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United States v. Pillon

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

May 20, 2019




         This matter comes before the Court on Plaintiff's motion for summary judgment (Dkt. No. 9). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein.

         I. BACKGROUND

         Defendant is the owner of real property in King County (the “Property”), which he has used as an unpermitted landfill for many years. (Dkt. No. 9 at 2.) The Property contains, or has recently contained, many different kinds of waste, including vehicles, unlabeled containers, and chemical waste. (Id.) Over decades, the Property has been investigated more than 20 times by various law enforcement agencies for unpermitted activities as well as hazardous waste management violations. (Id.)

         In February 2016, the United States Environmental Protection Agency (the “EPA” or the “Government”) conducted a one-day sampling event at the request of the Washington State Attorney General's Office. (Id. at 3.) The EPA was tasked with identifying and sampling containers potentially containing hazardous substances and areas of potentially contaminated soil. (Id. at 3.) The EPA observed hundreds of unmarked and mislabeled containers that appeared to be leaking. (Id.) Results for every surface soil samples exceeded cleanup levels for cadmium, chromium, benzo(a)pyrene, total toxicity equivalent concentration (“TTEC”), and/or motor oil range organics. (Id. at 3.)

         In July 2018, the Washington Department of Ecology asked the EPA to perform an emergency removal action at the Property. (Id. at 4; Dkt. No. 9-6.) The EPA visited the Property to evaluate the extent of the contamination. (Dkt. No. 9 at 5.) The EPA obtained consent from Defendant to walk around and observe the Property. (Id.) During this walk-through, the EPA observed approximately 250 containers, some of which evidenced leaking. (Id.) After the July 2018 visit, Defendant was reluctant to grant the EPA access to the Property. (Dkt. Nos. 9 at 6-7, 9-7-9-17.) Defendant has since sent a series of emails to the EPA outlining his objections to its involvement on the Property. (Dkt. Nos. 9-7-9-17.) In October 2018, the EPA emailed Defendant to request access to the Property, to which Defendant responded with multiple emails indicating his refusal to consent. (Dkt. No. 9-13-9-17.) Thereafter, the EPA applied to the court for an administrative warrant to access and clean-up the Property. United States v. May Creek Landfill Site, No. C18-0114-JPD, Dkt. No. 1 (W.D. Wash. 2018).

         In November 2018, Judge Donohue granted the EPA a 30-day administrative warrant. United States v. May Creek Landfill Site, No. C18-0114-JPD, Dkt. No. 4. After gaining access to the Property with that warrant, the EPA took samples, conducted further inspections of the premises, and removed and processed over 1, 600 containers of chemicals. (Dkt. No. 9 at 8.) In the process of sampling the soil, the EPA identified three different areas on the Property where soil contamination seemed most likely-the Landfill Area, the Workshop Area, and the Bus Area. (Dkt. Nos. 9 at 8, 9-19.) In the Landfill Area, eight test pits were excavated. (Dkt. No. 9 at 10.) Soil samples from the eight test pits showed only modest levels of contamination-the EPA has concluded that further action at these pits is not required. (Id. at 9-10; see also Dkt. No. 9-20.) However, apart from the eight test pits, other soil samples in the Landfill Area showed levels of petroleum contamination in a range that warrants further action. (Dkt. Nos. 9 at 11-12, 9-20 at 20.) Defendant appears to use the Workshop Area to work on vehicles. (Dkt. No. 9 at 10.) Soil samples from this area showed elevated concentrations of lead, cadmium, and hydrocarbons in the motor and diesel ranges. (Dkt. Nos. 9 at 9-10, 9-20 at 16.) The presence of the oil and diesel contamination requires further action. (Dkt. No. 9 at 9-10.) Soil sampling in the Bus Area was similar to soil sampling in the Workshop Area. (Id.; Dkt. No. 9-20 at 20.) Finally, surface water samples were taken during this 30-day period. (Dkt. No. 9 at 11-12.) Nearly all of the samples showed concentrations of petroleum that warrant further action. (Id.; Dkt. No. 9-20 at 25.)

         Even after that 30-day clean-up and testing period, contaminated soil remains and the EPA is unsure about whether there is any groundwater contamination. (Id. at 12-13; see also Dkt. Nos. 9-19, 9-20.) The EPA asserts that, to address the contamination and threats at the Property, the following actions need to be taken: removal of soils known to be contaminated; testing of soils in the areas of contamination to ensure that all soils contaminated above action levels have been removed; and installation of groundwater monitoring wells to monitor groundwater that has been, or may become, contaminated. (Dkt. No. 9 at 13.) The Government intends to only be present on Defendant's property for around two months. (Dkt. No. 8 at 16.) Because of the EPA's designation of specific zones of likely contamination and because of the short time period of the Government's presence, its remedial plan is tailored. (Dkt. No. 9 at 13; see also Dkt. No. 9-20.) The Government brings the present motion for summary judgment, seeking access to the Property so that it can perform these additional remedial actions. (Dkt. No. 8.)


         A. Summary Judgment Legal Standard

         A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute of fact is genuine if there is sufficient evidence for a reasonable jury to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is material if the fact “might affect the outcome of the suit under the governing law.” Id. At the summary judgment stage, evidence must be viewed in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in the nonmovant's favor. Id. at 255.

         B. Superfund (“CERCLA”)

         CERCLA grants the EPA broad powers to clean-up sites where it has “a reasonable basis to believe that there may be a release or threat of release of a hazardous substance.” 42 U.S.C. § 9604(e)(1). CERCLA defines release as “any spilling, leaking, . . . emitting, emptying, . . . leaching, dumping, or disposing into the environment . . . .” 42 U.S.C. § 9601(22). When an actual release or substantial threat of release of a hazardous substance occurs, the EPA is “authorized to act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance . . . or take any other response measure consistent with the national contingency plan” that the EPA deems necessary to protect the environment. 42 U.S.C. § 9604(a)(1).

         Under CERCLA, there are a number of ways that the EPA may access a site. The EPA may enter “[a]ny vessel, facility, establishment, or other place or property” where: (1) hazardous substances have been generated, stored, treated, disposed of, or transported from; (2) hazardous substances may have been released; (3) a hazardous substance's release is threatened; or (4) entry is necessary to effectuate a response action. 42 U.S.C. § 9604(e)(3). Once the EPA has gained access, it may inspect and collect samples, “determin[e] the need for response, or ...

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