386 F. Supp. 3d 162
D.P.R.2019Background
- PRIDCO, a Puerto Rico government instrumentality, owned property in Maunabo where EPA found a cis-1,2-DCE (and TCE) groundwater plume that contaminated municipal wells serving ~14,000 people.
- EPA listed the Maunabo Area Groundwater Contamination Site on the National Priorities List and undertook investigations, a feasibility study, and issued a Record of Decision selecting air sparging for the cis-1,2-DCE plume (with monitored natural attenuation for other plumes).
- The United States sued PRIDCO under CERCLA § 107 seeking reimbursement of response costs; the court previously found PRIDCO prima facie liable in Phase I and rejected PRIDCO’s third-party defense in subsequent proceedings.
- In Phase II the United States sought $5,398,161.04 as costs attributable to the cis-1,2-DCE plume (direct, indirect, litigation costs, and prejudgment interest); EPA cost experts and DOJ accountants submitted declarations and cost breakdowns.
- PRIDCO challenged the amount and argued Rule 26 discovery violations and that EPA actions were inconsistent with the NCP; the Court found the EPA’s remedy selection rational and consistent with the NCP and that PRIDCO failed to raise a genuine dispute about costs or timely press discovery deficiencies.
- The Court granted summary judgment for the United States, ordering PRIDCO to pay (and directed the U.S. to submit a proposed judgment reflecting the current amount including prejudgment interest).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CERCLA liability for response costs | U.S.: PRIDCO liable for all costs of removal/remedial action not inconsistent with NCP | PRIDCO: various defenses (third-party, procedural challenges) and contest allocation/details of costs | Court: liability already established in Phase I; PRIDCO failed to prove third-party defense and cannot dispute liability here |
| Consistency with the NCP | U.S.: EPA followed NCP procedures, selected a rational remedy (air sparging) | PRIDCO: EPA remedy selection was arbitrary, capricious, or inconsistent with NCP | Court: EPA’s RI/FS and ROD comply with NCP; selection of Alternative 3 was rational and not arbitrary or capricious |
| Amount and allocation of recoverable costs | U.S.: experts provide itemized direct, indirect, litigation costs and prejudgment interest supporting $5,398,161.04 for cis-1,2-DCE plume | PRIDCO: experts’ reports lack detailed plume-specific allocations; claimed Rule 26 nondisclosure | Court: United States provided sufficient documentation; expert declarations meet Rule 26; PRIDCO failed to create a genuine factual dispute |
| Discovery/Rule 26 compliance | U.S.: timely disclosed cost reports and expert reports; provided supplemental allocation materials | PRIDCO: late or insufficient disclosures prevented meaningful challenge | Held: disclosures were timely; PRIDCO did not timely move to compel or depose experts; alleged violation insufficient to defeat summary judgment |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden allocation)
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (administrative review scope and adequacy of agency decision)
- United States v. GE, 670 F.3d 377 (First Circuit: CERCLA cleanups are phased; future costs recoverable with liability decree)
- In re Dant & Russell, Inc., 951 F.2d 246 ( Ninth Circuit: declaratory relief on continuing CERCLA liability)
- United States v. Ottati & Goss, Inc., 900 F.2d 429 (First Circuit: direct, indirect, oversight costs recoverable under CERCLA)
- City of Bangor v. Citizens Communications Co., 532 F.3d 70 (First Circuit: presumption that government actions are consistent with NCP; burden on defendant to show inconsistency)