). Troy, however, retained for its exclusive use the propane tank, gasoline pump and tank, and certain other parking stalls near Building 3. Id. The lease specified the utilities for which LeatherCare was responsible, namely telephone, water associated with the fur vault, city license fees for the neon sign, natural gas for the call office, and steam for any on-premises call-office (retail) dry-cleaning. Id. at ¶ 14. Troy was required to furnish steam, electricity, and all other utilities needed by LeatherCare to conduct its business in Parcels A, B, and C. Id. Troy also had an obligation to maintain in good condition the outer walls, *1028the roof, the foundation, and all structural members. Id. at ¶ 5. The lease had a term of three years, which ended on April 30, 1984. Id. at ¶ 3.
Effective May 1, 1984, Troy and LeatherCare executed another lease. Ex. 93. The 1984 lease contained terms similar to the 1981 lease, except that the term was for only one year, to end on April 30, 1985. Id. at ¶ 3. Like the 1981 lease, the 1984 lease allowed LeatherCare, with Troy's (or its successors' or assigns') consent, to "hold over" after the expiration of the lease term on a month-to-month tenancy under the "terms, covenants, and conditions" set forth in the lease. Id. at ¶¶ 24 & 25. When it purchased the Property from Troy, Seattle Times took title free of encumbrances except for the 1984 lease with LeatherCare (and a separate, unrelated lease concerning Building 1). Ex. 1035 at ¶ 1. By September 1985, LeatherCare had vacated Parcels A and B, but was still occupying Parcel C. Ex. 94. LeatherCare continued to rent Parcel C from Seattle Times on a month-to-month basis for some period, id. ; the record does not reflect the exact date when the tenancy ended, but it appears to have continued into 1999, as reflected in a letter from Mr. Ritt dated November 3, 1998, complaining about a rent increase. Ex. 1179.
D. Seattle Times Company
Since 1895, Seattle Times has been in the newspaper business. PTO at 6, ¶ 4. For at least 80 years, Seattle Times conducted operations just south of the Property, in the adjacent block bounded by Fairview Avenue North, John Street, Boren Avenue North, and Thomas Street (the "1120 John Block"), acquiring the real estate in segments over time. See Ex. 115 (493) at 18 & 30-31. Seattle Times is well-acquainted with petroleum products and underground storage tanks, having installed several USTs on the 1120 John Block, which contained heating oil, gasoline, diesel, nitric acid, or printing ink. Id. at 31. In addition, as a long-time neighbor, Seattle Times was aware, when it purchased the Property in 1985, that the facility was being used for laundry operations and that "a dry cleaning and leather care business" leased two buildings on the premises. See Ex. 1034.
1. Purchase of the Property from Troy
No evidence has been presented that, before buying the Property, Seattle Times engaged in an investigation concerning whether any pollutants had been released into the soil or groundwater. After taking title to the Property, Seattle Times performed an inspection and identified, in addition to some (but not all) of the USTs, drainage channels containing hazardous residue, two concrete pits containing waste water that the Municipality of Metropolitan Seattle ("Metro")
In late 1985, Seattle Times submitted to Ecology a draft "Closure Plan" for the Property.
In accordance with the Closure Plan, Seattle Times removed only one UST, decommissioned three other USTs, and disposed of waste water as previously indicated. Ex. 103 at 10-11, § III.B.1. Seattle Times represented to Ecology that Troy's parent company, Maryatt, had pumped out the contents of the two 12,000-gallon and the 1,000-gallon heating oil tanks, as well as the 8,000-gallon gasoline tank near Building 3, and had sealed each of these USTs.
In a letter dated April 17, 1986, counsel for Seattle Times, Jeff Belfiglio, discussed the status of closure efforts. Ex. 105. Mr. Belfiglio advised Ecology that, although the concrete wall of the abandoned sump was cracked, testing detected no leakage.
2. Litigation Against Troy and Maryatt
In July 1986, Seattle Times commenced an action in King County Superior Court *1030against Troy Linen & Uniform Service, Inc., its three former directors as trustees for its creditors, namely Charles R. Maryatt, Tim K. Rich, and David E. Maryatt, and American Linen Supply Company d/b/a Maryatt Industries for breach of contract, promissory estoppel, nuisance, misrepresentation, negligence, breach of lease,
In July 1987, both lawsuits were settled for $55,797. See PTO at 12:14; see also Ex. 1069 at 1. In connection with the settlement, Seattle Times released the named defendants, as well as the former shareholders of Troy, and their agents and assigns, from
all claims, expenses, attorney fees, causes of action or suits of any kind or nature, that the Seattle Times Company has or may later have on account of or in any way arising out of the presence of various flammable, hazardous and/or toxic wastes on [the Property] ..., specifically including but not by way of limitation, the costs of identifying, removing, and reporting as to such wastes, and from any and all claims, including third party claims, whether presently known or unknown, which may have arisen or may later arise out of the events generally described above.
Ex. 1069 at 1. The settlement was only partially funded by Maryatt. See Ex. 1073 at 69 (indicating that Maryatt paid only $15,000). The balance came from Troy's former shareholders, who had been joined in the state court action as third-party defendants. See Ex. 1064 (Maryatt's Ans. & 3d-Party Compl.); Ex. 1073 at 60 (reciting that Troy's former shareholders agreed to a two-thirds (2/3) share of the settlement amount). This arrangement is consistent with the Court's conclusion that Maryatt did not treat Troy as its alter ego. See supra note 19.
3. Use of the Property By Seattle Times
When Seattle Times purchased the Property, it intended to expand its newspaper-printing operations. PTO at 12, ¶ 30. Those plans did not, however, materialize, and Seattle Times instead used the Property for parking, to store furniture, newspaper racks, and other materials, and as a newspaper-rack repair facility. Id. In 1994, Seattle Times commissioned Remediation Technologies Incorporated ("RETEC"), an environmental consultant, to inspect the property. PTO at 12, ¶ 31; see Ex. 1075. Among other tasks, RETEC collected water samples from the supply well, which was located inside the industrial laundry facility. The samples revealed no detectable levels of volatile organic compounds (e.g. , PCE), but the concentration of petroleum hydrocarbons exceeded the then-applicable "cleanup" level set by Ecology. Ex. 1075. RETEC speculated that the result might be anomalous, observing that the water did not have a petroleum odor.
*1031Id. Seattle Times did not retest the well water. See PTO at 12, ¶ 31.
4. Marketing the Property
In 2008, on behalf of Seattle Times, CenturyPacific, L.P. began marketing the Property for sale. See Ex. 521. The Offering Memorandum disclosed the three USTs in the Stoddard area and the existing well, but not the heating oil or gasoline tanks about which Seattle Times was also aware. Id. at 10. In addition, the Offering Memorandum made no mention of the prior use of the facility as a dry-cleaning plant. Id. The price sought in the Offering Memorandum was $20 million, all cash at closing, which Seattle Times anticipated could occur within 60 days. Id. at 7. On July 14, 2010, Seattle Times and Touchstone Corporation entered into a Real Estate Purchase and Sale Agreement ("PSA"), Ex. 96, indicating a purchase price of $18.2 million. Touchstone then began a due diligence process. PTO at 13, ¶ 33.
E. Touchstone SLU LLC and TB TS/RELP LLC
Touchstone Corporation later assigned its rights in the PSA to Touchstone SLU LLC. See Ex. 47 at 8. Touchstone SLU LLC and TB TS/RELP LLC are both Washington limited liability companies with principal places of business in Seattle, Washington.
1. Environmental Assessment of the Property
On Touchstone's behalf, SoundEarth Strategies Inc., previously known as Sound Environmental Strategies ("SES"), conducted a two-phase environmental assessment of the Property. See PTO at 13, ¶ 33. Phase I was completed by September 2010. During the course of Phase I, SES performed a GORE™ soil gas survey, which revealed that PCE, TCE, and 1,2-dichloroethene were present in the soil "across much of the western half" of the Property, and that the highest concentrations of such chemicals were near the former loading dock and under the fur vault. Ex. 107 at 8. In addition, the GORE™ survey indicated that total petroleum hydrocarbons ("TPHs") were also in the soil in the vicinity of the former loading dock, as well as to the northeast of Building 3. Id. Water samples collected from the well inside the industrial laundry facility did not contain detectable concentrations of VOCs or GRPH, but tested positive for diesel and oil-range petroleum hydrocarbons. Id. at 25. A ground-penetrating radar survey confirmed the presence of a UST under the Boren Avenue North right-of-way and showed various anomalies that were consistent with existing or former *1032USTs. Id. at 26. SES used the Phase I results to outline the scope of work for Phase II. See id. at 28.
SES completed Phase II by the end of October 2010. Ex. 109 (513). Phase II involved taking soil samples through 14 borings (P01-P14), which were advanced to a depth of 23 feet below ground surface ("bgs"), and collecting groundwater samples via a temporary well (at boring P10), which was drilled near the location of the former 8,000-gallon Stoddard solvent UST. Id. at 2 & 9 (Fig. 2). Figure 10 shows the locations of the various borings (and the well previously used by Troy). Soil samples taken at various depths from borings P03 and P05-P11 contained concentrations of PCE that exceeded the cleanup level of 0.05 mg/kg set by Ecology. Id. at 4-5. Soil samples collected from all other borings (P01, P02, P04, P12, P13, and P14) tested below the cleanup level for PCE. Id. at 5. Petroleum hydrocarbons above the cleanup level of 100 mg/kg were detected in the soil samples from P07 and P08. Id. at 4 & 14 (Table 1). The groundwater sample obtained from boring P10 (shown in blue) had concentrations of PCE, TCE, and diesel-range petroleum hydrocarbons exceeding cleanup levels. Id. at 5 & 16 (Table 2).
In early November 2010, Seattle Times and Touchstone executed a First Amendment to the PSA ("First Amendment"). Ex. 97. Pursuant to the First Amendment, the purchase price increased from $18.2 to $18.4 million. Id. The First Amendment added an "Environmental Contingency," pursuant to which Touchstone would have until December 10, 2010, to approve of the environmental condition of the Property or the PSA would terminate. Id. at ¶ 4. In addition, the First Amendment allowed Seattle *1033Times to install a soil vaper extraction ("SVE") system on the Property and demolish the fur vault if necessary to do so. Id. at ¶ 6. As discussed in more detail later, see infra pp. 1034-35, Seattle Times hired a company to design, install, and operate an SVE system to significantly decrease the level of PCE in the soil on the Property, primarily near the loading dock.
2. Environmental Remediation and Indemnity Agreement
In December 2010, a Second Amendment to the PSA extended the Environmental Contingency period to December 17, 2010. Ex. 98. On December 17, 2010, the parties entered into a Third Amendment to the PSA ("Third Amendment"), as well as the Environmental Remediation and Indemnity Agreement ("ERIA"), which is the focus of the current dispute between Seattle Times and Touchstone. See Exs. 99 & 100. Pursuant to the Third Amendment, Touchstone waived the Environmental Contingency on the condition that Seattle Times execute the ERIA and deliver it to escrow pending closing. Ex. 99 at ¶¶ 1 & 2; see also PTO at 16, ¶ 48.
As indicated in the ERIA, Seattle Times and Touchstone were aware that, as of the effective date of the ERIA, December 17, 2010, hazardous substances were present in the soil, groundwater, and improvements at the Property. Ex. 100 at 1. To proceed forward with its purchase of the Property, Touchstone required Seattle Times to be responsible for remediating the existing contamination and indemnifying Touchstone in the manner set forth in the ERIA. Id. By executing the ERIA, Seattle Times agreed to reimburse Touchstone for the "Incremental Costs" of transporting and disposing of "Contaminated Soils," as opposed to "Clean Soils." PTO at 16, ¶ 49. Specifically, the ERIA provides:
"Incremental Costs" shall mean the difference between the costs of transporting and disposing of Contaminated Soils and the costs of transporting and disposing of Clean Soils. Incremental Costs do not include costs for transportation and disposing of Clean Soils, consequential damages, costs, if any, that Purchaser incurs due to construction delays, inefficiencies, business interruption or the like.
....
Seller and Purchaser contemplate that, during excavation of the Property in connection with Purchaser's intended development project, soil testing at the Property may identify additional Contaminated Soils that need to [be] remediated in order to achieve Soil Cleanup Criteria. In such event, Seller shall pay the Incremental Costs necessary to meet Soil Cleanup Criteria on the Property. Seller shall have the right to select the disposal site for Contaminated Soils removed from the Property.
Ex. 100 at ¶¶ 1(h) & 2. Seattle Times also agreed in the ERIA to indemnify Touchstone with respect to third-party claims, including those relating to groundwater contamination:
Seller shall release, indemnify, defend (with counsel of Seller's choice reasonably acceptable to Purchaser) and hold Purchaser harmless from and against any and all liabilities, claims, causes of action, liens, administrative proceedings, judgments, damages, losses, costs, expenses, fines, penalties or obligations of any kind, known or unknown, including reasonable attorneys' fees, asserted by third parties (including the Washington Department of Ecology) against Purchaser that arise out of, [sic] are associated with Contaminated Soils or Contaminated Groundwater that has or may have migrated off of the Property and *1034onto, about or under adjacent property(ies).
Id. at ¶ 3.
3. Soil Vapor Extraction
In early January 2011, AECOM Environment ("AECOM") provided a report concerning its soil and groundwater investigation and the design of an SVE system for Seattle Times. Ex. 110 (510). Based on SES's prior results and AECOM's own tests, using 25 soil samples collected from six additional borings (B-1, B-2, and B-4 through B-7; B-3 was planned but never drilled), id. at 2, AECOM determined that the highest concentrations of PCE in soil were located near the loading dock and extended to a depth of about 12 feet bgs, id. at 4-5. AECOM estimated that the volume of soil with PCE concentrations above the cleanup level was 20,225 (860 + 19,365) cubic yards. See id. at 5. AECOM proposed an SVE system comprised of eight vertical wells placed in the vicinity of the loading dock and the former location of PCE operations, through which approximately 90% of the VOC vapors in the area would be removed from the soil over the course of six or more months. See id. at 5-6 & 15 (Fig. 3). Figure 11, on the next page, indicates the locations of AECOM's borings and of the SVE wells and related equipment.
The SVE system installed by AECOM operated in 2011 and 2012, and removed 327 pounds of PCE from the soil. PTO at 13, ¶ 35. AECOM decommissioned the system in January 2012. Id. ; see also Ex. 115 (493) at 46. No notice was provided to LeatherCare or Mr. Ritt before the SVE equipment was installed or when it was removed, and they first learned about the system in August 2015, around the time that Mr. Ritt was deposed in the related insurance coverage litigation (between Seattle Times and its insurers) to which he is not a party. See PTO at 13, ¶ 35; see also Ritt Dep. (Aug. 5, 2015) at 5:16-6:2 (docket no. 141). Seattle Times paid AECOM for its work and now seeks to recover inter alia $348,087 from LeatherCare and/or Mr. Ritt as reimbursement for the costs of designing and implementing the SVE system. See PTO at 18, ¶ 56; see also Zelikson Report at Table 1, Ex. 215 at 22 (filed as docket no. 122-1).
*10354. Supplemental Subsurface Investigation
While Seattle Times was working with AECOM on soil vapor extraction, SES was performing a supplemental subsurface investigation, which involved advancing eight more borings (three under the Harrison Street right-of-way, three under the Boren Avenue North right-of-way, and two on the Property
SES further observed that AECOM's SVE system had decreased "significantly" the concentrations of PCE, thereby "reducing the volume of soil that will need to be disposed of as hazardous material during construction excavation activities." Id. With respect to groundwater, SES reported that the samples from the three monitoring wells under Boren Avenue North and from one of the wells under Harrison Street contained PCE and/or TCE. Id. SES opined, however, that the levels of these substances in the groundwater samples were "not indicative of a multi-block, widespread release" of VOCs. Id.
5. Closing
On June 10, 2011, Touchstone and Seattle Times closed the purchase and sale transaction, and title to the Property passed to Touchstone. See Ex. 47; see also PTO at 6-7, ¶ 7. The closing documents included a signed version of the ERIA, Ex. 47 at 180-83, as well as a copy of the 1984 lease between Troy and LeatherCare, which had been assumed by Seattle Times in 1985, id. at 137-53. Shortly after closing, SES began developing a Remedial Investigation Sampling and Analysis Plan. Ex. 114. In accordance with this plan, SES conducted further studies in September and October 2011 in an effort to evaluate the extent and vertical gradient of groundwater contamination, analyze any standing water that remained in pipes, sumps, and trenches on the Property, and collect sufficient data to ultimately develop a remedial action plan for the "Site," which includes the contaminated regions of the Property, the neighboring properties, and the adjacent right-of-ways. See Ex. 115 (493) at 47.
6. Draft Remedial Investigation Report
The work performed in September and October 2011 culminated in a Draft Remedial Investigation Report ("Draft RI") dated May 2, 2012, which was admitted into evidence in CD form as Exhibit 115 and in excerpted, hardcopy form as Exhibit 493. In connection with the Draft RI, SES drilled another 23 borings (B16-B38), seven of which were fashioned into monitoring wells (MW08-MW14). Ex. 115 (493) at 48-49. The Draft RI described the results of testing on samples of soil, groundwater, and standing (process) water collected by SES in September and October 2011, as well as on samples obtained by AECOM in January 2012 from ten borings (B39-B48) made in connection with the decommissioning of the SVE system. Id. at 46, § 5.10, & Tables 1-4.
Despite the quantum of data assembled, SES still believed it lacked adequate information to estimate the vertical extent of groundwater contamination beneath the "Site" or the lateral extent of groundwater contamination to the west of Boren Avenue North or to the south of monitoring well MW09, which is in the southwest corner of the Property. Id. at 56 & 79 (Fig. 5). SES was, however, able to develop a Conceptual Site Model ("CSM"), which was based on the information acquired from all borings at the "Site." See id. at §§ 6.0-6.8. The CSM predicted that 97,540 tons of soil at the "Site"
7. Agreed Order No. 8996
On May 22, 2012, Touchstone and Ecology entered into Agreed Order No. 8996, a *1037copy of which was admitted as Exhibit 128. See PTO at 13-14, ¶ 36. The Agreed Order required Touchstone to prepare the Draft RI, as well as a draft feasibility study report and, eventually, a draft cleanup action plan for the "Site." Ex. 128 at 2 & § VII. The Agreed Order also directed Touchstone to pay Ecology for the costs incurred by the agency. Id. at § VIII.B. Pursuant to the Agreed Order, Ecology took responsibility for developing a Public Participation Plan for the "Site," but Touchstone was obligated to cooperate with Ecology in preparing an appropriate mailing list. Id. at § VIII.H. The Agreed Order expressly indicated that it was "not a settlement under Chapter 70.105D" of the Revised Code of Washington, and that Ecology was "in no way" covenanting not to sue or compromising any of Ecology's rights or authority. Id. at § VIII.N. The Agreed Order restricts Touchstone's ability to sell or lease the Property. Id. at § VIII.O. *10388. Draft Feasibility Study Report
On August 9, 2012, SES submitted to Ecology a Draft Feasibility Study Report ("Draft FS"), which is in evidence as Exhibit 116. See PTO at 14, ¶ 38. The Draft FS described three cleanup alternatives, namely (1) excavation and land disposal of soil with in-situ chemical oxidation of groundwater, (2) excavation and land disposal of soil with in-situ reductive dechlorination of groundwater, and (3) excavation and land disposal of soil with electric resistance heating and vapor extraction for groundwater. Ex. 116 at 13. The Draft FS did not discuss any cleanup method other than excavation and land disposal of contaminated *1039soil, and the Draft FS never suggested monitored natural attenuation
9. Addendum to Draft RI
In December 2012, SES presented to Ecology a Draft Addendum-Supplemental Remedial Investigation Report ("Draft Supp. RI"), which was admitted in CD form as Exhibit 117 and in excerpted, hardcopy form as Exhibit 518. See PTO at 14, ¶ 39. The objective of the Draft Supp. RI was to evaluate the western and southern extents of groundwater impacted by solvent release on the Property. See Ex. 117 (518) at 2; PTO at 14, ¶ 39. Two additional monitoring wells (MW15/B49 & MW16/B50) were created, one within the Terry Avenue North right-of-way (a block west of the Property) and the other just south of the centerline of Thomas Street. Ex. 117 (518) at 2-3. The groundwater sample collected from MW15 contained a concentration of TCE in excess of the cleanup level, while the sample obtained from MW16 had concentrations of vinyl chloride, cis-1,2-dichloroethylene ("cis-1,2-DCE"), TCE, and PCE that were all above cleanup levels. Id. at 5. Because the sample from MW15 contained TCE, but not PCE or cis-1,2-DCE, SES concluded that the TCE discovered in the groundwater under the Terry Avenue North right-of-way was not attributable to the PCE release at the "Site"; if the TCE was present as a degradation product of PCE, then cis-1,2-DCE would also have been found in the sample. See id. at 7.
With regard to the suite of substances discovered in the sample from MW16, SES opined that multiple releases might have impacted the "Site." Id. at 9. SES suggested that the most likely additional or alternative source of the contamination within the Thomas Street right-of-way was the 1120 John Block, where Seattle Times had conducted business (using printing inks containing VOCs).Id. at 9-10. To prevent further migration of VOCs from the Property into the Thomas Street right-of-way, SES recommended expanding the previously designed system for in-situ reductive dechlorination of groundwater. Id. at 13. As revised, the groundwater treatment plan would include 46 vertical injection wells within the Property boundaries and 12 angled injection wells advanced beneath the Boren Avenue North and Thomas Street right-of-ways. Id. Three of the angled injection wells would be under Thomas Street and a fourth would be under the intersection of Thomas Street and Boren Avenue North. Id. at 31 (Fig. 14).
10. Interim Action
On July 18, 2013, Ecology advised Touchstone that it had not approved SES's *1040Draft RI or Draft FS, and that it believed more investigation was needed to "fully characterize the soil-groundwater-vapor-source control components" for the "Site." Ex. 468. Ecology and Touchstone therefore agreed to conduct the excavation and land disposal of soil with in-situ reductive dechlorination of groundwater (Alternative 2) as an "interim" remedial action. PTO at 14, ¶ 40. In August 2013, Ecology and Touchstone executed a First Amendment of Agreed Order No. 8996 ("1st Am. of Agreed Order"). Id. at 14, ¶ 41; see Ex. 129. The 1st Am. of Agreed Order contemplated that Touchstone could conduct the interim remedial action as part of its planned property redevelopment, in accordance with SES's Interim Action Plan dated August 21, 2013. See Ex. 129 at ¶ D.2; see also Ex. 119. Before Touchstone could commence the work, however, Touchstone was required to satisfy three conditions: (i) submittal of permit applications to the City of Seattle; (ii) receipt of a building permit for the redevelopment project from the City of Seattle; and (iii) receipt of commitments for the financing necessary for project completion. Ex. 129 at ¶ D.3. After these three benchmarks were achieved, the Interim Action Plan became "an integral and enforceable part" of Agreed Order No. 8996. Id. at ¶ D.4.
The Interim Action Plan indicated that all buildings would be demolished and the entire Property would be excavated from lot-line to lot-line. Ex. 119 at 54. The excavation contractor would use a soil management grid, dividing the Property laterally into 10-foot by 10-foot cells, and excavating in 10-foot increments (or lifts). See id. at 60. Consistent with the grid system, samples would be collected and contemporaneously analyzed to delineate between contaminated and clean soil. See id. To prevent cross-contamination of clean soil, separate conveyors would be used to carry excavated material to the truck staging area. Id.
a. Contained-Out Determination
The Interim Action Plan envisioned as a next step obtaining a "contained-out" determination from Ecology, see id. at 59, which would exempt the excavated soil from classification as "dangerous waste" and permit disposal of the contaminated material at a landfill facility operating pursuant to Subtitle D of the Resource Conservation and Recovery Act of 1976 ("RCRA"),
Ecology's letter set a deadline of September 30, 2014, for the disposal of PCE-contaminated material; unless the deadline was extended, Touchstone would be required to handle any remaining soil as dangerous waste.
b. Excavation
On June 27, 2014, SES informed Ecology that the three benchmarks outlined in the 1st Am. to Agreed Order had been achieved, and implementation of the Interim Action Plan commenced. Ex. 126 (458 & 491) at 19. Excavation occurred at the Property between July 2014 and February 2015.
Shipping the excavated soil via rail container was less expensive than trucking it because, after loading, a rail container could be hauled from the Property to a nearby transfer station to await carriage by train to a RCRA Subtitle D facility, whereas a truck and trailer (or "pup") had to travel the entire distance from the Property to a remote landfill and back; a driver could tow four to five rail containers *1042per day to the transfer station, but in a truck and pup, he or she could make only one run each day to the waste disposal facility. See Trial Tr. (Jan. 24, 2018) at 113:11-25 (docket no. 264). During the course of excavation, however, rail containers were not always available, and over 60% of the PCE-contaminated soil went to a disposal site by way of truck. Ex. 538. The parties dispute whether Touchstone may seek reimbursement for the increased cost of trucking as opposed to shipping PCE-contaminated soil by rail, and whether the various rates per ton being sought by Touchstone are consistent with the ERIA and/or the applicable federal and/or state laws.
11. Interim Action Progress Report
In the Interim Action Progress Report dated January 22, 2016, which was admitted into evidence in CD form as Exhibit 126 and in excerpted, hardcopy form as Exhibits 458 and 491,
a. PCE-Contaminated Soil
SES included in the Interim Action Progress Report a series of "lift maps," which show the boundary of soil in each 10-foot layer of excavation that was treated as contained-out (or contained-in) material and taken to a RCRA Subtitle D facility. See Ex. 126 (491) at 43-50 (Figs. 6A-6H). The amount of soil actually treated as contained-out material (96,443 tons) was less than the amount approved by Ecology (140,000 tons). See supra note 30. The volumes of PCE-contaminated soil reflected in the lift maps are set forth in the following table, along with approximate conversions from cubic feet (volume) to tons (weight). The various lift maps are reproduced in Figure 13, on the next page.
Elevation Volume (in cubic feet) Approximate Tonnage (above sea level) of Contained-Out Soil (conversion: 1.8959 tons/yd3) 100-90 feet 168,000 11,797 90-80 feet 181,500 12,744 80-70 feet 271,000 19,029 70-60 feet 202,000 14,184 60-50 feet 161,000 11,305 50-40 feet 148,000 10,392 40-30 feet 125,000 8,777 30-20 feet 117,000 8,215 TOTALS 1,373,500 96,443
See Ex. 126 (491) at 43-50 (Figs. 6A-6H) & Ex. 538 (total tonnage). But see Ex. 126 (458 & 491) at 28 (reporting that the amount of contained-out material was 96,471 tons).
*1043LeatherCare disputes whether all of the soil handled as contained-out material was actually contaminated with PCE, and contends that its responsibility for the costs of transporting the contained-out material should be limited to the proportion that the volume of soil with PCE concentrations above the cleanup level bore to the total amount of soil hauled to RCRA Subtitle D facilities. Based on a model generated by using the "Leapfrog Hydro" computer program (the "Leapfrog model"), which relied on all of the data collected during AECOM's and SES's various investigations and the excavation process, LeatherCare's expert estimated that the volume of *1044soil with PCE concentrations above the cleanup level was 9,033 cubic yards, or a little over 20% of the 43,628 cubic yards of soil that the Leapfrog model predicted was contaminated with PCE or petroleum or both. See Morrill Report at 15-16 & Table 1, Ex. 1141 (filed as docket no. 117-1).
In contrast, on behalf of Seattle Times, Peter Jewett opined that 94.5% (or 93,410 tons) of the soil actually transported to disposal facilities (98,865 tons) was contaminated with PCE, another 2.7% (or 2,700 tons) was tainted with both PCE and petroleum hydrocarbons, and the rest (2.8%) contained only petroleum. See Exs. 527 & 1199; see also Trial Tr. (Jan. 17, 2018) at 22:16-23:2 & 68:8-69:6 (docket no. 261). In contrast, SES estimated that 45,252 of 84,406 cubic yards of contained-out material (53.6%) would contain PCE concentrations above the cleanup level. See supra note 30. As explained later, the Court declines to adopt LeatherCare's pro rata approach to apportionment. Thus, the Court need not resolve the dispute between the experts or determine the percentage of either (i) contained-out material or (ii) soil for which disposal fees were incurred that exceeded the regulatory cleanup level for PCE.
b. Removal of Underground Storage Tanks
On February 26, 2014, before the Interim Action excavation began, the three USTs under the former Stoddard dry-cleaning area were removed from the Property. Ex. 126 (458 & 491) at 17. After the three USTs were unearthed, the odor of Stoddard solvent emanated from the soil that had surrounded the tanks, and the smallest (350-gallon) UST had a visible hole in its side. Id. Soil samples were collected from each of the four sidewalls of the excavated rectangular area, as well as from the soil below the bottom of each UST. Id. Three of these samples, obtained from the north and west sidewalls of the excavated area and beneath the 350-gallon tank, contained detectable levels of PCE; the PCE concentrations at the west sidewall (0.19 mg/kg) and under the 350-gallon UST (0.11 mg/kg) were substantially above the cleanup level.
The soil below the 350-gallon and the 1,000-gallon USTs and along the west sidewall of the excavated area was also contaminated with GRPH at concentration levels between 540 and 1,600 mg/kg. Ex. 126 (458 & 491) at 18. Other USTs were removed during the course of the Interim Action excavation, but to the extent that tests were performed, they did not reveal detectable traces of PCE in the soil surrounding those USTs. See id. at 25-27.
c. Injection Wells
Between November 2014 and February 2015, a total of 103 injection wells were installed for purposes of in-situ treatment of groundwater by reductive dechlorination. Ex. 126 (458 & 491) at 29. Nine of these wells (AIW01-AIW09) are angled under Boren Avenue North and three of them (AIW10-AIW12) are angled under Thomas Street (the "angled wells").
Between May 12 and June 5, 2015, a food-grade oil/water emulsion was injected into the angled wells, the interior wells, and all of the boundary wells except IW91, which is on the southeast corner of the Property and is being used as a monitoring well. Ex. 126 (458 & 491) at 32. After the emulsion was injected, approximately 100 gallons of clean water and 8-to-16 ounces of Vitamin B12 supplement were also inserted at each well.
*1046In connection with installation and operation
12. Future Response Costs
On March 14, 2016, Ecology confirmed that SES's Interim Action Progress Report dated January 22, 2016, Ex. 126 (458 & 491), had been approved, and that Ecology *1047considered the first phase of the interim remedial action to have been successfully completed. Ex. 469; see PTO at 15, ¶ 45. On July 8, 2016, SES forwarded to Ecology for its review a draft Vapor Intrusion Assessment Work Plan. Ex. 127. The draft proposed a schedule and methods for air quality sampling to determine whether indoor air at the Property is below remediation levels. See id. at 4-8. The draft indicated that the south (12-story) tower and the north (13-story) tower being built at the Property were scheduled to be occupied by October 1, 2016, and June 1, 2017, respectively. Id. at 5. In August 2016, Ecology provided comments, and on November 7, 2017, SES submitted responses and a revised draft. See Exs. 1156 & 1157. Ecology is currently reviewing the revised draft, and the vapor intrusion assessment work is anticipated to be performed in 2018. See PTO at 16, ¶ 47.
Meanwhile, on October 19, 2017, after further study, SES sent Ecology a draft Technical Memorandum arguing that the contaminated groundwater plume originating at the Property has been fully delineated and defined. Ex. 478. In this Technical Memorandum, SES explained that, although the groundwater under the "Site" currently flows to the south and southeast, in 2013, the groundwater reversed direction as a result of construction dewatering occurring in the area bounded by Harrison Street, Ninth Avenue North, Republican Street, and an alley ("Block 45"). Id. at 2 & Fig. 1. Block 45 is roughly two blocks west and one block north of the Property, and the dewatering caused the groundwater to flow to the northwest for approximately twelve months. Id. SES opined that the maximum distance contaminated groundwater might have traveled from the Property, during that twelve-month period, is 7-to-10 feet to the northwest, beneath the Boren Avenue North right-of-way. Id. at 6. SES also expressed a belief that, because the excavation eliminated from the Property the source of groundwater contamination, which allows for natural attenuation processes to degrade the substances of concern, and given the recently installed boundary wells, the plume of contaminated groundwater beneath the Property will continue to shrink and the applicable cleanup levels will be achieved in a "reasonable" amount of time. Id. at 6. As of the date of the trial in this matter, Ecology had not yet responded to SES's Technical Memorandum. See PTO at 15-16, ¶ 46. Whether and the extent to which Touchstone might incur additional expenses for cleanup actions at the Property or the "Site" remain uncertain at this time. See id. at 18, ¶¶ 58 & 59. The parties, however, seek a ruling from the Court concerning how any future remediation costs should be apportioned among them.
Discussion
The Court will first address the statutory claims brought against LeatherCare and Mr. Ritt, then the contractual claim between Touchstone and Seattle Times, and finally the equitable allocation of remedial action costs pursuant to MTCA.
A. Statutory Claims
Both Seattle Times and Touchstone assert statutory claims against LeatherCare and Mr. Ritt. Seattle Times pursues its claims against LeatherCare and Mr. Ritt under both CERCLA and MTCA for reimbursement of sums it has paid or might in the future owe to Touchstone.
1. CERCLA: National Contingency Plan
Under CERCLA, Seattle Times seeks from LeatherCare and/or Mr. Ritt the amount that Seattle Times must pay to Touchstone in connection with Touchstone's performance under the Interim Action Plan.
A private party response action will be considered "consistent with the NCP" if the action, when evaluated as a whole, is in substantial compliance with the applicable requirements in paragraphs (5) and (6) of this section, and resulted in a CERCLA-quality cleanup....
The Court concludes that the Interim Action Plan was not consistent with the NCP because no analysis of any alternative to excavation of the contaminated soil was done before implementation of the Interim Action Plan. Indeed, because Touchstone planned to redevelop the Property, including the construction of a five-story underground garage, excavation would have occurred regardless of the condition of the soil, and Touchstone had no reason to and did not consider any cleanup method other than a "dig and haul." To be consistent with the NCP, a private party response action must be preceded by a feasibility study, the "primary objective" of which is "to ensure that appropriate remedial alternatives are developed and evaluated such that ... an appropriate remedy [can be] selected."
2. Owner or Operator
The Court agrees with Mr. Ritt that he cannot be held personally liable under either CERCLA or MTCA. This analysis forms an independent, alternative basis for dismissing the CERCLA claim against Mr. Ritt. Both CERCLA and *1050MTCA premise liability for remediation on inter alia an entity's status as an "owner or operator." See
CERCLA: "The term 'owner or operator' means ... in the case of an onshore facility or an offshore facility, any person owning or operating such facility ...."
MTCA: " 'Owner or operator' means: (a) Any person with any ownership interest in the facility or who exercises any control over the facility; or (b) In the case of an abandoned facility, any person who had owned, or operated, or exercised control over the facility any time before its abandonment ...."
The Court concludes that Mr. Ritt is not an "operator" for purposes of CERCLA and/or MTCA. In arguing that Mr. Ritt can be deemed an "operator," Seattle Times relies primarily on United States v. Bestfoods ,
Under this standard, however, the Court concludes that Mr. Ritt was not an "operator." Although he managed the day-to-day operations of LeatherCare at the Property and was personally involved in the selection, purchase, installation, and maintenance of the PCE equipment used at the Property between 1979 and 1985, see PTO at 10, ¶¶ 24-25, he had no control over the side sewers into which waste water was discharged
*10523. MTCA: Substantial Equivalence
Pursuant to MTCA, both Touchstone and Seattle Times seek from LeatherCare the expenses associated with the Interim Action Plan (and Agreed Order No. 8996). Seattle Times also pursues under MTCA reimbursement from LeatherCare for the costs of the SVE system designed, installed, and operated by AECOM. The Court concludes that the MTCA claims related to the Interim Action Plan (and Agreed Order No. 8996) are cognizable, but the MTCA claim premised on AECOM's SVE system lacks merit.
A prerequisite to cost recovery under MTCA is demonstrating that the remedial action at issue was the "substantial equivalent" of an action conducted or supervised by Ecology. RCW 70.105D.080 ("Recovery of remedial action costs shall be limited to those remedial actions that, when evaluated as a whole, are the substantial equivalent of a department-conducted or department-supervised remedial action."). The Court evaluates substantial equivalence "with reference to the rules adopted by" Ecology.
Under the second "order or decree" definition articulated by Ecology, the Court concludes that the remedial action performed pursuant to the Interim Action Plan (and Agreed Order No. 8996), involving excavation and disposal of contaminated soil and installation of injection wells, qualifies as the "substantial equivalent of a department-conducted or department-supervised remedial action." The remedial requirements of Agreed Order No. 8996 have been satisfied with respect to the costs for which Touchstone and Seattle Times seek reimbursement from LeatherCare in this action. The "order or decree" test does not apply, however, to the SVE system for which Seattle Times incurred expenses because AECOM's work was conducted independently of any order or decree issued by Ecology.
Seattle Times contends that the SVE process was nevertheless substantially equivalent, relying on the third definition set forth by Ecology, which requires that the independent remedial action include the following elements:
(i) Information on the site and remedial actions conducted has been reported to the department in accordance with WAC 173-340-300, 173-340-450 and 173-340-515, as applicable;
(ii) The department has not objected to the remedial action being conducted or any such objection has been cured as determined by the court;
(iii) Except for emergency remedial actions, before conducting an interim action or cleanup action, reasonable steps have been taken to provide advance public notice;
(iv) The remedial actions have been conducted substantially equivalent with the technical standards and evaluation criteria described in subsection (4) of this section; and
(v) For facilities where hazardous substances have been disposed of as part of the remedial action, documentation is available indicating where these substances were disposed of and that this *1053disposal was in compliance with applicable state and federal laws.
WAC 173-340-545(2)(c).
The Court concludes that the SVE work performed for Seattle Times by AECOM did not adequately comply with this regulation. Pursuant to WAC 173-340-300(2), which requires disclosure of any release of a hazardous substance that might pose a threat to human health or the environment, AECOM sent to Ecology, on January 12, 2011, a 765-page "Release Report." Ex. 111 (495). The Release Report indicated that AECOM was working with Seattle Times to install an SVE system on the Property. Id. at 2. The record contains no evidence of any subsequent communication between AECOM and Ecology, other than a request, on July 8, 2011, for approval to dispose of roughly four cubic yards of contaminated soil (generated in connection with subsurface borings and SVE installation) at a RCRA Subtitle D facility, rather than treating the soil as "dangerous waste." Ex. 113 (505); see WAC 173-303-040 & - 070 through - 100 (defining "dangerous waste"); see also
AECOM did not perform a remedial investigation/feasibility study, develop a cleanup action plan, or submit a written report to Ecology within 90 days after decommissioning the SVE system, all of which were necessary, in some form, to satisfy the technical criteria for substantial equivalence. WAC 173-340-545(4)(a) & (e) ; WAC 173-340-515(4)(a). Moreover, neither AECOM nor Seattle Times provided written notice to LeatherCare before commencing the SVE process, despite actual knowledge that LeatherCare might be a potentially liable party; such failure to advise LeatherCare violated WAC 173-340-545(3)(a)(v).
*1054B. Contractual Claim
Before turning to the equitable apportionment of remedial action costs among the parties, the Court must first focus on the contractual claim that Touchstone brings against Seattle Times for two reasons: (i) Seattle Times raises certain defenses to Touchstone's breach of contract claim that affect the amount to be allocated among the parties; and (ii) some of the expenses for which Seattle Times is liable under its agreement with Touchstone cannot be recovered from LeatherCare under MTCA.
The contract at issue, i.e. , the ERIA, is explicitly governed by Washington law. Ex. 100 at ¶ 9. Washington courts follow the "objective manifestation" theory of contracts. Hearst Commc'ns, Inc. v. Seattle Times Co. ,
Seattle Times and Touchstone disagree about the significance of three provisions of the ERIA: (i) the definition of "incremental costs," (ii) the clause allowing Seattle Times to select the disposal site; and (iii) the paragraph concerning indemnification as to any third-party claims. Each of these provisions is clear and unambiguous, and extrinsic evidence has not been considered in construing them.
1. Incremental Costs
Seattle Times contends that the expenses associated with (i) delineating between contaminated and clean soil, (ii) keeping track of the vehicles that disposed of contaminated soil (and the tonnage associated therewith), (iii) setting up an extra conveyor, and (iv) training personnel about handling the hazardous materials at issue ("HAZWOPER training") were not "incremental costs" for which Seattle Times is responsible under the ERIA because they were not "costs of transporting or disposing" of contaminated soil. With regard to the last item, the Court agrees with Seattle Times and finds that the expense of HAZWOPER training ($51,588.65) constitutes an item of LCL's overhead and is not recoverable under the ERIA.
The other three challenges, however, fail because the expenditures at issue are "incremental costs" within the meaning of the ERIA. The definition of "incremental costs" says what it means, i.e. , Seattle Times must pay Touchstone for "the difference between the costs of transporting and disposing of Contaminated Soils and the costs of transporting and disposing of Clean Soils." Ex. 100 at ¶ 1(h). Soil delineation, truck monitoring, and operation of a second conveyor all satisfy this standard. Soil delineation was necessary to determine whether excavated soil was contaminated or clean and how the associated transportation and disposal costs would be treated under the ERIA. Tracking which trucks carried soil destined for RCRA Subtitle D facilities ensured an accurate accounting of transportation and disposal expenses. The extra conveyor was an integral part of the process of transporting the *1055contaminated soil from the point of its excavation to the rail container or truck that would take it to a landfill, and the additional conveyor served to avoid cross-contamination of clean soil. The Court concludes that Seattle Times is obligated under the ERIA to reimburse Touchstone for (i) soil delineation work performed by SES ($475,875.75) and LCL ($43,041.72
2. Disposal Facility (Via Rail or Truck)
Seattle Times argues that, because it was allowed under the ERIA to select the disposal site, it should not have to pay the higher cost that Touchstone incurred to transport PCE-contaminated soil to a facility different from the one Seattle Times chose. On July 29, 2014, counsel for Seattle Times sent a letter to Touchstone indicating that it would treat as "incremental costs" only
those differentials between transport and disposal of Clean Soil[s] and Contaminated Soils, with the latter going either: a) by rail, through Republic Services, and disposed of at the Roosevelt Regional Subtitle D Landfill in Roosevelt, Washington ("Roosevelt"); or b) via another feasible option that is less expensive than option a), should such option become available.
Ex. 182 at 2 (footnote omitted). This view lacks merit. Although the ERIA authorized Seattle Times to designate the Roosevelt facility, the contract did not permit Seattle Times to also specify the manner in which soil would be transported to the landfill. The ERIA did not preclude Touchstone from sending PCE-contaminated soil to Roosevelt via truck, at a much higher cost than trucking the material to the RCRA Subtitle D facility in Wenatchee. The Court concludes that Touchstone was authorized under the ERIA to send PCE-contaminated soil via truck to Wenatchee, rather than Roosevelt, when rail containers were unavailable, and that Touchstone's decision to do so was reasonable.
Seattle Times also contends that the reason for delivering soil by truck to Wenatchee was to avoid construction delay as a consequence of rail container unavailability, and that the additional expense of trucking must be deducted from "incremental costs" in light of the ERIA's exclusion of "costs, if any, that Purchaser incurs due to construction delays, inefficiencies, business interruption or the like." Ex. 100 at ¶ 1(h). The Court is not persuaded. Although Touchstone's approach of trucking the soil (when rail containers could not be obtained) to a facility other than the one identified by Seattle Times served to keep the excavation on schedule, doing so was also consistent with the ERIA, which did not require Touchstone to use a particular mode of transportation, and which inhibited Seattle Times from unreasonably interfering *1056with Touchstone's development of the Property. See id. at ¶ 2. The Court concludes that Seattle Times must compensate Touchstone for, at least, the base rates of sending PCE-contaminated soil by rail to Roosevelt (or a nearby facility in Arlington, Oregon) ($47.89/ton)
3. Indemnity for Third-Party Claims (Injection Wells)
The ERIA requires Seattle Times to indemnify Touchstone for claims asserted by third parties, including Ecology, relating to contaminated soil or groundwater that "has or may have migrated off of the Property." Ex. 100 at ¶ 3. On the theory that Ecology has, by issuing Agreed Order No. 8996, made a "claim" concerning groundwater, Touchstone seeks reimbursement from Seattle Times, pursuant to Paragraph 3 of the ERIA, for the costs associated with the 12 angled and 48 boundary injection wells, but not the 43 interior wells installed at the Property.
The Court also concludes that Seattle Times must bear the expenses associated with the 19 boundary wells along the southern edge of the Property, which serve two purposes, one of which is to keep toxic substances from migrating to the Property from Thomas Street, and the other of which is to mitigate contamination to the surrounding area as the groundwater flows in a southeasterly direction from the Property to the adjacent right-of-way and beyond. See Ex. 478 at 5-6. The latter goal falls squarely within the terms of Paragraph 3 of the ERIA.
In contrast, the Court finds that the eight (8) boundary wells along the northern facade of Building 1 (IW01-IW08) and *1057the 21 boundary wells running the length of the western border of the Property (IW09-IW15, IW26-IW32, IW45-IW46, and IW52-IW56) serve only to prevent further contamination of the groundwater beneath the Property; they act as a barrier to pollutants travelling from the north and west with the groundwater as it flows in a southeasterly direction toward the Property. See id. The Court therefore concludes that Seattle Times is not obligated by the ERIA to reimburse Touchstone for the 29 boundary wells near Harrison Street and Boren Avenue North. Seattle Times will be responsible for the 12 angled wells and the 19 boundary wells along Thomas Street, for a total of 31 wells, and the Court will use a ratio of 31/ 103 to calculate the pro rata share of injection-well costs that Seattle Times owes to Touchstone under the ERIA.
4. Other Components of Cost Recovery
Both Seattle Times and LeatherCare challenge various aspects of Touchstone's alleged expenses for transporting contained-out materials and for addressing soil and groundwater contamination.
a. Other Premium
In its bid, CTI included a premium of $4.75 per ton for an additional conveyor belt system, a belt scale, personal protective equipment ("PPE"), a health and safety plan ("HASP"), and decontamination. Ex. 2019 at 8. The Court finds that these costs were related to the transportation of contained-out soil and that they are recoverable under both the ERIA and MTCA.
b. Markup-City Transfer, Inc.
Touchstone seeks the following markups for CTI's services: (i) $3.36 per ton for PCE-contaminated material sent by rail to the Roosevelt or Arlington facilities; (ii) $6.01 per ton for PCE-contaminated material trucked to the Wenatchee disposal site; and (iii) $5.11 per ton for transporting petroleum-only polluted soil. See Ex. 2003 (reproduced in Cook Report at 5, Ex. 2006, filed as docket no. 116). The Court finds that only the CTI markup of $3.36 per ton is supported by the evidence. During trial, Touchstone did not call any CTI officer or employee as a witness and, on the subject of CTI's markups, Touchstone relied solely on the testimony of LCL's project manager Shannon Testa and summaries she had prepared.
According to Ms. Testa, CTI presented multiple written bids, but only one was offered as evidence in this case. See Trial Tr. (Jan. 31, 2018) at 7:19-21 (docket no. 268). This written bid from CTI, submitted on April 11, 2014, indicated that it was for contained-out soil to be transported to either the RCRA Subtitle D facility in Wenatchee, operated by Waste Management of Washington, Inc. ("WM"), or the RCRA Subtitle D facility in Roosevelt, Washington, operated by Republic Services, Inc. ("Republic"). See Ex. 2019 at 8. CTI's markup was not separately stated in the bid, but was instead imbedded in the rates CTI proposed to charge for transportation and disposal of the contaminated soil. See id. The relevant portion of CTI's written bid is reproduced below, with the disposal facilities highlighted:
*1058Ex. 2019 at 8 (modified). Using a quotation from WM for its Columbia Ridge facility in Arlington, Oregon, which is across the Columbia River from Republic's Roosevelt facility and which accepts contaminated soil by rail container, Trial Tr. (Jan. 24, 2018) at 112:1-6 (docket no. 264), Ms. Testa translated CTI's bid into different unit rates, thereby breaking out CTI's markup, as follows:
ITEM CTI's Bid Shannon Testa's (April 11, 2014) Interpretation Disposal $24.00/ton $23.15/ton Transportation53 $34.35/ton $31.84/ton Premium Costs $4.75/ton $4.75/ton CTI Markup imbedded $3.36/ton Clean Soil Credit ($7.10/ton) ($7.10/ton) TOTAL $56.00/ton $56.00/ton
[Editor's Note: The preceding image contains the reference for footnote
*1059See Ex. 2003 (Ex. 2006 at 5); Ex. 2019 at 8 & 11-13; see also Trial Tr. (Jan. 31, 2018) at 15:20-17:14 (docket no. 268).
Because CTI's written bid listed both WM's facility in Wenatchee, which accepts contaminated materials only by truck, and Republic's facility in Roosevelt, to which soil may be transported by rail, confusion arose before, as well as during, trial about whether the rate of $56.00 per ton (including a $3.36 per ton markup) applied to shipping via both truck and rail. In July 2014, before excavation began, Riley Conkin, a geologist acting on behalf of Seattle Times in connection with the execution of the ERIA, posed a number of questions to Touchstone's representatives concerning how LCL had derived the rates for transportation of contained-out soil. In this pre-excavation correspondence, the following exchange occurred:
On page 2 of 4 of the CTI quote dated 4/11/14 [Ex. 2019 at 7-10], CTI references both WM's Wenatchee Subtitle D Landfill and Republic's Roosevelt Subtitle D Landfill as disposal locations. However, WM's Wenatchee landfill is not set-up for rail transport. The CTI quote for Contaminated Soil disposal and transport appears to only include pricing for rail transport. Correct, the pricing on page 2 of the CTI quote is for disposal via container to either WM or Republic's local transfer yard.
Ex. 181 at 2 (colors in original: Mr. Conkin's query on behalf of Seattle Times is in blue, and Ms. Testa's response on behalf of LCL and Touchstone is in red).
In the same email chain, Mr. Conkin requested on behalf of Seattle Times a "detailed breakdown" of the items included in Touchstone's proposed rates per ton for transporting contaminated soil, asking in particular about CTI's markup. Id. Touchstone offered only the following explanation:
The pricing for both facilities [WM's Columbia Ridge facility and Republic's Roosevelt facility] for disposal via [rail] container is based on 30 tons. Costs include disposal fee, refuse tax, liners, ODEQ fee, rail costs per load, trucking to the transfer station, other premium costs ..., CTI markup and a credit for the disposal of clean soil.
Id. (color in original). Unsatisfied with this response, Seattle Times again asked Touchstone to provide "the actual numerical costs per ton for each of the items listed," indicating that the information presented by Touchstone did not indicate "the exact fees for items such as trucking to the transfer station or CTI's markup." Id. According to Mr. Conkin, Touchstone never gave Seattle Times the requested data, and the first time he saw the dollar amounts of the CTI markups was when they appeared in Touchstone's expert's report, which is dated April 19, 2017, and which was admitted as Exhibit 2006 (filed as docket no. 116). See Trial Tr. (Jan. 29, 2018) at 151:4-14 & 160:3-7 (docket no. 267); see also id. at 157:17-23 (explaining on cross-examination that Touchstone's pre-litigation communications "didn't answer the question of what the CTI markup actually was or how much it was"). The Court finds that Touchstone did not quantify CTI's markups until it disclosed its expert's report during the course of discovery in this action. Moreover, despite Touchstone's (overdue) disclosure, the mystery surrounding how CTI's markups were calculated continued through trial.
During trial, after Ms. Testa had already testified, the Court had the following colloquy with Paul Klansnic, Touchstone's *1060senior project manager for the development at the Property:
THE COURT: As I understood your testimony, this [Exhibit 2019 at 7-10] was a fixed bid by CTI for the disposal of all contaminated soil; is that right?
THE WITNESS: Yes.
THE COURT: It was a fixed price.
THE WITNESS: Fixed unit price.
THE COURT: It didn't matter where it went, did it? It could go to Wenatchee. It could go to Republic or Roosevelt. Isn't that what this says?
THE WITNESS: That is what it says.
....
THE COURT: But this bid doesn't differentiate between rail and truck, does it?
THE WITNESS: This bid does not, no.
THE COURT: That's the bid you said that you were relying upon in proceeding; isn't that right?
THE WITNESS: This is the bid I saw. Yeah, that's right.
THE COURT: That's the only bid you've testified about this morning in terms of the costs to move this contaminated soil; isn't that right?
THE WITNESS: That's correct.
THE COURT: And so that total bid was fixed, and it was $63.10, less credit for clean soil. Is that where we are?
THE WITNESS: That's what I see here.
Trial Tr. (Jan. 29, 2018) at 80:19-82:4 (docket no. 267).
In an attempt to address the problem identified in CTI's written bid, Touchstone recalled Ms. Testa, who explained that CTI "quoted the project several times" and "unfortunately, they had some things left behind on their quote." Trial Tr. (Jan. 31, 2018) at 7:20-22 (docket no. 268). According to Ms. Testa, CTI "left the fact that Waste Management, Wenatchee Regional Landfill, up under the contaminated soil, contained-out. That should not have been there." Id. at 7:25-8:3. When asked whether she received any other written bid from CTI after April 11, 2014, the date of the bid admitted as Pages 7 through 10 of Exhibit 2019, Ms. Testa indicated that she "did not receive a full bid from them," and only obtained "supplemental information to their bid." Trial Tr. (Jan. 31, 2018) at 9:9-13 (docket no. 268).
Although CTI's bid erroneously indicated that the quoted rates were for disposal at both the Roosevelt and Wenatchee facilities, regardless of whether the mode of transportation was rail or truck, see Ex. 2019 at 8, the Court finds, in light of Ms. Testa's testimony, that this bid was meant to apply solely to the hauling of soil via rail container, and that CTI's markup for PCE-contaminated soil transported to either the Roosevelt or the Arlington facility was $3.36 per ton. See Ex. 2003. With regard to the CTI markups for trucking PCE-contaminated soil to Wenatchee ($6.01/ton) and for transporting petroleum-laden material to the WM transfer station on Alaska Street ($5.11/ton), the Court concludes that the summary, namely Exhibit 2003 (Ex. 2006 at 5), offered to prove these amounts is not supported by any evidence in the record. The record contains no written bid from CTI relating to the costs of delivering soil to Wenatchee or the Alaska Street transfer station, and no person, including Ms. Testa, testified about the rates quoted by CTI for such services.
c. Markup-Lease Crutcher Lewis
Touchstone seeks reimbursement for LCL's allegedly standard markup of 4.414% over the charged amount. See Ex. 2002. According to counsel for Touchstone, Invoice No. 10, admitted as Exhibit 148, shows how the markup at issue was typically billed by LCL. Invoice No. 10 itemizes the components of LCL's markup as follows:
• Data Processing 0.09% • Fee 2.25% • State Business and Occupation ("B&O") Tax 0.471% • City B&O Tax 0.215% • Professional Liability and Property Damage Insurance 0.8% • Payment and Performance Bond 0.5% ====== 4.326%See Ex. 148; see also Trial Tr. (Jan. 24, 2018) at 144:15-19 & 179:4-20 (docket no. 264). The Court finds that Invoice No. 10, which shows a total markup of only 4.326%, does not support the requested figure of 4.414%.
The Court further concludes that Seattle Times cannot be required under the ERIA and LeatherCare is not obligated under MTCA to pay the proposed B & O tax surcharges of 0.471% and 0.215%. RCW 82.04.500 states that B & O taxes "shall constitute a part of the operating overhead" of "persons engaging in business" and shall not be construed as a tax on such persons' "purchasers or customers." During closing argument, Touchstone's counsel attempted to distinguish Peck v. AT & T Mobility ,
d. Invoices-SoundEarth Strategies
In connection with SES's invoices, Touchstone seeks:
• $475,875.75 for SES's soil delineation services, 100% of which Touchstone has billed to Seattle Times, but Seattle Times has not paid;
• $598,258.21 in connection with SES's work on the design, installation, and operation of the various injection wells, which Touchstone proposes to divide between the other two parties,55 with 63% allocated to Seattle Times pursuant to the ERIA, and 37% apportioned to LeatherCare under MTCA; and
• $1,168,185.54 for which Touchstone suggests LeatherCare is 100% liable under MTCA.
LeatherCare contends that Touchstone has engaged in double-dipping with respect to SES's billings, and that the SES invoices admitted into evidence do not support the total amount sought by Touchstone. The Court agrees with LeatherCare.
i. Double Recovery
As reflected in PowerPoint Slide 8 from Touchstone's closing argument (reprinted above), Touchstone requested that, in connection with SES's billings (highlighted in red), LeatherCare be made liable for $946,830.00 in "consulting costs," as well as for $221,355.54, representing 37% of the groundwater treatment system implementation costs,
Exhibit 2004, which was offered into evidence by Touchstone, contains a table titled "Budget Tracking Spreadsheet" that Touchstone asserts is a summary of SES's invoices for the period from February 26, 2013, through November 2017. See id. at 3-4. According to Exhibit 2004, the sum of SES's billings through November 2017 was $1,799,608.60. Id. As indicated in Exhibit 2004, the amount for which Touchstone considers Seattle Times responsible is $852,778.42, which consists of the following items:
Task Description Total Amount Amount Billed Invoiced by SES to Seattle Times Excavation Field Work $260,227.17 100% $260,227.17 Sidewall Samples $68,606.13 100% $68,606.13 Cost-Recovery Samples $147,042.45 100% $147,042.45 Subtotal for Soil Delineation $475,875.75 100% $475,875.75 Groundwater Treatment System Design $42,405.02 63% $26,715.16 Installation of Injection and Monitoring Wells $35,660.50 63% $22,466.11 Injection Events $492,762.98 63% $310,440.68 Data Evaluation and Ecology Correspondence $4,632.50 63% $2,918.48 Project Management $22,797.21 63% $14,362.24 Subtotal for Groundwater Treatment Services $598,258.21 63% $376,902.67 TOTAL $852,778.42
Exhibit 2004 makes clear that the amount Touchstone already billed to Seattle Times ($852,778.42), which includes only 63% of the costs associated with the injection wells, was deducted from the total of SES's invoices ($1,799,608.60), leaving a balance of $946,830.18. Thus, the amount described in Touchstone's PowerPoint slide as SES's "consulting costs" (which Touchstone rounded down to $946,830.00) takes into account the 37% of injection-well expenses that Touchstone contends LeatherCare should pay. Adding yet another 37% or $221,355.54 for "implementation costs" would result in double recovery. This conclusion becomes obvious when the total that Touchstone seeks from Seattle Times and LeatherCare for SES's work ($2,020,963.96), computed as follows:
$ 852,778.42 amount billed to Seattle Times $ 946,830.00 consulting costs $ 221,355.54 37% of implementation costs _____________ $2,020,963.96 TOTAL
*1064is compared with the sum of SES's invoices set forth in Exhibit 2004 ($1,799,608.60), which is equivalent to just the first two figures above, as illustrated below.
$ 852,778.42 amount billed to Seattle Times $ 946,830.18 balance (labeled "consulting costs") _____________ $1,799,608.60 TOTAL
Touchstone will not be permitted to recoup from Seattle Times and LeatherCare more than was billed by SES.
ii. Unsupported Summaries
In addition to its attempt at double recovery, Touchstone has tried, in connection with Exhibit 2004, to circumvent the evidentiary requirements relating to summaries, which are as follows:
The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.
Fed. R. Evid. 1006. The prerequisites for admission of a summary are (i) the underlying materials upon which the summary is based must themselves be admissible evidence, and (ii) the underlying materials must have been made available to the opposing party for inspection. See Paddack v. Dave Christensen, Inc. ,
Exhibit 2004 was offered by Touchstone through the testimony of Paul Klansnic, and it was initially admitted for demonstrative purposes only. Trial Tr. (Jan. 29, 2018) at 4:12-21 & 59:20-60:17 (docket no. 267). Exhibit 2004 contains inter alia two tables. The first table, labeled "Summary of Site Remediation Costs-Not Reimbursed by Seattle Times," was prepared by Mr. Klansnic using "invoice summaries" he obtained from the entities identified in the table, namely SES, LCL, Ecology, and two law firms. Id. at 61:7-9; see Ex. 2004 at 1. According to Mr. Klansnic's table, the costs paid to date to SES that had not already been invoiced to Seattle Times totaled $946,830, and SES's "projected" billings to complete the project are $664,016, for a total of $1,610,846, which Touchstone seeks solely from LeatherCare. See Ex. 2004 at 1. With regard to SES's "projected" billings, Mr. Klansnic offered no testimony concerning the method he used to derive the figure of $664,016, and Touchstone identified no materials to support this number.
The second table included in Exhibit 2004, titled "Budget Tracking Spreadsheet," was prepared by SES, see Trial Tr. (Jan. 29, 2018) at 61:10-14 (docket no. 267), and the Court concludes that Mr. Klansnic, as a project manager for Touchstone, and not SES, had no personal knowledge concerning how the second table was generated. Touchstone called no other witness to lay foundation for the "Budget Tracking Spreadsheet." The "Budget Tracking Spreadsheet" indicates as follows: (i) from February 2013 through November 2017, the sum of SES's invoices was $1,799,608.60; (ii) Seattle Times was invoiced for $852,778.42;
During the course of Mr. Klansnic's testimony, Touchstone reoffered Exhibit 2004 for all purposes. Trial Tr. (Jan. 29, 2018) at 64:11 (docket no. 267). With regard to Mr. Klansnic's table and the "Budget Tracking Spreadsheet," LeatherCare objected, explaining that it had not been provided the underlying SES invoices. Id. at 65:8-16 ("We have not seen backup for the SoundEarth Strategies' costs...."). The Court admitted Mr. Klansnic's table, but not the "Budget Tracking Spreadsheet." See id. at 65:17-66:15.
Touchstone subsequently offered, through a different witness, SES's invoices from February 26, 2014, through August 19, 2015, which were admitted into evidence as Exhibit 2026. Trial Tr. (Jan. 29, 2018) at 130:19-131:20 (docket no. 267). Touchstone, however, never provided SES's invoices for the periods preceding February 2014 or after August 2015. A revised version of Exhibit 2004, including SES's "Budget Tracking Spreadsheet," was later admitted into evidence by stipulation of the parties, Trial Tr. (Jan. 31, 2018) at 36:14-37:13 (docket no. 268), but the only SES invoices in evidence total $931,527.33.
The Court concludes that, with regard to SES's billings, Touchstone failed to lay an adequate foundation for the two tables in Exhibit 2004. As the proponent of the summaries, Touchstone bore the burden of demonstrating that it had made the supporting documents available to the opposing parties. Paddack ,
iii. SES's Billings
In light of Touchstone's attempt to obtain duplicative damages, the substantial disparity between SES's invoices of record (Exhibit 2026) and the summaries allegedly based on them (Exhibit 2004), LeatherCare's objections and Touchstone's failure to overcome them, and the lack of testimony from someone with personal knowledge concerning how SES's "Budget Tracking Spreadsheet" was generated, the Court concludes that the "Budget Tracking Spreadsheet" is not sufficiently reliable to prove the contents of SES's invoices for the period from February 2013 to November 2017, and the Court declines to award Touchstone the total ($1,799,608.60) set forth in the "Budget Tracking Spreadsheet." See Fed. R. Evid. 1006.
The Court will instead include as the costs associated with SES's services the amounts originally billed to Seattle Times before Touchstone attempted to apportion the expenses between Seattle Times and LeatherCare. These figures are set forth in three invoices, namely Invoices Nos. 14, 15, and 16, which were admitted as Exhibits 152, 153, and 2010. Attached to each invoice was a cover letter from an individual employed at the relevant time by SES, summarizing the costs being charged, and several pages of billing detail, identifying the various tasks performed, the personnel who engaged in the activities, the date on which they occurred, and the amount of time they required. See Exs. 152, 153, & 2010. The Court concludes that Invoices Nos. 14, 15, and 16 qualify, under Rule 1006, as summaries with the requisite supporting materials, which have been made available to both Seattle Times and LeatherCare. These invoices support the following amounts relating to SES's work: (i) $475,875.75 for excavation and soil delineation work, and (ii) $598,258.21 ($208,581.45 plus $389,676.76) for groundwater treatment system design, installation, and operation, for a total of $1,074,133.96.
e. Invoices-Regulatory Review
The parties do not appear to dispute the sum that Touchstone alleges it has paid to Ecology to date, specifically $88,511.27. Ex. 2004 at 12. LeatherCare asks only that Touchstone be allocated a greater share of these fees because it has pursued regulatory approval to further its own business interests. The Court concludes that the regulatory charges were reasonable and will include them in the amount to be allocated among the parties based on equitable factors.
*1067f. Sales Tax
Touchstone seeks $648,674.31 in sales tax allegedly incurred in connection with the remedial action. See Ex. 2002. Both Seattle Times and LeatherCare contend that Touchstone may not recover sales tax from them. They are only partially correct. In Washington, sales tax must be collected on all non-exempt "retail sales" from the buyer and then paid by the seller to the Washington Department of Revenue. See RCW 82.08.020 & .050. A retail sale includes charges for labor and services rendered in "constructing, repairing, ... or improving" new or existing buildings "under, upon, or above real property of or for consumers," including "the clearing of land and the moving of earth." RCW 82.04.050(2)(b) ; see RCW 82.04.190(4) (defining "consumer" as including any person who owns real property being constructed, repaired, improved, or otherwise altered). Excluded from the definition of retail sale are certain services like engineering, accounting, consulting, and administrative work that is provided to either the consumer of, or the person responsible for performing, the construction, repair, or improvement. RCW 82.04.051(1). Touchstone does not appear to have been charged, or to seek reimbursement for, sales tax related to SES's services or Ecology's fees, which do not qualify as "retail sales." Thus, the sole question before the Court is whether sales tax was owed, and can be recovered, with respect to LCL's and CTI's services.
Some services LCL provided to Touchstone were for accounting or administrative purposes, for example, tracking trucks and regulatory compliance efforts (which were billed along with, and cannot be disentangled from, soil delineation charges). Likewise, a portion of LCL's markup (1.39%) involves administrative matters, namely data processing, insurance, and required bonds. Thus, as to these items, the Court will not include sales tax in the computation of the amount to be apportioned among the parties. The balance of LCL's charges, however, including its project fee on non-administrative tasks (at the rate of 2.25%), as well as all of CTI's services, fall squarely within the definition of retail sales for which sales taxes are due.
In arguing otherwise, both Seattle Times and LeatherCare rely on statutes relating to B & O taxes, not sales tax. Seattle Times cites RCW 82.04.051(2) for the proposition that the appropriate tax rate is the one that applies to the predominant activity involved. This statute contemplates that, if the predominant activity is not explicitly taxed under a separate provision, the catch-all rate of 1.5% should be used to calculate the B & O tax owed on the gross income of the business.
5. Total Amount Owed by Seattle Times Under the ERIA
Of the over $9.88 million in remedial action costs that Touchstone seeks in this action, the Court concludes that Seattle Times is bound under the ERIA to reimburse Touchstone for $8,160,527.61, as itemized in the tables on the next two pages. For the reasons already explained (see supra p. ----), $429,211.77 of this sum, as reflected in Table 1, may not be passed along to LeatherCare under MTCA.
Table 1: Amount Owed by Seattle Times Under the ERIA and Not Recoverable from LeatherCare Under MTCA Transportation of Petroleum-Only Contaminated Soil • RATE: $42.99/ton + $4.75/ton + $3.36/ton = $51.10/ton • AMOUNT: 2,755.00 tons + 2,538.76 tons = 5,293.76 tons • LCL Project Fee (2.25%) = $6,086.50 $306,634.52 • LCL Administrative Markup (1.39%) = $3,760.10 • Sales Tax (9.5%) = $26,276.78 Transportation of PCE Plumes Attributable Only to Troy • RATE (by truck): $59.14/ton + $4.75/ton + $3.36/ton = $67.25/ton63 • AMOUNT: 6,500 cu. ft. (240.74 yd3 × 1.8959 tons/yd3 = 456.42 tons) • LCL Project Fee (2.25%) = $690.62 $34,793.07 • LCL Administrative Markup (1.39%) = $426.65 • Sales Tax (9.5%) = $2,981.56 Wages for Trucking Monitors • CHARGE: $41,659.34 • LCL Project Fee (2.25%) = $937.34 $43,175.74 • LCL Administrative Markup (1.39%) = $579.06 LCL - Soil Delineation and Regulatory Compliance • CHARGE: $43,041.72 • LCL Project Fee (2.25%) = $968.44 $44,608.44 • LCL Administrative Markup (1.39%) = $598.28 SUBTOTAL (Table 1) $429,211.77
[Editor's Note: The preceding image *1069contains the reference for footnote
The extent to which Seattle Times may recoup from LeatherCare some of the remaining $7,731,315.84, calculated as indicated in Table 2 on the next page, will be addressed in the sections on apportionment.
Table 2: Amount Owed by Seattle Times Under the ERIA (To Be Apportioned under MTCA) Transportation of PCE-Contaminated Soil by RAIL • RATE: $47.89/ton + $4.75/ton + $3.36/ton = $56.00/ton • AMOUNT: 35,504.26 tons • LCL Project Fee (2.25%) = $44,735.37 $2,253,742.96 • LCL Administrative Markup (1.39%) = $27,636.51 • Sales Tax (9.5%) = $193,132.52 Transportation of PCE-Contaminated Soil by TRUCK • RATE: $59.14/ton + $4.75/ton + $3.36/ton = $67.25/ton • AMOUNT: 60,605.87 tons - 456.42 tons = 60,149.45 tons • LCL Project Fee (2.25%) = $91,013.64 $4,585,216.44 • LCL Administrative Markup (1.39%) = $56,226.20 • Sales Tax (9.5%) = $392,926.09 Set-Up Extra Conveyor • CHARGE: $62,500.00 • LCL Project Fee (2.25%) = $1,406.25 $70,846.09 • LCL Administrative Markup (1.39%) = $868.75 • Sales Tax (9.5%) = $6,071.09 SES - Soil Sampling and Analysis $475,875.75 LCL - Installation of Injection Wells • SHARE PER ERIA: 31/103 of $225,89064 = $67,986.31 • LCL Project Fee (2.25%) = $1,529.69 $77,065.03 • LCL Administrative Markup (1.39%) = $945.01 • Sales Tax (9.5%) = $6,604.02 SES - Groundwater Treatment (Injection Wells) SHARE PER ERIA: 31/103 of $598,258.21 ($208,581.45 + $389,676.76) $180,058.30 Regulatory Review $88,511.27 SUBTOTAL (Table 2) $7,731,315.84 SUBTOTAL (Table 1) $429,211.77 TOTAL DUE under ERIA $8,160,527.61 Amount Paid by Seattle Times $4,783,434.17 BALANCE OWED under ERIA $3,377,093.44
[Editor's Note: The preceding image contains the reference for footnote
*1070C. Apportionment of Remedial Action Costs Under MTCA
Recovery under MTCA "shall be based on such equitable factors as the court determines are appropriate." RCW 70.105D.080. LeatherCare suggests that its share of response costs should correlate with the percentage of contained-out soil that was contaminated with PCE above the cleanup level (0.05 mg PCE per kg soil) published by Ecology pursuant to MTCA. The Court declines to adopt LeatherCare's methodology and instead considers various factors that have been identified by federal and state courts in connection with equitable apportionment of remedial action costs.
1. LeatherCare's Proposed Pro Rata Reduction
According to LeatherCare, only 22% of the "contained-out" material
As indicated on the various lift maps contained in SES's Interim Action Progress Report, within each ten-foot layer of soil, some samples tested above the cleanup level, while others showed PCE concentrations either below 0.05 mg/kg (the cleanup level) or less than 0.025 mg/kg (the detection level). See Ex. 126 (491) at 43-50 (Figs. 6A-6H). For example, at the lowest elevation of excavation, five samples had PCE concentrations in excess of 0.05 mg/kg,
The Court finds that, to remove the soil in each ten-foot layer that contained PCE in excess of the cleanup level, excavation of the earth directly and laterally above the material, regardless of whether it was itself contaminated, was required. The Court also finds that the contained-out boundaries delineated on SES's lift maps approximate with sufficient accuracy the scope of material that was itself contaminated or that needed to be extracted to access deeper soil in which PCE concentrations were above the cleanup level. The Court reaches this conclusion based on the evidence indicating that the expense associated with transporting contaminated soil to RCRA Subtitle D facilities served as an incentive to demarcate the contained-out regions as narrowly as possible.
2. Equitable Factors Under MTCA
The Washington Supreme Court has not yet enumerated equitable factors that are appropriate for consideration in apportioning remedial action costs under MTCA. Division 1 of the Washington Court of Appeals, however, has affirmed allocations predicated on (i) the number of years that a service station was in operation during the period that the property was owned, resulting in the defendant being required to pay 7/11ths of the cleanup costs, Car Wash Enters., Inc. v. Kampanos,
In deciding what factors to apply in equitably apportioning the allowable remedial action costs among the parties in this matter, the Court has considered the relevant decisions of Divisions 1 and 2, the "Gore" factors, the "Torres" categories,
*1073The Court has concluded that, with respect to the issues presented in this case, the most appropriate equitable factors to consider are as follows: (i) the degree of involvement in contaminating the Property; (ii) the degree of care exercised by the various entities; (iii) the ability to pay; (iv) the benefit derived from the use of PCE; (v) the benefit derived from the cleanup; (vi) the degree to which lack of actual, advance notice about the remedial actions was prejudicial; (vii) the nature of the prior settlement; and (viii) the indemnification agreement between Seattle Times and Touchstone.
a. Troy and LeatherCare
Turning to the first four factors, the Court is mindful that, during the period when the use of PCE as a dry-cleaning solvent was prevalent, few environmental standards governed the industry and the PCE-based systems that operated at the Property were generally consistent with the then state-of-the-art. Nevertheless, as the parties have stipulated, the manner of handling both solid and liquid waste from the PCE equipment was the root cause of the PCE contamination at the Property, see supra pp. 1012-15, and the Court concludes that Troy and LeatherCare were equally at fault.
Troy participated in contaminating the Property by providing and operating the dump truck that served as a waste receptacle, which was left open to the elements between runs to the transfer station, allowing PCE to seep into the subsurface soil. In addition, in its capacity as owner and landlord, Troy was responsible for any deficiencies in the pipes and side sewers that carried waste water to the municipal sewer mains. Troy's own use of PCE, which would have generated both solid and liquid waste, also contributed to the contamination, but perhaps at a slower rate than LeatherCare's PCE operations. Both companies benefitted from the mechanism of PCE release at the Property, deriving income from the dry-cleaning operations. During the period 1979 through 1985, LeatherCare's gross receipts exceeded $7 million, see Exs. 7, 10, 15, 16, 18, 20, & 22, and it used over 10,000 gallons of PCE, a little over 27% of which was lost along with solid waste (filter muck, filter cartridges, and still bottoms) or waste water, see supra p. 1016-17, resulting in PCE contamination of the soil and groundwater at the Property. In the absence of other involved entities, and if Troy was still solvent, the Court would hold Troy and LeatherCare each 50% liable for the remedial action costs; however, the facts of this case are not so simple.
b. Seattle Times
Bearing in mind all the equitable factors applicable to this matter, which were previously outlined, the Court observes that, in contrast to LeatherCare's six-year period of PCE use, Seattle Times owned the *1074Property for over 25 years. During most of that period, Seattle Times took few corrective actions, and PCE plumes were allowed to travel farther and deeper in the subsurface soil, reaching the adjacent right-of-way and the groundwater. Although Seattle Times did not play an active role in the original contamination, it is no less culpable than Troy and LeatherCare, particularly given (i) its knowledge at the relevant times that the Property had been or was being used as a dry-cleaning facility, (ii) its failure to conduct any meaningful investigation prior to purchasing the Property, (iii) its inadequate exploration after acquiring the Property, and (iv) its insufficient efforts at remediation.
In addition, despite serving as LeatherCare's landlord for roughly 14 years, when concerns arose about PCE contamination at the Property, Seattle Times did not alert LeatherCare in connection with AECOM's efforts to reduce the concentration levels using SVE technology, prior to entering into the ERIA with Touchstone, or before Touchstone commenced or completed excavation. As a result, LeatherCare was unable to participate in the analysis of remediation alternatives or propose ways in which response costs could be reduced or contained. LeatherCare has also been hampered in its defense in this litigation, being forced to rely on Touchstone's consultant's work and data rather than that of its own expert. In sum, with respect to its MTCA claim against LeatherCare, Seattle Times does not come to the Court with clean hands, and the Court will attribute to Seattle Times a 60% portion of Troy's 50% share of the PCE-related remedial action costs, which is equivalent to 30% of the total amount being allocated pursuant to MTCA.
c. Touchstone
Unlike the other entities involved, Touchstone did not create or exacerbate the hazardous situation at the Property, but Touchstone is the only party that benefits from the remedial action. If successful in obtaining the necessary approvals from Ecology, Touchstone will be poised to sell the now redeveloped Property. Before purchasing the Property, Touchstone knew about the contamination, and the condition of the Property affected its purchase price. In negotiating an indemnification agreement *1075with Seattle Times, Touchstone addressed its two primary concerns, namely the increased cost of transporting contaminated soil to appropriate disposal facilities and its possible exposure to claims by third parties.
To the extent that Touchstone receives compensation from Seattle Times for these components of its remedial action costs, it will have realized the benefit of the bargain struck with Seattle Times, and any remaining expenses are arguably what Touchstone expected to absorb as part of its redevelopment efforts. Indeed, but for being brought into this litigation as a third-party defendant by LeatherCare, Touchstone might not have pursued any claim against LeatherCare. For these and other reasons articulated in the next section, the Court will apportion a little over 40% of the groundwater treatment and regulatory review expenses to Touchstone, but it will not allocate to Touchstone any of the excavation-related costs, other than those Touchstone must bear because they are unrecoverable.
3. Methods of Allocating Remedial Action Costs Under MTCA
The remedial action costs to be apportioned fall into two categories: (i) expenses associated with installation and operation of injection wells for groundwater treatment and regulatory review ($942,824.26); and (ii) expenses related to the transportation and disposal of PCE-contaminated soil ($7,385,681.24). The Court concludes that, for each category of remedial action costs, a different allocation method is appropriate. For the reasons explained later in this section, the groundwater treatment and regulatory review costs will be shared among all three parties in the following manner: Seattle Times (31/103); LeatherCare (29/103); Touchstone (43/103). The expenses associated with transporting PCE-contaminated soil and disposing of it at RCRA Subtitle D facilities, however, will be divided between Seattle Times (30%) and LeatherCare (70%).
a. Groundwater Treatment and Regulatory Review Expenses
Because the bulk of the remedial action costs that Touchstone seeks separately from LeatherCare (and not from Seattle Times) involve groundwater treatment, for which monitored natural attenuation was never proposed as a viable alternative, and concerning which LeatherCare was not provided a meaningful opportunity to be heard in advance of the work being performed, the Court declines to award Touchstone the full measure of its claimed damages. Instead, the Court will allocate the expenses of installing and operating the various injection wells as follows: Seattle Times (31/103),
The Court further concludes that Touchstone is the appropriate party to shoulder the expense of the 43 interior wells. The Court finds that those wells were proposed to Ecology, instead of monitored natural attenuation, for the sake of expediency, in order to move forward on construction efforts without the risk of redesigns or rework in the future. Although such decision made business sense, it is not a fair basis for passing along the costs to a party who was not "in the room where it happened."
The Court will apportion the regulatory review expenses ($88,511.27) in the same manner as the injection well costs because Ecology focused more on groundwater treatment issues than on transportation of contaminated soil. In addition, assigning Touchstone a larger share (43/103) of the regulatory review expenses is consistent with Touchstone's status as the primary (or sole) beneficiary of Ecology's work. Consistent with the foregoing analysis, the groundwater treatment and regulatory review expenses are equitably allocated as follows:
Table 3: Apportionment of Seattle Times LeatherCare Touchstone Groundwater Treatment and (31/103) (29/103) (43/103) Regulatory Review Expenses LCL - Installation of Injection Wells TOTAL: $225,890 +$5,082.52 (LCL 2.2.5.% Project Fee) + $3.139.87 (LCL 1.39% Administrative Marimp) + $77,065.03 $72,093.09 $106,896.66 $21,942.39 (9.5% sale tan) = $256,054.78 SES - Injection Well Services TOTAL: $598,258.21 $180,058.30 $168,441 63 $249,758 28 Regulatory Review TOTAL: $88,511.27 $26,639.31 $24,920.65 $36,951.31 TOTALS ($942,824.26) $283,762.64 $265,455.37 $393,606.25
b. PCE-Contaminated Soil Transportation and Disposal Costs
Because the Court has already reduced the amount of PCE-contaminated soil transportation and disposal costs to be allocated among the parties (by disallowing the Saturday premium, certain markups, items of overhead, and sales tax on administrative services), the Court does not attribute any of these expenses to Touchstone. The Court assigns to Seattle Times a 30% share of the remedial action costs being allocated under MTCA, which represents 60% of the 50% portion that would otherwise have been Troy's responsibility. LeatherCare must pay the balance. Thus, the transportation and disposal related expenses for contained-out material shall be apportioned as follows:
*1077Table 4: Allocation of PCE-Contaminated Soil Seattle Times LeatherCare Transportation and Disposal Costs 30% 70% Transportation of PCE Soil by RAIL $676,122.89 $1,577,620.07 TOTAL: $2,253,742,96 Transportation of PCE Soil by TRUCK $1,375,564.93 $3,209,651.51 TOTAL: $4,585,216,44 Set-Up Extra Conveyor $21,253.83 $49,592.26 TOTAL: $70,846.09 SES - Soil Sampling and Analysis $142,762.72 $333,113.03 TOTAL: $475,875.75 TOTALS ($7,385,681,24) $2,215,704.37 $5,169,976.87
D. Judgment Amounts
With regard to the appropriate judgment amounts, the Court finds and concludes:
(1) The total amount due from Seattle Times to Touchstone pursuant to the ERIA is $8,160,527.61. See supra p. 1069. The parties have stipulated that Seattle Times has already paid Touchstone $4,783,434.17. PTO at p. 17, ¶ 53 (docket no. 154). Thus, in connection with its contract claim, Touchstone is entitled to judgment against Seattle Times in the sum of $3,377,093.44. See Table 2, supra p. 1069.
(2) Under MTCA, the amount of remedial action costs allocated to LeatherCare is $5,435,432.24, which is comprised of (i) $265,455.37 in groundwater treatment and regulatory review expenses, as set forth in Table 3, supra p. 1076; and (ii) $5,169,976.87 in transportation and disposal related costs, as set forth in Table 4, above.
(3) Under MTCA, the amount of remedial action costs allocated to Seattle Times is $2,928,678.78, which is the sum of (i) $429,211.77, which is the portion due under the ERIA that is unrecoverable from LeatherCare under MTCA, as set forth in Table 1, supra p. 1068; (ii) $283,762.64 in groundwater treatment and regulatory review expenses, as set forth in Table 3, supra p. 1076; and (iii) $2,215,704.37 in transportation and disposal related costs, as set forth in Table 4, supra p. 1077.
(4) LeatherCare and Seattle Times are severally, not jointly, liable under MTCA. Thus, Seattle Times may not recover from LeatherCare, and LeatherCare may not recover from Seattle Times, for any portion of the amounts allocated to each of them, respectively, under MTCA.
(5) Seattle Times has paid to Touchstone more than what it owes under MTCA,
(6) To avoid any double recovery on Touchstone's part, the amount that LeatherCare owes under MTCA ($5,435,432.24) shall be offset by the amount paid by *1078Seattle Times that is above what it owes under MTCA ($1,854,755.39), leaving a balance of $3,580,676.85 owed by LeatherCare to Touchstone. Thus, with respect to its MTCA claim, Touchstone is entitled to judgment against LeatherCare for $3,580,676.85.
(7) Touchstone's total recovery, under the ERIA and/or MTCA, including prior payments by Seattle Times, shall not exceed $8,364,111.02. This figure is calculated in three different ways, as follows:
Amount already paid to Touchstone by Seattle Times $4,783,434.17 Amount owed to Touchstone by LeatherCare $3,580,676.85 _____________ Touchstone's Total Recovery $8,364,111.02 MTCA share allocated to Seattle Times $2,928,678.78 MTCA share allocated to LeatherCare $5,435,432.24 ______________ Touchstone's Total Recovery $8,364,111.02 PCE-contaminated soil transportation and disposal costs $7,385,681.24 Groundwater treatment and regulatory review expenses $ 942,824.26 Touchstone's share of groundwater and regulatory costs ($ 393,606.25) Amount per the ERIA that is unrecoverable under MTCA $ 429,211.77 _____________ Touchstone's Total Recovery $8,364,111.02
(8) For purposes of reasonable attorney's fees and costs, which are recoverable under the ERIA, see Ex. 100 at ¶ 10, and MTCA, see RCW 70.105D.080, Touchstone is the prevailing party against both Seattle Times and LeatherCare. The Court makes no ruling concerning whether attorney's fees and costs must be apportioned between the ERIA and MTCA claims or whether the liability of Seattle Times and LeatherCare for attorney's fees and costs will be joint and several. The deadline set forth in Federal Rule of Civil Procedure 54(d)(2)(B)(i) for Touchstone to file a motion for attorney's fees is STAYED. The Court will, by separate order, set a deadline for Touchstone to file a motion for attorney's fees. Costs shall be taxed in the manner set forth in Local Civil Rule 54(d).
(9) The Court makes no ruling regarding whether another party other than Touchstone can be a prevailing party under MTCA or whether either Seattle Times or LeatherCare is also a prevailing party and entitled to reasonable attorney's fees and costs against the other under MTCA. The Court will, by separate order, set a briefing schedule for Seattle Times and LeatherCare to address these issues. The briefs shall not discuss the amount of attorney's fees or costs that might be claimed if either party were entitled to any recovery. The deadlines for Seattle Times and/or LeatherCare to file a motion for attorney's fees and to tax costs, if entitled to do so, are STAYED until further order of the Court.
E. Future Response Costs
To the extent that future response costs relate to groundwater treatment, regulatory review, or operation of the injection wells, the Court equitably allocates such expenses as follows: 31/103 to Seattle Times, 29/103 to LeatherCare, and 43/103 to Touchstone. To the extent that any other remedial activity is required at a later date, the nature of which cannot now be anticipated, the Court declines to determine what equitable apportionment might apply.
Conclusion
For the foregoing reasons, the Court hereby ORDERS as follows:
*1079(1) The claim under CERCLA asserted by Seattle Times against LeatherCare is DISMISSED;
(2) The claims under CERCLA and MTCA asserted by Seattle Times against Steven Ritt and the marital community composed of Steven Ritt and Laurie Rosen-Ritt are DISMISSED;
(3) The claim under MTCA asserted by Seattle Times against LeatherCare for recovery of costs ($348,087) associated with the soil vapor extraction system designed, installed, and operated by AECOM is DISMISSED;
(4) The Clerk is DIRECTED to enter judgment consistent with this Order, setting forth the amounts due under the ERIA and MTCA, as well as the allocation of future response costs relating to groundwater treatment, regulatory review, and injection-well operation; and
(5) The Clerk is further DIRECTED to send a copy of this Order to all counsel of record.
IT IS SO ORDERED.
During the course of trial, the Court heard from lay witnesses Alan Fisco, Jeffery Belfiglio, Shawn Campbell Mathewson, Steven Wood, Peter Kingston, Shawn Parry, Riley Conkin, David Clemens, Shannon Testa, John Funderburk, Paul Klansnic, and James O'Hanlon. The Court also read the entire transcripts of the depositions of Steven Ritt, Mark Chose, and Jack Ross, and the designated portions of the transcripts of the depositions of Lawrence Rowley, Thelma Spillers, Douglas Ranes, Eric Rosebrock, Frank Blethen, Carolyn Kelly, Andrew Faas, Robert Hallowell, Elizabeth Sander, Frank Paiva, Mason Sizemore, Nathaniel (Buster) Brown, Martin Brown, Riley Conkin, Thomas Cusack, Shawn Campbell Mathewson, Sunny Becker, Robert Warren, Maura O'Brien, and Douglas Howe. Before each expert testified, the Court reviewed in chambers the expert's declaration and the attached reports. See Dale Decl. (docket nos. 118 & 183); Jewett Decl. (docket nos. 119 & 186-87); Krasnoff Decl. (docket nos. 120 & 188-92); White Decl. (docket nos. 121 & 193-94); Zelikson Decl. (docket nos. 122 & 195-96); Morrill Decl. (docket no. 117); Cook Decl. (docket no. 116). Expert witnesses Peter M. Krasnoff, P.E., Bruce E. Dale, Ph.D., Peter D. Jewett, L.G., L.E.G., Jeffrey Zelikson, P.E., and Richard Lane White were called by Seattle Times. Expert witness Pamela J. Morrill, L.G., L.H.G. was called by LeatherCare, and expert witness Dave Cook, L.G., C.P.G. testified on behalf of Touchstone.
The exhibits Seattle Times offered were numbered 1 through 538. Thirty (30) of these exhibits were provided in electronic form on a compact disc ("CD"). For each exhibit on a CD, Seattle Times also submitted a truncated version in hardcopy form. To the extent that material cited in this Order appears both on the CD and in the printed excerpt, the Court references both exhibit numbers, with the truncated version in parenthesis. For example, the Draft Remedial Investigation Report is cited as "Ex. 115 (493)" and the Interim Action Progress Report is cited as "Ex. 126 (458 & 491)." LeatherCare's exhibits were numbered 1001 through 1201, and Touchstone's exhibits were numbered 2001 through 2026. Over 750 exhibits, contained in more than 17 binders, each at least three inches wide, were admitted into evidence.
Any conclusion of law misidentified as a finding of fact shall be deemed a conclusion of law, and any finding of fact misidentified as a conclusion of law shall be deemed a finding of fact.
PCE and Perc are abbreviations for the organic compound C2 Cl4, which is known as perchloroethylene, perchloroethene, tetrachloroethylene, and/or tetrachloroethene.
Although Touchstone has outlined the costs associated with specific tasks related to remediation, it was not actually billed for each line item, but instead entered into a "guaranteed maximum price" agreement with its general contractor, pursuant to which Touchstone would pay a fixed amount for the development of the Property. See Trial Tr. (Jan. 24, 2018) at 95:22-96:13 (docket no. 264). Under this agreement, the general contractor bore the risk of cleanup expenses exceeding the amounts estimated, id. at 96:6-8, but it would return any "savings" to Touchstone, id. at 96:11-13. In this matter, the environmental response costs were less than the "original allowance," and Touchstone paid less than the "guaranteed maximum price" for the entire project. See id. at 97:17-20.
For the sake of simplicity, the Court has used numerical designations for the structures at the Property, rather than street addresses or the naming conventions used by the parties.
Touchstone's consultant has indicated that Building 3 had an address of 329 Boren Avenue North, Ex. 115 (493) at Fig. 2, as well as an address of 329 Fairview Avenue North, e.g. , Ex. 107 at 11; Ex. 115 (493) at 17. King County Assessor records reflect that Building 3 was located at 333 Fairview Avenue North. Ex. 115 at 182-83.
Halogenated hydrocarbons are chemicals in which a halogen (e.g. , fluorine, chlorine, bromine, iodine, or astatine), instead of a hydrogen atom, is bonded to a carbon atom. See Tab 11 to Dale Report (docket no. 183-13 at 101).
The parties have stipulated that at least three separate side sewers were installed at the Property between 1946 and 1966. PTO at 8, ¶ 13. One of these side sewers conveyed waste water from Buildings 2 and 3 to the municipal main under Harrison Street. Id. The other side sewers connected areas of Building 2 to the municipal main under Boren Avenue North. Id. ; see also Ex. 115 (493) at § 2.3.1 (indicating that the Property had a total of ten side sewers; seven side sewers, one of which had been abandoned, entered the Property from Boren Avenue North, one side sewer ran to Harrison Street, and the other two side sewers were connected to the municipal main under Fairview Avenue North).
Dry-cleaning systems are categorized as either transfer or dry-to-dry. Ex. 270 at 15. In a transfer operation, the washer and dryer are separate units, and the clothes must be moved, in a wet state, from the washer to the dryer. Id. In a dry-to-dry machine, the clothes are dried in the same tumbler as they are washed; the clothes go in dry and come out dry. Id. Like the "great majority" of PCE systems that existed during the timeframe at issue in this case, see id. , the PCE operations at the Property involved the transfer of clothes from one unit to another.
Exhibit 270 is a report published in 1978 by the EPA titled Control of Volatile Organic Emissions from Perchloroethylene Dry Cleaning Systems. The document set forth the "presumptive norm or reasonably available control technology" for PCE dry-cleaning systems. Ex. 270 at 7.
Expert Peter Jewett testified that PCE weighs 13 pounds per gallon (lbs/gal). Trial Tr. (Jan. 16, 2018) at 88:22 (docket no. 260). Another source indicates that PCE has a density of 13.47 lbs/gal. See https://drycleancoalition.org/download/solvent_table.pdf. The Court has used Mr. Jewett's figure in converting from kilograms to gallons, but recognizes that the resulting amount overstates the volume. The calculation was performed as follows: 1,150 kg PCE × (2.2 lbs/kg) × (1 gal PCE÷13 lbs) = 194.6 gal.
Although Dr. Delaney used the same assumption as Dr. Dale, namely that LeatherCare lost 1,977 gallons of PCE per year, he opined that 73-74% of the PCE (8,761.42 gallons over six years, or roughly 1,460 gallons per year) was released to the air, while another 25-27% (3,055.92 gallons over six year or 509 gallons per year) was discharged with filter muck, filter cartridges, and still bottoms, and the remaining less than 1% (42.66 gallons over six years or a little more than 7 gallons per year) was discharged with waste water. Ex. 1140 at 23.
Ms. Morrill challenges Drs. Dale's and Delaney's assumption that the amount spent by LeatherCare on PCE ($35,580.42) during the period from 1980 through 1985 reflects the purchase of 1,977 gallons of PCE per year; Ms. Morrill notes that PCE rose from $3.00 per gallon in 1979 to $5.00 per gallon in 1985, but that Drs. Dale and Delaney used only the lower price of $3.00 per gallon, thereby overestimating the quantity of PCE purchased. See Morrill Rebuttal & Supp. Report, Ex. 1145 at 32 (filed as docket no. 117-15). Ms. Morrill instead estimates that LeatherCare bought 10,084 gallons of PCE over the six-year period at issue (1,680.67 gallons per year), of which 82.55% (1,387 gallons per year) was emitted to the air, 17.4% (292 gallons per year) was discarded with filter muck, filter cartridges, and still bottoms, and only 0.05% (less than 1 gallon per year) was discarded through the sewer system. Id. at 31-35 & Table 4-7. The Court finds Ms. Morrill's calculation of the total amount of PCE released annually (1,681 gallons per year) to be more accurate than Dr. Delaney's computation (1,977 gallons per year), but finds that the percentages assigned by Dr. Delaney to each manner of PCE emission track the EPA's estimates more closely and are more reliable than Ms. Morrill's distribution of losses.
Building 1, the two-story warehouse previously on the northwest corner of the Property, replaced some of these residences in 1925, was initially owned by Seattle Plumbing Supply Co., and was later occupied by United States Radiator Corporation. Ex. 115 (493) at 21-22; see also Ex. 107 at 16 & 103-06.
Touchstone's consultant has stated alternatively that Troy owned Building 1, described as the "David Smith Building," as of 1957, or that Troy purchased Building 1 in 1961. Ex. 115 (493) at 23. These representations are inconsistent with each other and with King County Assessor records. In addition, Touchstone's consultant appears to have confused the folio number relating to Building 1, which is 1957, for a date.
During Mr. Ross's deposition, counsel for Seattle Times inquired about the advertisement's reference to Sanitone. Ross Dep. (Vol. 2) at 151:8-17 (docket no. 227). Sanitone, which is currently a division of Fabritec International, sells detergents for dry-cleaning systems, including soaps designed for use in PCE machines. See https://www.sanitone.com/Soap%20Talk%20News/GHS-Sanitone_Label_Guide.pdf. Thus, the advertisement's invocation of the Sanitone brand does not undermine, but rather corroborates Mr. Ross's memory of events.
The two plumes of PCE-contaminated soil at issue were located in the south and southeast portions of the Property, respectively, and totaled approximately 6,500 cubic feet in volume. See Ex. 126 (491) at 44, Fig. 6B at DD22-24/EE22-24 & HH14-16. Seattle Times and Touchstone have conceded that these two plumes of PCE-contaminated soil are not attributable to LeatherCare's operations. See Trial Tr. (Feb. 6 & 7, 2018) at 30:9-19 & 120:14-18 (docket no. 269). During closing argument, Seattle Times suggested that the PCE source for these two plumes was "most likely" vehicle maintenance operations, but an expert for Seattle Times opined to the contrary. Compare Trial Tr. (Feb. 6 & 7, 2018) at 30:17-19 (docket no. 269), with Krasnoff Rebuttal Report, Ex. 217 at 4, ¶ 4(a) (filed as docket no. 120-2).
Seattle Times contends that Maryatt was a successor, rather than the sole shareholder, of Troy, and that Maryatt has the resources, including insurance policies, to bear Troy's share of any remedial action costs. This argument lacks merit. A corporation exists as an organization distinct from its shareholders. E.g. , Grayson v. Nordic Constr. Co. ,
The Hoyt equipment was designed to discharge waste water, which would contain some amount of PCE, to the sewer. PTO at 9, ¶ 20. The manual for the Hoyt sniffer indicated that over 12 gallons of waste water would be produced from each operation, and it advised that the equipment should be "piped to [an] open sewer system."Id. As recommended, LeatherCare's Hoyt sniffer was plumbed through a pipe to a floor drain. See PTO at 9, ¶ 19. In contrast, the waste water from the Hoyt reclaimers was collected in buckets placed under the separator outlets, and the buckets were periodically emptied into either a floor drain or a toilet. See PTO at 9, ¶ 19; Ritt Dep. (Aug. 31, 2016) at 103:19-105:12 (docket no. 230). The floor drains and the toilet at issue flowed into a side sewer that ran to the municipal sewer main under Boren Avenue North. See PTO at 8-9, ¶¶ 13 & 19.
Metro was once the entity in charge of water pollution abatement and public transportation in King County. Cunningham v. Municipality of Metro. Seattle ,
Mr. Ross testified that, in the vicinity of UST # 1 and UST # 5, which were in an area of Building 2 used exclusively by Troy, a number of manhole covers had been present. Ross Dep. (Vol. 1) at 104:9-25 (docket no. 226). Mr. Ross did not know the contents of the associated tanks or sumps, but sometime during the period when he still worked for Troy, he picked up one of the manhole covers, and "it stunk so bad we put it back down and said don't ever look in there again." Id. at 104:25-105:3. After Seattle Times purchased the Property, R. Kevin Sanders, the Building Support Coordinator for Seattle Times, see Ex. 1071, asked Mr. Ross what was in that tank or sump. Ross Dep. (Vol. 1) at 118:4-5. Mr. Ross told Mr. Sanders that he didn't "have a clue," and Mr. Sanders informed Mr. Ross that Seattle Times had "just pumped 1,500 gallons of highly-toxic waste out of there." Id. at 118:6-7. The Court finds that Seattle Times failed to report to Ecology either (i) the quantity and nature of the substance discovered in the abandoned sump, or (ii) the existence of another UST or sump containing toxic material. See Ex. 103.
In both its 1985 draft Closure Plan and its final Closure Plan submitted in April 1986, see PTO at 12:3, Seattle Times told Ecology that it purchased the Property without knowledge of USTs or dangerous waste materials at the facility. Ex. 1048 at 2; Ex. 103 at 3. The Court finds that any lack of knowledge on the part of Seattle Times resulted from its failure to exercise due diligence or to conduct any investigation prior to its acquisition of the Property.
As part of the purchase and sale of the Property, Seattle Times and Troy entered into a lease pursuant to which Troy could continue to operate its industrial laundry on the premises. See Ex. B to Earnest Money Agr., Ex. A to Compl., Ex. 1062. The lease was terminated, on 30-days written notice, effective June 30, 1985. See Ex. 1039.
The citizenships of Touchstone SLU LLC and TB TS/RELP LLC are unknown; neither the operative Third-Party Complaint in which the limited liability companies are named as third-party defendants, docket no. 24, nor their corporate disclosure statement, docket no. 33, reveal the identities of their owners or members or the states of which such entities or individuals are citizens. See Johnson v. Columbia Props. Anchorage, LP ,
The two new borings on the Property were permitted under a Fourth Amendment to the PSA executed in May 2011. See Ex. 47 at 174-76.
Boring B12 (or monitoring well MW05) is located approximately 150 feet north of Thomas Street and under the southbound lane of Boren Avenue North, along the northern third of the 1964 addition. See Ex. 112 (498) at 11 (Fig. 2).
Although the "Site" includes the right-of-ways and other areas adjacent to the Property, nearly all of the 97,540 tons of soil estimated by the CSM to have detectable or higher levels of PCE was within the boundaries of the Property. See infra Fig. 12A.
Monitored natural attenuation ("MNA") is a cleanup method that relies on physical, chemical, or biological processes that, under favorable conditions, act without human intervention to reduce the amount, toxicity, or mobility of contaminants in soil or groundwater. See EPA Directive 9200.4-17P at 3 (available at https://www.epa.gov/sites/production/files/2014-02/documents/d9200.4-17.pdf). This "passive" approach to remediation requires both "source control," i.e. , removal, treatment, or containment of the contaminant, and long-term performance monitoring.
For each 10-foot slice of elevation, SES predicted the volume of soil with a detectable level of PCE or a concentration of PCE exceeding the cleanup standard; SES also estimated the amount of soil associated with a buffer zone of clean soil. See Ex. 347. The projections for each 10-foot layer are shown in the table below. Ecology included in its contained-out calculations more soil than SES anticipated was contaminated, thereby giving Touchstone some leeway in the event that SES's figures were low. See Trial Tr. (Jan. 11, 2018) at 27:16-29:9, 68:20-69:1 (docket no. 258); Trial Tr. (Jan. 10, 2018) at 140:19-142:4 (docket no. 257). Ecology also converted SES's volume numbers (cubic feet) into a measure of weight (tons).
Detectable Concentration, But Below Elevation Cleanup Level Above Cleanup Buffer Zone (above sea level) (cubic feet) Level (cubic feet) (cubic feet) 100-90 feet 28,000 189,000 30,000 90-80 feet 34,000 251,000 62,000 80-70 feet 98,000 221,000 84,000 70-60 feet 101,000 178,000 64,000 60-50 feet 127,050 124,000 87,900 50-40 feet 97,000 146,000 66,000 40-30 feet 34,000 59,000 57,000 30-20 feet 24,300 53,800 62,900 TOTALS 543,350 1,221,800 513,800 (20,124 yd3) (45,252 yd3) (19,030 yd3)
See Ex. 347 at 4-13 (Figs. 26A-26J).
A draft of the Interim Action Progress Report was submitted to Ecology on July 31, 2015. The draft report was admitted into evidence in CD form as Exhibit 125 and in excerpted form as Exhibit 490.
This discovery of PCE is consistent with the results of tests performed in 1985 when Seattle Times decommissioned the tanks. See Ex. 1041. Samples taken from the 350-gallon and 3,000-gallon USTs contained levels of halogenated hydrocarbons that required them to be treated as "dangerous waste."
Contrary to an earlier design, no angled well extends under the intersection of Boren Avenue North and Thomas Street. See Ex. 126 (458 & 491) at 30; Ex. 126 (491) at 59 (Fig. 15); see also
Touchstone has asserted that the number of boundary wells is 53, but a careful study of Figure 15 of SES's Interim Action Progress Report, Ex. 126 (491), indicates that Touchstone has miscounted by including five interior wells (IW33, IW34, IW35, IW47, and IW48) that have horizontal piping to the western boundary of the Property to allow for injection-well screen access. See
The substances injected into the wells were intended to provide a carbon source to deplete dissolved oxygen present in the aquifer, generate free hydrogen, and sustain a robust anaerobic dechlorinating microbial population. Ex. 116 at 64 (Draft Feasibility Study Report). The theory is that the indigenous microbes will consume oxygen and generate an anaerobic environment, which is necessary for reductive dechlorination to occur.
For the various injection events during the period 2015-2017, SES billed a total of $341,343.03, including labor and other direct costs. Ex. 2010 at 2.
Touchstone's approach, if based on 12 angled wells, 48 (not 53) barrier wells, and 43 (not 38) interior wells, would have resulted in ratios of 60/103 (58.25%) for Seattle Times and 43/103 (41.75%) for LeatherCare.
Seattle Times has already paid Touchstone approximately $4.78 million, see PTO at 17, ¶ 53; see also Ex. 538, and agrees it owes another $125,000, Trial Tr. (Feb. 6 & 7, 2018) at 13:24-25 (docket no. 269), but disputes the rest of Touchstone's claim against it under the ERIA.
Touchstone contends that, in addition to the $4.78 million that Seattle Times has already paid, Seattle Times owes another almost $3.86 million under the ERIA. See Touchstone's Proposed Findings of Fact at ¶ 7.10 (docket no. 200); see also Ex. 538. Touchstone asserts that it has expended at least another $1.24 million on cleanup efforts, and it seeks this additional amount from LeatherCare and/or Mr. Ritt. See Touchstone's Proposed Findings of Fact at ¶ 7.11 (docket no. 200).
Seattle Times makes no assertion that the SVE system installed by AECOM was consistent with the NCP, and it makes no CERCLA claim related to those costs.
LeatherCare and Mr. Ritt argue that soil vapor extraction might have been a cost-effective remedial action that met the EPA's threshold and primary balancing criteria, but it was not sufficiently evaluated prior to excavation because Touchstone's redevelopment plans took precedence. They rely on a directive issued by the EPA in September 1993, which identified soil vapor extraction as a presumptive remedy for VOC-contaminated soil. See Ex. 334. The directive described SVE as "a relatively inexpensive and efficient technology" for sites with "appropriate soil characteristics." Id. at 8. They also cite to the results of the SVE system that AECOM operated at the Property on behalf of Seattle Times, which was limited in scope and duration, but still removed 327 pounds (roughly 25 gallons) of PCE, which was far more PCE than was contained in the almost 97,000 tons (roughly 88 million kg) of excavated soil, even assuming that all of the soil was contaminated at or above the cleanup level for PCE (i.e. , 0.05 mg PCE per 1 kg soil). The parties and their experts disagree over whether, given the types of soil present at the Property, an SVE system would have been feasible, but the Court need not resolve this dispute. The issue raised by LeatherCare is simply whether an SVE alternative had to be considered.
During closing argument, counsel for Seattle Times conceded that the amount Seattle Times could recover under CERCLA was the same or less than it might receive under MTCA; unlike MTCA, CERCLA does not apply to petroleum contamination. Seattle Times, however, has persisted in asserting a claim under CERCLA because it continues to believe that LeatherCare's and/or Mr. Ritt's liability under CERCLA is "joint and several," a standard that does not apply to MTCA claims. The Court has previously ruled against Seattle Times on the issue of "joint and several" liability, concluding that a potentially responsible party like Seattle Times cannot avoid CERCLA's contribution provision, § 113(f), simply by pursuing an action under CERCLA § 107. See Minute Order at ¶ 1 (docket no. 99); see also Union Station Assocs., LLC v. Puget Sound Energy, Inc. ,
The statutes provide, in relevant part:
CERCLA: "Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section ... the owner and operator of a vessel or a facility ... shall be liable for ... any other necessary costs of response incurred by any other person consistent with the national contingency plan."
MTCA: "Except as provided in subsection (3) of this section, the following persons are liable with respect to a facility: (a) The owner or operator of the facility; (b) Any person who owned or operated the facility at the time of disposal or release of the hazardous substances ...."
Seattle Times also alleges Mr. Ritt was an "arranger," attempting to invoke CERCLA § 107(a)(3), which imposes liability on "any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances."
This matter is therefore distinguishable from United States v. Meyer ,
Any involvement that Mr. Ritt might have himself had in placing materials into the dump truck is not at all analogous to the operation of a landfill, which resulted in personal liability in Browning-Ferris Indus. of Ill., Inc. v. Ter Maat ,
Ecology's definition of "substantial equivalence" does not mandate strict adherence to the various requirements, but instead contemplates that the criteria "will be evaluated as a whole" and that a claim for cost recovery "would not be disallowed due to omissions that do not diminish the overall effectiveness of the remedial action." WAC 173-340-545(1) ; see also Taliesen Corp. v. Razore Land Co. ,
Touchstone invoiced Seattle Times $49,236.27 for LCL's soil delineation and regulatory compliance efforts, Ex. 150, and $47,654.94 for LCL's truck-tracking costs, Ex. 148. These amounts included both LCL's markup and sales tax, the applicability of which are disputed by Seattle Times and/or LeatherCare. The Court addresses LCL's markup and sales tax in subsequent subsections.
The base rate for rail includes the disposal fees and taxes charged by the RCRA Subtitle D facility ($23.15/ton), the amount charged on weekdays for hauling rail containers from the Property to the transfer station ($4.34/ton), the expense of transporting rail containers from the transfer station to the facility ($25.00/ton), and the cost of rail container liners ($2.50/ton), minus the undisputed clean soil credit ($7.10/ton).See Tr. Exs. 2003 & 2019.
The base rate for truck includes the disposal fees and taxes charged by the RCRA Subtitle D facility ($23.74/ton), the expense of hauling trucks and pups to the facility ($37.50/ton), and the cost of liners for each truck and each pup ($5.00/ton), minus the undisputed clean soil credit ($7.10/ton). See Ex. 2003.
During closing argument, Touchstone's counsel conceded that a mathematical error had been made in calculating the Saturday premium, and that the figure should be $0.44/ton, and not $0.46/ton.
The Court adopts Touchstone's approach concerning installation and operating expenses, which treats each injection well as equivalent in cost, regardless of whether it is an angled, boundary, or interior well.
CTI's written bid set forth a premium of $2.65 per ton hauled on Saturdays. Ex. 2019 at 8. Ms. Testa attempted to distribute the Saturday premium among all of the contaminated soil shipped via rail by including in the transportation cost an extra $0.46 per ton (miscalculated from $2.65 ÷ 6 days, which actually equals $0.44). Because the Court has disallowed the Saturday premium, the transportation figure computed by Ms. Testa as $32.30 per ton, see Ex. 2003, has been adjusted to $31.84 per ton.
With regard to the costs associated with trucking PCE-contaminated soil to Wenatchee, Ms. Testa recapped only the fees charged by WM's facility to CTI, namely $21.95 per ton for disposal, $37.50 per ton for a truck and a pup, $75 for each liner (which Ms. Testa converted to $5.00 per ton, based on two liners per 30 tons), a 3.6% Washington State refuse tax, and a CDHD fee of $1.00 per ton. See Ex. 2019 at 15; Trial Tr. (Jan. 31, 2018) at 13:15-15:19 (docket no. 268). Unlike in connection with CTI's bid for transporting contained-out material by rail, Ms. Testa did not provide the transportation and disposal rates quoted by CTI in which its markup was imbedded, and what markup Touchstone actually paid for CTI's services relating to disposal at Wenatchee remains a mystery.
Touchstone's calculations are based on its belief that the proportion of angled and boundary wells to the total number of injection wells is 65/103 (or 63%) and that the ratio of interior wells to all wells is 38/103 (or 37%). Touchstone has miscounted. The number of angled and boundary wells is 60, not 65, and the number of interior wells is 43, not 38. See supra note 34.
LeatherCare questions whether the injection wells were even necessary given that all contaminated soil was excavated and removed from the Property. See Morrill Report at Op. 2a, Ex. 1141 at 19-20 (filed as docket no. 117-1). According to LeatherCare, a more thorough feasibility study would have considered monitored natural attenuation as an effective and less-expensive option to the active groundwater treatment method for which Touchstone seeks compensation from LeatherCare (as well as Seattle Times). Id. Whether monitored natural attenuation, however, would have been selected if presented to Ecology as an alternative involves speculation, and the Court declines to completely disallow the costs associated with the injection wells on that basis.
As indicated supra p. 1063, this amount includes (i) $475,875.75 for soil sampling and analysis, see Ex. 152 (Invoice No. 14); and (ii) $376,902.67 for groundwater treatment system design, installation, and operation, see Exs. 2016 & 2017 (Invoices Nos. 15 & 16 for $131,406.31 and $245,496.36, respectively).
Touchstone sought reconsideration of the Court's ruling, arguing that LeatherCare had not interposed an objection to Exhibit 2004 at the time the Pretrial Order was entered. Trial Tr. (Jan. 29, 2018) at 102:2-9 (docket no. 267). The Court observed that an objection had been made at the time Exhibit 2004 was offered, and that the objection still remained. Id. at 102:12-20. The Court now further observes that the Pretrial Order, docket no. 154, does not contain a list of exhibits, and that the most recent version of the exhibit list, which was filed more than a week after trial began, docket no. 238-1, indicated that Seattle Times objected to Exhibit 2004. The Court rejects any argument that LeatherCare waived its objection to Exhibit 2004 in advance of trial.
The following table summarizes the invoices contained in Exhibit 2026:
Month/Year Amt Invoiced Month/Year Amt Invoiced Month/Year Amt Invoiced Month/Year Amt Invoiced Feb 2014 $9,967.18 Aug 2014 $75,973.38 Jan 2015 $44,382.65 May 2015 $149,136.37 Mar 2014 $22,765.82 Sep 2014 $67,666.80 Feb 2015 $65,538.50 June 2015 $65,751.68 Apr 2014 $25,748.01 Oct 2014 $105,266.70 Mar 2015 $39,918.48 July 2015 $23,233.75 May 2014 $8,371.00 Nov 2014 $89,628.25 Apr 2015 $8,251.64 Aug 2015 $25,081.26 July 2014 $29,777.66 Dec 2014 $75,068.20 TOTAL for 2015 $421,294.33 TOTAL for 2014 $510,233.00 TOTAL of Invoices in Exhibit 2026 $931,527.33
Indeed, during closing argument, LeatherCare's counsel alluded to Exhibit 2004's lack of foundation when she characterized the amounts in Mr. Klansnic's table (on the first page) as numbers "parked on a cover sheet" that are unsupported by any evidence in the record, and when she referenced the lack of correlation between the summaries in Exhibit 2004 and the only underlying materials produced by Touchstone, namely the invoices in Exhibit 2026. See Trial Tr. (Feb. 6 & 7, 2018) at 202:23-203:6 & 205:2-7 (docket no. 269).
For example, (i) businesses that haul toxic materials are subject to the urban or motor transportation classification of the public utility tax, see RCW 82.16.020(1) ; (ii) companies that repair, improve, or clean existing structures, demolish an existing building, or remove USTs must pay the "retailing" B & O rate (0.471%); and (iii) entities that provide groundwater treatment, testing or monitoring, consulting, planning, engineering, or design services fall within the "service and other activities" category, which has a B & O tax rate of 1.5%. See Wash. Dep't of Revenue Special Notice (June 23, 2003) (available at http://taxpedia.dor.wa.gov/documents/Historical%20Special%20Notices/Special%20Notices%202003/environsn03.pdf).
The state sales tax rate is 6.5%. RCW 82.08.020(1). On April 1, 2015, the local sales tax rate in Seattle increased from 3.0% to 3.1%. See https://dor.wa.gov/get-form-or-publication/forms-subject/local-sales-use-tax-rates-citycounty. Although remediation efforts were ongoing at the Property after April 1, 2015, the excavation work was complete before the aggregate sales tax rate became 9.6%, and thus, on items subject to sales tax, the Court will use the 9.5% rate that Touchstone has requested.
Because Touchstone and Seattle Times have not carried their respective burdens of specifying how the PCE-contaminated soil unrelated to LeatherCare's operations was transported to a RCRA Subtitle D facility, for purposes of their MTCA claims against LeatherCare, the Court has assumed the material was hauled by truck (at a more expensive rate than by rail), which results in a greater reduction of the amount each entity can recover against LeatherCare.
This figure ($225,890) is the pre-markup and pre-tax cost associated with LCL's work on installing the various injection wells. See Ex. 2004 at 6-10.
LeatherCare has construed the term "contained-out" to include soil that was contaminated with only petroleum. See Ex. 528. The Court has interpreted "contained-out" material as soil that was handled as though it was contaminated with PCE or a combination of PCE and petroleum.
LeatherCare estimates that another 18% of the excavated soil had detectable, but below-cleanup, levels of PCE, that roughly 15% of the removed material was contaminated with solely GRPH, and that 45% of the tonnage transported to disposal facilities was "clean" soil. See Ex. 528.
LeatherCare has requested a judicial declaration that 24% (rather than 22%) of the contained-out soil exceeded the cleanup level for PCE. LeatherCare's Proposed Conclusion of Law ¶ 11 (docket no. 198). This figure is inconsistent with Exhibit 528, which LeatherCare's expert testified was a pie chart reflecting the results of her Leapfrog-model analysis. See Trial Tr. (Jan. 24, 2018) at 7:2-21:6 (docket no. 264).
LeatherCare's reliance on Douglass v. Shamrock Paving, Inc. ,
These five samples, containing soil obtained from locations N8, O7, Q7, Q8, and W6, at elevations of 25 or 30 feet above sea level, had PCE concentrations ranging from 0.073 to 1.1 mg/kg. Ex. 126 (491) at 50 (Fig. 6H).
One of the experts for Seattle Times, Peter Jewett, explained that, in computing the quantum of soil contaminated with PCE, he assumed Touchstone's contractors were "highly motivated to minimize the volume of contaminated soil" because they "had to pay for it." See Trial Tr. (Jan. 26, 2018) at 108:18-24 (docket no. 266). He further indicated he had relied on a belief that the people handling the excavation made "every best effort" or "as much effort as possible" to ensure that each rail container or truck sent to a RCRA Subtitle D facility was filled with contaminated (as opposed to clean) soil.
In Dash Point, the plaintiffs, which were the former and current owners of a shopping center, sued Exxon Corporation ("Exxon"), as well as two former operators of the neighboring Exxon gas station.
The "Gore" factors find their source in the legislative history (and unsuccessful amendment) of CERCLA by then-Representative Al Gore. See Boeing Co. v. Cascade Corp. ,
The "Torres" categories, outlined by the Honorable Ernest C. Torres in United States v. Davis ,
In Lockheed Martin Corp. v. United States ,
In 1985, when Seattle Times decided to abandon in place the 350-gallon, 1,000-gallon, and 3,000-gallon USTs located under the 1964 addition, it had been advised by its consultant that the results of the pressurized-air testing performed on those tanks were "not certain" and could not rule out "slow leaks." Ex. 1045. Seattle Times did not tell Ecology about the consultant's cautionary statements, see Trial Tr. (Jan. 10, 2018) at 19:23-20:23 (docket no. 257), and it took no steps to heed such warnings. For almost 30 years, those and other USTs, a few known and many undiscovered, as well as the decaying pipes and side sewers that the parties agree were a primary source of contamination, remained in the ground, and their removal was effected not by Seattle Times, but by Touchstone. Meanwhile, in 1994, Seattle Times ignored another harbinger of poor conditions at the Property, opting not to retest or follow up in any way when RETEC discovered in the well water petroleum hydrocarbons exceeding the then-applicable cleanup level set by Ecology. See Ex. 1075; see also
Although Seattle Times seeks, under MTCA, reimbursement from LeatherCare for the amount it owes Touchstone under the ERIA, the Court concludes, based on the equitable factors and reasons outlined earlier in this section, that Seattle Times should be held responsible for its full 31/103rds share of the groundwater treatment expenses, which reflects the ratio that the 12 angled wells and 19 boundary wells along Thomas Street bear to the total number of wells. The Court finds that, in addition to the contractual and equitable grounds for requiring Seattle Times to pay a 31/103rds portion of the wells, assigning responsibility to Seattle Times for the 19 boundary wells along Thomas Street is also consistent with SES's opinion that 1120 John Block, where Seattle Times conducted business, was a source of some of the contaminants within or under the Thomas Street right-of-way. See Ex. 117 (518) at 9; supra pp. 1028 & 1039-40.
Because Seattle Times has already paid Touchstone more than what it has been determined to owe after allocation under MTCA, Touchstone's request for prejudgment interest is denied as moot.
f
Reference
- Full Case Name
- SEATTLE TIMES COMPANY v. LEATHERCARE, INC. Steven Ritt and the marital community composed of Steven Ritt and Laurie Rosen-Ritt, Defendants/Third-Party v. Touchstone SLU LLC and TB TS/RELP LLC, Third-Party
- Cited By
- 5 cases
- Status
- Published