Cyprus Amax Minerals Company v. Tci Pacific Communications, Inc. et alMOTION for Summary JudgmentN.D. Okla.July 22, 2016 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA Cyprus Amax Minerals Company, ) ) Plaintiff, ) ) v. ) Case No. 11-CV-252-CVE-FHM ) TCI Pacific Communications, Inc., ) ) Defendant. ) _____________________________________________________________________________________________ DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND INTEGRATED MEMORANDUM IN SUPPORT ______________________________________________________________________________ BY: /s/ Mark D. Coldiron Mark D. Coldiron, OBA #1774 Paula M. Jantzen, OBA #20464 RYAN WHALEY COLDIRON JANTZEN PETERS & WEBBER PLLC 119 North Robinson, Suite 900 Oklahoma City, Oklahoma 73102 (405) 239-6040 Telephone (405) 239-6766 Facsimile mcoldiron@ryanwhaley.com pjantzen@ryanwhaley.com -and- Paul D. Steinman, PA. Bar #49730 ECKERT SEAMANS CHERIN & MELLOTT LLC U. S. Steel Tower 600 Grant Street, 44th Floor Pittsburgh, PA 15219 (412) 566-6000 Telephone (412) 566-6099 Facsimile psteinman@eckertseamans.com Counsel for TCI Pacific Communications, Inc. July 22, 2016 Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 1 of 42 i Table of Contents I. INTRODUCTION ..................................................................................................................1 II. INDISPUTED MATERIAL FACTS ...................................................................................4 A. TFMC’S CORPORATE EXISTENCE, OPERATIONS, AND OWNERSHIP OF THE TFM SITE ................................................................................................................................4 B. THE BARTLESVILLE ZINC SMELTER SITE ............................................................5 C. THE TULSA FUEL SUPERFUND SITE .......................................................................6 D. THE COLLINSVILLE TOWN SITE/COLLINSVILLE SOIL PROGRAM .................9 E. THE HISTORICAL RECORD ..................................................................................10 III. STANDARD OF REVIEW ................................................................................................10 IV. ARGUMENT AND AUTHORITIES ...............................................................................12 A. PLAINTIFF’S “ARRANGER” LIABILITY CLAIMS PREMISED UPON AIR EMISSIONS FAIL, AS A MATTER OF LAW BECAUSE AIR EMISSIONS DO NOT CONSTITUTE “DISPOSAL” UNDER CERCLA ............................................................... 12 B. PLAINTIFF’S “FORMER OWNER AND/OR OPERATOR” CLAIMS FAIL, AS A MATTER OF LAW. ............................................................................................................. 13 C. PLAINTIFF’S AMENDED COMPLAINT PRESENTS THIS COURT WITH A “TWO-SITE” CERCLA CASE. ............................................................................................ 14 D. REQUIREMENTS FOR ESTABLISHING A PRIMA FACIE CERCLA CLAIM IN A “TWO-SITE” CASE ..............................................................................................................14 E. PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE CASE OF CERCLA LIABILITY UNDER THE APPLICABLE “TWO-SITE” ANALYSIS. ............................. 17 F. PLAINTIFF’S THEORIES OF CERCLA ARRANGER LIABILITY FAIL, AS A MATTER OF LAW. ............................................................................................................. 24 1. Plaintiff’s factual allegations in support of its claims of arranger liability. ...........24 2. Requirements for establishing a prima facie claim of arranger liability. ...............25 3. Plaintiff has failed to demonstrate that TFMC or NJZ was an arranger with regard to the off-site transport of smelter material for use by Collinsville residents. ............... 26 4. Plaintiff has failed to demonstrate that TFMC and/or NJZ were arrangers with regard to the emission of hazardous substances into the air. ......................................... 31 5. Plaintiff has failed to demonstrate that NJZ was an arranger .................................31 Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 2 of 42 ii G. AS A MATTER OF LAW, Plaintiff cannot establish a claim of direct CERCLA liability against TCI ............................................................................................................... 32 1. NJZ did not own the TFMC facility. .......................................................................32 2. NJZ did not operate the TFMC facility. ..................................................................32 H. ALTERNATIVE BASES FOR ENTRY OF PARTIAL SUMMARY JUDGMENT IN FAVOR OF TCI. ................................................................................................................... 33 1. As a matter of law, TCI cannot be held liable for disposals of hazardous substances, if any, that took place after TFM was dissolved as a corporation in 1926 . 33 2. As a matter of law, TCI cannot be held indirectly responsible for the liability, if any, of TFMC outside of the dates February 26, 1918 through June 9, 1923. .............. 34 3. As a matter of law, TCI cannot be held liable for response costs arising from road building activity. ............................................................................................................ 34 4. As a matter of law, TCI cannot be held liable for response costs arising from air emissions. ....................................................................................................................... 34 5. As a matter of law, TCI cannot be held liable for response costs arising from visible smelter waste. ..................................................................................................... 35 6. As a matter of law, TCI cannot be held liable for response costs arising from alleged groundwater contamination. .............................................................................. 35 VI. CONCLUSION .................................................................................................................35 CERTIFICATE OF SERVICE ..................................................................................................38 Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 3 of 42 iii Cases Acme Printing Inc. Co. v. Menard, Inc., 891 F.Supp 1289 (E.D. Wis. 1995) ............................................ 26 Akzo Coatings, 949 F.2d at 1424 ................................................................................................................ 23 Alexander v. Oklahoma, 382 F.3d 1206 (10th Cir. 2004) ........................................................................... 11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................................... 11 Bestfoods, 524 U.S. at 67 ............................................................................................................................ 32 Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536 (5th Cir. 2005) ........................................................... 11 Burlington N. & Santa Fe Ry. Co. v. United States 556 U.S. 599 (2009) ............................................ 26, 27 Burlington Northern and Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009) ............................ 25 Castaic Lake Water Agency v. Whittaker Corp., 272 F.Supp.2d 1053 (C.D.Cal. 2003) ...................... 16, 24 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..................................................................................... 10, 11 Center for Community Action and Envt’l Justice v. BNSF Railway Co, 764 F.3d 1019 (9th Cir. 2014) ... 13 Dana Corp. v. American Standard, Inc., 866 F.Supp 1481 (N.D.Ind. 1994) ............................................. 26 Dana Corp. v. American Standard, Inc., 866 F.Supp. 1481 (1994) ........................................................... 11 Dana Corp. v. American Standard, Inc., 866 F.Supp. 1481 (N.D. Ind. 1994) ........................................... 26 Freeport-McMoran Res. Partners Ltd. P’ship v. B-B Paint Corp., 56 F.Supp. 2d 823 E.D. Mich. 1999) 25 In Innis Arden Golf Club v. Pitney Bowes, Inc., 629 F.Supp.2d 175 (D.Conn. 2009), ............................... 18 Innis Arden Golf Club v. Pitney Bowes, Inc., 629 F.Supp.2d 175 (D.Conn. 2009) .................................... 15 Kalamazoo River Study Group v. Rockwell Int’l Corp., 171 F.3d 1065 (6th Cir. 1999). ............................ 15 Kannady v. City of Kiowa, 590 F.3d 1161 (10th Cir. 2010) ........................................................................ 11 Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) ................................................................... 23 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) .................................................. 11 New Jersey Turnpike Authority v. PPG Indus., Inc., 197 F.3d 96 (3rd Cir. 1999) ...................................... 30 NYSEG Corp. v. FirstEnergy, Corp., 808 F.Supp.2d 417 (N.D.N.Y. 2011) .............................................. 25 Raytheon Constructors, Inc. v. Asarco, Inc., 368 F.3d 1214, ____ (10th Cir. 2003) .................................. 25 Rhodes v. County of Darlington, 833 F.Supp. 1163 (D.S.C. 1992) ............................................................ 11 Roosevelt Irr. Dist. v. Salt River Project Agr. Imp. and Power Dist., 39 F.Supp.3d 1059 (D.Ariz. 2014). .......................................................................................................................................................... 15, 18 Thomas v. FAG Bearings Corp., 846 F.Supp. 1382 (W.D. Mo. 1994) ...................................................... 15 United States v. Cello-Foil Prods., Inc., 100 F.3d 1227 (6th Cir. 1996) ..................................................... 25 United States v. Davis, 261 F.3d 1 (1st Cir. 2001) ...................................................................................... 30 Rules 42 U.S.C. § 6903 ......................................................................................................................................... 12 42 U.S.C. § 9061 ............................................................................................................................................ 1 42 U.S.C. § 9601 ......................................................................................................................................... 12 42 U.S.C. § 9601 ................................................................................................................................... 13, 24 42 U.S.C. § 9607 ............................................................................................................................. 12, 13, 25 FED. R. CIV. P. 56 ................................................................................................................................... 1, 10 FED. R. CIV. P. 56(c) ................................................................................................................................... 11 Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 4 of 42 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA Cyprus Amax Minerals Company, ) ) Plaintiff, ) ) v. ) Case No. 11-CV-252-CVE-FHM ) TCI Pacific Communications, Inc., ) ) Defendant. ) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND INTEGRATED MEMORANDUM IN SUPPORT Pursuant to the Court’s authority under FED. R. CIV. P. 56, Defendant TCI Pacific Communications, Inc. (“TCI”) hereby moves this Court to enter an Order granting TCI judgment against Plaintiff on all claims remaining in this matter.1 I. INTRODUCTION In the early part of the twentieth century, two zinc smelter companies operated approximately one (1) mile south of Collinsville, Oklahoma. Plaintiff is responsible for the environmental liabilities associated with one of those smelter sites, the Bartlesville Zinc (“BZ”) Site. The other zinc smelter site was owned and operated by the Tulsa Fuel and Manufacturing Company (“TFMC”) which was dissolved as a corporation in 1926. Plaintiff is asserting CERCLA contribution claims against TCI for response costs it claims to have occurred at a third site – i.e., the Collinsville Town Site. Pursuant to this Court’s February 2, 2015 Order finding an alter ego relationship between TFMC and the New Jersey Zinc Company (TCI’s corporate 1 Only Counts III through VII of Plaintiff’s Amended Complaint remain pending against TCI, each of which arise from the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9061 et seq. (“CERCLA”). See Doc. Nos. 106 and 142. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 5 of 42 2 predecessor), the Court must now determine whether Plaintiff can prove its CERCLA contribution claims. As explained below, the undisputed record in this matter demonstrates that Plaintiff’s claims fail, as a matter of law, because they are unsupported by evidence and contrary to the plain language of CERCLA. Therefore, TCI is entitled to entry of summary judgment in its favor on all claims asserted in Plaintiff’s Amended Complaint. In 2009, the Oklahoma Department of Environmental Quality (“ODEQ”) sued Plaintiff for environmental contamination in Collinsville caused by the BZ smelter’s operations. Plaintiff settled the litigation by means of a 2009 Consent Decree which required investigation and remediation activities “anywhere Waste Materials from the Bartlesville Zinc Company have come to be located.” Despite a factual record that points only to the BZ Site as the source of any smelter-related contamination in and around Collinsville, Plaintiff alleges that as part of its investigation and remediation of the Collinsville Town Site, it has unfairly incurred costs investigating and remediating hazardous substances originating from the TFMC Site. The essential premise of Plaintiff’s claims is that hazardous substances from the TFMC Site somehow traveled to the Collinsville Town Site. Plaintiff offers two theories in support of how this may have happened: (1) air emissions from the TFMC smelter traveled northward and settled on the Collinsville Town Site due to prevailing winds out of the south, and (b) TFMC and/or New Jersey Zinc (“NJZ”) arranged for smelter materials to be used by Collinsville residents for yard fill, gardening material, or gravel for construction purposes such as driveways and roads. Doc. No. 106 at ¶ 108. Each of Plaintiff’s theories fails on the record of this case. First, separate investigations by the ODEQ and the United States Environmental Agency (“EPA”) have eliminated TFMC air emissions as a source of potential contamination in and around Collinsville. As explained in more detail below, the TFMC Site has been subject to Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 6 of 42 3 administrative agency investigation for more than two decades. In 2005-2006, the ODEQ conducted a Remedial Investigation/Feasibility Study (“RI/FS”) of the TFMC Site which included an investigation of properties within a 1 ½ mile radius of the TFMC Site to determine whether there was any evidence of off-site contamination from the former smelter operations. After analyzing the results of more than 110 soil samples taken as part of its investigation into potential off-site contamination, the ODEQ concluded that the data did not suggest an aerial plume. Although this initial RI/FS would be sufficient to refute Plaintiff’s factually-unsupported theory of air emissions liability against TCI, additional evidence is found in a second investigation conducted by EPA. In 2007, EPA commissioned a supplemental remedial investigation to further investigate the possibility that air emissions from the TFMC smelter could have caused contamination in and around Collinsville. In this second investigation, sophisticated air modeling was used to focus soil sampling in areas expected to have the greatest likelihood of showing contamination, if any, from TFMC’s smelter operations. The supplemental RI included over 200 residential property samples and resulted in a 2008 Final Supplemental Remedial Investigation Report that concluded: “The data collected for the supplemental RI for the TFM Superfund Site indicates…no impact associated with the dispersion of airborne particulates on to the ground in the area surrounding the site.” The ODEQ and the EPA each set out to find evidence of potential air emissions contamination associated with TFMC’s smelter operations and they each concluded there was not any evidence of such contamination. The ODEQ and the EPA conducted their respective investigations as part of their statutory obligation to investigate and remediate environmental contamination that may pose a threat to the public, and each agency drew upon its scientific and Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 7 of 42 4 technical expertise in such matters. Therefore, as a starting point, each agency’s investigation and each agency’s conclusion that there is no evidence of air emissions contamination from the TFMC Site is entitled to great deference. Plaintiff has no evidence to refute the separate and independent findings of these two agency investigations. Plaintiff’s emissions-based theories of liability must fail because they are not only without factual support, they are wholly refuted by the factual record. Plaintiff’s second theory of how hazardous substances may have traveled from the TFMC Site to the Collinsville Town Site likewise fails for want of evidence. Despite the fact that this litigation is now in its sixth year, and despite the fact that Plaintiff has hired multiple experts and spent substantial resources directed toward proving that TFMC and/or NJZ arranged for smelter materials to be used by Collinsville residents for various fill or construction projects, Plaintiff has no evidence that this ever occurred. Instead, the undisputed record demonstrates that the BZ Site is the sole source of smelter materials used for Collinsville road-building activity, as well as other miscellaneous off-site transportation of broken retorts, cinders, and other materials. Each of Plaintiff’s various theories of CERCLA liability against TCI require a finding that hazardous substances from the TFMC Site somehow traveled to the Collinsville Town Site. As explained above, and more fully demonstrated below, Plaintiff cannot identify evidence sufficient to support such a finding. Therefore, Plaintiff cannot meet its burden of proof at trial and TCI is entitled to summary judgment on each of Plaintiff’s claims. II. UNDISPUTED MATERIAL FACTS A. TFMC’S CORPORATE EXISTENCE, OPERATIONS, AND OWNERSHIP OF THE TFM SITE 1. TFMC was created as a Kansas corporation in 1906. Appendix (“App.”) APP- 000001-000004. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 8 of 42 5 2. Although TFMC began its oil and gas operations in Kansas in 1906, TFMC began smelting operations outside of Collinsville, Oklahoma in approximately 1912. APP-0000019-0000020. 3. From 1911-1926, deed records for the real property associated with TFMC’s smelter operations (the “TFMC Property”) identify C.A.H. de Saulles and/or TFMC as the owners. APP-0000010-0000018 a. C.A.H. de Saulles transferred the TFMC Property to TFMC in 1912. APP0000014-0000015. b. In 1926, TFMC transferred ownership of the TFMC Property to the Tulsa County Coal Company. APP-0000018. c. The deed records associated with the TFMC Property never mention NJZ, and there are no other documents indicating that NJZ ever owned the TFMC Property. APP-0000010-0000018. 4. TFMC ceased operations and then dissolved under Kansas law in 1926. APP000005-000007. 5. After TFMC ceased operations in 1926, TFMC’s Vice President signed a notarized Certificate of Withdrawal on December 28, 1926, stating, inter alia, that TFMC was no longer engaged in business in Oklahoma and that with the exception of one railroad track scale, TFMC had disposed of all its property and business in the State of Oklahoma more than five months prior. APP000008- 000009. B. THE BARTLESVILLE ZINC SMELTER SITE 1. Plaintiff is the successor to the corporate parent of the company that operated the Bartlesville Zinc smelter facility (“BZ Smelter”) from 1911 – 1918. Doc. No. 106 at ¶ ¶ 1, 16. 2. The BZ Smelter was located approximately one (1) mile south of the town of Collinsville, Oklahoma. Doc. No. 106 at ¶ ¶ 1, 16. 3. During its period of operation, the BZ Smelter was described as the largest zinc smelter in the world. APP-000060. 4. After the BZ Smelter shut down in 1918, the Atcheson Topeka & Santa Fe Railroad installed a steam shovel at the BZ Smelter site “for the purpose of loading cinders for railroad ballast.” APP-000080. 5. In May, 1918, a local Collinsville newspaper ran the following ad (APP-000081): Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 9 of 42 6 6. In September 1919, a local newspaper reported that 11,000 tons of scrap iron and machinery at the former BZ Smelter site had been “wrecked” by the Security Iron Metal Company. APP-000082. 7. By 1920, a new foundry was constructed on the former BZ Smelter site. The company, called the Heggem-Davis Foundry, had constructed new buildings on the site. APP000083. C. THE TULSA FUEL SUPERFUND SITE 1. After being identified in 1992, a Preliminary Assessment of the TFMC Site was performed under the direction of the United States Environmental Protection Agency (“EPA”), followed by a focused Site Inspection in September 1994. APP-000217. 2. The TFMC Site was proposed to the Superfund National Priorities List (“NPL”) in September 1998. Final listing of the Site to the NPL occurred on January 19, 1999. APP-000217. 3. In May of 1999, the EPA completed a Removal Assessment Report for the TFMC Site. APP-000217. 4. From 2005 through 2006, the Oklahoma Department of Environmental Quality (“ODEQ”) conducted a Remedial Investigation/Feasibility Study (“RI/FS”) of the TFMC Site. APP-000181-000485. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 10 of 42 7 5. The RI was conducted from July 2005 through September 2006 and it identified the types, quantities, and locations of contaminants associated with the TFMC Site. APP000186. a. The RI included more than 110 soil samples collected from properties in areas immediately surrounding the TFMC Site and properties at distances up to 1 ½ miles from the Site. APP-000181-000485. b. A summary of the investigation was presented in the final RI report in August 2007, and at a local public meeting held in October 2007. APP- 000181-000485; APP-0000871-915. a. A PowerPoint document prepared for the public meeting (bearing the insignia for both the ODEQ and EPA) stated the “[d]ata do not suggest aerial plume.” APP-000904. 6. The FS Report, which summarized and evaluated remedial alternatives, was also finalized in October 2007. APP-000486-000551 b. The FS Report contained the following statement: “At other smelter sites in Oklahoma, slag or waste material was typically transported off the Site and used as fill in driveways, gardens, and school running tracks. Since large amounts of slag material were left behind when the Site was abandoned in the 1920’s, this could have occurred at this Site. Early newspaper reports (circa 1936) indicate that a rock crusher was placed at the Site for the manufacturing of road base for area roads.” APP-000499 c. There is no record of any 1936 newspaper article referencing a rock crusher being placed at the TFM Site, for the manufacturing of road base for area roads or otherwise. Instead, the only evidence of a 1936 newspaper report regarding a rock crusher being placed at a smelter site is with regard to the BZ Smelter – i.e., the smelter for which Plaintiff has assumed liability. d. When asked about this at deposition, the ODEQ’s designated witness acknowledged that this article makes no reference to the TFM Smelter site and she could not identify any alternative evidence to support the statement in the FS regarding the rock crusher alleged to have been placed at the TFMC Smelter Site in 1936. APP-000555-560. 7. Between November 2007 and March 2008, EPA conducted a supplemental remedial investigation (“Supplemental RI”) at the TFM Site, specifically for the purpose of further evaluating the potential contamination of off-site residential Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 11 of 42 8 properties. APP-000555-560 8. EPA hired CH2M Hill to conduct the Supplemental RI. As set forth in the final Supplemental RI Report: a. “The supplemental RI consisted of sampling activities to assess the potential for offsite soil contamination resulting from: 1) the physical transport and placement of site waste as fill material at offsite locations and 2) the dispersion of airborne constituents during the operation of the smelters at the site.” (emphasis added) Supplemental Remedial Investigation Report, March 2008 (page 1-11) 9. As part of its scope of work for the Supplemental RI, CH2M Hill developed an “air dispersion model to guide in the selection of soil sample locations.” Supplemental Remedial Investigation Report, March 2008 (page v) a. The Supplemental RI included over 200 residential property samples, with sampling targeted in locations predicted by air modeling to most likely show impacts, if any, from the TFM Smelter operations. b. This purpose of the EPA/CH2M Hill modeling was confirmed during the deposition of CH2M Hill’s designated corporate representative, Jayson Burkard, through his testimony that the model was used to guide the selection of soil sampling locations “to get a more targeted, realistic idea if there was any air dispersion…” and that it would be fair to say that “the air modeling results give you an indicator of where you would expect to find evidence of air contamination.” APP-000561-564 10. Representatives from the ODEQ participated development of the work plan and participated in the field sampling activities. APP-000087-88, 89-180, 591-636, 637-639 11. EPA provided oversight to the Supplemental RI work performed by CH2M Hill. APP569-590, 561-568, 640-650 12. Before CH2M Hill submitted its final Supplemental RI Report in March 2008, it provided drafts to ODEQ and EPA. a. ODEQ provided comments on CH2M Hill’s draft final report. APP- 000777 b. The Final Supplemental RI Report reflects the comments from ODEQ. APP-000777, 778-784 Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 12 of 42 9 13. The “Summation” section of the final March 2008 Supplemental RI Report states: “The data collected for the supplemental RI for the TFM Superfund Site indicates that only a small number of offsite residential sample locations – 5 percent – are potentially impacted by the use of waste mass fill material, with no impact associated with the dispersion of airborne particulates on to the ground in the area surrounding the site.” (emphasis added) Supplemental Remedial Investigation Report, March 2008. (page 6-3) 14. EPA’s “Monthly Cost/Performance Reviews” from the Supplemental Remedial Investigation ranked CH2M Hill’s “Quality of Product or Service” as “Excellent.” APP-00084-86 15. The Supplemental RI Report is in the administrative record that supports the EPA’s Record of Decision (“ROD”) for the TFM Site. 16. There is no record of EPA requesting CH2M Hill to revise or modify anything in the final 2008 Supplemental RI Report. 17. There is no record of Plaintiff providing any comments to the Proposed Plan when it was submitted for public comment by the EPA prior to issuance of the ROD. D. THE COLLINSVILLE TOWN SITE/COLLINSVILLE SOIL PROGRAM a. On May 28, 2009, the ODEQ filed a Complaint against Plaintiff in the United States District Court, Northern District of Oklahoma. See Case No. 09-CV-326- TCK-FHM. b. On July 2, 2009, the Court entered a Consent Decree resolving the ODEQ’s litigation against Plaintiff. Doc. No. 106 at ¶ 25. c. The Consent Decree defines the relevant “Site” as: “…all residential properties, commercial properties, houses of worship, childcare facilities, alleys, vacant fields, parks and schools located within the corporate limits of the City of Collinsville or within one mile of such limits or anywhere Waste Materials from the former Bartlesville Zinc Company Smelter Site have come to be located.” (emphasis added) d. The Collinsville Soil Program does not include paved roads. i. The July 2009 Soil Sampling and Analysis Plan for the Collinsville Soil Program (“CSP”) states that: Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 13 of 42 10 “Sample locations will be selected no closer than 10 ft from existing roads and paved parking lots to minimize potential influence of lead from fuels, oils, and vehicle emissions.” APP- 000802 ii. Alicia Voss, the corporate witness designee of Plaintiff, testified at deposition that the CSP did not include paved surfaces such as roads. APP-000858-861 E. THE HISTORICAL RECORD a. Some newspaper articles from the period of time the BZ smelter and the TFMC smelter were operating report the use of smelter materials for road-building activities. i. None of these articles identify the TFMC smelter as the source of these materials. ii. Some of the articles specifically identify the BZ smelter as the source of these materials. b. Newspaper articles and/or advertisements from the period of time the BZ smelter and/or the TFM smelter were operating report: i. the off-site transport of materials from the BZ Smelter site, (APP-000080) and ii. the offer to sell “all kinds of materials” such as buildings, gravel, and “stones for fixing roads” from the BZ Smelter site. (APP-000081) c. There are no reports of materials being transported off-site from the TFMC Site during the time it was owned and/or operated by TFMC. III. STANDARD OF REVIEW Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed “to secure the just speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Rule 56(c) mandates the entry of summary judgment against a party who fails to make a sufficient evidentiary showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 14 of 42 11 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Summary judgment is appropriate when “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004). The “movant need not negate the nonmovant’s claim, but need only point to an absence of evidence to support the non-movant’s claim.” Kannady v. City of Kiowa, 590 F.3d 1161, 1170 (10th Cir. 2010). Once the moving party has met its burden, the nonmoving party must come forward with specific evidence that supports its claim such that the finder of fact could return a verdict in its favor. See. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Simply resting on the allegations in the pleading will not suffice. Nor will this burden be satisfied “by some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). [S]peculative evidence – testimony that an event “could have happened” or was “possible” – does not satisfy this burden.” Dana Corp. v. American Standard, Inc., 866 F.Supp. 1481, 1489 (N.D. Ind. 1994). Neither CERCLA’s remedial objectives nor its strict liability provisions support a “heightened” summary judgment standard. Id. 1492-1493. Plaintiffs in CERCLA cases bear the same burden as all plaintiffs facing summary judgment motions; they must come forth with evidence that would be sufficient to withstand a motion for judgment as a matter of law at trial. See id., see also Rhodes v. County of Darlington, 833 F.Supp. 1163, 1198 (D.S.C. 1992) (Federal Rules of Civil Procedure are not subordinated to CERCLA). Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 15 of 42 12 IV. ARGUMENT AND AUTHORITIES A. PLAINTIFF’S “ARRANGER” LIABILITY CLAIMS PREMISED UPON AIR EMISSIONS FAIL AS A MATTER OF LAW BECAUSE AIR EMISSIONS DO NOT CONSTITUTE “DISPOSAL” UNDER CERCLA. Plaintiff’s “arranger” liability claims are premised, in part, on alleged air emissions from the TFM smelter. See Doc. No. 106 at ¶ 108. Specifically, Plaintiff alleges that TFMC and/or NJZ arranged for the disposal of hazardous substances by “operating the TFM Smelter in such a way as to emit hazardous substances into air which moved northward to and settled on the Collinsville Town Site due to prevailing winds out of the south….” Id. As alleged by Plaintiff, “…the emissions of hazardous substances which settled on the Collinsville Town Site…constitute disposal as that term is defined by CERCLA section 101(29), 42 U.S.C. § 9601(29).” Doc. No. 106 at ¶ 109. Before a defendant can be held liable as an “arranger” under CERCLA, the plaintiff must prove that the defendant is a “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….” 42 U.S.C. § 9607(a)(3). Therefore, arranger liability requires a demonstration of “disposal” or “treatment” of a hazardous substance. Plaintiff does not allege that air emissions constitute “treatment” and, as demonstrated below, Plaintiff’s emissions-based arranger liability claims fail, as a matter of law, because air emissions do not constitute “disposal” as that term is defined by CERCLA. CERCLA defines the term “disposal,” through reference to the Solid Waste Disposal Act (42 U.S.C. § 6903), as: Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 16 of 42 13 “…the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.” See 42 U.S.C. § 9601(29) (emphasis added). The trigger for “disposal” under this definition is a discharge, injection, dumping, etc. of solid or hazardous waste into or on land or water. The plain statutory language only contemplates hazardous substances being “emitted into the air” after they have been discharged, deposited, etc. into or on land or water. Air emissions initially discharged into the air do not fit CERCLA’s definition of “disposal” because they were not previously discharged “into or on any land or water.” See id.; accord Center for Community Action and Envt’l Justice v. BNSF Railway Co, 764 F.3d 1019, 1024 (9th Cir. 2014) (“disposal occurs where the solid waste is first placed ‘into or on any land or water’ and is thereafter ‘emitted into the air.’”); cf Pakootas v. Teck Cominco Metals, LTD, 2014 WL 7408399 (Dec. 31, 2014) (district court decision that air emissions can constitute “disposal” and thus, give rise to arranger liability, presently on appeal to the 9th Circuit). B. PLAINTIFF’S “FORMER OWNER AND/OR OPERATOR” CLAIMS FAIL, AS A MATTER OF LAW. Before a defendant can be held liable as an “arranger” under CERCLA, the plaintiff must prove that the defendant is a “person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of….” 42 U.S.C. § 9607(a)(2). Plaintiff seeks to recover response costs it claims to have incurred “because of the disposal…of hazardous substances at the Collinsville Townsite.” Doc. No. 106 at 26. Plaintiff’s attempt to impose “former owner and/or operator” liability on TCI fail, as a matter of law, because Plaintiff has no evidence that TFMC or NJZ ever owned or operated a facility located within the Collinsville Townsite. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 17 of 42 14 C. PLAINTIFF’S AMENDED COMPLAINT PRESENTS THIS COURT WITH A “TWO-SITE” CERCLA CASE. In a typical CERCLA case, the site of the release or threatened release of a hazardous substance and the site where the plaintiff has incurred response costs are one and the same. In this, case, however, Plaintiff alleges that “[h]azardous substances within the meaning of CERCLA section 101(14), 42 U.S.C. § 9601(14), including zinc, lead, cadmium and arsenic, were generated and released into the environment by TFMC/NJ Zinc at the TFM Smelter Site, and were further released into the environment by TFMC/NJ Zinc at the Collinsville Town Site.” Doc. No. 106 at ¶92. These factual allegations present the Court with what is commonly referred to as a “two-site” case. D. REQUIREMENTS FOR ESTABLISHING A PRIMA FACIE CERCLA CLAIM IN A “TWO-SITE” CASE. The element of “causation” in CERCLA claims is rarely addressed because in most cases, the “release” of a hazardous substance is at the same site that has been contaminated. Congress adopted strict liability in these situations so it is not necessary to connect the actual waste disposed of at a site to the waste actually released. Instead, Courts have determined that the statute: …appears to impose liability on a generator who has (1) disposed of its hazardous substances (2) at a facility which now contains hazardous substances of the sort disposed of by the generator (3) if there is a release of that or some other type of hazardous substance (4) which causes the incurrence of response costs….There is no need to trace the wastes released to the wastes deposited, or to show that defendant’s delivery of wastes to the site was the “but for” cause of the release, or that defendant’s wastes were a substantial factor in the resulting contamination….The connection is presumed. Thomas v. FAG Bearings Corp., 846 F.Supp. 1382, 1386 (W.D. Mo. 1994) (internal citations omitted). Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 18 of 42 15 However, “two-site” cases are distinguishable. In a “two-site” case, the alleged release took place at a different site than where the contamination is found. “Use of the strict liability presumption…without modification would hold liable anyone who released the same type of substance that has contaminated another site. A party who discovers TCE groundwater contamination in Missouri could successfully sue every party who released TCE in the entire country. Although CERCLA’s liability provisions are far-reaching, there is no indication that Congress intended this absurd result.” Thomas v. FAG Bearings Corp., 846 F.Supp. 1382, 1387 (W.D. Mo. 1994). Accordingly, when confronted with multi-site cases, courts have addressed the question of what type of link CERCLA requires between an offsite release and the resulting contamination. “In a ‘two-site’ case such as this, where hazardous substances are released at one site and allegedly travel to a second site, in order to make out a prima facie case, the plaintiff must establish a causal connection between the defendant’s release of hazardous substances and the plaintiff’s response costs incurred in cleaning them up.” Kalamazoo River Study Group v. Rockwell Int’l Corp., 171 F.3d 1065, 1068 (6th Cir. 1999). “Support for this principle can be found in the text of § 107, which provides in part that liability attaches based on a ‘release, or a threatened release which causes the incurrence of response costs.’” Innis Arden Golf Club v. Pitney Bowes, Inc., 629 F.Supp.2d 175, 186 (D. Conn. 2009). However, the question becomes what type of evidence will suffice to make this required causal connection? The answer depends on the procedural posture of the case. To survive a motion to dismiss, a plaintiff is only required to allege sufficient facts that demonstrate a causal connection between defendant’s release of hazardous substances and plaintiff’s response costs. See Roosevelt Irr. Dist. v. Salt River Project Agr. Imp. and Power Dist., 39 F.Supp.3d 1059, 1073 (D. Ariz. 2014). Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 19 of 42 16 However, in the summary judgment context, the leading authority is found in a 2003 decision from the Central District of California. See Castaic Lake Water Agency v. Whittaker Corp., 272 F.Supp.2d 1053 (C.D.Cal. 2003). In Castaic Lake, the plaintiffs sued past and present owners and operators of a nearby contaminated site under CERCLA, alleging that perchlorate traveled from the site and contaminated the plaintiffs’ wells. See id. at 1057. Consistent with long-standing case law, the district court identified the “prima facie elements” of the plaintiffs’ CERCLA claims as requiring the plaintiffs to establish that: (1) perchlorate is a hazardous substance; (2) there has been a release of perchlorate at the defendants’ facility; (3) the release or threatened release caused the plaintiffs to incur necessary response costs consistent with the NCP; and (4) defendants are within one of the four classes of persons subject to CERCLA’s liability provisions. See id. at 1059. With regard to the third requirement, the district court held that for the plaintiffs to prove this element of their prima facie case, they “must proffer evidence sufficient to establish that a release or threatened release from [defendants’] site caused them to incur response costs.” Id. at 1061. The court held that plaintiffs’ theory of liability presented it with a “two-site” CERCLA case. See id. at 1064. Recognizing that the “issue of causation in two-site cases is a difficult one,” the court surveyed existing authority to determine the appropriate causation standard to be applied. Id. at 1065. Based upon this analysis, the court held that two-site CERCLA cases “all stand for a common causation principle” – i.e., in a two-site CERCLA case, the plaintiff meets its burden on summary judgment if it: (a) identifies a contaminant at its site, (b) identifies the same (or perhaps a chemically similar) contaminant at the defendant’s site, and (c) “provides evidence of a plausible migration pathway by which the contaminant could have traveled from the defendant’s facility to the plaintiff’s site.” Id. at 1066. “If the plaintiff meets this burden, Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 20 of 42 17 the defendant must then proffer evidence sufficient to create a genuine issue of fact as to its ability to disprove causation.” Id. at 1066. The district court held that this “burden-shifting” approach is consistent with CERCLA’s broad remedial purpose, and is consistent with the “minimal causal nexus”2 most courts require under CERCLA. Id. at 1066. E. PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE CASE OF CERCLA LIABILITY UNDER THE APPLICABLE “TWO-SITE” ANALYSIS. Although Plaintiff’s Amended Complaint clearly identifies air emissions from the TFMC Smelter as an alleged source of contamination in support of its “arranger” theory of CERCLA liability, review of the Amended Complaint suggests that Plaintiff’s claims of “former owner and/or operator” liability are likewise dependent upon allegations that emissions from the TFMC Smelter caused Plaintiff to incur response costs. However, as TCI will demonstrate below, both of these theories of air emissions-based liability fail on the undisputed facts in this case. Consequently, to the extent that Plaintiff’s “arranger” and “former owner and/or operator” liability claims are premised upon air emissions from the TFMC Smelter, TCI is entitled to summary judgment. Under the analysis set forth in Castaic Lake, Plaintiff must identify evidence sufficient to establish: (a) contaminants at the Collinsville Townsite, (b) the same (or perhaps chemically 2 Traditional tort notions of causation do not apply in CERCLA, which uses a “status- based” liability standard. Memphis Zane May Associates v. IBC Manufacturing Co., 952 F.Supp. 541, 546 (W.D. Tenn. 1996). “However, causation plays a role within those status categories. As an initial matter, plaintiffs must demonstrate a relationship between a defendant and the release of a hazardous substance.” Id. at 546. Courts frequently refer to this connection as a “minimal causal nexus.” See, e.g., United States v. Marisol, Inc., 725 F.Supp. 833, 840 (M.D.Pa. 1989). CERCLA imposes liability “on classes of persons, i.e., owners, former owners, generators, or transporters…without reference to whether they caused or contributed to the release or threat of release. The release or threat of release only need have emanated from the facility which they owned, or to which they transported.” Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1153 (1st Cir. 1989). Plaintiff’s incurrence of response costs must have been “caused” by the release from the facility for which defendant is a responsible person. 42 U.S.C. § 9607(a). Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 21 of 42 18 similar) contaminants at the TFMC Site, and (c) “a plausible migration pathway” by which the contaminants could have traveled from the TFMC Site to the Collinsville Townsite. Id. at 1066. The determination of whether any plaintiff has identified evidence sufficient to establish a “plausible migration pathway” must, necessarily, turn on the facts specific to each case. A “possible” migration pathway will not suffice and instead, courts consider whether a plaintiff’s theory is “plausible” in light of variables such as how the particular hazardous substance behaves in the environment, the medium through which the hazardous substance is alleged to have traveled, and whether plaintiff’s theory of migration is consistent with the record evidence. Courts do not limit their review to the evidence developed by the parties during the litigation and instead, consider additional materials such as fact witness testimony, historical records, and agency reports such as Remedial Investigations because each of these sources can be relevant to a court’s determination of whether a “plausible migration pathway” exists. Roosevelt Irr. Dist. v. Salt River Project Agr. Imp. and Power Dist., 39 F.Supp.3d 1059, 1074 (D.Ariz. 2014). Another key consideration when determining whether a plaintiff can establish evidence of a “plausible” migration pathway is whether the alleged pathway must be supported by expert evidence. In Innis Arden Golf Club v. Pitney Bowes, Inc., 629 F.Supp.2d 175 (D.Conn. 2009), the plaintiff discovered PCBs on its property and initiated a CERCLA action against the defendant, alleging that PCB’s from the defendant’s property caused it to incur response costs. See id. at 177. Although the parties disputed the “contours” of the governing causation standard applicable in two-site cases, the district court held that “[a]s part of its prima facie burden under § 107 of CERCLA, [plaintiff] must establish a causal relationship between the costs it incurred in cleaning up its own property and the PCBs found on [defendant’s site].” Id. at 191. The plaintiff offered its experts’ conclusions to provide this causal link; however, the district court found their Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 22 of 42 19 opinions to be inadmissible under Daubert. See id. at 190-191. The district court then held that without the testimony of its experts, the plaintiff could not meet its burden and entered summary judgment in favor of the defendant. Id. at 191. Applying these well-reasoned decisions to the instant case demonstrates that air emissions from the TFMC smelter do not present a “plausible migration pathway” for alleged contamination in the Collinsville Townsite.3 The TFMC Site is a separate Superfund site with an administrative record of investigation and remediation by EPA and/or ODEQ spanning more than two-decades – i.e., from 1992 through the present. From 2005 through 2006, ODEQ conducted a Remedial Investigation/Feasibility Study of the TFM Site.4 The RI was conducted from July 2005 through September 2006 for the purpose of identifying the types, quantities, and locations of contaminants. The RI included sampling of various environmental media, including soils located on the TFM Site as well as off-site areas in and around the town of Collinsville. Burns & McDonnell performed the RI under contract with the ODEQ, and presented a summary of its remedial investigation in its August 2007 Final RI Report (“RI Report”). The RI included more than 110 samples collected from properties in an area immediately surrounding the TFM Site and expanding radially outward up to 1 ½ miles from the site. Specific findings in the RI Report include the presence of smelter waste materials (slag, broken retorts, etc.) across approximately 25 acres of the TFM Site (APP-000187), with waste materials observed up to 7 3 Plaintiff’s claims are premised upon only air emissions as a potential migration pathway between the TFMC Site and the Collinsville Townsite, and Plaintiff has not otherwise offered any evidence of a potential migration pathway by means of groundwater flow or surface water runoff. 4 A remedial investigation (“RI”) collects data necessary to adequately characterize the facility for the purpose of developing remedial alternatives. The RI attempts to determine the scope of the contamination at a site and a feasibility study (“FS”) involves the preparation of a list of remedial alternatives that are evaluated according to the nine criteria in the National Contingency Plan (“NCP”). After a remedy is selected by EPA in the Record of Decision (“ROD”), the remedy is then designed in the remedial design phase. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 23 of 42 20 feet deep across the length of the former smelter operations area (APP-000188). Burns & McDonnell collected soil samples from off-site locations up to 1 ½ miles from the TFMC Site “to determine the presence and extent of contamination due to potential aerial distribution of metals from the TFM smokestack and historical placement.” (APP-000188). ODEQ presented the findings of the RI Report at an October 2007 public meeting in Collinsville. The materials presented at that public meeting bear the insignia of both EPA and ODEQ, and they contain findings and conclusions that the data collected as part of the RI “do not suggest aerial plume.” Burns & McDonnell completed its final Feasibility Study Report (“FS Report”) in October 2007 which summarized and evaluated remedial alternatives based upon the RI Report. The FS Report reported “evidence of trespassing” at the TFM Site (APP-000498) and included the following statement concerning the potential for off-site contamination: “At other smelter sites in Oklahoma, slag or waste material was typically transported off the Site and used as fill in driveways, gardens, and school running tracks. Since large amounts of slag material were left behind when the Site was abandoned in the 1920’s, this could have occurred at this Site. Early newspaper reports (circa 1936) indicate that a rock crusher was placed at the Site for the manufacturing of road base for area roads.” APP-000499. Despite the fact that the Parties have each engaged consultants to research the historical record of Collinsville, and despite the fact that the Parties have engaged in discovery from EPA, the ODEQ, and CH2M Hill, no one has ever located a 1936 newspaper article reporting the placement of a rock crusher at the TFM Site. Instead, the record does contain a March 5, 1936 newspaper article reporting the placement of a rock crusher at the BZ Smelter site, the site for which Plaintiff is responsible. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 24 of 42 21 To further investigate the possibility off-site contamination associated with the TFM Site – and thus, to ensure the correctness of the findings from the Burns & McDonnel RI/FS work – EPA hired CH2M Hill to conduct a supplemental remedial investigation (“Supplemental RI”) of properties in the area of the TFMC Site, including Collinsville. As explained in CH2M Hill’s 2008 Supplemental RI Report, “The supplemental RI consisted of sampling activities to assess the potential for offsite soil contamination resulting from: 1) the physical transport and placement of site waste as fill material at offsite locations and 2) the dispersion of airborne constituents during the operation of the smelters at the site.” Supplemental Remedial Investigation Report, March 2008 (page 1-11) In conformance with the scope of work commissioned by EPA, CH2M Hill developed an air dispersion model to guide the selection of soil sample locations. (2008 Supplemental RI Report at p. v.). To complement the field sampling performed by Burns & McDonnell as part of the original RI, CH2M Hill (a) developed an air dispersion model that identified the areas near the TFMC Site that were most likely to show impacts, if any, from TFMC smelter emissions, and Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 25 of 42 22 (b) collected over 200 soil samples within 1 ½ miles of the site to be analyzed for metals associated with smelter operations (e.g., arsenic, lead, cadmium, and zinc). CH2M Hill conducted targeted field sampling activities in areas identified by air modeling as most likely to contain contamination from TFMC’s historical air emissions. In March 2008, CH2M Hill issued its final Supplemental RI Report, which contained the following conclusion: “The data collected for the supplemental RI for the TFM Superfund Site indicates that only a small number of offsite residential sample locations – 5 percent – are potentially impacted by the use of waste mass fill material, with no impact associated with the dispersion of airborne particulates on to the ground in the area surrounding the site.” Supplemental Remedial Investigation Report, March 2008. (page 6-3) (emphasis added) The undisputed record evidence demonstrates that: ODEQ and EPA were involved in the development and performance of the CH2M Hill supplemental RI project; ODEQ participated in the field sampling activities; EPA provided oversight to CH2M Hill throughout the project; CH2M Hill used EPA’s preferred air model to target locations most likely to have been impacted by any air emissions from TFMC’s operations; CH2M Hill provided draft reports to ODEQ and to EPA for review and comment, and the final Supplemental RI Report of CH2M Hill reflected incorporation of the agencies’ respective input. In performance reviews, EPA rated CH2M Hill’s work as “excellent.” There is no record EPA ever asked CH2M Hill to revise any of its work or challenged any of the findings or conclusions in the Supplemental RI Report. The Supplemental RI Report is in the administrative record that supports the final ROD for the TFMC Site and there is no evidence that Plaintiff ever submitted public comments on the Proposed Plan when it was submitted for public comment. Moreover, the ODEQ has no knowledge of any new data between 2008 (when the Supplemental RI Report was issued) and November 2011 (when an Update was issued for the Collinsville Soil Program and the Collinsville Smelter Project) regarding smelter air emissions. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 26 of 42 23 Despite the fact that there have been two administrative investigations by ODEQ and/or EPA specifically designed to investigate the possibility that air emissions from the TFMC smelter resulted in contamination in and around Collinsville, and despite the fact that the conclusion drawn by those investigations is that there has been “no impact associated with the dispersion of airborne particulates on to the ground in the area surrounding the [TFM] site,” Plaintiff is asserting CERCLA claims against TCI based upon the alleged “dispersion of airborne particulates” from TFMC’s historical smelter operations. Plaintiff’s claims are refuted by these two agency investigations and, therefore, Plaintiff’s claims must fail for lack of evidence. Plaintiff did not conduct any air modeling to support a challenge to the modeling performed by CH2M Hill or to assert any argument that other areas should have been sampled by Burns & McDonnell or CH2M Hill; Plaintiff is not offering any evidence to challenge the integrity of the soil sampling procedures employed by Burns & McDonnell, CH2M Hill, and ODEQ; and Plaintiff is not challenging the validity of the laboratory results from the soil samples collected during the RI or the Supplemental RI. Therefore, Plaintiff has wholly failed to demonstrate any basis to challenge EPA’s findings and conclusions in the Supplemental RI – i.e., that there has been “no impact associated with the dispersion of airborne particulates” from TFMC’s historical smelter operations. Indeed, even if Plaintiff were offering evidence with regard to these matters (which it is not), it is unlikely that Plaintiff could successfully challenge the findings and conclusions resulting from the EPA’s supplemental remedial investigation because they present the Court with circumstances in which it is appropriate to defer to the EPA’s expertise. See, e.g., Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989); Akzo Coatings, 949 F.2d at 1424 (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983) Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 27 of 42 24 (when examining scientific determinations of an agency, a reviewing court must generally be at its most deferential). Because the EPA is entitled to deference with regard to factual questions involving scientific matters in its own area of expertise (see Puerto Rico Aqueduct & Sewer Auth., 35 F.3d at 604) and because Plaintiff has wholly failed to identify evidence to challenge EPA’s conclusion that there has been “no impact associated with the dispersion of airborne particulates” from TFMC’s historical smelter operations, Plaintiff cannot meet its burden of demonstrating that air emissions from TFMC’s smelter operations are a “plausible migration pathway” for alleged contamination in the Collinsville Townsite. Consequently, to the extent that Plaintiff’s CERCLA claims of “arranger” and “former owner/operator” liability are premised on alleged air emissions from the TFM Site, TCI is entitled to summary judgment. Castaic Lake, 272 F.Supp.2d 1053 at 1066. F. PLAINTIFF’S THEORIES OF CERCLA ARRANGER LIABILITY FAIL, AS A MATTER OF LAW. 1. Plaintiff’s factual allegations in support of its claims of arranger liability. Plaintiff alleges that TFMC and/or NJZ arranged for the disposal of hazardous substances by: “(a) operating the TFM Smelter in such a way as to emit hazardous substances into air which moved northward to and settled on the Collinsville Town Site due to prevailing winds out of the south and (b) arranging for the utilization of its smelter wastes by Collinsville residents for yard fill, gravel for construction purposes, including driveways and roads, and gardening material.” Doc. No. 106 at ¶ 108. As alleged by Plaintiff, “[b]oth the emissions of hazardous substances which settled on the Collinsville Town Site and the use of smelter waste as yard fill and for construction purposes by the Collinsville residents constitute disposal as that term is defined by CERCLA section 101(29), 42 U.S.C. § 9601(29).” Doc. No. 106 at ¶ 109. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 28 of 42 25 2. Requirements for establishing a prima facie claim of arranger liability. Before a defendant may be held liable under CERCLA as an “arranger,” a plaintiff must establish that the defendant: (1) owned or possessed the hazardous substance(s) at issue; and (2) by contract, agreement, or otherwise, arranged for the disposal or treatment of such hazardous substances (or arranged for a transporter to transport the hazardous substances for disposal or treatment). See 42 U.S.C. § 9607(a)(3); Raytheon Constructors, Inc. v. Asarco, Inc., 368 F.3d 1214, 1219 (10th Cir. 2003). Mere knowledge of disposal activities is insufficient to support arranger liability. See Burlington Northern and Santa Fe Railway Co. v. United States, 556 U.S. 599, 613 (2009). Instead, an entity may be held liable as an arranger under § 9607(3) only “when it takes intentional steps to dispose of a hazardous substance.” Id. at 611 (emphasis added), citing United States v. Cello-Foil Prods., Inc., 100 F.3d 1227, 1231 (6th Cir. 1996) (“[I]t would be error for us not to recognize the indispensable role that state of mind must play in determining whether a party has ‘otherwise arranged for disposal…of hazardous substances.”). Equally fatal to a plaintiff’s claim of arranger liability is a failure to demonstrate, by a preponderance of the evidence, that the defendant’s waste was actually disposed of at the site in question. See, e.g., NYSEG Corp. v. FirstEnergy, Corp., 808 F.Supp.2d 417, 533-534 (N.D.N.Y. 2011) (plaintiff must prove the defendant’s PRP status by a preponderance of the evidence). A plaintiff’s failure to produce sufficient evidence demonstrating that defendant’s waste was disposed of at a site where plaintiff incurred response costs is fatal to the plaintiff’s claim and grounds for entry of summary judgment. See, e.g., Freeport-McMoran Res. Partners Ltd. P’ship v. B-B Paint Corp., 56 F.Supp. 2d 823, 845 E.D. Mich. 1999) (granting summary judgment in CERCLA case where plaintiff failed to put forth evidence that defendant’s drummed waste was disposed of at site); Dana Corp. v. American Standard, Inc., 866 F.Supp 1481, 1489 (N.D.Ind. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 29 of 42 26 1994) (“…the plaintiff must present evidence sufficient to support, by a preponderance of the evidence, a finding that a defendant’s hazardous waste was disposed of at the site in question….”). Acme Printing Inc. Co. v. Menard, Inc., 891 F.Supp 1289, 1297-1301 (E.D. Wis. 1995) (granting summary judgment to several defendants because plaintiff failed to introduce sufficient evidence that any of the defendants’ waste was actually disposed of at the landfill site where plaintiff claimed to have incurred costs of remediation). A plaintiff cannot establish a prima facie case for CERCLA generator liability simply by showing that hazardous substances similar to those contained in defendant’s waste were present at the site. See, e.g., Acme Printing Inc. Co. v. Menard, Inc., 891 F.Supp 1289, 1297 (E.D. Wis. 1995); Dana Corp. v. American Standard, Inc., 866 F.Supp. 1481, 1493 (N.D. Ind. 1994) (“To establish CERCLA liability, the plaintiffs must prove, by a preponderance of the evidence, that each defendant’s waste was disposed of at the Site and that hazardous substances similar to those found in the defendants’ waste were present at the Site at the time of release.”) (emphasis added). 3. Plaintiff has failed to demonstrate that TFMC or NJZ was an arranger with regard to the off-site transport of smelter material for use by Collinsville residents. Plaintiff alleges that TFMC and/or NJZ arranged for the disposal of hazardous substances by “arranging for the utilization of its smelter wastes by Collinsville residents for yard fill, gravel for construction purposes, including driveways and roads, and gardening material.” Doc. No. 106 at ¶ 108. Although circumstances giving rise to arranger liability exist on a spectrum between: (a) transactions to discard used and no longer useful hazardous substances, and (b) the sale of a new and useful product, the essential predicate for any finding of arranger liability is the existence of a transaction or arrangement. Burlington N. & Santa Fe Ry. Co. v. United States 556 U.S. 599, 609-610 (2009). The term “arrange” must be given its ordinary meaning, and “in Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 30 of 42 27 common parlance, the word ‘arrange’ implies action directed to a specific purpose.” Id. Accordingly, a finding of arranger liability under Section 9607(a)(3) requires proof that the defendant took intentional steps to dispose of a hazardous substance. Burlington N., 556 U.S. at 611. Plaintiff has no direct evidence that TFMC and/or NJZ ever took an intentional step to dispose of any hazardous substance from the TFMC Site by arranging for the utilization of smelter wastes by Collinsville residents for off-site yard fill, gravel for construction purposes, including driveways and roads, and gardening material. See Doc. No. 106 at ¶ 108. Although CERCLA plaintiffs may support their arranger liability claims with circumstantial evidence, Plaintiff’s arranger liability claims in this case must fail, as a matter of law, because no reasonable fact finder could conclude that TFMC and/or NJZ ever arranged for the disposal of hazardous substances from the TFM Site to any off-site areas, or otherwise took any “intentional step” toward that end. Plaintiff contends that this Court should impose tens of millions of dollars of CERCLA arranger liability on TCI because a handful of newspaper articles from 1915 and 1917 report the use of smelter materials as a base for paving local roads, and because some of these articles use the term “smelters” when describing the source of the materials. According to Plaintiff, because the TFM Smelter and the BZ Smelter were both operating during those years, the Court should infer that any reference to smelter materials generally, and any use of the plural form of “smelter,” necessarily means that both TFMC and BZ were both providing smelter materials for local road-building. As explained below, Plaintiff’s contention is contradicted by the record evidence and its asserted response cost claims. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 31 of 42 28 First, Plaintiff’s contribution claims do not include costs associated with paved roads. APP-000858-861. The Soil Sampling and Analysis Plan that governed Plaintiff’s investigation and remediation activities in the CSP specifically excluded paved surfaces including, but not limited to, roads and parking areas. APP-000802. Therefore, as a matter of law, Plaintiff cannot support its CERCLA contribution claims with this evidence of paved road building activity because Plaintiff has not incurred any response costs associated with paved roads. Second, a closer examination of the historical record demonstrates that the term “smelters” was used to reference events and circumstances that relate to only one of the zinc smelter plants. For example, on January 26, 1917, the Collinsville Daily News ran an article titled “BRYAN TOOK IN THE SMELTERS,” in which the paper reported that the general superintendent of the Bartlesville Zinc Company escorted William Jennings Bryan on a tour of the Bartlesville Zinc Co. Plant (TULSA656) and a day later, the Collinsville Star reported that William Jennings Bryan “…visited the great plant of the B.Z. company.” (TULSA577). Therefore, despite the fact that the headline in the January 27 article reported a visit to the “smelters,” the actual event being reported was only in reference to the BZ plant. A similar example is found in a June 17, 1926 article in the Collinsville News which reported that “on July 1 the Smelters in Collinsville, the doomed town’s last and only industry, are to be discontinued.” (TULSA 358). Despite the use of the plural form of “smelter,” this article could only be referencing the TFMC plant because the BZ plant was shut down in 1918 and then disassembled. Use of the plural form of “smelters” to reference only one of the smelter plants is also found in the historical Sanborn maps for both the TFMC and the BZ smelter plants (“smelters of zinc”), as well as in CH2M Hill’s 2008 Supplemental RI: Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 32 of 42 29 “The supplemental RI consisted of sampling activities to assess the potential for offsite soil contamination resulting from: 1) the physical transport and placement of site waste as fill material at offsite locations and 2) the dispersion of airborne constituents during the operation of the smelters at the site.” Supplemental Remedial Investigation Report, March 2008 (page 1-11) (emphasis added) Together, these examples from the historical and contemporary record demonstrate the error of presuming that any reference to “smelters” should be understood to mean both the TFMC and the BZ smelter plants. Instead, the reasonable inference to be drawn from this evidence is that these references to “smelters” are references to the furnaces in which the smelting of ore actually took place at each respective site. Moreover, the factual record demonstrates that the local Business Men’s League was a significant catalyst for road-building in Collinsville (with extensive documented activities related to fund-raising and securing government authorization) and that the only documented connection between the Business Men’s League and either of the smelter plants was with the BZ Smelter. Further, the historical record contains multiple newspaper articles documenting the BZ Smelter’s active support of Collinsville road-building activity by allowing local residents to enter its site to load broken retorts for road-building. A prime example of this is found in a collection of articles documenting a March 16, 1917 “Good Roads Day” in which: …about one hundred men representing every walk of life…worked at loading broken retorts at the Bartlesville Zinc Smelter and on the road unloading and breaking the retorts that were spread out 21 feet with a depth of better than six inches… (TULSA865). Another article on the Good Roads Day event reported that by noon, 83 loads of retorts from the BZ smelter had been delivered and that in the afternoon, an additional 68 loads of retorts and 50 loads of smelter cinders had arrived. (TULSA579). Plaintiff has no evidentiary support to connect these incidents of road-building activity with its allegation that TFMC and/or NJZ arranged “for the utilization of its smelter wastes by Collinsville residents for yard fill, Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 33 of 42 30 gravel for construction purposes, including driveways and roads, and gardening material.” Doc. No. 106 at ¶ 108. Not a single newspaper article or other historical record identifies any instance in which TFMC and/or NJZ authorized smelter materials from the TFM site to be transported off-site for any reason, and approximately 200,000 cubic yards of smelter waste remain on the TFM Site (in some places, the waste has been observed to be as deep as 7 feet). In sharp contrast, the historical record contains multiple references to the removal of smelter wastes and materials from the BZ site. In sum, there is simply nothing in the record to support Plaintiff’s allegation that TFMC and/or NJZ ever contracted, arranged, or otherwise authorized any smelter waste to be transported off-site for any purpose. Nothing. Therefore, the present record before this Court demonstrates the propriety of entering summary judgment in favor of TCI because Plaintiff has failed to satisfy its burden of identifying evidence sufficient to demonstrate that hazardous substances from the TFMC site were actually disposed of at the Collinsville Townsite during the time TFMC owned and/or operated the TFM Site. See, e.g., New Jersey Turnpike Authority v. PPG Indus., Inc., 197 F.3d 96, 109 (3rd Cir. 1999) (plaintiff failed to satisfy its evidentiary burden for establishing arranger liability where the plaintiff introduced no evidence regarding the transporters the defendants may have used and relied only on “the conceded large scale production of [the waste] by the appellees, the need for its local disposal, the proximity of appellees’ production facilities to the sites at issue, and the use of this material as fill over the years.”) (emphasis added); cf. United States v. Davis, 261 F.3d 1, 51 (1st Cir. 2001) (affirming the district court’s finding of arranger liability because the plaintiff introduced adequate circumstantial evidence that the defendant deposited waste at the site in question - e.g., waste shipment forms, deposition testimony, and information on one of the Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 34 of 42 31 defendant’s cancelled checks demonstrating that the defendant’s waste was collected by a particular transporter company, and records demonstrating that transporter’s deliveries of waste to the site at issue). 4. Plaintiff has failed to demonstrate that TFMC and/or NJZ were arrangers with regard to the emission of hazardous substances into the air. As demonstrated in Section III.A, supra, to the extent that Plaintiff’s “arranger” liability claims are premised on alleged air emissions from the former TFMC smelter, Plaintiff’s claims fail, as a matter of law, because air emissions do not constitute “disposal” as that term is defined by CERCLA. Further, as demonstrated above, Plaintiff’s emissions-based theory of arranger liability fails on the undisputed facts of this case. Not one, but two, investigations by ODEQ and/or EPA have been conducted for the specific purpose of determining whether air emissions from the former TFMC smelter were a source of off-site contamination in and around Collinsville and EPA’s uncontroverted conclusion is that there has been “no impact” from the former TFMC smelter operations. Consequently, entry of summary judgment is proper because Plaintiff has failed to identify evidence sufficient to demonstrate the existence of a “plausible migration pathway” for air contamination from the TFMC Site. See Castaic Lake Water Agency, 272 F.Supp.2d at 1066. 5. Plaintiff has failed to demonstrate that NJZ was an arranger. In addition to the reasons identified above, Plaintiff’s theory of arranger liability must fail, as a matter of law, against NJZ. Plaintiff has no evidence: that NJZ owned or possessed any hazardous substance at issue in this case; that NJZ ever managed, directed, or otherwise controlled the operation of, or emissions from, smelters at the TFMC facility; or that NJZ had any duty or obligation to control or dispose of hazardous materials at the TFMC facility. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 35 of 42 32 G. AS A MATTER OF LAW, PLAINTIFF CANNOT ESTABLISH A CLAIM OF DIRECT CERCLA LIABILITY AGAINST TCI. TCI understands that the Court has determined that an alter ego relationship existed between TFMC and NJZ (see February 2, 2015 Order at Doc. No. 183) such that now, Plaintiff must prove its liability case against TFMC. However, because Plaintiff’s Amended Complaint also asserts CERCLA claims directly against NJZ, TCI will address the separate reasons why Plaintiff’s direct claims against NJZ must likewise fail as a matter of law. 1. NJZ did not own the TFMC facility. Plaintiff cannot establish a prima facie case of “former owner” CERCLA liability against TCI because NJZ did not own the TFMC facility. None of the title, deed, or lease instruments associated with the TFMC facility mentions NJZ and there is no evidence of any agreement, contract, or other arrangement demonstrating that NJZ ever owned the TFMC facility. UMF 3 2. NJZ did not operate the TFMC facility. To establish a claim of direct operator liability, “an operator must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.” Bestfoods, 524 U.S. at 67. Thus, direct operator liability can only exist if NJZ directed TFMC’s day-to-day operations and made decisions specifically with regard to the waste that is at issue. Moreover, Plaintiff must demonstrate that NJZ actually directed TFMC’s operations with regard to the waste at issue, not that it merely had the potential to do so. See id.; accord City of Wichita, Kansas v. Trustees of the APCO Oil Corp. Liquidating Trust, 306 F.Supp.2d 1040, 1054 (D.Kan. 2003). There is no evidence that any agent, employee, officer, or director of NJZ ever managed, directed, or conducted day-to-day operations or made any decisions specifically related to Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 36 of 42 33 alleged pollution at the TFMC facility or specifically related to “the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.” Id. at 67. Therefore, Plaintiff cannot meet its burden of establishing a prima facie case of direct “operator” liability under CERCLA. H. ALTERNATIVE BASES FOR ENTRY OF PARTIAL SUMMARY JUDGMENT IN FAVOR OF TCI. 1. As a matter of law, TCI cannot be held liable for disposals of hazardous substances, if any, that took place after TFM was dissolved as a corporation in 1926. The undisputed record demonstrates that TFMC was dissolved as a corporation in 1926. Under the “former owner and/or operator” theory of CERCLA liability advanced by Plaintiff, there must be evidence that the defendant owned or operated the facility at which hazardous substances were disposed of, “at the time of disposal.” 42 U.S.C. § 9607(a)(2). After TFMC was dissolved in 1926, it ceased to exist and thus, could not have owned or operated anything. Therefore, as a matter of law, TFMC could not incur any CERCLA liability as a former owner and/or operator for disposals that took place after 1926. This same analysis applies to Plaintiff’s theory of “arranger” liability because that theory requires evidence that the defendant took some specific act to arrange for the disposal of hazardous substance. After TFMC dissolved as a corporation in 1926, it ceased to exist and thus, could not have arranged for anything. So, for example, if waste from the TFMC Site were taken off-site in 1943 to be used as fill at a home construction site, TCI cannot be held liable under any theory for such transport. Likewise, any area of the Collinsville Town Site which was developed after 1926 could not be a property for which TCI can be responsible for any portion of Plaintiff’s alleged investigation or remediation costs. Therefore, as a matter of law, TFMC could not incur any CERCLA liability for any disposals of hazardous substances that took place after 1926. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 37 of 42 34 2. As a matter of law, TCI cannot be held indirectly responsible for the liability, if any, of TFMC outside of the dates February 26, 1918 through June 9, 1923. Contemporaneous with the filing of this Motion, TCI has filed a Motion to Declare the Temporal Scope of the Court’s February 2, 2015 Order on Alter Ego Status (“Motion on Alter Ego Order”). See Doc. No. 215. For the reasons set forth in the Motion on Alter Ego Order, TCI cannot be held responsible for the liability, if any, of TFMC arising from the release of hazardous substances occurring prior to February 26, 1918 or after June 9, 1923. 3. As a matter of law, TCI cannot be held liable for response costs arising from road building activity. Plaintiff did not investigate or remediate paved surfaces such as roads and driveways as part of the Collinsville Soil Program, and Plaintiff has no evidence connecting TFMC or NJZ to any road-building activities. Consequently, evidence related to road-building is simply not relevant to Plaintiff’s claims against TCI. Moreover, even if road-building activity could be considered relevant to any of Plaintiff’s claims against TCI, such evidence would only support imposition of CERCLA contribution liability on the City of Collinsville and Rogers and/or Tulsa County because the undisputed record identifies road-building activity by the City and the “County,” not TFMC or NJZ. 4. As a matter of law, TCI cannot be held liable for response costs arising from air emissions. As demonstrated above, Plaintiff’s emissions-based claims fail, as a matter of law, because they are not supported by evidence and because they are contrary to the plain language of CERCLA. Plaintiff’s theory of emissions-based liability is independent from its theory that TFMC and/or NJZ arranged for the off-site transport of smelter materials. Therefore, regardless of how the Court rules on matters related to Plaintiff’s theory of off-site transport, the Court Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 38 of 42 35 should enter summary judgment in TCI’s favor regarding Plaintiff’s theory of emissions-based liability. 5. As a matter of law, TCI cannot be held liable for response costs arising from visible smelter waste. As demonstrated above, Plaintiff’s theory that TFMC and/or NJZ arranged for the off-site transport of smelter materials fails, as a matter of law, because it is not supported by evidence. Plaintiff’s theory of emissions-based liability is independent from its theory that TFMC and/or NJZ arranged for the off-site transport of smelter materials. Therefore, regardless of how the Court rules on matters related to Plaintiff’s theory of emissions-based liability, the Court should enter summary judgment in TCI’s favor regarding Plaintiff’s claims premised on the theory that TFMC and/or NJZ arranged for the off-site transport of smelter materials. 6. As a matter of law, TCI cannot be held liable for response costs arising from alleged groundwater contamination. Although Plaintiff’s Amended Complaint contains allegations of groundwater contamination associated with the TFMC Site (see Doc. No. 106 at ¶¶ 93 and 96), Plaintiff has not identified any evidence to support a claim that it has incurred response costs associated with groundwater contamination. Indeed, Plaintiff has not identified any evidence related to groundwater contamination as part of this litigation. Therefore, as a matter of law, TCI cannot be held liable for any response costs alleged to have been incurred by Plaintiff as a result of groundwater contamination. VI. CONCLUSION Despite five years of extensive discovery and expert work in this case, and despite more than two decades of administrative investigations and public requests seeking information from the residents of Collinsville regarding any record of smelter materials being transported from the Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 39 of 42 36 TFMC Site, there is not a single piece of direct evidence demonstrating that TFMC or NJZ authorized anyone to take smelter materials from the TFMC Site. In the absence of this direct evidence, Plaintiff attempts to meet its burden of proof through circumstantial evidence. As demonstrated above, Plaintiff’s attempt to meet its burden of demonstrating off-site transport through circumstantial evidence fails because Plaintiff’s attempted demonstration rests upon speculation and assumptions that are unsupported by, and contrary to, the record evidence. Plaintiff’s emissions-based claims premised upon alleged contamination from TFMC’s smelter operations likewise fail because the record evidence demonstrates that ODEQ and EPA have conducted two official agency investigations into the possibility of such contamination. The final conclusion reached by EPA after being fully informed of the soil sampling data generated by both investigations, is that there has been “no impact” from TFMC air emissions. ODEQ and EPA conducted their respective investigations into the possibility of off-site contamination from the TFMC Site by exercising their respective technical expertise, as well as their respective statutory authority to investigate and remediate environmental contamination that may pose a threat to the public. Each agency concluded that there was no evidence of TFMC air emissions causing contamination on off-site properties and, consistent with well-established law, this Court should give substantial deference to each agency’s conclusion. Therefore, because Plaintiff has failed to identify evidence sufficient to meet its evidentiary burden at trial, TCI is entitled to entry of summary judgment in its favor with regard to each of the claims asserted in Plaintiff’s Amended Complaint. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 40 of 42 37 Respectfully submitted, BY: /s/ Mark D. Coldiron Mark D. Coldiron, OBA #1774 Paula M. Jantzen, OBA #20464 Seth D. Coldiron, OBA #20041 RYAN WHALEY COLDIRON JANTZEN PETERS & WEBBER PLLC 119 North Robinson, Suite 900 Oklahoma City, Oklahoma 73102 (405) 239-6040 Telephone (405) 239-6766 Facsimile mcoldiron@ryanwhaley.com pjantzen@ryanwhaley.com -and- Paul D. Steinman, PA. Bar #49730 ECKERT SEAMANS CHERIN & MELLOTT LLC U. S. Steel Tower 600 Grant Street, 44th Floor Pittsburgh, PA 15219 (412) 566-6000 Telephone (412) 566-6099 Facsimile psteinman@eckertseamans.com Counsel for TCI Pacific Communications, Inc. Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 41 of 42 38 CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of July, 2016, I electronically transmitted the foregoing document to the Clerk of the Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Reid Edward Robison Timothy James Bomhoff McAfee & Taft A Professional Corporation 211 N. Robinson, 10th Fl. Oklahoma City, OK 73102 Email: reid.robison@mcafeetaft.com Email: tim.bomhoff@mcafeetaft.com John F. Stoviak Cathleen M. Devlin Christina D. Riggs Patrick M. Hromisin Amy L. Piccola Saul Ewing LLP (Philadelphia) 1500 Market St. 38th Fl Philadelphia, PA 19102-2186 Email: jstoviak@saul.com Email: cdevlin@saul.com Email: criggs@saul.com Email: phromisin@saul.com Email: APiccola@saul.com Counsel for Plaintiff /s/ Mark D. Coldiron Case 4:11-cv-00252-CVE-FHM Document 216 Filed in USDC ND/OK on 07/22/16 Page 42 of 42
