Opinion
Civil 01-2012 (SEC) (JA).
October 1, 2004
OPINION AND ORDER
There are several motions for summary judgment pending before the court in this CERCLA action. On June 28, 2004, plaintiff Esso Standard Oil Company (Puerto Rico) (hereinafter "Esso") filed a motion for partial summary judgment with respect to the issue of defendants' liability under CERCLA. (Docket No. 228.) Esso also moved for summary judgment on the counterclaim filed by co-defendants Carlos Rodríguez Pérez (hereinafter "Rodríguez"), Carmen Ortiz López (hereinafter "Ortiz") and the conjugal partnership formed by them. (Docket No. 229.) On the same date, co-defendant Carlos M. Belgodere-Pamies (hereinafter "Belgodere") cross-moved for summary disposition on the issue of CERCLA liability. (Docket No. 236.) Co-defendants Rodríguez and Ortiz filed their own motion for summary judgment on June 30, 2004. (Docket No. 235.)
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.
On July 19, 2004, Esso filed its response in opposition to the summary judgment motions submitted by the co-defendants. (Docket No. 240.) On July 20, 2004, Belgodere submitted a response in opposition to Esso's partial summary judgment motion. (Docket No. 242.) Esso replied to Belgodere's opposition on July 30, 2004. (Docket No. 244.) Esso's motions remain unopposed by Rodríguez and Ortiz.
After considering the arguments of the parties, the evidence in the record and for the following reasons, Esso's motion for partial summary judgment is GRANTED. Esso's motion for summary judgment on the counterclaim is also GRANTED. Belgodere's cross-motion for summary judgment is DENIED. Rodríguez and Ortiz' motion for summary judgment is also DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Esso brings the present action against the defendants seeking contribution under section 113(f) of CERCLA for the response costs that Esso has incurred in cleaning up the environmental contamination at a gasoline service station located in the La Vega ward, Barranquitas, Puerto Rico (hereinafter "the station"). The station has operated as a retail service station since the mid 1930's until 1998 when it was ordered closed. It sold gasoline, diesel fuel, automobile parts and motor oil. Oil changes, greasing operations, used battery recharging and replacement, mechanical work and the washing of vehicles with diesel fuel are among the services the station provided. Rodríguez began managing the station in 1971 when he assumed from his father the control over the station's day-to-day operations. In 1979, Rodríguez leased the station from José Domingo Pagán Pagán. Rodríguez managed and controlled the station until August of 1998.
It is alleged that during this time, there was a significant disposal of hazardous substances at the station. Specifically, it is asserted that motor oil drained from automobiles was allowed to flow into the Piñonas river, a body of water located behind the station. Similarly, used oil filters were found buried in large quantities in the northern part of the station. Gasoline and diesel used to flush dirt and grease from vehicles were sprayed off onto the ground and into the river using a pressure hose. As a result, the station premises became contaminated with hazardous substances including lead, chromium, benzene, ethylbenzene, toluene and xylene. It is alleged by Esso that even after the station was closed, Rodríguez continued to control access to the premises, impeding Esso's remediation efforts.
Belgodere, on the other hand, began his involvement at the station in 1993. In 1994, Belgodere conducted cursory reviews of soil conditions and inventory records in connection with a civil action brought by Rodríguez against Esso. In 1995, Belgodere entered into a formal agreement with Rodríguez by which the former was to act as both environmental consultant and expert witness in the lawsuit filed by the latter. It is alleged that on March 10, 1997, Belgodere reported to the National Response Center the release of 80,000 gallons of gasoline at the station. However, a subsequent study estimated the actual amount of product release to be about 1,000 gallons. Officials from the Puerto Rico Environmental Quality Board (hereinafter "EQB") later suspected that gasoline had been dumped at the station to give support to the allegations in the on-going lawsuit.
On August 1, 1998, Belgodere engaged in what is described by Esso as a "reckless investigation" which he allegedly now claims was intended to determine that the station was not contaminated. As part of the investigation, Belgodere drilled five soil borings without EQB's approval, using a 16-inch diameter pole auger. Said pole auger, which is normally used to dig holes for telephone poles, was deemed wholly unacceptable for conducting soil borings by EQB officials. Other allegations with respect to Belgodere's investigation refer to the apparently improper instruction that the cuttings from the soil borings be replaced in the holes instead of being containerized for proper disposal. Also, Belgodere ordered that the auger be steam-cleaned without ensuring that the cleaning process would not spread contaminated soil. It is further alleged that Belgodere drilled a hole in a basement wall which led to the escape of vapor emissions. According to Esso, he failed to seal this hole, creating a dangerous condition at the station, for which the same was ordered closed by the Fire Department.
On August 3, 1998, Belgodere stated that he was "in charge" of the station and denied Esso access to the property preventing the installation of explosion-proof blowers to disperse the vapor releases caused by Belgodere. Belgodere also denied Esso access to the station for a period running from September of 1998 to February of 2000. It is claimed that during this time, Esso's personnel sought to perform investigation and site remediation activities but were unable to do so because of Belgodere's denial of access. Belgodere allegedly intimidated and harassed Esso and EQB's personnel, obstructing with such conduct the response to the environmental situation at the station.
The principal contention by Esso is that the conduct of both Rodríguez and Belgodere has interfered with the remediation process and has resulted in delays requiring additional investigations. Said conduct has also allowed the continued migration of hazardous substances, increasing the cost of remediation by adding at least $4 million in costs that would not have otherwise been incurred. Esso has been forced to perform what is described as "the most extensive environmental investigation of a gasoline service station ever conducted." It seeks contribution from both co-defendants under CERCLA.
In its motion for partial summary judgment, Esso maintains that there is no genuine issue as to any material fact and that as a matter of law, it is entitled to judgment with respect to the issue of liability. Specifically, Esso argues that (1) Rodríguez and Belgodere both fall under the definition of "operators" set forth in section 107(a) of CERCLA; (2) that under the unusual circumstances of this case, the station was a "facility" in which a release of hazardous substances occurred; (3) that Esso has incurred in response costs for the clean-up of contamination at the station; and (4) that such costs were necessary and consistent with the National Contingency Plan (hereinafter "NCP").
Esso also moves for summary judgment with respect to the counterclaim filed by Rodríguez and Ortiz. Esso argues that the claims for lost profits and loss of future income are barred by the applicable statute of limitations; that the defamation cause of action is also time-barred or that it fails because these co-defendants cannot demonstrate damages arising out of any alleged defamatory statements; that the claim for mental anguish should be dismissed for lack of a causal connection between co-defendants' symptoms and Esso's alleged tortuous conduct; that the claim for attorney's fees cannot be maintained inasmuch as it has been determined that Esso did not act obstinately in bringing this CERCLA case; and that the claim for injunctive relief is moot because Esso is already complying with remediation at the site pursuant to EQB's administrative orders.
Beldodere's motion for summary judgment challenges the court's jurisdiction on the grounds that this case "does not meet the requirements established" by CERCLA. Belgodere contends, inter alia, that Esso has no standing to seek contribution under CERCLA because it is not subject to a prior or pending action under sections 106 or 107(a) of CERCLA. In addition, Belgodere maintains that CERCLA specifically excludes petroleum from the definition of hazardous materials; therefore, as a matter of law, Esso's contribution claim is precluded.
In their motion for summary judgment, Rodríguez and Ortiz agree with Belgodere in his contention that this is not a CERCLA case because petroleum is excluded from the definition of hazardous substances. They also parrot Belgodere's argument that Esso cannot seek contribution under CERCLA given that Esso is not the subject of a prior or pending action under sections 106 or 107(a). In addition, Rodríguez and Ortiz maintain that summary judgment is warranted as to them because Esso's claims are barred by the applicable statute of limitations. They particularly contend that Puerto Rico's one-year statute of limitation has clearly lapsed and that even if CERCLA applied, the action is time-barred under CERCLA's limitations period. The equitable doctrine of laches is similarly raised by these co-defendants as a limitation on Esso's action. Finally, it is argued that Esso has waived its right to seek CERCLA relief under res judicata principles. Rodríguez and Ortiz submit that Esso had to bring its CERCLA claims in the 1992 state-court action filed by Rodríguez.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). To succeed on a motion for summary judgment, the moving party must show that there is an absence of evidence to support the nonmoving party's position. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion, the burden shifts to the nonmoving party to set forth specific facts showing there is a genuine issue for trial and that a trier of fact could reasonably find in its favor.Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000). The party opposing summary judgment must produce "specific facts, in suitable evidentiary form," to counter the evidence presented by the movant.López-Carrasquillo v. Rubianes, 230 F.3d 409, 413 (1st Cir. 2000) (quoting Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994)). A party cannot discharge said burden by relying upon "conclusory allegations, improbable inferences, and unsupportable speculation." Id.; see also Carroll v. Xerox Corp., 294 F.3d 231, 236-37 (1st Cir. 2002) (quoting J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1251 (1st Cir. 1996)) ("`[N]either conclusory allegations [nor] improbable inferences' are sufficient to defeat summary judgment.").
The court must view the facts in light most hospitable to the nonmoving party, drawing all reasonable inferences in that party's favor. Patterson v. Patterson, 306 F.3d 1156, 1157 (1st Cir. 2002). A fact is considered material if it has the potential to affect the outcome of the case under applicable law.Nereida-González v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993). The filing of cross-motions for summary judgment do not alter the application of the above-outlined standard. Rather, the court must determine whether either party is entitled to judgment as a matter of law on facts that are not disputed. Adria Int'l Group, Inc. v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001). "[T]he court must consider each motion separately, drawing inferences against each movant in turn." Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir. 1997).
III. DISCUSSION A. Motion for Partial Summary Judgment: Liability Under CERCLA
The parties cross-move for partial summary judgment on the question of liability of the co-defendants for contribution. Esso claims that although this is an unusual case, there is no factual dispute as to its entitlement to judgment. Esso further maintains that it has satisfied all the elements for a claim of contribution under section 113(f) of CERCLA. In essence, Esso's position is that both Rodríguez and Belgodere were "operators" of the station which qualifies as a "facility" under CERCLA and in which there was a release of hazardous substances. As a result of the release or threatened release of hazardous substances, Esso had to incur in response costs that were necessary and consistent with the NCP. The co-defendants deny liability claiming that this case does not fit the CERCLA mold. Because all the parties move for summary judgment on the issue of liability, I address their arguments together in this section. But first, the historical background of CERCLA.
The Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., "sketches the contours of a strict liability regime." Acushnet Co. v. Mohasco Corp., 191 F.3d 69, 74 (1st Cir. 1999). It was enacted in part to promote the expeditious remediation at hazardous waste sites, adequate compensation to the public fisc and the imposition of accountability. United States v. Davis, 261 F.3d 1, 26-27 (1st Cir. 2001). Indeed, the essential purpose of CERCLA is to make "those responsible for problems caused by the disposal of chemical poisons bear the costs and responsibility for remedying the harmful conditions they created." John S. Boyd Co. v. Boston Gas Co., 992 F.2d 402, 405 (1st Cir. 1993) (quoting Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st Cir. 1986)). CERCLA also provides the federal government with the means to prevent the spread of hazardous materials.Kaiser Aluminum Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338, 1340 (9th Cir. 1992). Pursuant to section 107, when an innocent party, usually the government, brings an action for cost recovery, liability for the clean-up may be imposed on four categories of persons: (1) owner or operator; (2) past owner or operator; (3) transporter or (4) arranger ("generator"). 42 U.S.C. § 9607(a); see also United States v. Davis, 261 F.3d at 28-29 (citing Acushnet Co. v. Mohasco Corp., 191 F.3d at 74).
CERCLA provides a circular definition of owner and operator: "(ii) in the case of an onshore facility or an offshore facility, any person owning or operating such facility. . . ." 42 U.S.C. § 9601(20)(A)(ii).
In 1986, Congress amended CERCLA with the enactment of the Superfund Amendments and Reauthorizations Act (hereinafter "SARA"), to create, inter alia, a "contribution action" by which a person liable for cleanup costs under section 107 could seek contribution from other Potentially Responsible Parties (hereinafter "PRPs"). United States v. Davis, 261 F.3d at 16; 42 U.S.C. § 9613(f). Section 9613(f) provides in relevant part:
(f) Contribution
(1) Contribution
Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title.42 U.S.C. § 9613(f)(1). The standard for contribution liability under section 9613(f) is the same as the standard for cost recovery liability under section 9607. Acushnet Co. v. Mohasco Corp., 191 F.3d at 75. In other words, a plaintiff seeking contribution under section 9613(f) must prove that (1) the defendant falls within one of the four categories of "covered persons" (current or past owners or operators, transporters or generators) set forth in section 9607(a); (2) a release or threatened release of a hazardous substance occurred in defendant's facility; (3) plaintiff incurred in response costs because of the release or threatened release; and (4) the costs were necessary costs of response in accordance with the NCP. Acushnet Co. v. Mohasco Corp., 191 F.3d at 75 (citingDedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir. 1989)). Before entering into whether Esso meets the requirements for a viable contribution claim, I need to address the jurisdictional issue raised by the co-defendants for it may render moot the remainder discussion.
1. Prior or Pending Civil Action
Belgodere, Rodríguez and Ortiz all contend that this is not a CERCLA case. They argue that Esso cannot seek contribution under section 9613(f) because there is no prior or pending civil action under sections 106 or 107(a) of CERCLA against Esso. They maintain that the existence of a prior or pending civil litigation under sections 106 or 107 is a necessary element to provide a federal court with jurisdiction to entertain a CERCLA contribution claim. The co-defendants exclusively rely on the Fifth Circuit Court of Appeals' decision in Aviall Servs. Inc. v. Cooper Indus., Inc., 263 F.3d 134 (5th Cir. 2001) (hereinafter "Aviall I").
Esso disagrees. Esso claims that co-defendants' position is untenable for three main reasons. First, Esso submits that the issue was already presented by and resolved against co-defendants when this court ruled upon Belgodere's motion to dismiss. (See Docket No. 170.) Consequently, the previous decision constitutes the law of the case, according to Esso, and the co-defendants have presented no extraordinary circumstances warranting this court's revisiting of the issue. Second, Esso argues that the plain language of section 9613(f)(1) makes clear that a civil action under sections 106 or 107 is not necessary to maintain a contribution claim. Finally, Esso submits that co-defendants reliance on Aviall I is misplaced inasmuch as they overlooked the fact that the Fifth Circuit reversed its position after rehearing the case en banc.
I do not decide whether the issue was already resolved by the court in the previous opinion and order since it is not completely clear that the question was specifically considered. However, I agree with Esso that a prior or pending civil action under sections 106 or 107 of CERCLA, is not a sine qua non for the survival of a contribution action. First, the co-defendants misplace their reliance on Aviall Servs. Inc. v. Cooper Indus., Inc., 263 F.3d at 134. That case was reversed after a rehearing en banc by the Fifth Circuit in a decision filed on November 14, 2002. Aviall Servs. Inc. v. Cooper Indus., Inc., 312 F.3d 677 (5th Cir. 2002), cert. granted, 124 S. Ct. 981 (2004) (hereinafter "Aviall II"). In Aviall II the court held, after engaging in a statutory construction analysis, that section 9613(f) of CERCLA, specifically the last sentence in section 9613(f)(1), reveals Congress' intent that a contribution claim is not dependent on the existence of a prior or pending sections 106 or 107 action. See Aviall Servs. Inc. v. Cooper Indus., Inc., 312 F.3d at 686. The court phrased its reasoning in the following terms:
The first point of disagreement between the dissent and the en banc majority is over the exclusivity of the claim for contribution described in the first sentence of § 113(f)(1). Does its allowance of contribution actions "during or following" a § 106 or § 107(a) civil action mean that contribution actions are "only" allowed in such circumstances? We think not. The dissent's interpretation of the first sentence of § 113(f) departs from "plain meaning" in several ways. "Only," for instance, is the word choice of the dissent, not of Congress, which characterized the actions permissively (a PRP "may" bring an action for contribution). Elsewhere in CERCLA, Congress used "only" many times, signifying its intent to narrow, exclude or define provisions. Had Congress similarly intended to make contribution actions available "only" after the referenced CERCLA lawsuits have been brought, it could have done so.Id. (footnote omitted). The court concluded that its expansive reading of section 9613(f)(1), allowing a PRP to bring its contribution claim at whatever time in the cleanup process the party seeking contribution decides to pursue it, suits better the statutory text of said section. Id. at 686 n. 16. Other federal courts presented with the issue have endorsed the same posture.See, e.g., 1325 "G" St. Assoc., LP v. Rockwood Pigments NA, Inc., 235 F. Supp. 2d 458, 464 (D. Md. 2002); Niagara Mohawk Power Corp. v. Consol. Rail Corp., 291 F. Supp. 2d 105, 123 (N.D.N.Y. 2003).
Second, the clear language of the statute itself reveals that a CERCLA contribution claim is not dependent on a prior action under sections 106 or 107. The last sentence of section 9613(f)(1) states that "[n]othing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title." 42 U.S.C. § 9613(f)(1). The Aviall II court observed that said sentence reveals Congress' intent not to make a contribution claim contingent on the existence of a prior section 106 or 107 lawsuit. Aviall Servs. Inc. v. Cooper Indus., Inc., 312 F.3d at 686. In view of the above, I find that Esso's contribution claim is not precluded by the absence of a prior or pending section 106 or 107 civil action. Therefore, this court has jurisdiction under CERCLA to entertain the merits of the contribution claim.
2. Covered Persons
The first element of a contribution claim under section 9613(f) is that the defendant be a "covered person" under CERCLA. There are four categories of covered persons that may be liable for contribution. They are,
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
(3) any 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, and
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release. . . .42 U.S.C. § 9607(a); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d at 1150-51.
Esso maintains that both Rodríguez and Belgodere were operators of the station. As to Rodríguez, Esso argues that his status as operator is evident from his own pleadings and testimony. He has admitted that he assumed control of the station from his father and that since 1971, he managed and controlled the day-to-day operations of the station. Rodríguez in fact entered into an agreement to lease the station in 1979. Furthermore, Esso claims that during the period he managed the station, Rodríguez directed the improper disposal of hazardous substances at the station premises. He also allegedly arranged for the irresponsible investigation conducted by Belgodere in August of 1998. Therefore, Esso contends that there is no factual dispute as to Rodríguez' status as operator of the station.
With respect to Belgodere, Esso's position is that he also qualifies as an operator. According to Esso, Belgodere directed and conducted inappropriate operations at the station related to pollution. Esso further claims that from August 1, 1998, until approximately February of 2000, Belgodere's control over the station extended to almost all management and activities related to environmental compliance. He exerted said control, Esso argues, to prevent and interfere with Esso's efforts to investigate and cleanup the property. Among other things, Belgodere took it upon himself to report product release to the National Reponse Center. In addition, he was "in charge" and directed negligent drilling, soil boring and excavation work at the station. By his own statements and actions, Belgodere held himself out to others as being in control, denying Esso access to the property. Finally, Esso contends that Belgodere exerted control of the station by interfering in the remediation process with threats and harassment of Esso employees and representatives.
CERCLA's definition of an owner and operator has been characterized as useless when it defines for example an "operator" as "any person . . . operating" the facility. United States v. Bestfoods, 524 U.S. 51, 66 (1998) (citing 42 U.S.C. § 9601(20)(A)(ii)); see also Am. Cyanamid Co. v. Capuano, No. 03-2143, slip op. at 36 (1st Cir. Aug. 18, 2004) (observing that CERCLA defines the phrase owner and operator only by tautology). The Supreme Court has expanded, however, on the definition of an operator:
an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility. To sharpen the definition for purposes of CERCLA's concern with environmental contamination, 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.United States v. Bestfoods, 524 U.S. at 66-67.
In this case, both Rodríguez and Belgodere fit within the Supreme Court's definition of an operator. As to Rodríguez, it is clear from the evidence in the record that he directed the workings of, managed and conducted the affairs of the station. He in fact managed the station for a substantial period of time from the early 1970's when he assumed control from his father until 1998 when the station was ordered closed. As to Belgodere, he qualifies as an operator under the second part of the definition since he managed, directed and conducted operations related to pollution, specifically those having to do with the release of hazardous substances at the station and the compliance with environmental regulations. He reported product release and conducted drilling and excavation works in relation to the gasoline spill at the station. He declared himself "in charge" of the station with enough authority to deny Esso representatives access to the property to perform remediation tasks. Belgodere is also alleged to have exerted control over the station by means of threats and harassment.
For a more detailed discussion of Belgodere's conduct in relation to the station and the La Vega community, see the findings of fact section in Esso Standard Oil Co. (P.R.) v. Mujica-Cotto, 327 F. Supp. 2d 110, 123-24 (D.P.R. 2004).
In any event, neither Rodríguez nor Belgodere submit any evidence or arguments to controvert Esso's position that they were operators of the station. They fail to create a factual dispute at the summary judgment stage on this issue. Therefore, I find that Esso has satisfied the first prong of the inquiry by showing that both Rodríguez and Belgodere are covered persons under CERCLA.
3. Release of Hazardous Substances at Defendant's Facility
Esso next needs to show that there was a release or threatened release of hazardous substances at the facility in question. The issue is comprised of two separate inquiries. First, there must be a release or threatened release of a "hazardous substance." Second, the property in question has to be a "facility" under CERCLA. I start with the simpler question: whether the station qualifies as a facility.
CERCLA defines "facility" as "(A) any building, structure, installation, equipment, . . . or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located. . . ." 42 U.S.C. § 9601(9); see also United States v. Northeastern Pharm. Chem. Co., 810 F.2d 726, 743 (8th Cir. 1986) (quoting United States v. Ward, 618 F. Supp. 884, 895 (E.D.N.C. 1985)) ("The term `facility' should be construed very broadly to include `virtually any place at which hazardous wastes have been dumped, or otherwise disposed of.'"); United States v. Tropical Fruit, S.E., 96 F. Supp. 2d 71, 84 (D.P.R. 2000).
The term facility is defined broadly under CERCLA and it has been interpreted by the cases to encompass any conceivable place where a hazardous substances is dumped or disposed of. Consequently, although the co-defendants present no argument to challenge Esso's position that the station qualifies as a facility, the question must be answered with reference to whether there was a release or threatened release of a hazardous substance at the station. To that proposition the co-defendants voice their most vigorous objection. They claim that under CERCLA's "petroleum exception," Esso is precluded from arguing that there was a release of hazardous substances at the premises. The co-defendants' position is in general that gasoline, diesel and oil are specifically excluded from CERCLA's definition of a hazardous substance. Esso disagrees adducing that the releases at the station do not fall within the petroleum exclusion because said exception does not apply to hazardous substances added to the petroleum products during use.
The term "release" is defined by CERCLA as:
any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant). . . .42 U.S.C. § 9601(22). CERCLA defines "hazardous substances" as:
(A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act (but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the Clean Air Act, and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of Title 14.42 U.S.C. § 9601(14). The Environmental Protection Agency (hereinafter "EPA") has promulgated a list of elements, compounds and hazardous wastes that are designated hazardous substances pursuant to CERCLA's definition. See 40 C.F.R. § 302.4 and Table 302.4. Among the listed substances are lead, chromium, benzene, ethylbenzene, toluene and xylene, which are some of the substances found at the station. Id.
However, petroleum is specifically excluded from the definition of hazardous substances. Section 101(14) of CERCLA states in relevant part that "[t]he term [hazardous substances] does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph. . . ." 42 U.S.C. § 9601(14). It has been held that CERCLA's petroleum exclusion applies to refined and unrefined petroleum products even though some of the indigenous components and the additives added during the refining process have themselves been designated as hazardous substances. See Wilshire Westwood Assocs. v. Atl. Richfield Corp., 881 F.2d 801, 810 (9th Cir. 1989). The exclusion is inapplicable when said indigenous components are found in excess of the amounts that would have resulted from the refining process or when they are added to the petroleum product during or after use. United States v. Alcan Aluminum Corp., 964 F.2d 252, 266-67 (3rd Cir. 1992); see also Franklin County Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534, 541 (6th Cir. 2001) ("[P]etroleum products mixed with hazardous substances not constituent elements of petroleum are hazardous substances."). Through its rulings and memorandums, EPA has reaffirmed this position interpreting the exclusion to apply to materials such as crude oil, petroleum feedstocks and refined petroleum products even if a specifically listed or designated hazardous substance is present in said product. The exclusion does not apply, however, to materials such as waste oil to which a listed hazardous substance has been added. See 50 Fed. Reg. 13,460; Cose v. Getty Oil Co., 4 F.3d 700, 704 (9th Cir. 1993). In other words, the exclusion is inapplicable to released petroleum products where the concentration of hazardous substances is higher than their concentration in the virgin product, Organic Chem. Site PRP Group v. Total Petroleum, Inc., 58 F. Supp. 2d 755, 763 (W.D. Mich. 1999), or where the hazardous substance is added to the petroleum product during use. New York v. Exxon Corp., 766 F. Supp. 177, 186-87 (S.D.N.Y. 1991). The party claiming the benefit of the petroleum exception has the burden of proving that he or she falls within the exception's scope. Ekotek Site PRP Comm. v. Self, 932 F. Supp. 1319, 1323 (D. Utah 1993).
Esso maintains that hazardous substances in waste oil and in used automobile parts were disposed of on the property, along with gasoline, which became contaminated in the course of washing operations. Esso further contends that used motor oil became contaminated through use by: chemical reactions during the combustion process; absorption of fuel combustion products, blow-by gasoline and coolant; and wear of engine products. Additionally, Esso claims that the dumping on the ground of diesel fuel and gasoline contaminated by dirt and grease washed off cars and by the cleaning of greasy hands, led to contamination of the station with hazardous substances. Thus, according to Esso, the petroleum exclusion is inapplicable as a matter of law.
Belgodere responds that Esso has not been able to produce any scientific data to sustain its allegations. According to Belgodere, Esso has only presented scientific evidence demonstrating the presence of gasoline, diesel and their fractions which are specifically exempted from the definition of hazardous substances. Rodríguez and Ortiz join Belgodere in these arguments. Specifically, it is alleged by Belgodere that lead for instance was found at the station in background quantities, that is, in a concentration normally found in the environment. In addition, Belgodere claims that laboratory analyses of the soil at the station were negative or below detectable limits for both chromium and Polychlorinated Biphenyl.
The First Circuit has held that there is no minimum quantity threshold for the imposition of liability on polluters. United States v. Davis, 261 F.3d at 52 (citing Acushnet Co. v. Mohasco Corp., 191 F.3d at 76). "[I]n an appropriate set of circumstances, a tortfeasor's fair share of the response costs may even be zero. . . ." Id. This is so because CERCLA does not distinguish between releases or threats of releases by the quantity of hazardous waste attributable to a particular party.Acushnet Co. v. Mohasco Corp., 191 F.3d at 76. The issue is whether there has been any release or threat of release at the station of hazardous substances that although indigenous to a petroleum product, are found in concentrations higher than otherwise found in the product be it refined or unrefined or added to the petroleum product through use. If this question yields a positive answer, then it follows that liability may be imposed on the covered persons, see United States v. Davis, 261 F.3d at 52, and that the petroleum exclusion does not apply to the circumstances of this case.
The evidence in the record shows undisputably that listed hazardous substances were found at the station premises. Among them, lead and chromium were found in amounts that contrary to co-defendants' assertions, exceed background concentrations. For instance, recent soil testings revealed the presence of lead in concentrations as high as 885ppm. (See Rebuttal Expert Report of Robert M. Zoch, Jr., Docket No. 231, Ex. 46, at 4-5.) This concentration was found in a soil sample taken from the station's oil change pit outfall to the Piñonas River. (Docket No. 231, at 5.) Similarly, recent samples taken from the station revealed chromium concentrations ranging from 232ppm to 607ppm. (Id.) Based on these findings, Esso's expert, Mr. Robert M. Zoch, Jr., disagreed with co-defendants' argument that designated hazardous substances were found at the station's premises only in amounts below the background concentration levels. Zoch concluded, taking into consideration the area in which the elevated pollution concentrations were found, that the same were related to contaminant substances added to the used motor oil disposed of at the station. (Id.) In addition, Zoch concluded that the pollutants found in the oil change area were indicative of wear metals introduced into engine oil. The hands and parts washing locations at the station also exhibited an increased level of hazardous substances according to Zoch. (Id.) Finally, Zoch stated that the above referenced data supported his opinion that the operations directed and performed under the management of the codefendants caused the further migration of hazardous substances like lead and chromium at the station.
Belgodere relies on the Phase III/IV Site Assessment of the station prepared by ERTEC and submitted on February of 2002 (Docket No. 236, Ex. 3) for his proposition that hazardous substances were found at the station either below detectable limits or within background concentrations. However, the elevated levels of hazardous substances at the station were found in what Zoch described in his rebuttal report as recent soil testings performed in 2003 as part of the remediation activities supervised by the EQB. (Docket No. 231, Ex. 46, at 4.) The co-defendants present nothing to controvert the data concerning the higher levels of hazardous materials and their direct correlation to the oil changing activities performed at the station for years.
It has been held that spilling virgin motor oil on the ground cannot under the petroleum exclusion of CERCLA be considered a release of a hazardous substance; however, spilling used motor oil containing substances not found in virgin motor oil almost certainly is. Darton Corp. v. Uniroyal Chem. Co., 917 F. Supp. 1173, 1183 (N.D. Ohio 1996); see also United States v. Alcan Aluminum Corp., 964 F.2d at 266 (citing 50 Fed. Reg. 13,460) ("EPA does not consider materials such as waste oil to which listed CERCLA substances have been added to be within the petroleum exclusion."). In this case, it was concluded by Esso's expert that automobile crankcase oil, such as the one handled in oil changing operations at the station, is contaminated by wear metals and fuel residues and that its composition was altered by oxidation. (Docket No. 231, Ex. 46, at 7.) Furthermore, the normal use of engine oil adds hazardous substances not excluded by CERCLA's petroleum exclusion. (Id.) Once again, the co-defendants fail to controvert any of these conclusions. Therefore, I hold that the co-defendants have not meet their burden of showing that they fall under the scope of the petroleum exclusion. Foster v. United States, 926 F. Supp. 199, 205-06 (D.D.C. 1996) (holding that a defendant must controvert the plaintiff's allegations concerning the hazardous composition of the petroleum product in order to take advantage of the exemption). Simply put, there was a release of hazardous substances at the station.
To the extent that the co-defendants may be arguing that they should escape liability as de minimis polluters, they are reminded of the First Circuit's admonition in Acushnet Co. v. Mohasco Corp., 191 F.3d at 77-78. In that case, the court of appeals held that:
a defendant may avoid joint and several liability for response costs in a contribution action under § 9613(f) if it demonstrates that its share of hazardous waste deposited at the site constitutes no more than background amounts of such substances in the environment and cannot concentrate with other wastes to produce higher amounts. This rule is not based on CERCLA's causation requirement, but is logically derived from § 9613(f)'s express authorization that a court take equity into account when fixing each defendant's fair share of response costs.Id. In view of this, it is clear that the co-defendants erroneously assert that they are not liable as a matter of law for any response costs. First, it has already been determined that the co-defendants disposed of hazardous substances at the station and that such substances appear in levels exceeding background amounts. Second, any argument regarding the particular amounts of contaminants attributable to each co-defendant goes to the question of the equitable factors that the court must consider in the allocation of response costs. Since the present matter only relates to the issue of liability for contribution, the determination of each co-defendants' fair share of response is not now before the court.
4. Response Costs
For the imposition of contribution liability under CERCLA, the court also needs to determine whether the party seeking contribution incurred in response costs as a result of the release and whether said costs were necessary and consistent with the NCP. As to this issue, the record establishes that Esso has indeed incurred in response costs as part of the remediation efforts undertaken at the station. Esso submits that between August of 1998 and October of 2003, it incurred in costs totaling $10,585,974. (Zoch's Report, Docket No. 231, at 23, Ex. 46.) Such amount includes, according to Esso, the costs of preliminary site assessment/remediation plan, supplemental investigations, an engineering/remediation plan, site remediation, and site management. (Id.) Esso further contends that these response costs were necessary and consistent with the NCP. They were necessary, Esso maintains, because they were incurred principally in compliance with EQB's administrative orders and concerns. They were consistent with the NCP because in incurring in these costs, Esso and its contractors considered all of the NCP requirements such as workers' safety and health and remedy evaluation and selection. The co-defendants do not dispute any of these contentions.
Response costs include removal and remedial actions aimed at remedying immediate threats of public health and safety caused by hazardous substances and directed at long-term or permanent remediation of the contamination. See 42 U.S.C. § 9601(23)-(25); In re Hemmingway Transp., Inc., 993 F.2d 915, 931 n. 19 (1st Cir. 1993).
I find that the costs incurred by Esso in the performance of remediation activities at the station by reason of the release of hazardous substances were at least in part necessary response costs under CERCLA. I also find that these costs were consistent with the NCP in the absence of an attempt by the co-defendants to create a factual dispute on the issue. The rule is that remedial and removal actions generating response costs must be consistent with the NCP in order to be recoverable under CERCLA. Carson Harbor Vill., Ltd. v. Unocal Corp., 287 F. Supp. 2d 1118, 1152 (C.D. Cal. 2003). Under EPA regulations, a private response action is deemed consistent with the NCP if the action evaluated as a whole is in "substantial compliance" with certain NCP procedural requirements and if it constitutes a "CERCLA-quality cleanup." Pichowicz v. Atl. Richfield, 37 F. Supp. 2d 98, 101 (D.N.H. 1997) (citing 40 C.F.R. § 300.700(c)(3)(i)). In addition, it has been held that oversight and approval of remediation plans by a state agency is sufficient to satisfy the requirement of consistency with the NCP. See, e.g., Nutrasweet Co. v. X-L Eng'g Co., 227 F.3d 776, 790 (7th Cir. 2000); Bedford Affiliates v. Sills, 156 F.3d 416, 428 (2nd Cir. 1998); Norhtfolk S. Ry. Co. v. Gee Co., 158 F. Supp. 2d 878, 883 (N.D. Ill. 2001);Sherwin-Williams Co. v. Artra Group, Inc., 125 F. Supp. 2d 739, 752 (D. Md. 2001); Am. Color Chem. Co. v. Tenneco Polymers, Inc., 918 F. Supp. 945, 957 (D.S.C. 1995). Here, most if not all of the remediation work performed at the station was under the approval and monitoring of the EQB, a state administrative agency dealing with environmental issues. Therefore, I find that the response costs incurred by Esso were consistent with the NCP.
I say "at least in part" because the question is highly factual and at this stage, where the court is simply considering the issue of liability, I am in no position to conclude that all the costs incurred were necessary. This question will be addressed in the allocation of response costs phase.
5. Other Grounds Raised in Support of Partial Summary Judgment
Rodríguez and Ortiz raise several other grounds in support of their contention that summary judgment on the issue of CERCLA liability should be granted in their favor. Specifically, these co-defendants maintain that the present action is barred by: the applicable statute of limitations; res judicata; waiver; and the equitable doctrine of laches. Finding that the grounds argued either have no merit, have already been decided or are asserted in a perfunctory manner, I find it unnecessary to address them in a lengthy discussion. As such, there being no dispute as to any material fact and finding that Esso is entitled to judgment as a matter of law on the question of liability for contribution under CERCLA, Esso's motion for partial summary judgment is GRANTED. It follows that co-defendants Belgodere, Rodríguez and Ortiz' cross-motions for summary judgment are DENIED.
B. Esso's Motion for Summary Judgment: Co-defendants' Counterclaim
On July 8, 2002, co-defendants Rodríguez and Ortiz filed a counterclaim against Esso along with their answer to the complaint. (Docket No. 50.) In it, they assert claims for: (1) lost income; (2) lost future income; (3) lost gasoline; (4) slander; (5) attorney's fees incurred in defending themselves before the EQB; (6) mental anguish; and (7) injunctive relief. (Id.) Esso contends that summary judgment is warranted with respect to co-defendants' negligence and defamation claims inasmuch as they are barred by Puerto Rico's one-year statute of limitation. In the alternative, Esso maintains that the co-defendants have failed to establish claims for loss of past and future income, mental anguish, defamation and attorney's fees. As to the claim for injunctive relief, Esso argues that the same has become moot.
The co-defendants failed to submit an opposition to Esso's motion for partial summary judgment. However, such failure is not conclusive. López v. Corporación Azucarera de P.R., 938 F.2d 1510, 1517 (1st Cir. 1991). To the contrary, "[t]he failure of the nonmoving party to respond to a summary judgment motion does not in itself justify summary judgment." Id. "[T]he district court [is] still obliged to consider the motion on its merits, in light of the record as constituted, in order to determine whether judgment would be legally appropriate." Mullen v. St. Paul Fire Marine Ins. Co., 972 F.2d 446, 452 (1st Cir. 1992) (quoting Kelly v. United States, 924 F.2d 355, 358 (1st Cir. 1991)); see also Empress Hotel Inc. v. Puerto Rico, 218 F. Supp. 2d 189, 197 (D.P.R. 2001). In fact, before granting summary judgment the court must make sure that the moving party has met its burden of demonstrating that there are undisputed facts entitling that party to judgment as a matter of law. Jaroma v. Massey, 873 F.2d 17, 20 (1st Cir. 1989).
1. Negligence and Defamation: Statute of Limitations
Under article 1869 of the Puerto Rico Civil Code, an action prescribes in one year if it is an "[a]ction to demand civil liability for grave insults or calumny, [or] for obligations arising from the fault or negligence mentioned in § 5141 of this title, from the time the aggrieved person had knowledge thereof." 31 P.R. Laws Ann. § 5298(2). The Puerto Rico Supreme Court has incorporated into the statute a "discovery rule" under which a claim accrues — and the limitations period starts to run — not at the time of the injury but when the injured party discovers the same and its author. González-Pérez v. Hosp. Interamericano de Medicina Avanzada (HIMA), 355 F.3d 1, 2 (1st Cir. 2004) (citing Espada v. Lugo, 312 F.3d 1, 5 (1st Cir. 2002)). In other words, the injured person must have notice of the injury and knowledge of the likely identity of the tortfeasor. Espada v. Lugo, 312 F.3d at 3 (citing Tokyo Marine Fire Ins. Co. v. Pérez y Cia. de P.R., Inc., 142 F.3d 1, 3 (1st Cir. 1998)). Actual knowledge is not necessary when the knowledge would have been acquired in the exercise of due diligence. Espada v. Lugo, 312 F.3d at 4. As to the notice of the injury requirement, the same "occurs when there `exist some outward or physical signs through which the aggrieved party may become aware and realize that he has suffered an injurious aftereffect, which when known becomes a damage even if at the time its full scope and extent cannot be weighed.'" Torres v. E.I. Dupont de Nemours Co., 219 F.3d 13, 19 (1st Cir. 2000) (quoting Kaiser v. Armstrong World Indus., Inc., 872 F.2d 512, 516 (1st Cir. 1989)). On the other hand, the second prong is satisfied when a plaintiff knows or should have known, by exercising the degree of diligence required by law, whom to sue. Kaiser v. Armstrong World Indus., Inc., 872 F.2d at 516. What is required in terms of knowledge of the author is "some level of reasonable likelihood of legal liability on the part of the person or entity that caused the injury. . . ."Rodríguez-Suris v. Montesinos, 123 F.3d 10, 13-14 (1st Cir. 1997).A claim for defamation is subject to the same standard; namely that the claim accrues at the time the person injured by a defamatory statement learns of the same. Ojeda v. El Vocero de P.R., 137 D.P.R. 315, 335 (1994); Santiago v. Lloyd, 33 F. Supp. 2d 99, 105 (D.P.R. 1998). It is at that time that the one-year statute of limitations starts to run.
In this case, the general allegations in the counterclaim arise out of the contractual relationship between Esso and the co-defendants by which the latter provided the Underground Storage Tanks ("USTs") used at the station operated by the former. Esso allegedly failed to respond to numerous complaints regarding problems with the USTs that ultimately resulted in product release at the premises. The co-defendants specifically aver in their counterclaim that "Plaintiff [Esso], intentionally and or negligently, ignored Defendant Rodriguez notices [sic] of equipments [sic] problems that resulted in the contamination of the surrounding soils, river and groundwater, with leaded, unleaded and diesel [sic]." (Docket No. 50, at 9, ¶ 4.)
Co-defendants Rodríguez and Ortiz' lost income, lost future income, lost gasoline claims and the defamation cause of action all sound in tort, and are thus covered by Puerto Rico's one-year statute of limitations. The record establishes that co-defendants knew well before July 8, 2001 (that is one-year prior to the filing of the counterclaim), that there had been a release of gasoline at the station. Their own allegations show that they had been complaining to Esso about problems with the UST system for years. In addition, the evidence in the record demonstrates that on March 10, 1997, Belgodere called the NRC and reported the alleged loss of 80,000 gallons of gasoline at the station. That call was made in the presence of Rodríguez who in turn blames Esso for such product release. Consequently, it is clear that the co-defendants knew at least since March 10, 1997 about the loss of gasoline at the station and therefore about the injury causing the alleged lost of income and the identity of the tortfeasor. They had until March 10, 1998 to file their claim. Furthermore, even if the court were to conclude that the co-defendants commenced to suffer loss of income at the time the station was closed in August of 1998, it would still be the opinion of the court that such claim is time-barred. The same rationale applies to the claim of lost future income. The co-defendants lost their ability to earn income at the time the station was closed in August 1, 1998. They knew that the reason the station was closed was due in part by problems related to the gasoline spill at the station which they maintain was caused by Esso's alleged negligent actions. Accordingly, they had one year to bring their counterclaim, that is until August 1, 1999. By failing to do so, and bringing such claims on July 8, 2002 as part of their counterclaim, there is no factual controversy that said claims are barred by the applicable one-year statute of limitations. Therefore, summary judgment is warranted as to all claims based on negligence including mental anguish.
Rodríguez knew at least since September 22, 2000, when he visited Dr. Jaime A. Rivera and complained of anxiety and insomnia, that he was suffering from some degree of mental anguish. The record also establishes that even prior to 1998, Rodríguez suffered from some kind of mental problems that were aggravated by the closure of the station in 1998. Such claim is clearly barred by the statute of limitations.
Co-defendants' defamation claim fares no better. Since the co-defendants have not opposed Esso's motion for summary judgment, the court is left with Esso's own characterization regarding the nature of the alleged defamatory statement. According to Esso, the defamatory statements for which the co-defendants now seek damages relate to two separate incidents. First is the report of a contractor hired by Esso who submitted an allegedly false memorandum to the Puerto Rico Department of Justice in September of 1998. The memorandum apparently contained a declaration by said contractor that Rodríguez had intimidated him during an altercation that occurred at the station in early August of 1998. Second is the claim of a defamatory statement contained in a letter to the public that Esso published in El Nuevo Día on October 16, 1999. Given the dearth of evidence tending to dispute that the co-defendants acquired knowledge of the defamatory statements at dates subsequent to the actual publication of these statements, it is clear from the record that co-defendants' defamation claims are time-barred. See Ojeda v. El Vocero de P.R., 137 D.P.R. at 336-37. Such determination is made taking the facts in the light most favorable to the co-defendants and assuming that they have alleged enough to state viable defamation claims. Esso's motion for summary judgment with respect to this issue is GRANTED.
Having found that co-defendants' claims alleging negligent conduct and defamation are time-barred, I find it unnecessary to address the merits Esso's alternative arguments that such causes of action fail as a matter of law.
2. Attorney's Fees
The co-defendants allege in their counterclaim that "[d]ue to Plaintiff [sic] intentional or negligent omission to correct the equipment problems, Defendants Carlos Rodríguez, Carmen Ortiz and their conjugal partnership have been forced to retain counsel and consultants, investing and or obligating [sic] in excess of $150,000.00 in order to defend themselves at the Puerto Rico Environmental Quality Board." (Docket No. 50 at 9, ¶ 9.) Esso in turn contends that under Puerto Rico law, an award of attorney's fees usually follows a finding that the party ordered to pay such an award acted obstinately. According to Esso, it has already been recognized in this case — when the court denied codefendants' motion to dismiss — that Esso's CERCLA contribution claim was not frivolous. Esso also maintains that there is enough evidence in the record to support a conclusion that the co-defendants are liable for contribution under CERCLA and that Esso has prosecuted its case diligently. Therefore, Esso argues that absent frivolousness or obstinacy, an award of attorney's fees to the co-defendants should as a matter of law be denied.In Puerto Rico, awards of attorney's fees are governed by Rule 44.1(d) of the Puerto Rico Rules of Civil Procedure. Rules 44.1(d) provides in relevant part that "[i]n the event any party or its lawyer has acted obstinately or frivolously, the court shall, in its judgment, impose on such person the payment of a sum for attorney's fees which the court decides corresponds to such conduct." 32 P.R. Laws Ann. App. III Rule 44.1(d). The Puerto Rico rules do not define the term obstinacy. Correa v. Cruisers, A Div. of KCS Int'l, Inc., 298 F.3d 13, 30 (1st Cir. 2002). However, it has been held, based on Puerto Rico caselaw, that a finding of obstinacy requires a determination that a party "[has] been unreasonably adamant or stubbornly litigious, beyond the acceptable demands of the litigation, thereby wasting time and causing the court and the other litigants unnecessary expense and delay." De León López v. Corporación Insular de Seguros, 931 F.2d 116, 126 (1st Cir. 1991). The purpose of the rules is to "`impose a penalty upon a losing party that because of his stubbornness, obstinacy, rashness, and insistent frivolous attitude has forced the other party to needlessly assume the pains, costs, efforts, and inconveniences of a litigation.'" Top Entm't Inc. v. Torrejon, 351 F.3d 531, 533 (1st Cir. 2003) (quoting Fernández Mariño v. San Juan Cement Co., 18 P.R. Offic. Trans. 823, 830, 18 P.R. Dec. 713 (1987)). The imposition of attorney's fees is mandatory once the court determines that one of the parties incurred in obstinate conduct.Correa v. Cruisers, A Div. of KCS Int'l, Inc., 298 F.3d at 30.
Nothing in the record supports a finding of obstinacy on the party of Esso that would justify an award of attorney's fees. Esso correctly points out that the court denied a motion to dismiss (treated as a motion for summary judgment) filed by co-defendant Belgodere. In its opinion and order (Docket No. 170), the court concluded that issues of material fact in dispute precluded the entry of summary judgment. Such determination, in and of itself, negates a finding of frivolousness on the part of Esso. Additionally, the court has already determined that the co-defendants are liable to Esso under CERCLA's contribution provision. Having failed to create a factual dispute regarding this issue, I find that the co-defendants are precluded from recovering attorney's fees from Esso inasmuch as the record does not support a finding of obstinacy. As to this issue, Esso's motion for summary judgment is also GRANTED.
3. Injunctive Relief
Finally, Esso contends that summary judgment is appropriate with respect to co-defendants' request for injunctive relief. In their counterclaim, the co-defendants asserted the following: "Plaintiff should be ordered to correct immediately all contamination and to refurnish the service station so that Defendants Carlos Rodríguez and Carmen Ortiz can continue operating their business free of any environmental problem." (Docket No. 50 at 10, ¶ 11.) Esso argues that such request should be denied as moot because Esso already is actively engaged in an approved investigation and remediation of the station. In fact, Esso has proceeded with remediation work under EQB orders since 1998. Thus, according to Esso, the court can provide no relief to the defendants that is not already being provided by Esso pursuant to EQB's remediation orders.
"`A case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome.'" City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). In their very general request for injunctive relief, the co-defendants ask for something that is already being performed pursuant to the orders and the supervision of the EQB. And once again, having failed to meet their burden on summary judgment by failing to present evidence or arguments in their favor, the co-defendants fail to show that there is a factual dispute regarding the injunctive relief requested. Because the issue has become moot, I find that judgment as a matter of law is warranted with respect to co-defendants' request for injunctive relief. Therefore, as to this issue, Esso's motion for summary judgment is also GRANTED.
IV. CONCLUSION
In view of all of the above, I find that Esso has establish the absence of genuine issues of material fact as to co-defendants' liability for contribution under CERCLA. Accordingly, Esso's motion for partial summary judgment on said question is GRANTED. The motions for summary judgment filed by co-defendants Belgodere, Rodríguez and Ortiz on the same issue are DENIED. Esso is also entitled to judgment as a matter of law on the counterclaim filed by Rodríguez and Ortiz. Therefore, Esso's motion for summary judgment on that issue is also GRANTED.SO ORDERED.