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Seattle Times Co. v. Leathercare, Inc.

United States District Court, W.D. Washington, Seattle

December 15, 2017

SEATTLE TIMES COMPANY, Plaintiff,
v.
LEATHERCARE, INC., STEVEN RITT, an individual, and the marital community composed of STEVEN RITT and LAURIE ROSEN-RITT, Defendants and Third Party Plaintiffs,
v.
TOUCHSTONE SLU LLC, a Washington limited liability company; and TB TS/RELP LLC, a Washington limited liability company, Third Party Defendants.

          Jeff B. Kray, WSBA No. 22174, Jessica K. Ferrell, WSBA No. 36917, Bradley M. Marten, WSBA No. 13582, MARTEN LAW PLLC Attorneys for Plaintiff Seattle Times Company

          Jo Flannery, WSBA #26086, Kristin Nealey Meier, WSBA #33562, RYAN SWANSON & CLEVELAND, PLLC Attorneys for Touchstone

          Ken Lederman, WSBA #26515 Alexandra E. Kleeman, WSBA# 44163 FOSTER PEPPER PLLC, Attorneys for Touchstone

          Jeremy R. Larson, WSBA #22125 DORSEY & WHITNEY LLP Attorneys for Third Party Defendants

          PRETRIAL ORDER

          Thomas S. Zilly United States District Judge

         JURISDICTION

         This Court has subject matter jurisdiction over claims arising under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. under 28 U.S.C. § 1331 (federal question jurisdiction) and 42 U.S.C. § 9613(b). This Court also has jurisdiction over claims asserted under the Washington Model Toxics Control Act, RCW 70.105D.080 (“MTCA”), and claims asserted under the Environmental Remediation and Indemnity Agreement (“ERIA”) under 28 U.S.C. § 1367 (supplemental jurisdiction).

         CLAIMS AND DEFENSES (Seattle Times)

         Plaintiff, Seattle Times Company (“Seattle Times” or “Times”) will pursue at trial the following claims and defenses:

         1. Defendants LeatherCare, Inc. (“LeatherCare”), Steven Ritt, and the marital community composed of Steven Ritt and Laurie Rosen-Ritt (“Mr. Ritt”) (collectively, “LeatherCare Defendants”) are jointly and severally liable to the Times under CERCLA for all response costs incurred and declaratory relief related to hazardous substances released at and migrating from real property located on the city block bounded by Fairview Avenue North, Thomas Street, Boren Avenue North, and Harrison Street in Seattle, Washington (the “Property”).

         2. Defendants LeatherCare and Mr. Ritt are liable to the Times under the MTCA for all remedial action costs incurred and declaratory relief related to hazardous substances released at and migrating from the Property.

         3. As the prevailing party under MTCA, the Times is entitled to recover its reasonable attorney fees and costs from LeatherCare and Mr. Ritt under RCW 70.105D.080.

         4. The Times is not liable to Touchstone under the Environmental Remediation and Indemnity Agreement dated December 17, 2010 and as amended on June 10, 2011 (“ERIA”). Touchstone has not incurred unreimbursed “Incremental Costs” or “third-party claims for Contaminated Soils or Contaminated Groundwater off of the Property.” 5. The Times is entitled to recover its reasonable attorneys' fees and costs from Touchstone as the substantially prevailing party under the ERIA.

         6. As to LeatherCare's counterclaims and Touchstone's cross-claim, the Times does not intend to advance any affirmative defenses at trial other than to reserve its assertions that to the extent the Times is liable for any response costs, and such liability is several, all such costs are subject to equitable allocation under CERCLA and MTCA.

         CLAIMS AND DEFENSES (LEATHERCARE)

         LeatherCare Defendants intend to advance at trial the following affirmative defenses, counterclaims against the Seattle Times, and third-party claims against Touchstone SLU LLC and TB TS/RELP LLC (collectively, “Touchstone”).

         Affirmative defense:

         1. Failure to provide notice.

         Counterclaims:

         1. Declaratory Judgment under CERCLA § 113(f) and RCW 70.105D.080 declaring that Seattle Times is responsible for the allocable share, in contribution or through other application of equitable factors, for the current owner and developer of the site as referenced in Plaintiff's Complaint, Touchstone SLU, LLC (“Touchstone”).

         2. Declaratory Judgment under CERCLA § 113(f) and MTCA RCW 70.105D.080 that Seattle Times is an “operator” as that term is defined.

         3. If LeatherCare is found to be liable for any portion of the "response costs" as that term is defined under 42 USC § 9601(25) claimed, or “remedial action costs” claimed under RCW 70.105D.080, or other costs claimed by the Seattle Times, or Touchstone then LeatherCare is entitled to contribution from Seattle Times as a potentially responsible party and potentially liable party under CERCLA § 113(f) and RCW 70.105D.080.

         4. Declaratory Judgment under CERCLA and MTCA that Seattle Times is responsible, in contribution or through other application of equitable factors, for the allocable share of the previous owners and operators of the site, which may have included but not necessarily be limited to Troy Linen and Uniforms Services, Inc. and/or Troy Linen and Uniform, Inc., the party that Seattle Times previously released in connection with any and all environmental claims, including but not limited to future and unknown claims at the site.

         5. If a prevailing party under MTCA, LeatherCare is entitled to recover its reasonable attorney fees and other costs from the Seattle Times under RCW 70.105D.080, and for offset, or other such adjustment where more than one party to the action prevails on their contribution or declaratory judgment claims.

         Third Party Claims:

         1. If LeatherCare is found to be liable for any portion of the "response costs" claimed as that term is defined under 42 USC § 9601(25), “remedial action” costs claimed, or other costs claimed by Touchstone or the Seattle Times, then LeatherCare is entitled to contribution from Touchstone as a potentially responsible party and potentially liable party under CERCLA § 113(f) and RCW 70.105D.080. .

         2. If a prevailing party under MTCA, LeatherCare is entitled to recover its reasonable attorney fees and other costs from Touchstone under RCW 70.105D.080, and for offset, or other such adjustment where more than one party to the action prevails on their contribution or declaratory judgment claims.

         CLAIMS AND DEFENSES (TOUCHSTONE)

         Third-party Defendant, Touchstone, intends to advance at trial the following affirmative defenses, counterclaims against the LeatherCare Defendants, and cross-claim against the Seattle Times.

         1. Touchstone does not intend to advance any affirmative defenses at trial, except for the following: (a) to the extent that Touchstone may be liable to LeatherCare for any damages, Plaintiff owes a duty of indemnification for those damages pursuant to a written contract, either in part or in whole; (b) to the extent Touchstone is liable for any remedial action costs, Touchstone is entitled to cost-recovery and/or contribution from LeatherCare; and (c) any recovery by LeatherCare against Touchstone, if any, must be offset by an amount reflecting the appropriate allocation of liability to LeatherCare.

         2. Seattle Times is liable to Touchstone under the ERIA. The ERIA requires payment by the Seattle Times to Touchstone for: (a) Incremental Costs incurred by Touchstone in the transport and disposal of Contaminated Soils from the Troy Laundry Property; and (b) costs and expenses incurred by Touchstone for claims asserted by third parties (including the Washington Department of Ecology) arising out of or associated with contaminated soils or contaminated groundwater that has or may have migrated off of the Property and onto, about, or under adjacent property(ies).

         3. Touchstone is entitled to recovery of its reasonable attorneys' fees and costs from Seattle Times as the substantially prevailing party under the ERIA.

         4. LeatherCare is liable to Touchstone: (a) under CERCLA for all incurred environmental response costs related to hazardous substances released on, beneath, and from the Troy Laundry Property; and (b) under MTCA for all incurred remedial action costs related to hazardous substances released on, beneath, and from the Property.

         5. Touchstone is entitled to recover attorneys' fees and costs from LeatherCare: (a) incurred as part of performance of environmental response actions and as part of negotiations with government agencies under CERCLA, 42 U.S.C. § 9601(25); (b) reasonable attorneys' fees and costs incurred as part of performance of remedial activities under MTCA, RCW 70.105D.080; and (c) reasonable attorneys' fees and costs as the prevailing party in a private right of action under the MTCA, RCW 70.105D.080.

         STIPULATION REGARDING ATTORNEYS' FEES AND COSTS

         The Seattle Times, the LeatherCare Defendants, and Touchstone each stipulate that the question of the amount of reasonable attorneys' fees and costs to be awarded to the prevailing party or parties under CERCLA, MTCA, and/or the ERIA is to be bifurcated from the remaining issues for trial and will be addressed in post-trial proceedings.

         ADMITTED FACTS

         The following facts are admitted by the parties:

1. This case concerns hazardous substances released on real property located on the city block bounded by Fairview Avenue North, Thomas Street, Boren Avenue North, and Harrison Street in Seattle, Washington (the “Property”).
2. The site at issue in this case, commonly known as the Troy Laundry Site (“Site”), includes the Property and any areas adjacent to the Property where hazardous substances originating on and from the Property have come to be located.
3. Historical operations released PCE and petroleum hydrocarbons into the subsurface soils and groundwater on and beneath the Property.
4. The Seattle Times is a Delaware company with its principal place of business in Seattle, Washington. The Seattle Times has been a newspaper company since 1895. The Times purchased the Property in March 1985 and sold it in June 2011.
5. LeatherCare is a Washington company with its principal place of business in Seattle, Washington.
6. Steven Ritt and Laurie Rosen-Ritt are individuals who reside in King County, Washington and collectively referred to as “Mr. Ritt.” All acts of Steven Ritt and Laurie Rosen-Ritt herein were performed for the benefit of their marital community.
7. Touchstone SLU LLC is a Washington limited liability company with its principal place of business in Seattle, Washington. TB TS/RELP LLC is a Washington limited liability company with its principal place of business in Seattle, Washington. Touchstone SLU LLC purchased the Property on June 10, 2011. TB TS/RELP LLC is the current owner of the Property. Touchstone SLU LLC is a member of TB TS/RELP LLC. Touchstone SLU LLC and TB TS/RELP LLC are collectively referred to as “Touchstone.” 8. Troy Laundry Co., later changing its name to Troy Linen and Uniform Service, Inc. (“Troy”) owned the Property from 1926 to March 1985. On March 1, 1985, American Linen Supply Co., a Washington corporation, d/b/a Maryatt Industries, acquired all of the issued and outstanding stock of Troy such that Troy became a wholly owned subsidiary corporation of American Linen. On March 5, 1985, Troy sold the Property to the Seattle Times. Troy is a dissolved corporation. It was dissolved on March 14, 1986.
9. Troy Laundry operated an industrial laundry on the Property from approximately 1927 to March 1985 and dry-cleaning operations on the Property from 1965 to March 1985. Troy also fueled and serviced trucks at the Property.
10. In 1957, Seattle Fur Services, a sole proprietorship that was a predecessor to LeatherCare, began leasing a portion of the Property known as the “Fur Vault Building” from Troy.
11. LeatherCare was incorporated in April 1960 and operated at the Property as a tenant of Troy. LeatherCare's operations included dry cleaning (beginning in 1965) and garment care. LeatherCare's operations at the Property continued under multiple business names until mid to late July, 1985, when LeatherCare moved its dry cleaning operations to a different facility.
12. When LeatherCare operated at the Property, the Property contained: (a) the original “Troy Laundry Building, ” constructed in 1926-27 (and added onto by Troy in 1946), on the northwest corner of Thomas Street and Fairview Avenue North; (b) an addition built by Troy in 1964 (“1964 Addition”), also known as the “Garage Addition, ” located at the northeast corner of Thomas Street and Boren Avenue North; (c) the Fur Vault Building immediately north of the 1964 Addition; (d) a loading dock area in the center of the Property to the north of the 1964 Addition and east of the Fur Vault Building; (e) a vegetated area on a slope northwest of the loading dock and between two parking areas; the David Smith building, across a parking lot, north of the Fur Vault Building, and (f) the “Mokas Building, ” located north of the Troy Laundry Building.
13. At least three separate sewer lines installed beneath the Property sometime between 1946 and 1966 discharged industrial and sanitary wastewater to the municipal sewer mains. The sewer lines conveyed wastewater to the municipal sewer mains from: (a) the Troy Laundry Building and Mokas building to Harrison Street to the north; (b) the Troy Laundry Building to Boren Avenue North to the west; and (c) from the 1964 Addition to Boren Avenue North to the west. The sewer system that discharged wastewater from the 1964 Addition to the municipal sewer main in Boren Avenue North conveyed: surface wastewater from floor drains in the 1964 Addition; wastewater from dry cleaning machines operated in the 1964 Addition; and sanitary wastewater from bathrooms in the 1964 Addition.
14. Beginning in 1965, after the 1964 Garage Addition was complete, Troy operated an industrial drycleaning service and an industrial laundry on the Property.
15. LeatherCare conducted dry cleaning at the Property from 1965 to 1979, using excess capacity of Troy's Stoddard solvent equipment located in the 1964 Addition. LeatherCare's lease allowed it the non-exclusive use of some of Troy's Stoddard Solvent drycleaning equipment and the exclusive use of a finishing area in the 1964 Addition.
16. Dry cleaning solvents, heating oil, and gasoline products were used or stored by Troy Laundry in at least 18 underground storage tanks (“USTs”) at the Property.
17. Troy's industrial laundry operations utilized approximately 150, 000 gallons of water per day, which it drew from an on-site well. Troy's laundry operations included linens, such as napkins and table clothes for businesses like hotels and restaurants and industrial clients.
18. In August 1979, LeatherCare purchased new dry cleaning equipment and installed this equipment in the 1964 Addition near the loading dock. LeatherCare's dry cleaning system consisted of the following equipment: two Marvel washing machines, five Hoyt Model RM-145 Solv-O-Misers reclaimers, a Hoyt Model 12A Sniff-O-Miser sniffer, and a still. LeatherCare used this equipment at the Property from August 1979 to mid to late July- 1985. In 1980, LeatherCare purchased one more Hoyt reclaimer. All of this equipment used or purified perchloroethylene (“PCE”).
19. LeatherCare discharged separator water from the Hoyt Solv-O-Miser reclaimers, the still, and the Hoyt Sniff-O-Miser sniffer to the sewer that discharged to the municipal sewer main in Boren Avenue North. LeatherCare plumbed the discharge from the separator in the Sniff-O-Miser through a pipe to a floor drain. Separator water from the Solv-O-Misers was collected at the water separator outlet in buckets. The accumulated water in the buckets was periodically emptied, discharging the water to the sewer at a floor drain.
20. The PCE-based dry cleaning equipment that LeatherCare used at the Property was designed to discharge wastewater containing PCE to the sewer. The Hoyt sniffer equipment manual advised the “water coming from the separator is waste water. This should be piped to open sewer system as there will be in excess of 12 gallons of water from one operation.” 21. LeatherCare's operation of the still generated waste known as “still bottoms, ” otherwise known as “muck, ” and the closed piping system generated used filter cartridges. The still bottoms and filter cartridges contained PCE after use. LeatherCare drained the filters and placed them into the dryers/reclaimers to recover solvent before it disposed the filters.
22. As a part of LeatherCare's lease, Troy provided garbage and utility services to its tenant. From approximately 1979 to at least 1982, LeatherCare disposed of used still bottoms and filters into the back of a dump truck owned by Troy located in the loading dock area of the Property. The dump truck was at times uncovered and it is inferred that it leaked solvent-containing liquid onto the ground, likely via rainwater passing through the truck. The ground beneath the dump truck was partially paved and partially unpaved, allowing the solvent-containing liquid to infiltrate the underlying soil. The paved material included asphalt and Portland cement concrete. Troy provided the dump truck for use as a waste receptacle and drove it to the transfer station for landfill disposal as needed.
23. Troy also disposed of waste in the same dump truck.
24. During the August 1979 to July 31, 1985, time period, Mr. Ritt was the president of LeatherCare. During this time, Mr. Ritt managed the day-to-day business operations at LeatherCare. Mr. Ritt researched, selected, and ordered the dry cleaning equipment that LeatherCare used at the Property between August 1979 and July 1985.
25. During the August 1979 to July 31, 1985, time period, Mr. Ritt participated in the installation of that equipment. Mr. Ritt ordered PCE and parts for the dry cleaning equipment, provided training for operating the equipment, and at times operated the dry cleaning equipment.
26. The Times purchased the Property from Troy on March 5, 1985 for $3, 500, 000. The Times assumed the LeatherCare lease as lessor. LeatherCare prepared to move its dry cleaning operation to a new facility, on Elliott Avenue, and completed its move by July 31, 1985.
27. Troy began winding up its operations on the Property shortly after closing the sale of the Property to the Times.
28. Upon taking title to the Property, the Times inspected the Property to identify the Troy equipment and materials that remained, and began working with Charles Maryatt (acting on behalf of Seattle Times' Seller, Troy), to ensure that this equipment was removed. During this process, the Times identified equipment and tanks containing used Stoddard Solvent and other materials that Troy left on the Property. Specifically, the Times found four underground solvent tanks used in Troy's laundry operations, two standing settling tanks and a still containing waste solvent, disconnected pipes that had formerly connected cleaning equipment. The Times also found drainage channels containing dangerous waste residue, two concrete pits containing waste water, an abandoned sump containing a dangerous waste, a fiberglass recycled water tank containing thousands of gallons of contaminated water, a laundry machine, three sealed underground fuel oil tanks, one sealed underground gasoline tank, and various other 55-gallon drums and containers of materials. The Times decommissioned the tanks and worked with the Washington Department of Ecology (“Ecology”) on a Closure Plan for the Property.
29. In a December 26, 1985, letter to Ecology, the Times' lawyer, Mr. Jeff Belfiglio, attached a draft “Closure Plan.” The Closure Plan stated, among other things, that cleanup requirements would “be met by removing all waste and waste residues from the solvent tanks.” The Times also agreed to either remove the tanks or fill them with sand, eliminating a need for future maintenance. The Times also further agreed to seal an existing water well on the Property. Finally, the Times agreed to inspect drainage channels and the sump to ensure no postclosure escape or leaching of waste. The Times emptied and pressure-tested the tanks and sump area and detected no leaks. In an April 17, 1986, letter to Ecology, the Times explained that it had thoroughly inspected wastes left in tanks, removed product, wastewater, and sludge, and tested the tanks and a sump to ensure that the equipment did not leak. In a June 25, 1986 letter, Ecology deemed the Times' “closure of the Troy Laundry facilities to be satisfactory for [Ecology's] purposes” but reminded the Times of its “previous comment, that if any contamination is found during subsequent activities at that facility, contaminated materials will have to be removed and disposed of in an appropriate manner.”The Times sued, in both Federal and State Court, Troy, Maryatt, and Charles R. Maryatt, Tim K. Rich, and David E. Maryatt as trustees for creditors of Troy to recover an estimated $100, 000 in costs that the Times incurred in the process of dealing with the tanks and Ecology regarding the Property. In 1987, the Times settled its suits.
30. The Times initially purchased the Property with the intention of expanding its newspaper printing operations. However, these plans did not materialize and the Times instead used the Property for parking and storage of furniture, newspaper racks, and other miscellaneous materials, and repair of newspaper sales racks.
31. In 1994, the Times commissioned RETEC, an environmental consulting company to inspect the property. RETEC collected a groundwater sample from the water supply well located inside the original Troy Laundry building. The sample exceeded the then applicable MTCA Method A limit for hydrocarbons. RETEC thought the result might be an anomaly. The Times did not re-test.
32. The Times sold the Property to Touchstone SLU LLC (“Touchstone”) on June 10, 2011, for $18, 400, 000.
33. In 2010, in conjunction with Touchstone's due diligence prior to purchase of the Property, SoundEarth Strategies Inc. (“SES”) (previously known as Sound Environmental Strategies), conducted a Phase I Environmental Site Assessment (“Phase I”), a Ground Penetrating Radar (“GPR”) survey, and a Soil Vapor Survey. Based on the results from this work, SES performed a Phase II Environmental Site Assessment (“Phase II”), while AECOM (the Times' consultant) completed a separate Subsurface Investigation on the Property. In 2011, after Touchstone's purchase of the Property, SES completed a Supplemental Subsurface Investigation. The investigations identified concentrations of PCE, total petroleum hydrocarbons (including Stoddard Solvent), and other hazardous substances above the regulatory cleanup and/or screening levels in the soil, groundwater, and soil vapor on and beneath the Property, as well as on and beneath adjacent rights of way.
34. The highest concentrations of PCE in soil on and beneath the Property were located beneath the former loading dock located at the northwest central portion of the Property.
35. On the basis of the information in these subsurface investigations, the Times implemented a soil vapor extraction system (“SVE”) in 2011-12 in order to reduce the volume of PCE in subsurface soils on the Property. The SVE system operated in 2011-12 and removed 327 pounds of PCE from the soil vapor. AECOM decommissioned the system in January 2012. No notice was provided to LeatherCare or Ritt, and they first learned about the SVE system after August 2015.
36. In May 2012, Touchstone and Ecology entered into Agreed Order No. 8996. The Agreed Order required Touchstone to conduct a Remedial Investigation and a Feasibility Study (“RI/FS”) at the Troy Laundry Site, defined as the area “generally located at 307 Fairview Avenue North Seattle, Washington” and as “the extent of contamination caused by the release of hazardous substances at the Site.” Under the Agreed Order, Ecology required the RI/FS to delineate the nature and extent of contamination sufficiently to evaluate and select an appropriate cleanup action under the applicable regulations.
37. Concentrations of PCE, trichloroethylene, and petroleum hydrocarbons (gasoline, diesel, and oil-range) above regulatory cleanup levels were detected in soil, at varying depths, from the surface to approximately 70 feet bgs, in places, on the north, south, and western portions of the Property.
38. On August 9, 2012, SES submitted to Ecology a draft Feasibility Study which proposed cleanup options for the Property. The remedial alternative proposed was “Excavation and Land Disposal of Soil with In Situ Reductive Dechlorination of Groundwater.”
39. In late 2012, SES performed a supplemental investigation to further delineate groundwater contamination adjacent to, and off of, the Property.
40. The 2012 supplemental investigation was not sufficient to delineate the full nature and extent of contamination associated with the Property. Ecology and Touchstone therefore agreed to conduct the remedy (excavation and land disposal of soil with in-situ reductive dechlorination of groundwater) as an interim remedial action.
41. On August 28, 2013, Touchstone and Ecology entered into the First Amendment to Agreed Order No. 8996. As part of the First Amendment to the Agreed Order, SES prepared an August 21, 2013 Interim Action Work Plan and a February 13, 2014, Engineering Design Report, setting out the plans for the interim remedial action. Ecology approved the proposal on March 4, 2014, requiring Touchstone to perform the interim action as set out in a separate Interim Cleanup Action Plan.
42. Touchstone conducted an interim action at the Property between June 2014 and February 2015 under the First Amendment to the Agreed Order. The interim action included but was not limited to: (a) excavation and off-site disposal of soil with concentrations of PCE, petroleum hydrocarbons, and other hazardous substances both above the regulatory cleanup levels and above laboratory detection levels, but below the MTCA Method A cleanup levels; and (b) installation of an in-situ groundwater injection well network in the primary groundwater-bearing zone beneath and adjacent to the Property.
43. The requirements for transport and disposal of soils with detectable levels of PCE and other chlorinated solvents were addressed in Contained-Out Determination Letter issued by Ecology on March 26, 2014.
44. All contaminated soil has been removed from the Property and properly disposed at receiving facilities. The groundwater injection system has been installed, injections have occurred and may continue, and ongoing groundwater monitoring has been conducted both on and off the Property. Additional groundwater injections and monitoring will continue pursuant to the First Amendment to the Agreed Order.
45. On January 22, 2016, SES submitted to Ecology an Interim Cleanup Action Report documenting the interim actions completed under the First Amendment to the Agreed Order. Ecology approved this report in March 2016.
46. The RI/FS for the Property is not complete - additional work is necessary to identify and delineate the nature and extent of contamination exceeding regulatory cleanup levels in all affected media at the Troy Laundry Site, including the Property and areas off the Property where contamination may have come to be located. In particular, Ecology has required additional investigation of groundwater contamination located outside the boundaries of the Property which exceeds regulatory cleanup levels.
47. In July 2016, Touchstone's consultant drafted a Vapor Intrusion Assessment Work Plan to evaluate the potential vapor intrusion pathway at the Property and any need for further action. Ecology is currently reviewing the Work Plan, and the assessment work is anticipated to be performed in 2018.
48. In light of the contamination associated with the Property identified during Touchstone's due diligence, the Times and Touchstone negotiated the terms under which the sale would address the costs to investigate and remediate contamination on the Property and would provide indemnity protection for contamination off of the property. These negotiations took place between October and December 2010 and culminated in a December 17, 2010 Environmental Remediation and Indemnity Agreement (“ERIA”).
49. The ERIA set forth a process for the Times to reimburse Touchstone for “Incremental Costs” of transporting and disposing “Contaminated Soils, ” as opposed to “Clean Soils.”
50. Between July 2014 and October 2015, Touchstone submitted eight (8) separate primary requests for reimbursement of Incremental Costs associated with the transport and disposal of Contaminated Soils, as well as three (3) separate supplemental requests for reimbursement. Touchstone provided technical data and documentation to the Seattle Times regarding the volumes, calculations, and transport and disposal costs associated with the Contaminated Soils, as well as its calculation of the Incremental Costs associated with the transport and disposal of Contaminated Soils.
51. Touchstone submitted invoices to the Times that included the back-up invoices from Lease Crutcher Lewis (“LCL”), Touchstone's general contractor for the redevelopment of the Property.
52. Between January 2014 and September 2017, Touchstone submitted two (2) separate requests for reimbursement of costs associated with the operation and management of the groundwater treatment system on and adjacent to the Troy Laundry Property. Touchstone provided technical data and documentation to the Seattle Times regarding the costs incurred and the specific remedial activities performed.
53. To date, the Times has paid $4, 783, 434.17 toward the transport and disposal of Contaminated Soils that the Times and Touchstone have categorized for disposal under the ERIA. All of these costs were incurred under the processes selected in the Agreed Order and the First Amendment to the Agreed Order. The Times has not paid any additional costs to Touchstone under the ERIA.
54. Touchstone has claimed a total of $8, 640, 875.24 in Incremental Costs and other recoverable costs under the ERIA. Touchstone has demanded that the Times pay an additional $3, 857, 441.07 in costs that Touchstone claims to have incurred under the Agreed Order and First Amendment to the Agreed Order, and that Touchstone claims are recoverable under the ERIA.
55. The Times is disputing Touchstone's additional costs in the following categories: (a) $539, 694.67 for installation of dechlorination wells and groundwater treatment; (b) $49, 236.27 for soil delineation and regulatory compliance; (c) $47, 654.94 for costs expended tracking trucks during transport and disposal of Contaminated Soils; (d) $51, 588.65 for LCL Hazardous Waste Worker Training and Certification; (e) $288, 653.41 for LCL Markups and Fees charged to Incremental Costs; (f) $475, 875.75 for Sampling, Testing, and Field Work; and $648, 674.31 for Washington State Sales Tax charged to Incremental Costs; and (h) $1, 756, 063.07 of additional Incremental Costs related to transport and disposal of Contaminated Soils.
56. The Times has incurred approximately $350, 000 for the design and implementation of the SVE system.
57. Touchstone claims to have incurred over $1, 000, 000 in environmental response costs and remedial action costs related to hazardous substances in soil, groundwater, and soil vapor associated with the Property, which costs are separate from the Incremental Costs and indemnified costs and expenses which Touchstone has claimed are addressed under the ERIA.
58. It is possible that additional investigation and cleanup actions may be necessary in other areas at the Site outside the Property boundaries.
59. The total amount of additional environmental response costs and remedial action costs to be incurred by Touchstone is uncertain at this time, as the investigation and remediation activities are not yet complete.

         ISSUES OF LAW

         All parties stipulate to the following conclusions of law:

         1. There has been a “release” or threatened release of “hazardous substances” from the “facility” known as the Troy Block Property, as those terms are defined under CERCLA, 42 U.S.C. §9601(9), (14), (22) and MTCA, RCW 70.105D.020(8), (13), (32).

         2. Seattle Times is a “former owner” as defined under CERCLA, 42 U.S.C. § 9607(a)(2), and MTCA, RCW 70.105D.040(1)(b).

         3. Seattle Times has incurred “necessary costs of response” under CERCLA, 42 U.S.C. § 9607(a)(4)(B), and “remedial action costs” under MTCA, RCW 70.105D.080.

         4. LeatherCare is a “former operator” as defined under CERCLA, 42 U.S.C. §9607(a)(2), and MTCA, RCW 70.105D.040(1)(b).

         5. Touchstone SLU LLC is a prior owner and operator of the facility. Touchstone SLU LLC entered into Agreed Order No. DE 8996 with the Washington State Department of Ecology on May 12, 2012 (“Agreed Order”). Pursuant to the Agreed Order, Touchstone SLU LLC is a Potentially Liable Person under the Model Toxics Control Act, Chapter 70.105D RCW, in connection with the Troy Laundry Site. Touchstone entered into a First Amendment to the Agreed Order on or about August 28, 2013.

         6. On March 28, 2013 Touchstone SLU LLC conveyed the Troy Block property to TB TS/RELP LLC via Special Warranty Deed. Touchstone SLU LLC is a member of TB TS/RELP LLC.

         7. TB TS/RELP LLC is the current “owner or operator” as defined under CERCLA, 42 U.S.C. §9607(a)(1), and MTCA, RCW 70.105D.040(1)(a).

         8. Touchstone SLU LLC and TB TS/RELP LLC have incurred “necessary costs of response” under CERCLA, 42 U.S.C. §9607(a)(4)(B), and “remedial action costs” under MTCA, RCW 70.105D.080. Any response costs or remedial action costs incurred by Touchstone SLU LLC are now considered response costs or remedial action costs incurred by TB TS/RELP LLC.

         9. The elements of CERCLA and MTCA liability are hereby established for purposes of Seattle Times' complaint against LeatherCare, Inc., LeatherCare's counterclaim against Seattle Times as an owner, LeatherCare's claims against TB TS/RELP LLC, and TB TS/RELP LLC's claims against LeatherCare, Inc.

         The following are the Seattle Times' proposed issues of law to be determined by the Court:

1. What is LeatherCare's equitable share of environmental response costs under CERCLA?
2. What is LeatherCare's equitable share of remedial action costs under MTCA, RCW 70.105D.080?
3. Is Mr. Ritt a “person” who “operated” a “facility” at which hazardous substances were disposed of under 42 U.S.C. § 9607(a)(2) and liable for all necessary costs of response under CERCLA Section 107(a)?
4. Is Mr. Ritt a “person” who “arranged for disposal” of hazardous substances at a “facility” under 42 U.S.C. § 9607(a)(3) and liable for all necessary costs of response under CERCLA Section 107(a)?
5. Is Mr. Ritt a “person” who “operated” a “facility” under RCW 70.105D.040(b)?
6. Is Mr. Ritt a “person” who “arranged for disposal” of hazardous substances at a facility under RCW 70.105D.040(c)?
7. If Mr. Ritt is liable under CERCLA, what is Mr. Ritt's equitable share of environmental response costs under CERCLA 8. What is Mr. Ritt's equitable share of remedial action costs under MTCA, RCW 70.105D.080?
9. Has the Times incurred necessary costs of response that are not inconsistent with the national contingency plan (“NCP”) under 42 U.S.C. § 9607(a)?
10. Has the Times incurred costs conducting remedial actions that are the substantial equivalent of remedial actions led or supervised by Ecology?
11. Is the Times a prevailing party under MTCA and therefore entitled to recovery of its reasonable attorney fees and costs under RCW 70.105D.080?
12. Is the Times liable to Touchstone for any additional costs or expenses claimed by Touchstone under the ERIA?
13. Is the Times the “substantially prevailing party” regarding Touchstone's claims against the Times under the ERIA?

         The following are LeatherCare's proposed issues of law to be determined by the Court:

1. Is the Seattle Times a former “operator” of the facility known as the Troy Block Property under 42 U.S.C. § 9601(20) and, therefore, also liable as a former operator pursuant to 42 U.S.C. §9607(a)(2).
2. Is the Seattle Times a former “operator” of the facility known as the Troy Block Property under RCW 70.105D.020(22) and, therefore, also liable as a former operator pursuant to RCW 70.105D.040(1)(b).
3. What portion of the costs claimed by Seattle Times and Touchstone are recoverable “response costs” under CERCLA, 42 U.S.C. §9607(a)(4)(B).
4. What portion of the costs claimed by Seattle Times and Touchstone are recoverable “remedial action costs” under MTCA, RCW 70.105D.080.
5. Of the costs claimed that are “response costs”, what are the Parties' equitable shares of those response costs under CERCLA, 42 U.S.C. § 9613(f)?
6. Of the costs claimed that are “remedial action costs”, what are the Parties' equitable shares of those remedial action costs under MTCA, RCW 70.105D.080?
7. Is LeatherCare a prevailing party under MTCA and, therefore, entitled to recover its reasonable attorney fees and other costs from the Plaintiff and/or Third Party Defendant parties?

         The following are Touchstone's proposed issues of law to be determined by the Court:

1. What are the Seattle Times' obligations to Touchstone under the ERIA with regard to: (1) the reimbursement of Incremental Costs necessary to meet Soil Cleanup Criteria on and beneath the Troy Laundry Property; and (2) indemnification for costs and expenses associated with soil and groundwater contamination that has migrated or may migrate off of the Troy Laundry Property?
2. What are the Seattle Times'obligations to Touchstone with respect to the Washington State Sales Tax incurred by Touchstone for the remediation of Contaminated Soils that occurred during redevelopment of the Troy Laundry Property?
3. Is Touchstone the “substantially prevailing party” regarding its claims against the Seattle Times' under the ERIA?
4. Has Touchstone incurred recoverable environmental response costs under CERCLA, 42 U.S.C. § 9607(a)?
5. Has Touchstone incurred recoverable remedial action costs under MTCA, RCW 70.105D.080?
6. What is LeatherCare's equitable share of the environmental response costs incurred by Touchstone under CERCLA?
7. What is LeatherCare's equitable share of remedial action costs incurred by Touchstone under MTCA?
8. Is Touchstone entitled to recovery of reasonable attorney fees and costs incurred as part of performance of remedial activities under RCW 70.105D.080?
9. Is Touchstone a prevailing party under MTCA and therefore entitled to recovery of its reasonable attorney fees and costs under RCW 70.105D.080?

         EXPERT WITNESSES

         The name(s) and addresses of the expert witness(es) to be used by each party at the trial and the issue upon which each will testify are:

(a)On behalf of plaintiff Seattle Times:
1. Bruce Dale, Ph.D.
2865 Hagadorn Road Mason, MI 48854
Professor Dale is a professional chemical engineer. He will testify about processing equipment used in dry cleaning and the nature and amount of hazardous substances released to the environment from equipment formerly operated at the Property.
2. Peter M. Krasnoff, P.E.
West Environmental Services &Technology 711 Grand Avenue San Rafael, CA 94901
Mr. Krasnoff is a professional civil engineer. He will testify about the manner in which hazardous substances regulated under CERCLA and MTCA were released to the ...

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