Opinion
Case No. 2:20-cv-11293-SVW-JPR
08-18-2023
CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL et al. v. NL INDUSTRIES, INC. et al.
David Zaft, Dennis A. Ragen, Jon Stephen Tangonan, CAAG — Office of Attorney General, San Diego, CA, Elizabeth B. Rumsey, Attorney General of California, San Diego, CA, Adrianna L. Lobato, Maria T. Solomon-Williams, CAAG — Office of Attorney General, Sacramento, CA, Christopher T. Nidel, Pro Hac Vice, Nidel and Nace PLLC, Rockville, MD, David P. Page, Pro Hac Vice, Environmental Energy and Natural Resources Advocates PLLC, Tulsa, OK, Donald A. Robinson, Elizabeth Y. Song, Kate Marie Hammond, Sarah E. Morrison, CAAG — Office of the Attorney General, Los Angeles, CA, Larken Johnson Yackulic, Matthew K. Edling, Miranda Carol Holeton, Naomi Wheeler, Timothy R. Sloane, William Cousteau Liang, Yumehiko Hoshijima, Sher Edling LLP, San Francisco, CA, Thomas M. Sims, Nidel and Nace PLLC, Washington, DC, for California Department of Toxic Substances Control. Sarah E. Morrison, Donald A. Robinson, Kate Marie Hammond, CAAG — Office of the Attorney General, Los Angeles, CA, Adrianna L. Lobato, Maria T. Solomon-Williams, CAAG — Office of Attorney General, Sacramento, CA, Christopher T. Nidel, Pro Hac Vice, Nidel and Nace PLLC, Rockville, MD, David P. Page, Pro Hac Vice, Environmental Energy and Natural Resources Advocates PLLC, Tulsa, OK, Dennis A. Ragen, Elizabeth B. Rumsey, CAAG — Office of Attorney General, San Diego, CA, Larken Johnson Yackulic, Matthew K. Edling, Miranda Carol Holeton, Naomi Wheeler, Timothy R. Sloane, William Cousteau Liang, Yumehiko Hoshijima, Sher Edling LLP, San Francisco, CA, Thomas M. Sims, Nidel and Nace PLLC, Washington, DC, for The Toxic Substances Control Account. Eric J. Lorenzini, Kenneth A. Ehrlich, Sean Andrew McCormick, Elkins Kalt Weintraub Reuben Gartside LLP, Los Angeles, CA, Joel L. Herz, Pro Hac Vice, Law Office of Joel L. Herz, Tucson, AZ, for NL Industries, Inc. Trevor James Illes, Lily A. North, Krista M. Enns, Benesch Friedlander Coplan and Aronoff LLP, San Francisco, CA, Andrew J. Jarzyna, Pro Hac Vice, Nicholas J. Secco, Pro Hac Vice, Benesch Friedlander Coplan and Aronoff LLP, Chicago, IL, Dan Terzian, Erick Kees Kuylman, Thomas D. Warren, Warren Terzian LLP, Los Angeles, CA, Gregory T. Frohman, Pro Hac Vice, John A. Rego, Benesch Friedlander Coplan and Aronoff LLP, Cleveland, OH, for Gould Electronics Inc. Richard Alan Dongell, Murchison and Cumming, LLP, Irvine, CA, Scott L. Hengesbach, Murchison and Cumming LLP, Los Angeles, CA, Eric P. Weiss, Scali Rasmussen, Los Angeles, CA, Jason T. Kandah, ML Law, APC, San Diego, CA, for Kinsbursky Bros. Supply, Inc. Jeffrey J. Parker, Zachary Michael Norris, Stephen J. O'Neil, Sheppard Mullin Richter and Hampton LLP, Los Angeles, CA, for Trojan Battery Company, LLC. James C. MacDonald, Law Offices of James MacDonald, Irvine, CA, for Ramcar Batteries Inc. Anthony G. Papetti, Pro Hac Vice, Vetone M. Ivezaj, Pro Hac Vice, Beveridge and Diamond PC, New York, NY, Bina R. Reddy, Pro Hac Vice, Beveridge and Diamond PC, Austin, TX, Eric L. Klein, Pro Hac Vice, Beveridge and Diamond PC, Boston, MA, Gary J. Smith, Beveridge and Diamond PC, San Francisco, CA, Jessica L. Kyle, Pro Hac Vice, Beveridge and Diamond, Baltimore, MD, Kaitlyn Day Shannon, Beveridge and Diamond PC, Washington, DC, Steven J. Elie, Musick, Peeler and Garrett LLP, Los Angeles, CA, for Clarios, LLC. Patrick Ward Dennis, Thomas Frasca Cochrane, Gibson Dunn and Crutcher LLP, Los Angeles, CA, Alexander P. Swanson, Rutan and Tucker LLP, Irvine, CA, for Quemetco, Inc. Anna Louise Le May, Ruben A. Castellon, RAF Law Group, Watsonville, CA, for International Metals Ekco, Ltd. Donald E. Sobelman, John M. Ugai, Linda S. Gilleran, Christopher I. Rendall-Jackson, Priyam B. Desai, Farella Braun and Martel LLP, San Francisco, CA, for Oregon Tool Inc.
David Zaft, Dennis A. Ragen, Jon Stephen Tangonan, CAAG — Office of Attorney General, San Diego, CA, Elizabeth B. Rumsey, Attorney General of California, San Diego, CA, Adrianna L. Lobato, Maria T. Solomon-Williams, CAAG — Office of Attorney General, Sacramento, CA, Christopher T. Nidel, Pro Hac Vice, Nidel and Nace PLLC, Rockville, MD, David P.
Page, Pro Hac Vice, Environmental Energy and Natural Resources Advocates PLLC, Tulsa, OK, Donald A. Robinson, Elizabeth Y. Song, Kate Marie Hammond, Sarah E. Morrison, CAAG — Office of the Attorney General, Los Angeles, CA, Larken Johnson Yackulic, Matthew K. Edling, Miranda Carol Holeton, Naomi Wheeler, Timothy R. Sloane, William Cousteau Liang, Yumehiko Hoshijima, Sher Edling LLP, San Francisco, CA, Thomas M. Sims, Nidel and Nace PLLC, Washington, DC, for California Department of Toxic Substances Control.
Sarah E. Morrison, Donald A. Robinson, Kate Marie Hammond, CAAG — Office of the Attorney General, Los Angeles, CA, Adrianna L. Lobato, Maria T. Solomon-Williams, CAAG — Office of Attorney General, Sacramento, CA, Christopher T. Nidel, Pro Hac Vice, Nidel and Nace PLLC, Rockville, MD, David P. Page, Pro Hac Vice, Environmental Energy and Natural Resources Advocates PLLC, Tulsa, OK, Dennis A. Ragen, Elizabeth B. Rumsey, CAAG — Office of Attorney General, San Diego, CA, Larken Johnson Yackulic, Matthew K. Edling, Miranda Carol Holeton, Naomi Wheeler, Timothy R. Sloane, William Cousteau Liang, Yumehiko Hoshijima, Sher Edling LLP, San Francisco, CA, Thomas M. Sims, Nidel and Nace PLLC, Washington, DC, for The Toxic Substances Control Account.
Eric J. Lorenzini, Kenneth A. Ehrlich, Sean Andrew McCormick, Elkins Kalt Weintraub Reuben Gartside LLP, Los Angeles, CA, Joel L. Herz, Pro Hac Vice, Law Office of Joel L. Herz, Tucson, AZ, for NL Industries, Inc.
Trevor James Illes, Lily A. North, Krista M. Enns, Benesch Friedlander Coplan and Aronoff LLP, San Francisco, CA, Andrew J. Jarzyna, Pro Hac Vice, Nicholas J. Secco, Pro Hac Vice, Benesch Friedlander Coplan and Aronoff LLP, Chicago, IL, Dan Terzian, Erick Kees Kuylman, Thomas D. Warren, Warren Terzian LLP, Los Angeles, CA, Gregory T. Frohman, Pro Hac Vice, John A. Rego, Benesch Friedlander Coplan and Aronoff LLP, Cleveland, OH, for Gould Electronics Inc.
Richard Alan Dongell, Murchison and Cumming, LLP, Irvine, CA, Scott L. Hengesbach, Murchison and Cumming LLP, Los Angeles, CA, Eric P. Weiss, Scali Rasmussen, Los Angeles, CA, Jason T. Kandah, ML Law, APC, San Diego, CA, for Kinsbursky Bros. Supply, Inc.
Jeffrey J. Parker, Zachary Michael Norris, Stephen J. O'Neil, Sheppard Mullin Richter and Hampton LLP, Los Angeles, CA, for Trojan Battery Company, LLC.
James C. MacDonald, Law Offices of James MacDonald, Irvine, CA, for Ramcar Batteries Inc.
Anthony G. Papetti, Pro Hac Vice, Vetone M. Ivezaj, Pro Hac Vice, Beveridge and Diamond PC, New York, NY, Bina R. Reddy, Pro Hac Vice, Beveridge and Diamond PC, Austin, TX, Eric L. Klein, Pro Hac Vice, Beveridge and Diamond PC, Boston, MA, Gary J. Smith, Beveridge and Diamond PC, San Francisco, CA, Jessica L. Kyle, Pro Hac Vice, Beveridge and Diamond, Baltimore, MD, Kaitlyn Day Shannon, Beveridge and Diamond PC, Washington, DC, Steven J. Elie, Musick, Peeler and Garrett LLP, Los Angeles, CA, for Clarios, LLC.
Patrick Ward Dennis, Thomas Frasca Cochrane, Gibson Dunn and Crutcher LLP, Los Angeles, CA, Alexander P. Swanson, Rutan and Tucker LLP, Irvine, CA, for Quemetco, Inc.
Anna Louise Le May, Ruben A. Castellon, RAF Law Group, Watsonville, CA, for International Metals Ekco, Ltd.
Donald E. Sobelman, John M. Ugai, Linda S. Gilleran, Christopher I. Rendall-Jackson,
Priyam B. Desai, Farella Braun and Martel LLP, San Francisco, CA, for Oregon Tool Inc.
Proceedings: VERDICT FOLLOWING THE AUGUST 1, 2023 DIVISIBILITY TRIAL
STEPHEN V. WILSON, UNITED STATES DISTRICT JUDGE.
I. INTRODUCTION
Before the Court is an action brought by the California Department of Toxic Substances Control and the Toxic Substances Control Account ("DTSC" or "Plaintiffs") under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601 et seq. Plaintiffs seek recovery of environmental cleanup and response costs from a number of owners and operators and alleged arrangers or transporters of hazardous substances ("Defendants") in connection with a former lead battery recycling plant in Vernon, California (the "Vernon Plant").
The Court held a bench trial in August 2023 on the divisibility defense asserted by the remaining defendants in this case: NL Industries, Gould Electronics, Clarios, Trojan Battery, Ramcar, Kinsbursky Brothers, and Oregon Tool. The Court now issues the following verdict, which includes its findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).
For all findings of fact set forth below, in making any credibility determinations regarding witness testimony, the Court has considered, among other things, the maimer in which the witnesses testified, their interest in the outcome of the case, and the reasonableness of their testimony in light of all of the evidence. The Court has also considered the relevant factors in Section 1.14 of the Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit (2017 Edition), located at http://www3.ce9.uscourts.gov/juryinstructions/sites/default/files/WPD/CivilInstructions_2018_9_O.pdf.
II. BACKGROUND
The Court held an August 2023 bench trial solely on the divisibility defense. Having recounted the salient facts in its previous Orders, the Court shall now summarize the parties' positions on divisibility. The positions of the parties and a summary of the relevant expert opinions regarding divisibility are as follows:
As with the Liability Trial, the Court refers to Defendants by the naming conventions detailed in that order, typically, calling them their present names, even though many are sued as successors.
A. Plaintiffs
Plaintiffs primarily rely upon a legal argument: that all the defendants improperly apply an out-of-circuit test to argue that the harms here are divisible, ignoring the relevant test articulated in the Ninth Circuit's decision in Pokootas. Plaintiffs, more specifically, argue that no defendant has adequately accounted for all the causes of the totality of the harm at the Vernon Plant and in the 0.5-mile radius surrounding the Plant. Therefore, Plaintiffs assert. Defendants have failed to satisfy the first step of the two-step test articulated in Pakootas IV as a matter of law. Plaintiffs also assert that, even if Defendants meet their burden in establishing the first step, no defendant has provided the Court a reasonable basis for apportionment.
Plaintiffs again call and primarily rely upon Dr. Laton. Declaration of William Richard Laton, ECF No. 895-3. His overarching
As with the Liability Trial, the Court deems all experts discussed in this Order to be qualified as required by the Federal Rules of Evidence and under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
opinion is that "there is insufficient information in the historical record regarding the timing, location, nature, and volume of release at the Vernon Plant to support a reasonable basis for apportioning the contamination at the Vernon Plant or in the Industrial Area." Id. at ¶ 3. For example, Dr. Laton points to uncertainties in the record as to when the Plant even began operating, or when each of the three yards opened. Id. Dr. Laton's opinion is that though there is "significant variation in the volume of releases of hazardous substances, both airborne and to the subsurface, over the time period that the Vernon Plant operated," there is "very limited data to quantify this variation." Id. ¶ 24.
Dr. Laton also highlights uncertainties in the record as to TCE contamination. Though there is uncontroverted evidence of invoices for TCE purchases from 1976 to December 1979, Dr. Laton also notes evidence that TCE was used before 1976 and "for a couple years" after Gould bought the Plant in late 1979. Id. ¶ 28. Dr. Laton underscores other uncertainties as to how TCE actually contaminated the environment. Id. ¶ 29. There is testimony of a crack in the sump that would explain the TCE contamination under the Mixed Metals Extrusion Building, but there is no way to ascertain exactly when the crack formed in the ground. Id. There is also some evidence from former employees suggesting TCE was spilled where the TCE buckets were filled from 55-gallon drums, but other evidence from employees saying there were no spills. Id.
Second, Dr. Laton opines that there is no reasonable basis for apportionment. He provides an isoconcentration map prepared by one of Exide's contractors, Geosyntec, to argue that there is pervasive contamination throughout the entire site. Id. ¶ 39. Throughout the entire site, Dr. Laton argues that contaminants are commingled, meaning they occupy the same physical space. Id. ¶ 40.
Third, Dr. Laton contends that each of the defendants' experts are flawed. Id. ¶ 41. In broad strokes, Dr. Laton argues that Dr. Davis's time-based apportionment is flawed given the variance in volume of release over time. Id. Dr. Laton argues that multiple defense experts' use of a geographic-based approach is flawed because operations were spread across all three yards and involved multiple operators, with contamination being moved either intentionally or through fugitive emissions across the yards. Id. Dr. Laton views volumetric based apportionment methods, such as that used by Mr. Simpson, as untenable for use at a site like the Vernon Plant because of the lack of historical evidence of releases. Id. Last, Dr. Laton's view of chemical-based apportionment between lead and TCE is unworkable given that they are physically commingled and the amounts of each are sufficient to exceed regulatory levels. Id.
Plaintiffs also called Dr. Fredric Quivik again, an industrial historian, to opine on the industrial history of the Vernon Plant. Like Dr. Laton, Dr. Quivik emphasizes the gaps in the historical record, such as the uncertain timing of hazardous substance releases and conflicting witness testimony from former Vernon Plant employees. See generally ECF No. 895-4. The Court, however, prevented Dr. Quivik from testifying at trial because the Court found his opinion, as a historian, of minimal help given that Plaintiffs' other expert is a scientist. The Court therefore does not rely on his divisibility opinions in this order, at ECF No. 895-4.
B. Defendants
a. Clarios: Dr. Kristen Robrock
Clarios calls Dr. Kristen Robrock as an expert witness. As the Court discussed
ante, it finds Dr. Robrock sufficiently qualified to render such opinions for the same reasons as discussed in the section above.
Dr. Robrock's sole expert opinion is that the lead found in the soil and perched zone groundwater and the TCE found in the soil, soil vapor, and perched zone groundwater are divisible, in other words, that "they are distinct and separable, as they are different contaminants with different sources, different physical and chemical properties, different fate and transport properties, and different remedies." Declaration of Kristen Robrock, ECF No. 886 ("Robrock Decl. II") at ¶¶ 2-3. Dr. Robrock states that automotive batteries do not contain TCE, any other volatile organic compound, or any chlorinated solvent, and that nothing sent by Clarios to the Vernon Plant would have contained these chemicals. Id. ¶ 10. Dr. Robrock also describes the nature of TCE versus lead: namely, that TCE is a volatile organic compound, while lead is a solid, naturally occurring metal. Id. ¶¶ 25-30. Lead does not degrade and does not usually move in soil. Id. ¶¶ 30-32. TCE is a liquid, synthetic, organic chemical. Id. ¶ 26.
Dr. Robrock notes that TCE has been "identified in soil, soil vapor, and Perched Zone groundwater largely near areas where it was used in the South Yard (Mixed Metals Extrusion Building) or allegedly disposed of as waste in the West Yard (Earthen Disposal Pit). Some TCE has also migrated to other areas of the Vernon Plant via soil vapor diffusion and groundwater flow." Id. ¶ 41. Dr. Robrock states that based on the most recent data available, the only place where both TCE and lead are present above screening levels is in the South Yard beneath the Mixed Metals Extrusion Building. Id. ¶ 45. Dr. Robrock discusses some remediation techniques for each substance and summarizes her understanding of DTSC's remediation plans. Id. ¶¶ 48-55.
Dr. Robrock's opinions are as follows. First, she disagrees with Dr. Laton that lead and TCE are commingled. Id. ¶ 67. She more specifically asserts that they are not commingled because TCE was not used as part of the smelting operations, but was instead used for the extrusion of solder; TCE has different chemical and physical properties; TCE and the lead found above screening levels have different geographic distributions, with lead being present throughout the site, but TCE only in the South Yard; and that remediation techniques are different. Id. ¶ 68.
b. Gould: Mr. Steven McGinnis and Dr. Shahrokh Rouhani
Gould called Mr. McGinnis to testify that much of the contamination at the Vernon Plant is NL's fault, not Gould's. Declaration of Steven McGinnis, ECF No. 897 ("McGinnis Decl."), at ¶¶ 2-3. To that end, Mr. McGinnis conducted a SESOIL analysis of the South Yard, the West Yard, and the North Yard, concluding that NL filled the West, South, and North yards with waste over several decades before Gould acquired the Plant, and that Gould's contamination is essentially limited to the upper three inches of soil and ground-level soil and structures at the Plant. Id. ¶¶ 2-4. Mr. McGinnis asserts that the historical record of Plant operations after 1990 is robust enough to render such opinions. Id. ¶ 3.
Gould also offers the opinion of Dr. Shahrokh Rouhani, who holds a Ph.D in Environmental Sciences. Declaration of Shahrokh Rouhani, ECF No. 894 ("Rouhani Decl."), at ¶ 4. Dr. Rouhani performed a statistical analysis to conclude that lead contamination in the North Yard is not attributable to stormwater lines, to surficial lead releases, or to surficial acid releases. Id. ¶ 3. c. NL: Dr. Andy Davis
NL's expert, Dr. Andy Davis, offers three main conclusions. Declaration of Andy Davis, ECF No. 889, (Andy Davis Decl. II), at ¶ 38. Dr. Davis first asserts that NL has no responsibility for offsite harms, and that there are many separate harms in the North, South, and West Yards, such that NL should not have responsibility for those areas' contamination caused after NL left the Plant in 1979. Id. ¶ 41. Second, Dr. Davis asserts that some harms are common, but are nevertheless divisible: for example, the Office/Warehouse Buildings that remain from the NL period but were used after it left, and for the groundwater contamination throughout the South and West Yards. Id. ¶¶ 53-54. Third, Dr. Davis believes that conditions that are not causing harm need not be apportioned, such as slag buried in the ground, but apportions them anyway. Id. ¶¶ 55-56. Dr. Davis accordingly assigns NL a percentage for each type of contamination. See id., Ex. H (summary of apportionment percentages).
d. Trojan Battery, Ramcar, Oregon Tool, and Kinsbursky Brothers: Dr. William Cutler and Mr. Timothy Simpson
These arranger/transporter defendants offer two opinions: from Dr. William Cutler and Mr. Timothy Simpson.
Dr. Cutler's opinion is that "environmental harm caused by contamination from VOCs is divisible from the environmental harm caused by contamination from metals." Declaration of William Cutler, ECF No. 883 ("Cutler Decl. II"), at ¶ 14. Dr. Cutler provides an opinion on several potential bases for divisibility.
First, Dr. Cutler points to the differing chemical characteristics of VOCs and metals, largely agreeing with Dr. Robock's analysis: VOCs are organic compounds that are moderately soluble in water, can create soil gas contamination, and tend to migrate. Id. ¶ 15(a). Metals, on the other hand, stick to the soil and do not tend to migrate. Id. Dr. Cutler asserts that VOCs and metals do not have a synergistic effect on each other. Id. ¶ 15(b). Though sulfuric acid and caustic soda can have a synergistic effect. Dr. Cutler believes that these materials did not impact the lead soil mobilization. Id.
Dr. Cutler also points to differing investigation costs and remediation methods and costs as a distinguishing basis between VOCs and metals. Id. ¶ 15(c)-(d). Dr. Cutler believes that methods of cleaning the materials would be different, but primarily discusses how pumping VOCs out of the Exposition Aquifer—which the Court has already found outside the compensable area—would be different than cleaning up soils. Id.
Dr. Cutler declares that the history and circumstances of the Vernon Plant provide a reasonable basis to conclude that the defendants did not cause any of the harm from the VOC contamination at the Plant because the materials they sent did not contain any VOCs. Id. ¶ 16(a). Dr. Cutler relatedly asserts that the Mixed Metal Extrusion Building operations had ceased by 1979. Id. ¶ 16(b)(i). Relatedly, Dr. Cutler states that VOC contamination is localized, to the area where the Mixed Metals Extrusion Building once stood. Id. ¶ 16(b)(ii).
Second, Dr. Cutler asserts that subsurface contamination is divisible from surface contamination because the defendants offering his opinion did not ship hazardous substances to the Plant before a certain date. Id. ¶¶ 17-18. Dr. Cutler seems to contend that subsurface contamination ceased after the mid-1980s and the installation of the asphalt cap at the Plant, even though the Court has already made the opposite finding. See id. ¶¶ 19-22.
Mr. Timothy Simpson is a professional engineer and has practiced as a consulting
engineer since 1983. Declaration of Timothy Simpson, ECF No. 893 ("Simpson Decl."), at ¶ 2. He has a B.S. in Civil Engineering from Gonzaga University and a M.S. in Civil Engineering from UC Irvine. Id. He also maintains several professional licenses. Id. ¶ 5. He has completed several soil, soil vapor, and groundwater investigation projects at industrial facilities. Id. ¶ 11.
Mr. Simpson offers two opinions: first, that the amount of material sent to the Vernon Plant by these defendants is divisible from the total lead recycled at the Vernon Plant; and second, that the percentage of lead sent to the Vernon Plant sent by these defendants relative to the total amount of lead recycled at the Plant ranges between 0.008% and 1.609%. Id. ¶¶ 12-13. To that end, Mr. Simpson's firm examined 11,000 hazardous waste manifests to make calculations for each defendant based on this volumetric approach. Id. ¶ 23.
III. LEGAL STANDARD: DIVISIBILITY
"CERCLA liability is ordinarily joint and several, except in the rare cases where the environmental harm to a site is shown to be divisible." Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565, 588 (9th Cir. 2018) (Pakootas IV). "The universal starting point for divisibility of harm analyses in CERCLA cases is § 433A of the Restatement (Second) of Torts." Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 614, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009) (Burlington Northern II).
Pakootas IV said the "divisibility analysis involves two steps. "First, the court considers whether the environmental harm is theoretically capable of apportionment. See Restatement (Second) of Torts § 434 cmt. Id. This is primarily a question of law." Pakootas IV, 905 F.3d at 588. "Underlying this question, however, are certain embedded factual questions that must necessarily be answered, such as what type of pollution is at issue, who contributed to that pollution, how the pollutant presents itself in the environment after discharge, and similar questions." Id. (citations and quotations omitted). "Second, if the harm is theoretically capable of apportionment, the fact-finder determines whether the record provides a reasonable basis on which to apportion liability, which is purely a question of fact." Id. at 588-89 (citations and quotations omitted).
At both steps, the defendant asserting the defense bears a "substantial" burden of proof. Id.; United States v. Alcan Aluminum Corp., 964 F.2d 252, 269 (3d Cir. 1992). Pakootas IV elaborated on this burden, stating that
The necessary showing requires a "fact-intensive, site-specific" assessment, PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F.3d 161, 182 (4th Cir. 2013), generating "concrete and specific" evidence, [U.S. v.] Hercules, 247 F.3d [706] at 718 [(8th Cir. 2001)]. But that is not to say that the defendant's proof must rise to the level of absolute certainty. See Burlington Northern II, 556 U.S. at 618, 129 S.Ct. 1870. Rather, the defendant must show by a preponderance of the evidence—including all logical inferences, assumptions, and approximations —that there is a reasonable basis on which to apportion the liability for a divisible harm. See Restatement (Second) of Torts § 433A cmt. d; see also, e.g., Hercules, 247 F.3d at 719; Bell Petroleum, 3 F.3d at 904 n.19.
Pakootas IV, 905 F.3d at 589.
IV. DISCUSSION
A. Whether the Harm is Theoretically Capable of Apportionment
The first step of the divisibility analysis is whether the harm is theoretically capable
of apportionment, which, again, is primarily but not entirely a question of law. Again, inherent in this step of the analysis "are certain embedded factual questions that must necessarily be answered, such as 'what type of pollution is at issue, who contributed to that pollution, how the pollutant presents itself in the environment after discharge, and similar questions.' Id. (quoting U.S. v. NCR Corp., 688 F.3d 833, 838 (7th Cir. 2012)). This is because "a court cannot say whether a harm 'is, by nature, too unified for apportionment' without knowing certain details about the 'nature' of the harm." Id.
"That is, 'a defendant must take into account a number of factors relating not just to the contribution of a particular defendant to the harm, but also to the effect of that defendant's waste on the environment.'" Id. "Those factors generally include when the pollution was discharged to a site, where the pollutants are found, how the pollutants are presented in the environment, and what are the substances' chemical and physical properties." Id. "Chief among the relevant properties are 'the relative toxicity, migratory potential, degree of migration, and synergistic capacities of the hazardous substances at the site.'" Id. (quoting United States v. Alcan Aluminum Corp., 990 F.2d 711, 722 (2d Cir. 1993)).
"For the purpose of apportioning CERCLA liability, the relevant 'harm' is the entirety of contamination at a site that has caused or foreseeably could cause a party to incur response costs, suffer natural resource damages, or sustain other types of damages cognizable under section 107(a)(4)." Id. at 592. "The defendant asserting the divisibility defense must therefore produce evidence showing divisibility of the entirety of contamination at a site, the harm caused by its wastes combined with all other pollution, not just the harm caused by its wastes alone." City of W. Sacramento, California v. R & L Bus. Mgmt., No. 218CV00900WBSEFB, 2020 WL 5545272, at *5 (E.D. Cal. Sept. 16, 2020).
Plaintiffs first contend that every defendant has failed to meet the requirements of this step as a matter of law, because no defendants' expert or experts accounts for the entirety of the harm at the Vernon Plant and in the Industrial Area. The Court agrees with Plaintiffs that none of the defendants' experts account for the entirety of the harm at the Vernon Plant.
The Court agrees with Plaintiffs that the relevant inquiry at this stage is the entire site. In other words, to meet their burden. Defendants had to address contamination throughout the entire Vernon Plant and in the Industrial Area in order to meet their burden here. Air emissions, even though they may be covered by a successful federally permitted release defense, are also relevant here because they still amount to contamination at the site. Though Defendants need not account for every particle of contamination at the molecular level in order to succeed, in order to find a satisfactory denominator, the Court must be apprised of the contamination at the whole site, not just at a particular yard or level below or at ground surface.
Even though the Court limited Plaintiffs' recovery in the Industrial Area in its Liability Trial verdict, the whole 0.5-mile radius is still relevant to divisibility because the Court found following the Scope Trial that Defendants had caused contamination there.
No faction of defendants or individual defendant presents such a denominator— assessing the total cause of contamination —from which the Court may ascertain whether the harm is theoretically capable of apportionment. NL's expert. Dr. Davis, only accounts for the Plant itself and examines
the contamination yard-by-yard without delving into, for instance, how and whether contaminants may have crossed these boundaries. Dr. Cutler, called by Kinsbursky, Oregon Tool, Ramcar, and Trojan, fails to account for surface structures and other contamination. His analysis is also largely limited in time, ignoring pre-1986 contamination, which is still relevant to finding a "denominator" even if these arrangers did not contribute to it. Gould's expert, Mr. McGinnis, focuses only on subsurface contamination and not structures and likewise assumes that he may address the contamination at each yard without discussing how contamination may have moved across boundaries. Gould's second expert. Dr. Rouhani, addresses only the North Yard, not the entire site as defined above. Last, Mr. Simpson's volumetric analysis, though it attempts to calculate the total mass of lead processed at the Plant, likewise does not account for each cause of the contamination—only the arrangers in this case, not the owner/operators, or other Vernon Plant customers who are not named parties in this case.
Gould also does not seem to account for its activities before it acquired the Vernon Plant in 1979. Gould shipped hazardous materials to the Vernon Plant before it bought the Plant. This contamination is relevant even though it is not a basis for Gould's liability here because defendants still must "account for the full extent of the harm" at the site. Coeur D'Alene Tribe v. Asarco Inc., 280 F. Supp. 2d 1094, 1120 (D. Idaho 2003).
But even if these experts had properly accounted for the entirety of the harm and the extent of its geographic scope, the Court would still conclude that the harm here is not theoretically capable of apportionment. Plaintiffs have adduced evidence that the contamination is commingled, both in terms of multiple contaminants being found in one location, and because NL and Gould used all three yards. See, e.g., Laton Decl. II, at ¶¶ 39-45;). Lead is present throughout the entire Plant and is commingled with other heavy metals, with TCE, and with sulfuric acid, which mobilizes lead, meaning lead could have spread beyond the boundaries of the individual yards. PX 2-0021; PX 2-0022; PX 2-0023. And it is undisputed that lead-bearing dust and stack emissions spread over the entire Plant and into parts of the Industrial Area. Trial Tr. Day 1 at 165:12-21. Last, it is also undisputed that sulfuric acid mobilizes lead. The Court therefore cannot conclude that subsurface harms are divisible from surface harms.
NL objects to paragraph 45 as lacking foundation and calling for speculation. This objection is overruled. Dr. Laton sufficiently identified the foundation of his opinion and did not speculate, but rather interpreted the data based on his scientific experience. Gould also objected to several aspects of Dr. Laton's declaration as being based on hearsay and being improper expert testimony under Rule 702 of the Federal Rules of Evidence. These objections are overruled. Experts are entitled to rely on hearsay in forming their opinions. Dr. Laton is also sufficiently qualified to opine on his view of the sources and causes of contamination at the site here.
The evidence at the Scope Trial only showed sampling from certain parts of the Industrial Area and analyses of wind directions.
In sum, the Court agrees with Plaintiffs that, like the whole length of the river in Pakootas that was extensively contaminated with chemicals, the lead contamination at the entire Vernon Plant is considerable and contiguous, suggesting that the harm is not even theoretically capable of apportionment. The following diagram
The Court also observes that the Vernon Plant's contamination is different than sites where courts have found that harms are theoretically capable of apportionment. Burlington Northern involved two noncontiguous portions of land where there were separate spills of hazardous substances. 556 U.S. 599 at 617-18, 129 S.Ct. 1870. Coeur D'Alene Tribe involved a situation where each mill at issue caused contamination by the same type of hazardous substances and that the "milling methodologies used ... did not differ significantly from mill to mill to preclude divisibility. 280 F. Supp. 2d at 1120. Here, in contrast, the Vernon Plant is a contiguous parcel of land. And as discussed further below, there is evidence in the record suggesting that contamination moved across the three yards and into the subsurface at varying rates and at different times. Matter of Bell Petroleum Services Inc. involved "only one hazardous substance —chromium—and no synergistic effects." 3 F.3d 889, 903 (5th Cir. 1993). That is not the case here, where there are multiple hazardous substances, some with synergistic effects, namely, lead and sulfuric acid.
provided by Plaintiffs illustrates this conclusion:
Image materials not available for display.
PX2-0020.1 (showing contamination 1 foot below ground surface); see also PX 2-0021 (2 feet below ground smface); PX 2-0023 (10 feet below ground surface).
Thus, for the foregoing reasons, the Court holds that Defendants have failed to meet their burden in showing that the harm here is theoretically capable of apportionment. See Von Duprin LLC v. Major Holdings, LLC, 12 F.4th 751 (7th Cir. 2021) (observing that "nearly everything in theory is capable of division if examined at a high enough level of generality. But seeing the question in theoretical—rather than factual and evidentiary—terms robs the necessary apportionment inquiry of any meaningful content and leads to an analysis divorced from the Supreme Court's instructions in Burlington Northern and the guiding principles in the Restatement (Second) of Torts"); see also United States v. Cap. Tax Corp., 545 F.3d 525, 536 (7th Cir. 2008) ("When the factory was in operation, materials passed through all these rooms at some point in the production process—that is, it was a 'dynamic, unitary operation'" such that divisibility could not be ascertained). B. Whether the Record Provides a Reasonable Basis on Which to Apportion Liability
Because the Court holds that the defendants did not meet their burden in showing that the harm was theoretically capable of apportionment, the Court need not advance to the second step of the divisibility analysis. But even if the Court had found that the defendants met their burden and shown that the harm here was theoretically capable of apportionment, defendants would also fail their burden at the second step of the analysis. The record before the Court does not provide a reasonable basis on which to apportion liability at the divisibility stage of the proceedings.
"What is reasonable in one case may not be in another, so apportionment methods 'vary tremendously depending on the facts and circumstances of each case.'" Pakootas IV, 905 F.3d at 595. The bases for apportionment are "most commonly volumetric, chronological, or geographic factors." City of West Sacramento, California v. R and L Business Management, 2020 WL 5545272 (E.D. Cal. Sept. 16, 2020). "The only requirement is that the record must support a reasonable assumption that the respective harm done is proportionate to the factor chosen to approximate a party's responsibility." Pakootas IV, 905 F.3d at 595 (citations and quotations omitted).
The record before the Court shows that there is no reasonable basis for apportionment. The Court agrees with Dr. Laton that, overall, the gaps and inconsistences in the historical record of the Vernon Plant make divisibility findings at this stage untenable. See Pakootas IV, 905 F.3d at 590 (holding that "any hardship due to lack of evidence as to the extent of the harm" is a hurdle for the defendant who bears the burden of proof on the divisibility defense); R and L Bus. Mgmt., 2020 WL 5545272 at *9 (noting that "[b]ecause neither defendants nor prior operators kept adequate records to determine the specific volume of plating fluids used at the Site, Dr. Love's analysis uses time on the Site as a proxy for volume," but rejecting this analysis because it was therefore based on flawed assumptions).
As Plaintiffs point out, historical records do not definitively demarcate the boundary between NL- and Gould-based contamination. The record does not, for example, show how much of the soil contaminated by NL in the North Yard was removed by Gould in the 1980s. Though the parties agree that some soil was removed, it is unclear to what extent all contamination caused by NL was actually remediated. NL, for its part, seems to assume that all North Yard contamination was cured by removing the soils.
Relatedly, there are gaps in the record as to Gould's waste handling practices in the months after it bought the Plant from NL. At trial, Gould's counsel referenced Gould's attempts to improve industrial hygiene at the Plant. Trial Tr. Day 1 at 41:11-14. Mr. McGinnis also testified as such, for instance, describing Gould's efforts to remove pules of hazardous waste in the North Yard and cleanup efforts in the West Yard. Testimony about Gould's efforts to clean up the Plant do not controvert, however, other historical evidence in the record that Gould also stored slag on unpaved areas, left "junk batteries" at the Plant, and removed waste from the North Yard and put it in the South and West Yards while building its new smelter. ECF No. 983, Plaintiffs' Posttrial Brief, at 54 (citing historical depositions of former Plant employees describing Gould's less-than-hygienic practices in the months after acquiring the Plant). The historical documentation of contamination to the subsurface is lacking too. It is unclear whether, when, and how various parts of the Plant were paved at various points in its history due to varying recollections of former Plant employees. See, e.g., DX 2-1534 at 4-1. And though Gould previously objected to a 1994 Insituform Report as incomplete, as Plaintiffs argue, it is undisputed that the Report stated that over one thousand feet of piping were "Category 1," which means these pipes needed immediate repairs. DX 2-1527 at 2, 4, 6. The fact that the Report's methodology is not available does not prevent the Court from ultimately finding persuasive the Report's unequivocal conclusion. Gould's counsel also seemed to accept that, at some point, the pipe system leaked. The absence of evidence as to precisely how and when the pipe leaked leaves open the possibility that it did not leak during Gould's tenure—but also leaves open the possibility that it did. This uncertainty renders Gould unable to successfully meet its burden here.
There are also gaps in the historical record with respect to certain arranger defendants. There is evidence in the record that some of these arrangers, Kinsbursky and Trojan, sometimes did not use hazardous waste manifests when shipping materials to the Plant. ECF No. 840 at 41-42 (compiling evidence that these arrangers sometimes did not use manifests); Crowe Decl. at ¶¶ 26 (Ramcar states it sometimes did not use manifests). Again, this lack of evidence means that these defendants cannot meet their burden in showing that there is a reasonable basis for apportionment because it is impossible to know exactly —or even roughly—how much contamination they caused.
It is hue that the lack of manifests for some shipments could have been problematic for Plaintiffs in establishing liability as to these arrangers. But again, at the divisibility stage, the Court is concerned not with liability but rather with causation of harm. The lack of evidence is therefore also problematic for the defendants asserting the divisibility defense because it is generally uncontroverted that sometimes these arrangers did not use manifests, so some of their contamination is left unaccounted for.
The Court also finds flaws with each defendants' divisibility apportionment such that the Court cannot find a reasonable basis for apportionment on this record. These shortcomings preclude a verdict in their favor at this phase of the proceedings. The Court agrees with Plaintiffs to this end. The Court's specific concerns with each defense expert are as follows:
First, though the Court—and, it seems, Plaintiffs' experts—are in agreement with Dr. Robrock that lead and TCE are chemically different and may require different remediation methods, the Court cannot adopt her framework for a divisibility finding between lead and TCE. This is so for the simple reason that lead and TCE are commingled in the soil. Clarios, moreover, is unable to prove that it did not cause the TCE contamination. The mixed metals extrusion process was used to make lead solder and a thin lead-based material that was used to put between panes of stained glass. Trial Tr. Day 3 (morning) at 94:25-95:10. There is historical deposition evidence that the Vernon Plant used "alloyed" lead to make these products in the Mixed Metals Extrusion Building. Simpson Decl., ECF No. 893 at 69 (referencing a historical deposition). The Court finds Plaintiffs' argument that this lead came from the Vernon Plant's own refined lead smelter persuasive. The Court therefore declines to find that Clarios or any other arranger is not liable for TCE contamination at the site. Second, the Court rejects Mr. Simpson's proposed volumetric apportionment. As Plaintiffs point out, Mr. Simpson does not show that the volume of lead-bearing materials sent to the Plant overall and by the relevant arranger defendants is a suitable proxy for contamination and environmental harm at the site. The Court finds persuasive Dr. Laton's testimony that, in contrast, this assumption is not sound because the amount of contamination resulting from a certain volume of inputs varied over time due to different activities at the Plant and different levels of environmental regulation. Laton Decl. II at ¶ 9. Therefore, even taking as true these arranger defendants' assertions that Mr. Simpson was conservative with his numbers and may have ultimately overstated the amount of responsibility that should be apportioned to each relevant arranger, the Court cannot find his argument persuasive at this stage of the proceedings. And again, Mr. Simpson relied only on existing manifests, but did not account for non-manifest-documented shipments. Last, Mr. Simpson did not account for the effect of sulfuric acid on the lead and how this synergistic effect might have magnified the harm caused by a certain volume of contamination. Trial Tr. Day 3 (afternoon) at 52:5-12; see also Chesapeake & Potomac Tel. Co. of Virginia v. Peck Iron & Metal Co., 814 F. Supp. 1269, 1279 (E.D. Va. 1992) ("While the Court recognizes that volumetric contributions can, in appropriate circumstances, provide a reasonable basis for apportioning liability, see [U.S. v.] Monsanto [Co.], 858 F.2d [160] at 172-73 n. 27 [(1988)], they clearly cannot in this case. It is plain that there simply will never be enough evidence in this case from which a reasonable volumetric study could be constructed ... there are approximately nine years of records relating to battery purchases that are missing and there is no way to account in any reasonable fashion for the types or volumes of batteries broken at the Site during that time period.").
Nor does Dr. Cutler satisfactorily present a reasonable basis for apportionment for the arrangers. The Court therefore affords his opinion little weight. Dr. Cutler's failure to account for pre-1986 contamination and his assertion, which the Court has rejected, that releases to the subsurface eventually stopped, render his opinion unreliable in presenting a reasonable basis for apportionment. The Court, in short, does not view subsurface/surface contamination a reasonable basis for apportionment because the contamination leaked from the surface into the subsurface, resulting in mixed contamination that is not a distinct harm. His opinions as to TCE divisibility suffer the same flaws as do Dr. Robrock's because, again, the contamination is commingled.
The Court also finds NL and Gould's' experts unavailing in meeting the owner/operator defendants' burden at the divisibility stage. Broadly, the Court finds methodologies that assume harm is caused equally over years of operations problematic. There is evidence in the record that, first, contamination was not consistent year-to-year. As Plaintiffs point out, environmental regulations differed during the Plant's roughly 90-year operating history, so contamination may have been uneven over time. Gould also expanded the Plant's activities but also endeavored to improve industrial hygiene at the Plant. These facts indicate that assumptions that liability can be divided by years of operation are inaccurate, so the Court affords little weight to, for instance, Dr. Davis's and Dr. Cutler's opinions. Indeed, the Court agrees with Plaintiffs that Dr. Davis himself seems to admit that NL engaged in dumping much more than did Gould and Exide, so even if NL only operated the Plant for 63% of its total lifespan, the harms caused by NL may be outsized compared to this percentage of years of ownership. See, e.g., Davis Decl., ECF No. 899, at ¶ 200.
The Court also agrees with Plaintiffs that there is evidence in the record suggesting that Gould operated the Plant for some time after selling it, to approximately March 1984. Even though Plaintiffs are not seeking to hold Gould liable on this basis, it still amounts to apparent contamination caused by Gould. Though the Court does not rest its opinion that Gould's harm is not divisible on this ambiguity in the historical record, it does further support the Court's conclusion. PX_2-0067.2-3; PX_2-0068 (letters between Gould and its successor discussing removal of contamination).
The evidence in the record also shows that contamination was carted across the various yards at the Plant by both NL and Gould, and that dust floated across the entire facility. Quivik Decl. ECF No. 714-6, at ¶¶ 61-75 (describing NL and Kirk's practice of breaking batteries on bare ground, allowing sulfuric acid to leak into the ground); id. ¶ 54 (discussing a letter from Kirk to NL describing Kirk's use of the West Yard as a place to dump waste); id. ¶ 65 (description of the acid pit used by NL and Kirk in the West Yard); DX 2-01534 (employee interviews discussing Gould's practice of using the West Yard as a repository for spent batteries, slag, metal drums, and other materials); Trial Tr. Day 1 at 165:12-21 (acknowledgment by Mr. McGinnis that dust probably floated all over the site). Also, Gould did use TCE at the Plant for an unknown period of time after acquiring the Plant from NL. McGinnis Decl. at ¶¶ 186-87. There is, as such, not a reasonable basis for apportionment between NL and Gould based on either geographic areas (the yards) or across time, making Dr. Rouhani's North Yard-limited opinion of minimal help to the Court at this phase. In any event, Plaintiffs elicited testimony on cross-examination of Mr. McGinnis that he, at least, could not tell whether NL or Gould had caused contamination recorded by boring log TB-77D due to NL's "land farming," or covering up the ground with layers of dirt that causes contamination to become mixed. Trial Tr. Day 2 (afternoon) at 8:18-23. Dr. Rouhani did not account for this mixing in his analysis of the North Yard, further casting doubt on his opinions. Trial Tr. Day 2 (afternoon) at 47:16-25. Dr. Davis largely focuses on what NL had no hand in, for instance, Gould building new structures at the Plant. But this argument also does not provide the Court a reasonable basis for apportionment given the pervasive evidence that NL contaminated all three yards, that all three yards will therefore require remediation, and that the contamination in the buildings is commingled with the lead contamination in the ground. No defendant has contested Plaintiffs' assertion that, to remedy the ground contamination that was caused by NL and/or Gould, the buildings would need to be removed even if they were not contaminated with lead.
This declaration is from Phase II, where Dr. Quivik was subject to cross-examination, so the Court relies on the historical documents discussed therein. Here, as in the Liability Trial, the Court finds him qualified to introduce these historical documents under Daubert.
For the Liability Trial, NL objected to these paragraphs as being improper expert testimony and as being hearsay. These objections are overruled. The Court finds Dr. Quivik, a historian, qualified to opine on these documents. The hearsay objection is overruled because NL does not sufficiently describe the basis for the objection. In any event, these paragraphs rely on ancient documents, photographs, testimony from historical depositions, and articles, all of which may properly be the basis of expert testimony and/or are not subject to the rule against hearsay. See Fed. R. Evid. 702; Fed. R. Evid. 703; Fed. R. Evid. 803(16); Fed. R. Evid. 803(18).
The Court further affords Dr. Rouhani's opinion little weight due to other flaws in his statistical analysis. Dr. Rouhani did not account for confounding factors. Trial Tr. Day 2 (afternoon) at 47:6-25. Dr. Rouhani also apparently did not examine data samples taken below the pipes, only on the side of pipes, even though contamination from the leaking pipes could be under them and not only on the sides.
The Court additionally disregards any testimony or opinion by Dr. Davis or any other defendant or expert suggesting that the Court should consider equitable factors at this stage. The Court looks forward to entertaining such arguments at a later time, but such arguments are irrelevant here.
The Court, finally, does not find persuasive various defendants' arguments that the contamination at various places at the Plant and in the Industrial Area were washed away. Even were this so—which Plaintiffs contend it is not—the Court fails to see why it enables these defendants to meet their burden in showing a reasonable basis for apportionment where the contamination was commingled across all parts of the Plant and the entire Plant site remains contaminated today. See United States v. Vertac Chem. Corp., 364 F. Supp. 2d 941, 952 (E.D. Ark. 2005), aff'd, 453 F.3d 1031 (8th Cir. 2006) (rejecting argument by defendant that its contamination had been flushed away where there was evidence that the contaminants that had been supposedly washed away were still present.
Relatedly, much of Dr. Davis's testimony seemed to relate to the threat posed to society by the contamination and the lack of need for future response costs. These do not present a reasonable basis for apportionment either. See United States v. Alcan Aluminum Corp., 315 F.3d 179, 186-87 (2d Cir. 2003) ("[B]oth at trial and again on appeal, Alcan simply contends that its waste emulsion was benign and 'really ... just like homogenized milk.' It argues therefore that its contribution to the harm and appropriate portion of the damages is readily identifiable; and that its portion is zero. Appellant also presents this argument in an alternative form, analyzing the properties of the constituents of its waste emulsion separately and contending that such analysis similarly supports a conclusion that its emulsion did not contribute to the harm at PAS or Fulton ... in light of the district court's conclusion that the waste emulsion contained PCBs, it is unreasonable for Alcan to continue to insist that its waste emulsion was harmless.").
The foregoing analysis of the record leads the Court to conclude that the defendants have also failed to meet their burden at the second step of the divisibility analysis —assuming they met their burden at the first step, which they did not.
V. CONCLUSION
For all the foregoing reasons, none of the defendants have met their burden in establishing divisibility. The Court, however, shall consider their arguments anew at the equitable allocation stage of the proceedings.
The Court will also then consider NL's arguments at trial—and Plaintiffs' opposition to those arguments—that NL received regulatory approval for its cleanup efforts after it left the Plant.
In light of the Court's verdicts following the Liability and Divisibility Trials, the parties are to file a joint case management report within 30 days of the issuance of these orders proposing how the case ought to proceed, noting disputes where applicable. The Court's view is that it should next determine whether Plaintiffs' response costs are consistent with the NCP; then
determine third-party liability; then proceed to equitable allocation. The parties should discuss this proposal in their report. The parties should also discuss the defendants' tort claims against Plaintiffs regarding their alleged failure to regulate the Plant sooner. Additionally, the Court has also received the parties' latest filings informing the Court that settlement may be possible. The status report should address the viability of settlement talks. After the joint status report is filed, the Court will advise the parties accordingly.
IT IS SO ORDERED.