NANCY ROBERTS and GEORGE ROBERTS, TRUSTEES OF THE GEORGE TUDOR STRONG ROBERTS AND NANCY JANE ROBERTS CHAPTER 11 ESTATE, Plaintiffs,
THE HEATING SPECIALIST INC., ROBERT GORDON, and IRS ENVIRONMENTAL OF PORTLAND, INC., Defendants.
Kenneth P. Dobson, Chenoweth Law Group, PC, Portland, OR, Attorney for Plaintiffs.
Gregory W. Byrne, Lake Oswego, OR, Attorney for Defendant The Heating Specialist Inc.
OPINION AND ORDER ON DEFENDANTS THE HEATING SPECIALIST INC.'S, MOTION FOR SUMMARY JUDGMENT
MICHAEL H. SIMON, District Judge.
Defendant The Heating Specialist Inc. ("THS") moves for summary judgment in this contribution action under the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9675. Dkt. 30. For the reasons that follow, the Court DENIES this motion.
Nancy Roberts and George Strong Roberts bought a house in Oregon City in 2010 that they intended to use as a rental property. Because the house was nearly one hundred years old, they made certain upgrades before seeking renters. In particular, Mrs. Roberts hired THS in February 2011 to replace the old boiler system in the basement. No one was living in the house at the time.
In late March 2011, a prospective renter of the house saw what appeared to be visible beads of mercury on the property and called the Clackamas County Fire Department. The Oregon Department of Environmental Quality ("ODEQ") was also notified, the ODEQ contacted Mrs. Roberts, who hired a contractor to remove the mercury. After the contractor supposedly completed that work, however, mercury was still found at the site, and ODEQ requested the assistance of the federal Environmental Protection Agency ("EPA"). The EPA found beads of mercury in front of the detached garage and in the basement "directly adjacent to a new boiler, " but nowhere else the house. The EPA also detected mercury vapors around the driveway area, in the basement, and along a walkway between the driveway and the basement door. No mercury vapors were detected along the other three sides of the house or in the backyard. The mercury contamination was largely confined to the basement and driveway area in front of the detached garage.
The EPA's assigned on-scene coordinator ("OSC") for the Roberts' property, Jeff Fowlow, estimated that about four fluid ounces of mercury had been spilled on the driveway. In his report, Fowlow explained:
In February 2011, Mrs. Roberts hired a contractor, Dave Brent, to replace a boiler that was located in the basement of her property. I believe that in the process of removing the old boiler..., a component of the boiler which contained mercury was broken and a small amount of mercury leaked onto the concrete floor of the basement. Mr. Brent removed the old boiler through an outside access door from the basement, up a small flight of stairs, and onto an asphalt-paved driveway located on the side of the Roberts house and in front of her driveway. While loading the old boiler into a work truck, additional mercury was released onto the driveway.
In a separate action, the EPA is seeking reimbursement under CERCLA against the Roberts in their pending Chapter 11 bankruptcy proceeding for environmental cleanup costs related to the mercury contamination. Plaintiffs Nancy Roberts and George Strong Roberts and the Trustees of their Chapter 11 estate (collectively, "Plaintiffs") brought this action for a determination under Section 113 of CERCLA that the defendants should bear a portion of the CERCLA liability. See 42 U.S.C. § 9613(f)(1).
Defendant THS has moved for summary judgment, arguing that there is no genuine dispute that the old boiler system did not contain mercury. In support of its motion, THS submitted the declaration of David Brent, stating that he was present when the old boiler was replaced on February 17, 2011 and that neither the old boiler and its associated components, nor the new boiler and its associated components, contained mercury.
SUMMARY JUDGMENT STANDARD
A party is entitled to 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). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Although "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge... ruling on a motion for summary judgment, " the "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986); see also Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001) (holding that a court, when reviewing a motion for summary judgment, must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party). ...