# Seattle Times Co. v. Leathercare, Inc.

> District Court, W.D. Washington · August 15, 2018 · 337 F. Supp. 3d 999

URL: https://www.frixlaw.com/law-library/cases/7250347

## Case

- **Full name:** SEATTLE TIMES COMPANY v. LEATHERCARE, INC. Steven Ritt and the marital community composed of Steven Ritt and Laurie Rosen-Ritt, Defendants/Third-Party v. Touchstone SLU LLC and TB TS/RELP LLC, Third-Party
- **Court:** District Court, W.D. Washington
- **Decided:** August 15, 2018
- **Citations:** 337 F. Supp. 3d 999
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Zilly
- **Judges:** Zilly
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7250347

## How later opinions describe it (automated extraction)

- noting that the orphan 7 share “doctrine is equitable in nature”

## Opinion text

Thomas S. Zilly, United States District Judge
THIS MATTER came on for trial on January 9, 2018, before the Court, sitting without a jury. Seattle Times Company ("Seattle Times") was represented by Jeff Kray and Jessica Ferrell of Marten Law PLLC. LeatherCare, Inc. ("LeatherCare"), Steven Ritt, and the marital community composed of Steven Ritt and Laurie Rosen-Ritt were represented by Jo Flannery and Kristin Meier of Ryan, Swanson & Cleveland, PLLC. Touchstone SLU LLC and TB TS/RELP LLC (collectively, "Touchstone") were represented by Jeremy (Jake) Larson of Dorsey & Whitney LLP and Kenneth Lederman of Foster Pepper PLLC.
Trial proceeded for eighteen (18) days and ended on February 7, 2018, at which time the Court took the matter under advisement. Having considered the testimony of the witnesses, 1 the exhibits admitted into evidence, 2 the documents and PowerPoint slides offered for demonstrative purposes, the facts on which the parties have *1008 agreed to the extent they are supported by the record, see Pretrial Order (docket no. 154) [hereinafter "PTO"], and the arguments of counsel, the Court now enters these Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a). 3
Background
A. Introduction
This action concerns the remediation costs associated with hazardous substances, including PCE or Perc 4 and various petroleum products, released on real property bounded by Fairview Avenue North, Thomas Street, Boren Avenue North, and Harrison Street in Seattle, Washington (the "Property"). The Property was contaminated as a result of dry-cleaning and other operations conducted by LeatherCare, which previously leased a portion of the Property, and Troy Laundry Co., which became Troy Linen and Uniform Service, Inc. in 1981 ("Troy"), see Ex. 1150, and which owned the Property. Seattle Times purchased the Property from Troy in 1985, and sold it to Touchstone in 2011. After acquiring the Property, Touchstone redeveloped it into a commercial complex. As part of construction efforts, Touchstone's contractors excavated over 100,000 tons of contaminated soil, which was transported to appropriate waste facilities. In addition, Touchstone had a series of injection wells installed at the Property to address groundwater contamination.
In this action, Touchstone seeks to recover over $9.88 million in connection with its remedial activities. 5 Touchstone has already recovered $4,783,434.17 from Seattle Times pursuant to a contract between the parties, and it seeks the balance of almost $5.1 million from Seattle Times or LeatherCare. Touchstone also requests a judgment declaring the parties' respective responsibilities for future response costs. Seattle Times seeks to recover from LeatherCare and/or Mr. Ritt, the current President of LeatherCare, see Ritt Decl. at ¶ 2 (docket no. 61), substantially all of what it has paid, or will be liable to pay, to Touchstone. LeatherCare and Mr. Ritt ask for declaratory relief, as well as contribution, contending that Mr. Ritt cannot be held personally liable and that the Court should equitably apportion the expenses *1009 at issue among all of the parties. Seattle Times asserts its claims against LeatherCare and Mr. Ritt under both federal and state statutes relating to environmental cleanup, while Touchstone relies solely on state law.
1. The Property
The Property consists of two tax parcels, covering approximately 2.5 acres of land, in a neighborhood of Seattle just south of Lake Union, as shown on the following map.
Troy acquired a portion of the Property in 1925, and owned the entire block by 1951. When Seattle Times purchased the Property from Troy in 1985, the Property had three improvements, as shown in Figures 2 and 3, namely a vintage warehouse built in 1925, located at 334 Boren Avenue North (Building 1), 6 a vintage industrial facility constructed by 1927 and expanded between 1943 and 1966, bearing an address of 307-311 Fairview Avenue North (Building 2), and a vintage structure erected in 1960, designated as 333 Fairview Avenue North (Building 3). 7 Ex. 107 at 10-11; Ex. 115 at 147-58.
*1010 Troy operated in Building 2 both an industrial laundry and a dry-cleaning plant. Troy also fueled and serviced its fleet of vehicles at the Property. In 1957, LeatherCare's predecessor, Seattle Fur Services, began leasing a portion of Building 2 from Troy. In 1981, LeatherCare also became a tenant of Building 3. LeatherCare continued to lease from Troy until March 5, 1985, when Troy sold the Property to Seattle Times for $3.5 million. From March until September 1985, LeatherCare leased space in Building 2 from Seattle Times, and LeatherCare occupied Building 3 until 1999. See infra p. 1027-28. On June 10, 2011, Seattle Times sold the Property to Touchstone for $18.4 million. As a result of Touchstone's redevelopment efforts, the Property is now occupied by a two-building complex with a five-story, underground parking garage. Figure 4 shows the new office space in the final stages of construction.
*1011 2. The Hazardous Substances
This matter involves two types of hazardous substances, namely (i) halogenated hydrocarbons, 8 and (ii) petroleum products.
a. Halogenated Hydrocarbons
PCE or Perc, which is a halogenated hydrocarbon, is a synthetic chemical that is not known to occur in nature. See Tab 11 to Dale Report (docket no. 183-13 at 19 & 22). During the period when LeatherCare leased Buildings 2 and 3 from Troy, PCE was commonly used as a solvent in the dry-cleaning industry, and it was the dominant synthetic solvent. See Dale Report, Ex. 210 at 2 (filed as docket no. 118-1). Because of its tendency to transition from a liquid to a gaseous state at normal temperatures, PCE is considered a volatile organic compound ("VOC"). See Tab 11 to Dale Report (docket no. 183-13 at 41 & 47). PCE is also described as a dense non-aqueous phase liquid ("DNAPL"), meaning that it has a higher specific gravity ( i.e. , it is heavier) than water, and that it will separate from water, in a manner similar to how oil and vinegar, or the fat and juice of roasted meat drippings, will settle into different layers. See id. (docket no. 183-13 at 40-41).
PCE can degrade into trichloroethylene or trichloroethene ("TCE"), as well as other compounds, including vinyl chloride (C 2 H 3 Cl). Chronic inhalation exposure to these substances can lead to neurological disorders, kidney or liver disease, and/or reproductive dysfunction. See PCE Fact Sheet, Ex. 457; see also Toxicological Profiles (available at www.atsdr.cdc.gov). The United States Environmental Protection Agency ("EPA") has classified PCE as "likely to be carcinogenic" and both TCE and vinyl chloride as "carcinogenic to humans."
*1012 See https://www.epa.gov/fera/risk-assessment-carcinogenic-effects (Table 1). In addition to being a degradation product of PCE, TCE is frequently an original component of water and stain repellants, vehicle brake part and carburetor cleaners, sizing materials, spotting and degreasing agents, lubricants, battery terminal protectants, and printing inks like those used by Seattle Times. Morrill Report at §§ 4.2.1.2.1 & 4.8 and App'x J, Ex. 1141 (filed as docket nos. 117-1 & 117-13); see also https://www.epa.gov/sites/production/files/2015-01/documents/printing.pdf.
The Washington Department of Ecology ("Ecology") has established "cleanup" levels for certain chlorinated hydrocarbons, which are the concentrations "in soil, water, air, or sediment" that are "determined to be protective of human health and the environment under specified exposure conditions." WAC 173-340-200. The "cleanup" concentrations relevant in this litigation are as follows:
Substance In Soil In Groundwater PCE 0.05 mg/kg 5 µg/liter TCE 0.03 mg/kg 5 µg/liter Vinyl Chloride N/A 0.2 µg/liter
WAC 173-340-900 at Tables 720-1, 740-1, & 745-1.
b. Petroleum Products
Other contaminants of concern at the Property were Stoddard solvent, gasoline, and diesel fuel. Like PCE, Stoddard solvent was once a popular compound in the dry-cleaning industry. Stoddard solvent is a flammable, volatile liquid, which is insoluble in water and smells similar to kerosene or gasoline. It is not generally regarded as carcinogenic, but very few studies have been done on the effects in humans of inhalation exposure to Stoddard solvent. See Toxicological Profile for Stoddard Solvent (June 1995), Ex. 452 at 23. Stoddard solvent is considered a gasoline-range petroleum hydrocarbon ("GRPH"). At the Property, Stoddard solvent was stored in underground tanks. Gasoline for use in Troy's fleet of vehicles and diesel fuel for use presumably as heating oil were also stored underground. Ecology has set a "cleanup" level for GRPH of 100 mg per kg of soil. See WAC 173-340-900 at Tables 740-1 & 745-1.
3. PCE Emissions from Dry-Cleaning Operations
In this matter, the parties have stipulated that, as a result of dry-cleaning operations, PCE was released into the subsurface soil and migrated to the groundwater beneath the Property. See Stip. & Order at ¶ 2 (docket no. 41); Stip. & Order at ¶ 2 (docket no. 52). The parties also agree that the contamination occurred primarily in two ways. First, it resulted from placing PCE-saturated materials in the back of a dump truck, which was owned and used by Troy to haul waste to a transfer station, and which was left, uncovered at times, in the partially-unpaved loading dock, thereby allowing rain water to soak through the rubbish and solvent to infiltrate the soil. See PTO at 10, ¶ 22. Second, PCE was discharged into the subsurface soil because of degradation of the drainpipes and side sewers 9 that carried effluent water commingled with solvent to the municipal sewer *1013 main running under Boren Avenue North. See PTO at 8-9, ¶¶ 13 & 19; see also Kransnoff Report at Op. 1, Ex. 213 at 5-13; Morrill's Rebuttal & Supp. Report at Gen. Op. 4, Ex. 1145 at 21-22 (filed as docket no. 117-15) (opining that the drain and sewer lines at the Property were corroded before LeatherCare began using PCE in its operations). The parties dispute, however, the extent to which Troy, along with LeatherCare, is responsible for the PCE contamination at the Property, and whether Troy, in addition to LeatherCare, ran a PCE-based dry-cleaning plant at the Property.
a. Components of a Dry-Cleaning System
To fully comprehend the parties' stipulations concerning how PCE was released at the Property, knowledge about dry-cleaning operations is required. The term "dry cleaning" is a misnomer because the clothes still get wet during the process; however, they are immersed in a liquid other than water. Whether the liquid is PCE, Stoddard, or another non-aqueous solvent, the principal steps are identical to those of laundering in water: (i) one or more washes (baths) in the solvent; (ii) extraction of the solvent by spinning; and (iii) drying by tumbling in an air stream. 10 Ex. 270 11 at 14 (filed as Tab 48 to Dale Report, docket no. 183-50). The washing and drying components of a typical dry-cleaning system are shown in yellow in Figure 5.
*1014 Because PCE is both expensive and toxic, PCE systems include additional equipment designed to capture and reuse the solvent. As illustrated in Figure 5, a basic PCE system has the following extra components (tinted in red): (i) a filter to separate particulates from the used solvent; (ii) a distillation unit (or still), which heats the recycled PCE to vaporize it; (iii) a condenser, which cools the purified gas and converts it to liquid form; and (iv) a separator to divide from the reclaimed PCE any water that has entered the system. See id. at 16 (Fig. 2-1); see also Dale Report, Ex. 210 at 3-4; cf. Morrill Rebuttal & Supp. Report at Fig. 3-1, Ex. 1145 at 19 (filed as docket no. 117-15) (indicating that an operation using Stoddard solvent would likewise have, in addition to a washer/extractor and dryer, a filter, still, condenser, and separator); Ex. 392 at 17 (Fig. 2-1) (filed as Tab 72 to Krasnoff Report, docket no. 189-20). A PCE plant with emission control would also have a carbon adsorber, sometimes called a sniffer, along with an additional condenser and another separator, to collect solvent fumes from the air. See Ex. 270 at 16-17; see also Ex. 210 at 3 (Fig. 1). These extra, emission-control elements are highlighted in green in Figure 5.
The parties agree that LeatherCare's PCE dry-cleaning system had reclamation elements (filter, still, condenser, and separator), as well as emission-control components (adsorber and additional condenser and separator). See PTO at 9, ¶ 18. For the reasons discussed later, the Court finds that Troy also operated a PCE dry-cleaning plant at the Property, and that Troy's facility was equipped with a reclamation *1015 unit, but had no emission control. See infra pp. 1019-21. PCE-reclamation and emission-control devices generate waste in two forms: (i) PCE-laden solid materials, like filter muck, filter cartridges, and still residue, that was, in connection with Troy's and LeatherCare's operations, deposited into the dump truck parked in the loading dock, and (ii) PCE-contaminated waste water, which in this matter ran through the side sewers before leaving the Property. The parties have offered disparate views concerning the quantity of PCE released at the Property via its disposal with solid waste and/or waste water.
b. Quantifying PCE Releases
In its 1978 report, a copy of which was admitted as Exhibit 270, the EPA provided estimates concerning typical PCE emissions from dry-cleaning facilities. The amount of PCE lost each year depends on the quantity of PCE used annually, which correlates with the size of the dry-cleaning operation. For purposes of its study, the EPA defined three types of dry-cleaning facilities: (i) independent or franchise stores offering coin-operated, self-service systems, which processed roughly 7,200 kg (16,000 lbs) of clothes per year; (ii) "commercial" operations, including neighborhood shops and specialty cleaners handling leather and other fine goods, which would each handle about 23,000 kg (60,000 lbs) of clothes per year; and (iii) "industrial" plants involved in supplying uniforms or other items to commercial customers, which would typically clean 240,000 to 700,000 kg (600,000 to 1,500,000 lbs) of clothes per year. Ex. 270 at 13. The parties agree that LeatherCare's PCE-based system at the Property was a "commercial" dry cleaner. As explained later, see infra p. 1021, the Court finds that Troy's PCE dry-cleaning operation was also "commercial" in scope.
When the EPA issued its report in 1978, the typical "commercial" PCE plant had a 14-27 kg (30-60 lb) capacity washer/extractor and an equivalent-sized dryer (reclaiming tumbler). Ex. 270 at 17. Surveys conducted in the mid-1970s revealed that only 35-to-50% of "commercial" dry cleaners had carbon adsorbers (sniffers). Id. According to the EPA, a well-operated PCE system without a sniffer (like Troy's) was estimated to lose, through various emissions, between 8 and 21 kg of solvent per 100 kg of clothing laundered, while an adsorber-equipped plant (like LeatherCare's) was believed to experience less than 5 kg of solvent loss per 100 kg of clothing laundered. Id. at 18-19. The EPA identified the following primary mechanisms of PCE loss: (i) evaporation at the washer and dryer, which is minimal if a sniffer is employed; (ii) retention in the filter muck, which can be reduced by cooking the muck to reclaim the solvent; (iii) retention in filter cartridges, which can be reduced by drying them in a cabinet vented to an adsorber; (iv) retention in the still residue; and (v) leaks from pumps, valves, flanges, seals, and storage vessels. Id. at 17-18.
The EPA also recognized that carbon adsorbers and muck cookers are not perfect emission-control technologies. PCE vapor would still be released through a sniffer's exhaust, but at an estimated rate of only 0.3 kg per 100 kg of clothing laundered (as compared to evaporation losses without an adsorber of 4-to-7 kg per 100 kg of clothes in the aggregate at the washer/extractor and dryer). Id. at 18. A filter muck cooker could substantially reduce PCE loss, but not below 1 kg per 100 kg of clothing laundered. See id. Thus, even with the then state-of-the-art control technologies, a "commercial" dry cleaner operating during the timeframe at issue in this case could expect to lose about 1,150 kg (194.6 *1016 gal) 12 of PCE per year through (i) disposal of filter muck, filter cartridges, and still residue, (ii) adsorber exhaust, and (iii) various leaks. In addition, both carbon adsorbers and muck cookers increase the amount of water that comes in contact with PCE, which results in solvent being discharged along with effluent water to the sewer system. See id. at 48-51. Based on a figure of 100 ppm of PCE in effluent water, the EPA predicted that "commercial" dry cleaners using sniffers and muck cookers would dispose of at least 1.4 kg (0.24 gal) of PCE per year with their waste water, and that "industrial" dry cleaners with similar equipment would lose 13.4 kg (2.3 gal) of PCE per year down the sewer. Id. at 50-51.
Seattle Times contends that LeatherCare experienced much higher losses of PCE than was estimated by the EPA to be typical for "commercial" dry cleaners, relying on the opinion of its expert Bruce E. Dale, Ph.D. Dr. Dale's calculations depended on the assumption that, to replace the PCE lost during dry-cleaning operations, LeatherCare purchased 1,977 gallons of PCE per year; Dr. Dale rounded this figure up to 2,000 gallons of PCE per year. Ex. 210 at 8 & 12 (filed as docket no. 118-1). Of those 2,000 gallons of PCE lost per year, Dr. Dale believes that 30% (600 gallons of PCE per year) was released to the sewer, while the remaining 70% (1,400 gallons of PCE per year) was discharged with filter muck, filter cartridges, and still bottoms. Id. at 12.
Dr. Dale's numbers are inconsistent with those of Bernard Tod Delaney, Ph.D., P.E., BCEE, another expert retained by Seattle Times, but in the related insurance coverage dispute, Seattle Times Co. v. Nat'l Sur. Corp. , W.D. Wash. Case No. C13-1463 TSZ. The experts in this case discussed Dr. Delaney's opinions in the other case, and his report was admitted into evidence as Exhibit 1140. The Court concludes that Dr. Dale's analysis is flawed because it ignores the amount of PCE released to the air. The Court further observes that Dr. Delaney's estimates 13 are substantially similar to those of LeatherCare's expert, Pamela J. Morrill, L.G., L.H.G., 14 and to the ratios contained in an *1017 EPA report issued in June 1998, see EPA 744-B-98-001 at Ex. 10-9 (filed as App'x A to Morrill Rebuttal & Supp. Report (docket no. 117-16 at 826) ); see also Ex. 1145 at 35 (Table 4-6) (filed as docket no. 117-15). The following table compares the various estimates concerning the relative amounts and mechanisms of PCE loss:
Dale Delaney Morrill EPA Gallons of PCE Lost Per Year 1,977 1,977 1,681 469 Lost in Filter Muck, Filter Cartridges, and Still Bottoms 70% 25-27% 17.4% 27% Lost in Waste Water 30% <1% <1% <1% Lost to Air 0% 73-74% 82.55% 72.9%
B. Troy Linen and Uniform Service, Inc. f/k/a Troy Laundry Co.
To resolve the parties' disputes concerning the extent to which Troy is responsible for the PCE contamination at the Property and whether Troy, in addition to LeatherCare, operated PCE-based equipment at the Property, Troy's history and the nature of its use of the Property must be understood.
1. Troy's Development of the Property
When Troy began to acquire the Property in 1925, it was already developed with perhaps as many as fifteen (15) residences. 15 Ex. 107 at 15; Ex. 115 (493) at 21. In 1926 and 1927, Troy constructed a laundry facility on the southeast portion of the Property. Ex. 107 at 16. Between 1943 and 1948, Troy expanded, creating areas to either the west or north of the original plant, including a "fur vault," which was later used by LeatherCare. Id. at 6 & 16; see Ex. 115 (493) at 22 (stating that, in 1945, Troy purchased the lot eventually occupied by the fur vault); see also Ex. 115 at 217-18. The fur vault, which was assigned an address of 312 Boren Avenue North, opened for business in April 1948, and it was used by Glacier Fur Co., Troy Fur Company, and North Star Fur Company, before it was leased to Seattle Fur Services, LeatherCare's predecessor. See Ex. 115 (493) at 23; see also Ex. 115 at 161 & 214-15. In 1949, Troy bought the northeast quadrant of the Property. Ex. 115 (493) at 23. Troy rented out the remaining dwellings, see Ross Dep. (Vol. 1) at 96:22-97:4 (docket no. 226), until they were demolished between 1957 and 1960, at which time Building 3 was erected, see Ex. 107 at 16; Ex. 115 (493) at 23; see also Ex. 115 at 182-83. King County Assessor records indicate that, in December 1951, Troy acquired the northwest parcel associated *1018 with Building 1. 16 See Ex. 115 at 192-93 & 196-200.
In 1964, Troy commenced work on a new two-story structure, in the southwest segment of the Property, which had a parking garage designed to accommodate Troy's fleet of vehicles. To make room for this 1964 addition, Troy removed a concrete laundry-loading shed with a ramp that had been built in 1950, and vacated the southern portion of an alley that ran through the Property, parallel to Boren and Fairview Avenues, and that had been in existence since at least 1893. See Ex. 107 at 16; see also Ex. 115 (493) at 23-24. In 1966, more space was added to the northeast of the existing plant. Ex. 107 at 16; Ex. 115 (493) at 24. Together, Troy's original laundry facility, the four structures built between 1943 and 1948, including the fur vault, and the 1964 and 1966 additions formed what has been designated as Building 2.
The configuration of Buildings 1, 2, and 3 remained generally unchanged from 1966 until 2011, when the Property was purchased by Touchstone. See Ex. 107 at 16. In 1970, City Dry Cleaners Company bought Building 3 for $123,840. See Ex. 115 (493) at 25; Ex. 115 at 183; Ex. 188. City Dry Cleaners Company had previously been associated with Troy, but whether it still was, as of the date it purchased Building 3, cannot be determined from the record before the Court. In 1996, Building 2 was designated as a Historical Landmark by the City of Seattle Landmarks Preservation Board. Ex. 107 at 165-90; Ex. 115 (493) at 26. Figure 6 illustrates the progression of improvements on the Property.
*1019 2. Troy's Operations on the Property
a. Industrial Laundry
From 1927 until 1985, Troy operated an industrial laundry at the Property, in Building 2. See PTO at 7, ¶¶ 9 & 12. The parties have stipulated that Troy's industrial laundry facility used approximately 150,000 gallons of water per day, which it drew from an on-site well. PTO at 9, ¶ 17; see also Ex. 115 (493) at 25 (indicating that, in 1971, Troy obtained a permit to appropriate up to 1,000 gallons of water per minute from the supply well). Troy's industrial laundry cleaned linens, like napkins and table cloths, for hotels, restaurants, and other industrial clients. PTO at 9, ¶ 17.
b. "Industrial" Dry-Cleaning (Stoddard)
After the 1964 addition was completed in 1965, Troy also ran an "industrial" dry-cleaning plant at the Property, which used Stoddard solvent to launder uniforms and other items for various businesses. See id. at 8, ¶¶ 14 & 15. According to Jack Ross, who worked for Troy from 1963 until 1984, see Ross Dep. (Vol. 1) at 15:18 (docket no. 226), and became its Chief Engineer in the mid-1970s, id. at 43:2-5, Troy had two 400-pound Stoddard machines, through which it would process at least 6,000 pounds of clothing (roughly eight loads per machine) each day, five days per week, id. at 59:3-7, 59:14-15, & 60:10-15. These figures indicate that, from 1965 until 1985, Troy's Stoddard equipment handled roughly 1.5 million pounds of clothing each year, which is consistent with the EPA's 1978 estimate concerning the quantum of work typically performed by "industrial" dry cleaners. See supra p. 1015.
*1020 c. "Commercial" Dry-Cleaning (PCE)
Mr. Ross further testified that, between 1965 and about 1972, Troy also operated a PCE-based dry-cleaning system for retail customers. During that timeframe, Troy would send its vans to residences to pick up items to be dry cleaned and then deliver them after processing. Ross Dep. (Vol. 1) at 17:2-8. This part of Troy's business was called the "family laundry service" or the "family routes." See id. at 27:24-28:3. Troy also received clothing to be dry cleaned at a call center on the Property (in Building 3). Ross Dep. (Vol. 2) at 243:4-16 & 252:14-22 (docket no. 227). Mr. Ross recollected that Troy's PCE machines, namely a 30-pound washer, a 60-pound washer, and one or more dryers, had been at Troy's facility known as City Laundry, and that the PCE equipment was moved to the Property when the 1964 addition was finished. Ross Dep. (Vol. 1) at 19:1-22, 22:17-25, & 24:9-20; Ross Dep. (Vol. 2) at 210:9-24 & 214:4-11.
After the PCE system was relocated to the Property and other consolidation efforts were accomplished, Troy closed both the City Laundry facility and a linen-supply plant in Ballard. See Ross Dep. (Vol. 1) at 24:23-25:9. At its peak, Troy's family laundry service had approximately 20 routes, involving about 25 vans. Id. at 32:16-33:3. In the early 1970s, Troy sold the city routes and reduced its retail business. Id. at 47:13-14. Sometime between 1970 and 1974, Troy ceased its PCE operations. Id. at 27:18-23; see Ross Dep. (Vol. 2) at 165:11-15, 243:13-19, & 244:9-20. According to Mr. Ross, LeatherCare subsequently installed new PCE machines in the same area of Building 2 where Troy's PCE equipment had been located. Ross Dep. (Vol. 1) at 28:11-29:6 & 114:21-25; see also Exs. 65 & 1009.
Seattle Times and Touchstone challenge Mr. Ross's credibility. The Court, however, finds that Mr. Ross's memory was reliable and that his testimony was not controverted. Although Steven Ritt and Mark Chose did not believe that Troy ever had PCE equipment at the Property, neither of them worked at the facility during the time when Troy was engaged in a retail dry-cleaning business; Mr. Ritt was employed elsewhere from 1967 until 1974, Ritt Dep. (Aug. 5, 2015) at 19:13-18 (docket no. 141), and Mr. Chose did not start working for Troy until 1972, Chose Dep. at 8:22-23 (docket no. 225). As Chief Engineer for Troy, Mr. Ross had more opportunity and incentive to understand the nature of Troy's dry-cleaning operations; Mr. Ritt was concerned with LeatherCare's operations, not Troy's, while Mr. Chose's primary role at Troy related to the maintenance of its fleet of vehicles, see id. at 11:22-12:23, 13:3-18, 53:22-54:2, 62:22-63:17.
Moreover, Mr. Ross's explanation that Troy moved its PCE-based "family routes" operation to the Property from City Laundry as part of a consolidation plan is supported by other evidence in the record. A 1950 Certified Sanborn Map shows that City Dye Works Co. Inc. (which Mr. Ross called "City Laundry") was located at the corner of Fifth Avenue North and John Street, but a 1969 Certified Sanborn Map indicates that the same building was, by that time, vacant, see Ex. 186, lending credence to Mr. Ross's testimony that the business had been relocated and the premises had been abandoned in 1965. The accuracy of Mr. Ross's memory is further substantiated by an advertisement 17 that *1021 appeared in the Seattle Times in July 1946, touting the services of City Dry Cleaners, which would pick up, clean, press, and deliver men's suits "all for $1.00." Ex. 185.
Mr. Ross's description of Troy's PCE system was also consistent with the EPA's later observations in 1978 concerning the typical "commercial" dry-cleaning plant, which was likely to have a 30-to-60 pound per load capacity and no emission control. See supra p. 1015. In addition, the two plumes of PCE-contaminated soil that were discovered during Touchstone's redevelopment efforts, in an area used exclusively by Troy, 18 corroborate Mr. Ross's representations that Troy used PCE in its operations.
Having viewed a portion of the video recording of Mr. Ross's deposition, and having read the entire transcript of his testimony, the Court finds that Mr. Ross was a credible witness with no motive to fabricate information or obfuscate the facts. The Court finds that, for five to seven years after the 1964 addition was built, Troy had a PCE plant with throughputs (and PCE losses) comparable to those of the average "commercial" dry-cleaning facility (without emission control) as defined by the EPA in 1978, i.e. , handling approximately 23,000 kg (60,000 lbs) of clothes per year and losing between 8 and 21 kg of PCE per 100 kg of clothing laundered. See supra p. 1015.
3. Troy's Underground Storage Tanks
During its tenure as owner of the Property, Troy installed and/or maintained at least 18 underground storage tanks ("USTs"). PTO at 8, ¶ 16. As indicated in Figure 7, on the next page, the various USTs included:
• four USTs of 8,000-gallon, 3,000-gallon, 1,000-gallon, and 350-gallon capacities, respectively, located near or under the 1964 addition, the first three of which contained Stoddard solvent, and the last of which held "Sta Dri," a spotting agent containing PCE; see Ex. 115 (493) at 25 & 77 (Fig. 3); Morrill Report, Ex. 1141 at 35-36 & 645-46 (App'x J) (filed as docket nos. 117-1 & 117-13);
• one 7-barrel (~ 300-gallon) UST containing heating oil, which was located approximately 110 feet south of Harrison Street and under the Boren Avenue North right-of-way; Ex. 115 (493) at 23 & 26; two 12,000-gallon USTs and one 1,000-gallon UST containing heating oil, which were located under a parking lot north of the boiler room in Building 2; Ex. 115 (493) at 25;
• one 550-gallon UST, labeled as UST # 1 by Touchstone's consultant, which was discovered under the approximate *1022 location of the 1943 addition, and which was associated with petroleum-contaminated soil; Ex. 126 (458 & 491) at § 5.11.1.1; Ex. 126 (491) at Fig. 14;
• four 2,000-gallon USTs containing gasoline, located near or under the 1966 addition, three of which were unearthed during Touchstone's redevelopment efforts and denominated as USTs # 2, # 3, and # 4; the fourth UST was not found during excavation and might have been removed when the 1966 addition was constructed; Ex. 126 (458 & 491) at § 5.11.1.3; Ex. 107 at Fig. 2; see Ex. 115 (493) at 24;
• a 750-gallon UST, identified by Touchstone's consultant as UST # 5, which was uncovered in the soil under the east side of the 1964 addition, and which was empty and in good condition with no visible holes or pitting; no further assessment was conducted; Ex. 126 (458 & 491) at § 5.11.1.4; Ex. 126 (491) at Fig. 14;
• one 8,000-gallon UST containing gasoline, which was located under the parking lot adjacent to Building 3; Ex. 115 (493) at 25; and
• one 10,000-gallon UST of unknown content and location, which was listed in tax records as an improvement for Building 3; Ex. 115 (493) at 24.
By 1985 or 1986, shortly after it purchased the Property from Troy, Seattle Times learned of some, but not all, of the USTs, and it removed the 8,000-gallon Stoddard tank, which was under the driveway to the loading dock and therefore easily accessible. See Ex. 103 at 4 & 10-11. In contrast, the 3,000 and 1,000-gallon USTs containing Stoddard solvent, as well as the 350-gallon "Sta Dri" tank, were emptied, tested with air for leaks (using three pounds-force per square inch (3 psi) for ½ hour), filled with sand, and left in place. Id. at 4-5 & 10. Seattle Times was also aware of the three USTs north of the boiler room that had been used to store heating or fuel oil (with 12,000 or 1,000-gallon capacities) and of the 8,000-gallon *1023 gasoline tank associated with Building 3, but it took no steps at that time to remove those USTs, indicating that it would "determine whether likely future use of the building makes it worthwhile to retain them." Id. at 11.
In 1988, during the course of a telephone-line installation, the 7-barrel heating-oil UST was discovered under the Boren Avenue North right-of-way, and Seattle Times obtained a permit to allow the tank to remain in place. Ex. 115 (493) at 26. When that same UST was opened in 2010, it contained approximately one inch of heating oil, floating on about one foot of water. Ex. 107 at 21. The 8,000-gallon UST containing leaded gasoline was apparently closed in place in 1996. Ex. 115 (493) at 26. During the course of excavation related to Touchstone's redevelopment efforts, three distinct plumes of petroleum-contaminated soil were discovered, one on the west side of the Property, near the latitude of the 7-barrel heating oil UST (Plume 1), one in the southwest quadrant of the Property, under the footprint of the 1964 addition, which was also contaminated with PCE (Plume 2), and one in the northern portion of the property, in the vicinity of the decommissioned 8,000-gallon UST that had housed gasoline (Plume 3).
Figure 8, on the next page, shows the three plumes of petroleum-contaminated soil. Although Seattle Times and Touchstone have asserted to the contrary, the Court finds that the plume of petroleum-only contaminated soil ("PCS") in the northern section of the Property (Plume 3) was not caused by LeatherCare's operations at the site. Troy undisputedly installed, maintained, and used the 8,000-gallon gasoline tank under the parking lot of Building 3, and no evidence has been offered that LeatherCare fueled its vehicles from or was otherwise associated with the UST that was the source of Plume 3, consisting solely of gasoline-range petroleum hydrocarbon.
*1024 4. Troy's Acquisition and Dissolution
On March 1, 1985, American Linen Supply Co., a Washington corporation, d/b/a Maryatt Industries ("Maryatt"), acquired all of the issued and outstanding stock of Troy, and Troy became a wholly-owned subsidiary of Maryatt. 19 PTO at 7, *1025 ¶ 8; see Ex. 41. Troy began winding up its operations in 1985, shortly after the sale of the Property to the Seattle Times. PTO at 11, ¶ 27. Troy was dissolved on March 14, 1986. Id. at 7, ¶ 8; see Ex. 1152. The limitation period for commencing any action against Troy or its directors, officers, or shareholders expired on March 14, 1988. See RCW 23B.14.340 ; see also La.- Pac. Corp. v. ASARCO, Inc. , 5 F.3d 431 (9th Cir. 1993).
The Court concludes that, with respect to any liability on Troy's part, the "orphan share" doctrine applies. See , e.g. , United States v. Kramer , 953 F.Supp. 592 , 595 (D.N.J. 1997) (the inability "to assign an ideal measure of monetary responsibility to an otherwise responsible party" gives rise to an "orphan share"). Under the "orphan share" doctrine, the liability attributable to a party who "is insolvent, cannot be located, or cannot be identified" is apportioned among the "available, solvent, and responsible parties." See Lyondell Chem. Co. v. Occidental Chem. Corp. , 608 F.3d 284 , 303 (5th Cir. 2010) ; see also PCS Nitrogen Inc. v. Ashley II of Charleston LLC , 714 F.3d 161 , 168 n.1 (4th Cir. 2013). The doctrine is equitable in nature, and the Court exercises its discretion in this matter to allocate Troy's orphan share among the parties to the litigation, namely LeatherCare, Seattle Times, and Touchstone. To perform an equitable apportionment, the Court must consider each party's activities on or with respect to the Property.
C. Seattle Fur Services and LeatherCare, Inc.
Seattle Fur Services was a business initially run by Steven Ritt's parents, Al and Rhea Ritt, that provided wholesale fur-cleaning and storage services to retail stores in the Seattle area. Ritt Dep. (Aug. 5, 2015) at 8:14-22 & 20:18-23 (docket nos. 141 & 228). When Seattle Fur Services began leasing from Troy in 1957, it operated solely in the area of Building 2 known *1026 as the fur vault. See PTO at 7, ¶ 10. After LeatherCare was incorporated in April 1960, see Ex. 1, the company continued operating as Seattle Fur Services, and it also starting using the brands PillowCare, FabriCare, and Certified Restoration Dry Cleaning Network, see Ritt Dep. (Aug. 5, 2015) at 12:1-25 & 20:8-12. Under the LeatherCare name, the business offers wholesale leather and suede cleaning to dry cleaners throughout Washington and Oregon. Id. at 21:5-7.
Beginning in 1965, after the 1964 addition was completed, LeatherCare began using the excess capacity of Troy's Stoddard-based dry-cleaning equipment. PTO at 8, ¶ 15. A finishing area on the west end of the 1964 addition was also made available for LeatherCare's exclusive use. Id. In March 1972, LeatherCare and Troy entered into a written lease pursuant to which LeatherCare was provided non-exclusive use of the dry-cleaning room, which at that time contained inter alia two 85-pound washers, as well as drying equipment. Exs. 91 & 1153. Pursuant to the lease, Troy would furnish Stoddard solvent, machines, electricity, and all other utilities needed by LeatherCare in the conduct of its business. Id.
In August 1979, LeatherCare purchased new PCE-based dry-cleaning equipment and installed it in the 1964 addition, to the west of the Stoddard dry-cleaning area and near the loading dock. See PTO at 9, ¶ 18. The new PCE system included two Marvel washing machines, five Hoyt reclaimers (Solv-O-Misers), a Hoyt sniffer (Sniff-O-Miser), and a still. 20 Id. In 1980, LeatherCare purchased another Hoyt reclaimer. Id. In Figure 9, the Stoddard dry-cleaning area can be seen on the right, and the PCE dry-cleaning area is shown on the left; the markings in red (within the PCE Operations area) were made by Mr. Ross to illustrate where Troy's PCE equipment had been before LeatherCare installed its PCE machines in roughly the same location. See Ross Dep. (Vol. 2) at 239:12-240:9 & Ex. 20A (docket no. 227). LeatherCare conducted PCE operations at the Property from August 1979 until July 1985. PTO at 9, ¶ 18. After setting up its PCE plant, LeatherCare ceased using the excess capacity of Troy's Stoddard equipment. See Ritt Dep. (Aug. 5, 2015) at 120:21-24 & 138:12-14 (docket no. 141).
*1027 As was recommended in the EPA's 1978 report, Ex. 270, LeatherCare drained its filter cartridges and dried them in its reclaimers to recover as much PCE as possible before disposing of them. See PTO at 9-10, ¶ 21. LeatherCare disposed of the spent filter cartridges, as well as the still bottoms or muck, in the back of the dump truck provided for such purpose by Troy, into which Troy also placed its waste. Id. at 10, ¶¶ 22 & 23. Troy (and specifically, Mark Chose) drove the dump truck to a transfer station when needed. Id. at 10, ¶ 22; see also Chose Dep. at 37:9-16 & 38:3-12 (docket no. 225). Troy provided this garbage service, as well as other utilities, to LeatherCare under the terms of the parties' lease. PTO at 10, ¶ 22.
In 1981, Troy and LeatherCare negotiated a new lease. See Ex. 92. The new lease described the portion of the 1964 addition that was occupied by LeatherCare as "Parcel A," the fur vault as "Parcel B," and Building 3 or the "call office" as "Parcel C." Id. at ¶ 1. Parcel A was to be used for conducting a wholesale leather cleaning and restoration business, Parcel B was to be used exclusively for fur cleaning, storage, restyling, and repair, and Parcel C was to be used in connection with retail laundry and dry-cleaning operations. Id. at ¶ 2; see also Ritt Dep. (Aug. 5, 2015) at 43:9-44:3 (docket no. 141) (indicating that garments brought by customers to the call office were cleaned elsewhere and that Building 3 had no laundering equipment).
With respect to Parcel C, LeatherCare was assigned ten abutting customer parking spaces and allowed to use the associated neon sign. Ex. 92 at ¶ 1(c). Troy, however, retained for its exclusive use the propane tank, gasoline pump and tank, and certain other parking stalls near Building 3. Id. The lease specified the utilities for which LeatherCare was responsible, namely telephone, water associated with the fur vault, city license fees for the neon sign, natural gas for the call office, and steam for any on-premises call-office (retail) dry-cleaning. Id. at ¶ 14. Troy was required to furnish steam, electricity, and all other utilities needed by LeatherCare to conduct its business in Parcels A, B, and C. Id. Troy also had an obligation to maintain in good condition the outer walls, *1028 the roof, the foundation, and all structural members. Id. at ¶ 5. The lease had a term of three years, which ended on April 30, 1984. Id. at ¶ 3.
Effective May 1, 1984, Troy and LeatherCare executed another lease. Ex. 93. The 1984 lease contained terms similar to the 1981 lease, except that the term was for only one year, to end on April 30, 1985. Id. at ¶ 3. Like the 1981 lease, the 1984 lease allowed LeatherCare, with Troy's (or its successors' or assigns') consent, to "hold over" after the expiration of the lease term on a month-to-month tenancy under the "terms, covenants, and conditions" set forth in the lease. Id. at ¶¶ 24 & 25. When it purchased the Property from Troy, Seattle Times took title free of encumbrances except for the 1984 lease with LeatherCare (and a separate, unrelated lease concerning Building 1). Ex. 1035 at ¶ 1. By September 1985, LeatherCare had vacated Parcels A and B, but was still occupying Parcel C. Ex. 94. LeatherCare continued to rent Parcel C from Seattle Times on a month-to-month basis for some period, id. ; the record does not reflect the exact date when the tenancy ended, but it appears to have continued into 1999, as reflected in a letter from Mr. Ritt dated November 3, 1998, complaining about a rent increase. Ex. 1179.
D. Seattle Times Company
Since 1895, Seattle Times has been in the newspaper business. PTO at 6, ¶ 4. For at least 80 years, Seattle Times conducted operations just south of the Property, in the adjacent block bounded by Fairview Avenue North, John Street, Boren Avenue North, and Thomas Street (the "1120 John Block"), acquiring the real estate in segments over time. See Ex. 115 (493) at 18 & 30-31. Seattle Times is well-acquainted with petroleum products and underground storage tanks, having installed several USTs on the 1120 John Block, which contained heating oil, gasoline, diesel, nitric acid, or printing ink. Id. at 31. In addition, as a long-time neighbor, Seattle Times was aware, when it purchased the Property in 1985, that the facility was being used for laundry operations and that "a dry cleaning and leather care business" leased two buildings on the premises. See Ex. 1034.
1. Purchase of the Property from Troy
No evidence has been presented that, before buying the Property, Seattle Times engaged in an investigation concerning whether any pollutants had been released into the soil or groundwater. After taking title to the Property, Seattle Times performed an inspection and identified, in addition to some (but not all) of the USTs, drainage channels containing hazardous residue, two concrete pits containing waste water that the Municipality of Metropolitan Seattle ("Metro") 21 allowed Seattle Times to discharge into the sewer system, an abandoned sump containing an oily toxic substance, 22 a fiberglass tank containing *1029 roughly 5,000 gallons of contaminated recycled water, which was taken to a landfill, and various other items left behind by Troy, including a laundry machine, two settling tanks, a still, and barrels or containers of materials. PTO at 11, ¶ 28; Ex. 103 at § II; see also Ex. 1048.
In late 1985, Seattle Times submitted to Ecology a draft "Closure Plan" for the Property. 23 PTO at 11, ¶ 29; see Ex. 1048. In the Closure Plan, Seattle Times proposed to comply with state and federal regulations "by removing all waste and waste residues from the solvent tanks." Ex. 103 at 8 (citing WAC 173-303-610 & 40 C.F.R. § 265.111 ). Seattle Times further committed to inspect drainage channels and the sump "to assure that there will be no postclosure escape or leaching of waste." Id. By letter dated March 12, 1986, Ecology authorized Seattle Times to proceed with closure activities, indicating that it would not require any public notice or a public hearing. Ex. 104.
In accordance with the Closure Plan, Seattle Times removed only one UST, decommissioned three other USTs, and disposed of waste water as previously indicated. Ex. 103 at 10-11, § III.B.1. Seattle Times represented to Ecology that Troy's parent company, Maryatt, had pumped out the contents of the two 12,000-gallon and the 1,000-gallon heating oil tanks, as well as the 8,000-gallon gasoline tank near Building 3, and had sealed each of these USTs. Id. at 7 , § II.D. Seattle Times also agreed to properly dispose of the dangerous residue in the drainage channels and the toxic material in the abandoned sump, and to seal the well on the Property. Id. at §§ III.A.1 & C; see PTO at 11-12, ¶ 29.
In a letter dated April 17, 1986, counsel for Seattle Times, Jeff Belfiglio, discussed the status of closure efforts. Ex. 105. Mr. Belfiglio advised Ecology that, although the concrete wall of the abandoned sump was cracked, testing detected no leakage. Id. at ¶ 5 . Because the solvent tanks likewise showed no sign of leaking, Mr. Belfiglio told Ecology that Seattle Times did not intend to test the soil or monitor the groundwater either before or in connection with demolition of the buildings. Id. at ¶ 6 . Ecology responded in June 1986, stating that it found "the closure of the Troy Laundry facilities to be satisfactory." Ex. 106. Ecology reminded Seattle Times, however, that "if any contamination is found during subsequent activities at that facility, contaminated materials will have to be removed and disposed of in an appropriate manner." Id. ; see PTO at 11-12, ¶ 29.
2. Litigation Against Troy and Maryatt
In July 1986, Seattle Times commenced an action in King County Superior Court *1030 against Troy Linen & Uniform Service, Inc., its three former directors as trustees for its creditors, namely Charles R. Maryatt, Tim K. Rich, and David E. Maryatt, and American Linen Supply Company d/b/a Maryatt Industries for breach of contract, promissory estoppel, nuisance, misrepresentation, negligence, breach of lease, 24 waste of leased premises, and recovery of response costs. See Ex. 1062 (Compl.); see also Ex. 1058 (1st Am. Compl.). In May 1987, Seattle Times again sued the same defendants, in federal court, seeking recovery of response costs under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). Ex. 1067 (Compl.). In the federal action, Seattle Times alleged that it had incurred in excess of $100,000 in direct costs during the closure process. Id. at ¶ 13 ; see PTO at 12:12-14.
In July 1987, both lawsuits were settled for $55,797. See PTO at 12:14; see also Ex. 1069 at 1. In connection with the settlement, Seattle Times released the named defendants, as well as the former shareholders of Troy, and their agents and assigns, from
all claims, expenses, attorney fees, causes of action or suits of any kind or nature, that the Seattle Times Company has or may later have on account of or in any way arising out of the presence of various flammable, hazardous and/or toxic wastes on [the Property] ..., specifically including but not by way of limitation, the costs of identifying, removing, and reporting as to such wastes, and from any and all claims, including third party claims, whether presently known or unknown, which may have arisen or may later arise out of the events generally described above.
Ex. 1069 at 1. The settlement was only partially funded by Maryatt. See Ex. 1073 at 69 (indicating that Maryatt paid only $15,000). The balance came from Troy's former shareholders, who had been joined in the state court action as third-party defendants. See Ex. 1064 (Maryatt's Ans. & 3d-Party Compl.); Ex. 1073 at 60 (reciting that Troy's former shareholders agreed to a two-thirds ( 2 / 3 ) share of the settlement amount). This arrangement is consistent with the Court's conclusion that Maryatt did not treat Troy as its alter ego. See supra note 19.
3. Use of the Property By Seattle Times
When Seattle Times purchased the Property, it intended to expand its newspaper-printing operations. PTO at 12, ¶ 30. Those plans did not, however, materialize, and Seattle Times instead used the Property for parking, to store furniture, newspaper racks, and other materials, and as a newspaper-rack repair facility. Id. In 1994, Seattle Times commissioned Remediation Technologies Incorporated ("RETEC"), an environmental consultant, to inspect the property. PTO at 12, ¶ 31; see Ex. 1075. Among other tasks, RETEC collected water samples from the supply well, which was located inside the industrial laundry facility. The samples revealed no detectable levels of volatile organic compounds ( e.g. , PCE), but the concentration of petroleum hydrocarbons exceeded the then-applicable "cleanup" level set by Ecology. Ex. 1075. RETEC speculated that the result might be anomalous, observing that the water did not have a petroleum odor.
*1031 Id. Seattle Times did not retest the well water. See PTO at 12, ¶ 31.
4. Marketing the Property
In 2008, on behalf of Seattle Times, CenturyPacific, L.P. began marketing the Property for sale. See Ex. 521. The Offering Memorandum disclosed the three USTs in the Stoddard area and the existing well, but not the heating oil or gasoline tanks about which Seattle Times was also aware. Id. at 10. In addition, the Offering Memorandum made no mention of the prior use of the facility as a dry-cleaning plant. Id. The price sought in the Offering Memorandum was $20 million, all cash at closing, which Seattle Times anticipated could occur within 60 days. Id. at 7. On July 14, 2010, Seattle Times and Touchstone Corporation entered into a Real Estate Purchase and Sale Agreement ("PSA"), Ex. 96, indicating a purchase price of $18.2 million. Touchstone then began a due diligence process. PTO at 13, ¶ 33.
E. Touchstone SLU LLC and TB TS/RELP LLC
Touchstone Corporation later assigned its rights in the PSA to Touchstone SLU LLC. See Ex. 47 at 8. Touchstone SLU LLC and TB TS/RELP LLC are both Washington limited liability companies with principal places of business in Seattle, Washington. 25 PTO at 6-7, ¶ 7. TB TS/RELP LLC is the current owner of the Property. Id. Touchstone SLU LLC is a member of TB TS/RELP LLC. Id. Unless otherwise stated, "Touchstone" refers to Touchstone Corporation, Touchstone SLU LLC, and/or TB TS/RELP LLC.
1. Environmental Assessment of the Property
On Touchstone's behalf, SoundEarth Strategies Inc., previously known as Sound Environmental Strategies ("SES"), conducted a two-phase environmental assessment of the Property. See PTO at 13, ¶ 33. Phase I was completed by September 2010. During the course of Phase I, SES performed a GORE™ soil gas survey, which revealed that PCE, TCE, and 1,2-dichloroethene were present in the soil "across much of the western half" of the Property, and that the highest concentrations of such chemicals were near the former loading dock and under the fur vault. Ex. 107 at 8. In addition, the GORE™ survey indicated that total petroleum hydrocarbons ("TPHs") were also in the soil in the vicinity of the former loading dock, as well as to the northeast of Building 3. Id. Water samples collected from the well inside the industrial laundry facility did not contain detectable concentrations of VOCs or GRPH, but tested positive for diesel and oil-range petroleum hydrocarbons. Id. at 25. A ground-penetrating radar survey confirmed the presence of a UST under the Boren Avenue North right-of-way and showed various anomalies that were consistent with existing or former *1032 USTs. Id. at 26. SES used the Phase I results to outline the scope of work for Phase II. See id. at 28.
SES completed Phase II by the end of October 2010. Ex. 109 (513). Phase II involved taking soil samples through 14 borings (P01-P14), which were advanced to a depth of 23 feet below ground surface ("bgs"), and collecting groundwater samples via a temporary well (at boring P10), which was drilled near the location of the former 8,000-gallon Stoddard solvent UST. Id. at 2 & 9 (Fig. 2). Figure 10 shows the locations of the various borings (and the well previously used by Troy). Soil samples taken at various depths from borings P03 and P05-P11 contained concentrations of PCE that exceeded the cleanup level of 0.05 mg/kg set by Ecology. Id. at 4-5. Soil samples collected from all other borings (P01, P02, P04, P12, P13, and P14) tested below the cleanup level for PCE. Id. at 5. Petroleum hydrocarbons above the cleanup level of 100 mg/kg were detected in the soil samples from P07 and P08. Id. at 4 & 14 (Table 1). The groundwater sample obtained from boring P10 (shown in blue) had concentrations of PCE, TCE, and diesel-range petroleum hydrocarbons exceeding cleanup levels. Id. at 5 & 16 (Table 2).
In early November 2010, Seattle Times and Touchstone executed a First Amendment to the PSA ("First Amendment"). Ex. 97. Pursuant to the First Amendment, the purchase price increased from $18.2 to $18.4 million. Id. The First Amendment added an "Environmental Contingency," pursuant to which Touchstone would have until December 10, 2010, to approve of the environmental condition of the Property or the PSA would terminate. Id. at ¶ 4. In addition, the First Amendment allowed Seattle *1033 Times to install a soil vaper extraction ("SVE") system on the Property and demolish the fur vault if necessary to do so. Id. at ¶ 6. As discussed in more detail later, see infra pp. 1034-35, Seattle Times hired a company to design, install, and operate an SVE system to significantly decrease the level of PCE in the soil on the Property, primarily near the loading dock.
2. Environmental Remediation and Indemnity Agreement
In December 2010, a Second Amendment to the PSA extended the Environmental Contingency period to December 17, 2010. Ex. 98. On December 17, 2010, the parties entered into a Third Amendment to the PSA ("Third Amendment"), as well as the Environmental Remediation and Indemnity Agreement ("ERIA"), which is the focus of the current dispute between Seattle Times and Touchstone. See Exs. 99 & 100. Pursuant to the Third Amendment, Touchstone waived the Environmental Contingency on the condition that Seattle Times execute the ERIA and deliver it to escrow pending closing. Ex. 99 at ¶¶ 1 & 2; see also PTO at 16, ¶ 48.
As indicated in the ERIA, Seattle Times and Touchstone were aware that, as of the effective date of the ERIA, December 17, 2010, hazardous substances were present in the soil, groundwater, and improvements at the Property. Ex. 100 at 1. To proceed forward with its purchase of the Property, Touchstone required Seattle Times to be responsible for remediating the existing contamination and indemnifying Touchstone in the manner set forth in the ERIA. Id. By executing the ERIA, Seattle Times agreed to reimburse Touchstone for the "Incremental Costs" of transporting and disposing of "Contaminated Soils," as opposed to "Clean Soils." PTO at 16, ¶ 49. Specifically, the ERIA provides:
"Incremental Costs" shall mean the difference between the costs of transporting and disposing of Contaminated Soils and the costs of transporting and disposing of Clean Soils. Incremental Costs do not include costs for transportation and disposing of Clean Soils, consequential damages, costs, if any, that Purchaser incurs due to construction delays, inefficiencies, business interruption or the like.
....
Seller and Purchaser contemplate that, during excavation of the Property in connection with Purchaser's intended development project, soil testing at the Property may identify additional Contaminated Soils that need to [be] remediated in order to achieve Soil Cleanup Criteria. In such event, Seller shall pay the Incremental Costs necessary to meet Soil Cleanup Criteria on the Property. Seller shall have the right to select the disposal site for Contaminated Soils removed from the Property.
Ex. 100 at ¶¶ 1(h) & 2. Seattle Times also agreed in the ERIA to indemnify Touchstone with respect to third-party claims, including those relating to groundwater contamination:
Seller shall release, indemnify, defend (with counsel of Seller's choice reasonably acceptable to Purchaser) and hold Purchaser harmless from and against any and all liabilities, claims, causes of action, liens, administrative proceedings, judgments, damages, losses, costs, expenses, fines, penalties or obligations of any kind, known or unknown, including reasonable attorneys' fees, asserted by third parties (including the Washington Department of Ecology) against Purchaser that arise out of, [sic] are associated with Contaminated Soils or Contaminated Groundwater that has or may have migrated off of the Property and *1034 onto, about or under adjacent property(ies).
Id. at ¶ 3.
3. Soil Vapor Extraction
In early January 2011, AECOM Environment ("AECOM") provided a report concerning its soil and groundwater investigation and the design of an SVE system for Seattle Times. Ex. 110 (510). Based on SES's prior results and AECOM's own tests, using 25 soil samples collected from six additional borings (B-1, B-2, and B-4 through B-7; B-3 was planned but never drilled), id. at 2, AECOM determined that the highest concentrations of PCE in soil were located near the loading dock and extended to a depth of about 12 feet bgs, id. at 4-5. AECOM estimated that the volume of soil with PCE concentrations above the cleanup level was 20,225 (860 + 19,365) cubic yards. See id. at 5. AECOM proposed an SVE system comprised of eight vertical wells placed in the vicinity of the loading dock and the former location of PCE operations, through which approximately 90% of the VOC vapors in the area would be removed from the soil over the course of six or more months. See id. at 5-6 & 15 (Fig. 3). Figure 11, on the next page, indicates the locations of AECOM's borings and of the SVE wells and related equipment.
The SVE system installed by AECOM operated in 2011 and 2012, and removed 327 pounds of PCE from the soil. PTO at 13, ¶ 35. AECOM decommissioned the system in January 2012. Id. ; see also Ex. 115 (493) at 46. No notice was provided to LeatherCare or Mr. Ritt before the SVE equipment was installed or when it was removed, and they first learned about the system in August 2015, around the time that Mr. Ritt was deposed in the related insurance coverage litigation (between Seattle Times and its insurers) to which he is not a party. See PTO at 13, ¶ 35; see also Ritt Dep. (Aug. 5, 2015) at 5:16-6:2 (docket no. 141). Seattle Times paid AECOM for its work and now seeks to recover inter alia $348,087 from LeatherCare and/or Mr. Ritt as reimbursement for the costs of designing and implementing the SVE system. See PTO at 18, ¶ 56; see also Zelikson Report at Table 1, Ex. 215 at 22 (filed as docket no. 122-1).
*1035 4. Supplemental Subsurface Investigation
While Seattle Times was working with AECOM on soil vapor extraction, SES was performing a supplemental subsurface investigation, which involved advancing eight more borings (three under the Harrison Street right-of-way, three under the Boren Avenue North right-of-way, and two on the Property 26 ), seven of which would serve as permanent groundwater monitoring wells (MW01-MW07), and collecting additional soil and groundwater samples for testing. Ex. 112 (498) at 2. SES's report dated June 6, 2011, was admitted into evidence in CD form as Exhibit 112 and in excerpted, hardcopy form as Exhibit 498. According to the report, laboratory results indicated that, "with the exception of a slight exceedance of PCE in soil collected from B12 27 at a depth of 60 feet, soil samples collected from borings advanced within the [right-of-ways] to the north and west of the Property did not contain detectable concentrations of chlorinated solvents or petroleum hydrocarbons." Id. at 7. Thus, SES concluded that "the soil contamination associated with the historical use of the Property as an industrial dry cleaning *1036 facility appears to be confined primarily within the Property boundaries." Id.
SES further observed that AECOM's SVE system had decreased "significantly" the concentrations of PCE, thereby "reducing the volume of soil that will need to be disposed of as hazardous material during construction excavation activities." Id. With respect to groundwater, SES reported that the samples from the three monitoring wells under Boren Avenue North and from one of the wells under Harrison Street contained PCE and/or TCE. Id. SES opined, however, that the levels of these substances in the groundwater samples were "not indicative of a multi-block, widespread release" of VOCs. Id.
5. Closing
On June 10, 2011, Touchstone and Seattle Times closed the purchase and sale transaction, and title to the Property passed to Touchstone. See Ex. 47; see also PTO at 6-7, ¶ 7. The closing documents included a signed version of the ERIA, Ex. 47 at 180-83, as well as a copy of the 1984 lease between Troy and LeatherCare, which had been assumed by Seattle Times in 1985, id. at 137-53. Shortly after closing, SES began developing a Remedial Investigation Sampling and Analysis Plan. Ex. 114. In accordance with this plan, SES conducted further studies in September and October 2011 in an effort to evaluate the extent and vertical gradient of groundwater contamination, analyze any standing water that remained in pipes, sumps, and trenches on the Property, and collect sufficient data to ultimately develop a remedial action plan for the "Site," which includes the contaminated regions of the Property, the neighboring properties, and the adjacent right-of-ways. See Ex. 115 (493) at 47.
6. Draft Remedial Investigation Report
The work performed in September and October 2011 culminated in a Draft Remedial Investigation Report ("Draft RI") dated May 2, 2012, which was admitted into evidence in CD form as Exhibit 115 and in excerpted, hardcopy form as Exhibit 493. In connection with the Draft RI, SES drilled another 23 borings (B16-B38), seven of which were fashioned into monitoring wells (MW08-MW14). Ex. 115 (493) at 48-49. The Draft RI described the results of testing on samples of soil, groundwater, and standing (process) water collected by SES in September and October 2011, as well as on samples obtained by AECOM in January 2012 from ten borings (B39-B48) made in connection with the decommissioning of the SVE system. Id. at 46, § 5.10, & Tables 1-4.
Despite the quantum of data assembled, SES still believed it lacked adequate information to estimate the vertical extent of groundwater contamination beneath the "Site" or the lateral extent of groundwater contamination to the west of Boren Avenue North or to the south of monitoring well MW09, which is in the southwest corner of the Property. Id. at 56 & 79 (Fig. 5). SES was, however, able to develop a Conceptual Site Model ("CSM"), which was based on the information acquired from all borings at the "Site." See id. at §§ 6.0-6.8. The CSM predicted that 97,540 tons of soil at the "Site" 28 had detectable or higher concentrations of PCE. Id. at 94 (Fig. 20). SES's three-dimensional visual representations of the CSM are reproduced in Figures 12A and 12B, on the next page.
7. Agreed Order No. 8996
On May 22, 2012, Touchstone and Ecology entered into Agreed Order No. 8996, a *1037 copy of which was admitted as Exhibit 128. See PTO at 13-14, ¶ 36. The Agreed Order required Touchstone to prepare the Draft RI, as well as a draft feasibility study report and, eventually, a draft cleanup action plan for the "Site." Ex. 128 at 2 & § VII. The Agreed Order also directed Touchstone to pay Ecology for the costs incurred by the agency. Id. at § VIII.B. Pursuant to the Agreed Order, Ecology took responsibility for developing a Public Participation Plan for the "Site," but Touchstone was obligated to cooperate with Ecology in preparing an appropriate mailing list. Id. at § VIII.H. The Agreed Order expressly indicated that it was "not a settlement under Chapter 70.105D" of the Revised Code of Washington, and that Ecology was "in no way" covenanting not to sue or compromising any of Ecology's rights or authority. Id. at § VIII.N. The Agreed Order restricts Touchstone's ability to sell or lease the Property. Id. at § VIII.O. *1038 8. Draft Feasibility Study Report
On August 9, 2012, SES submitted to Ecology a Draft Feasibility Study Report ("Draft FS"), which is in evidence as Exhibit 116. See PTO at 14, ¶ 38. The Draft FS described three cleanup alternatives, namely (1) excavation and land disposal of soil with in-situ chemical oxidation of groundwater, (2) excavation and land disposal of soil with in-situ reductive dechlorination of groundwater, and (3) excavation and land disposal of soil with electric resistance heating and vapor extraction for groundwater. Ex. 116 at 13. The Draft FS did not discuss any cleanup method other than excavation and land disposal of contaminated *1039 soil, and the Draft FS never suggested monitored natural attenuation 29 as a potential way of treating groundwater. See id. On behalf of Touchstone, SES proposed Alternative 2 as being "comparatively high" in environmental benefit, technically feasible, and cost effective. Id. at 73; see PTO at 14, ¶ 38.
9. Addendum to Draft RI
In December 2012, SES presented to Ecology a Draft Addendum-Supplemental Remedial Investigation Report ("Draft Supp. RI"), which was admitted in CD form as Exhibit 117 and in excerpted, hardcopy form as Exhibit 518. See PTO at 14, ¶ 39. The objective of the Draft Supp. RI was to evaluate the western and southern extents of groundwater impacted by solvent release on the Property. See Ex. 117 (518) at 2; PTO at 14, ¶ 39. Two additional monitoring wells (MW15/B49 & MW16/B50) were created, one within the Terry Avenue North right-of-way (a block west of the Property) and the other just south of the centerline of Thomas Street. Ex. 117 (518) at 2-3. The groundwater sample collected from MW15 contained a concentration of TCE in excess of the cleanup level, while the sample obtained from MW16 had concentrations of vinyl chloride, cis-1,2-dichloroethylene ("cis-1,2-DCE"), TCE, and PCE that were all above cleanup levels. Id. at 5. Because the sample from MW15 contained TCE, but not PCE or cis-1,2-DCE, SES concluded that the TCE discovered in the groundwater under the Terry Avenue North right-of-way was not attributable to the PCE release at the "Site"; if the TCE was present as a degradation product of PCE, then cis-1,2-DCE would also have been found in the sample. See id. at 7.
With regard to the suite of substances discovered in the sample from MW16, SES opined that multiple releases might have impacted the "Site." Id. at 9. SES suggested that the most likely additional or alternative source of the contamination within the Thomas Street right-of-way was the 1120 John Block, where Seattle Times had conducted business (using printing inks containing VOCs). Id. at 9-10. To prevent further migration of VOCs from the Property into the Thomas Street right-of-way, SES recommended expanding the previously designed system for in-situ reductive dechlorination of groundwater. Id. at 13. As revised, the groundwater treatment plan would include 46 vertical injection wells within the Property boundaries and 12 angled injection wells advanced beneath the Boren Avenue North and Thomas Street right-of-ways. Id. Three of the angled injection wells would be under Thomas Street and a fourth would be under the intersection of Thomas Street and Boren Avenue North. Id. at 31 (Fig. 14).
10. Interim Action
On July 18, 2013, Ecology advised Touchstone that it had not approved SES's *1040 Draft RI or Draft FS, and that it believed more investigation was needed to "fully characterize the soil-groundwater-vapor-source control components" for the "Site." Ex. 468. Ecology and Touchstone therefore agreed to conduct the excavation and land disposal of soil with in-situ reductive dechlorination of groundwater (Alternative 2) as an "interim" remedial action. PTO at 14, ¶ 40. In August 2013, Ecology and Touchstone executed a First Amendment of Agreed Order No. 8996 ("1st Am. of Agreed Order"). Id. at 14, ¶ 41; see Ex. 129. The 1st Am. of Agreed Order contemplated that Touchstone could conduct the interim remedial action as part of its planned property redevelopment, in accordance with SES's Interim Action Plan dated August 21, 2013. See Ex. 129 at ¶ D.2; see also Ex. 119. Before Touchstone could commence the work, however, Touchstone was required to satisfy three conditions: (i) submittal of permit applications to the City of Seattle; (ii) receipt of a building permit for the redevelopment project from the City of Seattle; and (iii) receipt of commitments for the financing necessary for project completion. Ex. 129 at ¶ D.3. After these three benchmarks were achieved, the Interim Action Plan became "an integral and enforceable part" of Agreed Order No. 8996. Id. at ¶ D.4.
The Interim Action Plan indicated that all buildings would be demolished and the entire Property would be excavated from lot-line to lot-line. Ex. 119 at 54. The excavation contractor would use a soil management grid, dividing the Property laterally into 10-foot by 10-foot cells, and excavating in 10-foot increments (or lifts). See id. at 60. Consistent with the grid system, samples would be collected and contemporaneously analyzed to delineate between contaminated and clean soil. See id. To prevent cross-contamination of clean soil, separate conveyors would be used to carry excavated material to the truck staging area. Id.
a. Contained-Out Determination
The Interim Action Plan envisioned as a next step obtaining a "contained-out" determination from Ecology, see id. at 59, which would exempt the excavated soil from classification as "dangerous waste" and permit disposal of the contaminated material at a landfill facility operating pursuant to Subtitle D of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §§ 6941 - 6949, and/or WAC Chapter 173-351. On October 16, 2013, SES requested a contained-out determination from Ecology. Ex. 120 (509). While waiting for Ecology's response, SES produced (as required by Ecology) an Engineering Design Report ("EDR") dated February 13, 2014, a copy of which was admitted as Exhibit 121. See Ex. 468; see also PTO at 14, ¶ 41. Ecology approved the EDR on March 4, 2014, and indicated that it would await notification that the three benchmarks set forth in the 1st Am. to Agreed Order had been met. Ex. 346. On March 26, 2014, Ecology issued its contained-out determination. Ex. 347; see PTO at 15, ¶ 43. Ecology's contained-out determination indicated that up to 140,000 tons 30 of PCE-contaminated soil, expected *1041 to be generated during excavation at the "Site," could be taken to a RCRA Subtitle D facility for disposal, rather than managed as "dangerous waste," provided that the conditions set forth in the letter dated March 26, 2014, were implemented. Ex. 347. Among the several conditions was a prohibition against offloading the waste at any temporary staging, transfer, or reloading area. Id. at 2 .
Ecology's letter set a deadline of September 30, 2014, for the disposal of PCE-contaminated material; unless the deadline was extended, Touchstone would be required to handle any remaining soil as dangerous waste. Id. at 3 . Touchstone sought and was granted two extensions, one until December 31, 2014, and the other until January 31, 2015, to continue to dispose of PCE-contaminated soil at a RCRA Subtitle D facility. Ex. 126 (491) at 18 & App'x E. Touchstone also received from Ecology an addendum to the contained-out determination, which exempted another 250 tons of VOC-impacted soil, unexpectedly discovered in the southeast portion of the Property, from management as dangerous waste. Id. at 19 .
b. Excavation
On June 27, 2014, SES informed Ecology that the three benchmarks outlined in the 1st Am. to Agreed Order had been achieved, and implementation of the Interim Action Plan commenced. Ex. 126 (458 & 491) at 19. Excavation occurred at the Property between July 2014 and February 2015. Id. at 22 . City Transfer, Inc. ("CTI") was the earthworks contractor responsible for excavation and transportation of soil away from the Property. Id. Lease Crutcher Lewis ("LCL") was the general contractor for the redevelopment project. See PTO at 17, ¶ 51. Soil contaminated solely with petroleum was delivered to the transfer station on Alaska Street in Seattle. See Ex. 2003. Soil contaminated with PCE or with both PCE and petroleum was removed from the Property and taken via either rail container or truck to an appropriate disposal facility. See PTO at 15, ¶ 44; see also Exs. 136, 138 (502), 140 (492), 142, 144 (497), 145 (507), & 146 (516).
Shipping the excavated soil via rail container was less expensive than trucking it because, after loading, a rail container could be hauled from the Property to a nearby transfer station to await carriage by train to a RCRA Subtitle D facility, whereas a truck and trailer (or "pup") had to travel the entire distance from the Property to a remote landfill and back; a driver could tow four to five rail containers *1042 per day to the transfer station, but in a truck and pup, he or she could make only one run each day to the waste disposal facility. See Trial Tr. (Jan. 24, 2018) at 113:11-25 (docket no. 264). During the course of excavation, however, rail containers were not always available, and over 60% of the PCE-contaminated soil went to a disposal site by way of truck. Ex. 538. The parties dispute whether Touchstone may seek reimbursement for the increased cost of trucking as opposed to shipping PCE-contaminated soil by rail, and whether the various rates per ton being sought by Touchstone are consistent with the ERIA and/or the applicable federal and/or state laws.
11. Interim Action Progress Report
In the Interim Action Progress Report dated January 22, 2016, which was admitted into evidence in CD form as Exhibit 126 and in excerpted, hardcopy form as Exhibits 458 and 491, 31 SES documented (i) the excavation and disposal of PCE-contaminated soil, (ii) the removal of underground storage tanks, and (iii) the installation and operation of an injection-well system for groundwater treatment. SES's report on these subjects, which the Court finds to be accurate, credible, and reliable, is summarized as follows.
a. PCE-Contaminated Soil
SES included in the Interim Action Progress Report a series of "lift maps," which show the boundary of soil in each 10-foot layer of excavation that was treated as contained-out (or contained-in) material and taken to a RCRA Subtitle D facility. See Ex. 126 (491) at 43-50 (Figs. 6A-6H). The amount of soil actually treated as contained-out material (96,443 tons) was less than the amount approved by Ecology (140,000 tons). See supra note 30. The volumes of PCE-contaminated soil reflected in the lift maps are set forth in the following table, along with approximate conversions from cubic feet (volume) to tons (weight). The various lift maps are reproduced in Figure 13, on the next page.
Elevation Volume (in cubic feet) Approximate Tonnage (above sea level) of Contained-Out Soil (conversion: 1.8959 tons/yd 3 ) 100-90 feet 168,000 11,797 90-80 feet 181,500 12,744 80-70 feet 271,000 19,029 70-60 feet 202,000 14,184 60-50 feet 161,000 11,305 50-40 feet 148,000 10,392 40-30 feet 125,000 8,777 30-20 feet 117,000 8,215 TOTALS 1,373,500 96,443
See Ex. 126 (491) at 43-50 (Figs. 6A-6H) & Ex. 538 (total tonnage). But see Ex. 126 (458 & 491) at 28 (reporting that the amount of contained-out material was 96,471 tons).
*1043 LeatherCare disputes whether all of the soil handled as contained-out material was actually contaminated with PCE, and contends that its responsibility for the costs of transporting the contained-out material should be limited to the proportion that the volume of soil with PCE concentrations above the cleanup level bore to the total amount of soil hauled to RCRA Subtitle D facilities. Based on a model generated by using the "Leapfrog Hydro" computer program (the "Leapfrog model"), which relied on all of the data collected during AECOM's and SES's various investigations and the excavation process, LeatherCare's expert estimated that the volume of *1044 soil with PCE concentrations above the cleanup level was 9,033 cubic yards, or a little over 20% of the 43,628 cubic yards of soil that the Leapfrog model predicted was contaminated with PCE or petroleum or both. See Morrill Report at 15-16 & Table 1, Ex. 1141 (filed as docket no. 117-1).
In contrast, on behalf of Seattle Times, Peter Jewett opined that 94.5% (or 93,410 tons) of the soil actually transported to disposal facilities (98,865 tons) was contaminated with PCE, another 2.7% (or 2,700 tons) was tainted with both PCE and petroleum hydrocarbons, and the rest (2.8%) contained only petroleum. See Exs. 527 & 1199; see also Trial Tr. (Jan. 17, 2018) at 22:16-23:2 & 68:8-69:6 (docket no. 261). In contrast, SES estimated that 45,252 of 84,406 cubic yards of contained-out material (53.6%) would contain PCE concentrations above the cleanup level. See supra note 30. As explained later, the Court declines to adopt LeatherCare's pro rata approach to apportionment. Thus, the Court need not resolve the dispute between the experts or determine the percentage of either (i) contained-out material or (ii) soil for which disposal fees were incurred that exceeded the regulatory cleanup level for PCE.
b. Removal of Underground Storage Tanks
On February 26, 2014, before the Interim Action excavation began, the three USTs under the former Stoddard dry-cleaning area were removed from the Property. Ex. 126 (458 & 491) at 17. After the three USTs were unearthed, the odor of Stoddard solvent emanated from the soil that had surrounded the tanks, and the smallest (350-gallon) UST had a visible hole in its side. Id. Soil samples were collected from each of the four sidewalls of the excavated rectangular area, as well as from the soil below the bottom of each UST. Id. Three of these samples, obtained from the north and west sidewalls of the excavated area and beneath the 350-gallon tank, contained detectable levels of PCE; the PCE concentrations at the west sidewall (0.19 mg/kg) and under the 350-gallon UST (0.11 mg/kg) were substantially above the cleanup level. 32 Id. at 18; Ex. 126 (491) at 40 (Fig. 3) & 65 (Table 1).
The soil below the 350-gallon and the 1,000-gallon USTs and along the west sidewall of the excavated area was also contaminated with GRPH at concentration levels between 540 and 1,600 mg/kg. Ex. 126 (458 & 491) at 18. Other USTs were removed during the course of the Interim Action excavation, but to the extent that tests were performed, they did not reveal detectable traces of PCE in the soil surrounding those USTs. See id. at 25-27.
c. Injection Wells
Between November 2014 and February 2015, a total of 103 injection wells were installed for purposes of in-situ treatment of groundwater by reductive dechlorination. Ex. 126 (458 & 491) at 29. Nine of these wells (AIW01-AIW09) are angled under Boren Avenue North and three of them (AIW10-AIW12) are angled under Thomas Street (the "angled wells"). 33 Of the remaining 91 vertical wells, 48 are installed along the northern, western, or *1045 southern boundaries of the Property (the "boundary wells"), 34 and the other 43 are within the western half of the Property, in a pattern that mimics the contours of groundwater flow (the "interior wells"). See Ex. 126 (491) at 59 (Fig. 15). Figure 14, on the next page, shows the locations of the various wells on the Property. The parties dispute whether the boundary wells serve the function of preventing contaminated groundwater from entering the Property or leaving the Property or both. LeatherCare further contends that all of the injection wells were unnecessary because the source of groundwater contamination at the "Site," namely the soil containing PCE, was removed via excavation.
Between May 12 and June 5, 2015, a food-grade oil/water emulsion was injected into the angled wells, the interior wells, and all of the boundary wells except IW91, which is on the southeast corner of the Property and is being used as a monitoring well. Ex. 126 (458 & 491) at 32. After the emulsion was injected, approximately 100 gallons of clean water and 8-to-16 ounces of Vitamin B 12 supplement were also inserted at each well. 35 Id. Other injections were conducted in 2016 and 2017. See Ex. 2010 at 2 & 5-8; see also PTO at 15, ¶ 44.
*1046 In connection with installation and operation 36 of the injection wells, Touchstone seeks reimbursement of the amounts associated with LCL's and SES's work as follows: (i) $539,694.67 (63%) from Seattle Times, and (ii) $308,668.54 (37%) from LeatherCare and/or Mr. Ritt. Touchstone's theory is that Seattle Times is responsible under the ERIA for the angled and barrier wells, while LeatherCare and/or Mr. Ritt are liable under Washington's Model Toxics Control Act ("MTCA") for the interior wells. Touchstone, however, has misidentified five interior wells as barrier wells, see supra note 34, and its apportionment between Seattle Times and LeatherCare is therefore inaccurate. As explained later, see infra pp. 1075-76, the Court does not adopt Touchstone's method of allocating the groundwater treatment expenses, 37 and instead concludes that Touchstone, rather than LeatherCare, should bear the costs of the 43 interior wells.
12. Future Response Costs
On March 14, 2016, Ecology confirmed that SES's Interim Action Progress Report dated January 22, 2016, Ex. 126 (458 & 491), had been approved, and that Ecology *1047 considered the first phase of the interim remedial action to have been successfully completed. Ex. 469; see PTO at 15, ¶ 45. On July 8, 2016, SES forwarded to Ecology for its review a draft Vapor Intrusion Assessment Work Plan. Ex. 127. The draft proposed a schedule and methods for air quality sampling to determine whether indoor air at the Property is below remediation levels. See id. at 4-8. The draft indicated that the south (12-story) tower and the north (13-story) tower being built at the Property were scheduled to be occupied by October 1, 2016, and June 1, 2017, respectively. Id. at 5. In August 2016, Ecology provided comments, and on November 7, 2017, SES submitted responses and a revised draft. See Exs. 1156 & 1157. Ecology is currently reviewing the revised draft, and the vapor intrusion assessment work is anticipated to be performed in 2018. See PTO at 16, ¶ 47.
Meanwhile, on October 19, 2017, after further study, SES sent Ecology a draft Technical Memorandum arguing that the contaminated groundwater plume originating at the Property has been fully delineated and defined. Ex. 478. In this Technical Memorandum, SES explained that, although the groundwater under the "Site" currently flows to the south and southeast, in 2013, the groundwater reversed direction as a result of construction dewatering occurring in the area bounded by Harrison Street, Ninth Avenue North, Republican Street, and an alley ("Block 45"). Id. at 2 & Fig. 1. Block 45 is roughly two blocks west and one block north of the Property, and the dewatering caused the groundwater to flow to the northwest for approximately twelve months. Id. SES opined that the maximum distance contaminated groundwater might have traveled from the Property, during that twelve-month period, is 7-to-10 feet to the northwest, beneath the Boren Avenue North right-of-way. Id. at 6. SES also expressed a belief that, because the excavation eliminated from the Property the source of groundwater contamination, which allows for natural attenuation processes to degrade the substances of concern, and given the recently installed boundary wells, the plume of contaminated groundwater beneath the Property will continue to shrink and the applicable cleanup levels will be achieved in a "reasonable" amount of time. Id. at 6. As of the date of the trial in this matter, Ecology had not yet responded to SES's Technical Memorandum. See PTO at 15-16, ¶ 46. Whether and the extent to which Touchstone might incur additional expenses for cleanup actions at the Property or the "Site" remain uncertain at this time. See id. at 18, ¶¶ 58 & 59. The parties, however, seek a ruling from the Court concerning how any future remediation costs should be apportioned among them.
Discussion
The Court will first address the statutory claims brought against LeatherCare and Mr. Ritt, then the contractual claim between Touchstone and Seattle Times, and finally the equitable allocation of remedial action costs pursuant to MTCA.
A. Statutory Claims
Both Seattle Times and Touchstone assert statutory claims against LeatherCare and Mr. Ritt. Seattle Times pursues its claims against LeatherCare and Mr. Ritt under both CERCLA and MTCA for reimbursement of sums it has paid or might in the future owe to Touchstone. 38 Seattle *1048 Times also seeks to recover from LeatherCare and Mr. Ritt under MTCA the costs of the SVE system designed, installed, and operated by AECOM. Touchstone brings its claims against LeatherCare and Mr. Ritt solely under MTCA, attempting to recover any portion of its over $9.88 million in remedial action costs that Seattle Times is not obligated to pay in accordance with the ERIA. 39 With regard to the statutory claims, LeatherCare and Mr. Ritt request declaratory relief, arguing that Seattle Times has no cognizable CERCLA claim, that Mr. Ritt cannot be held personally liable under CERCLA or MTCA, and that, pursuant to the applicable contribution doctrines, the allocable shares of remedial action costs that they, Touchstone, and Seattle Times must bear should be determined by the Court pursuant to equitable factors.
1. CERCLA: National Contingency Plan
Under CERCLA, Seattle Times seeks from LeatherCare and/or Mr. Ritt the amount that Seattle Times must pay to Touchstone in connection with Touchstone's performance under the Interim Action Plan. 40 CERCLA limits an owner's or operator's liability for environmental cleanup to "necessary costs of response" that are incurred "consistent with" the national contingency plan ("NCP"). See CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607 (a)(4)(B). The phrase "consistent with the NCP" is defined by regulation as follows:
A private party response action will be considered "consistent with the NCP" if the action, when evaluated as a whole, is in substantial compliance with the applicable requirements in paragraphs (5) and (6) of this section, and resulted in a CERCLA-quality cleanup....
40 C.F.R. § 300.700 (c)(3). LeatherCare and Mr. Ritt deny liability under CERCLA, contending that the Interim Action Plan was not consistent with the NCP because it did not comply with 40 C.F.R. §§ 300.430 (d) and (e), which are referenced in Paragraph 5 of the EPA's definition of "consistent with the NCP," see id. at § 300.700(c)(5)(viii).
The Court concludes that the Interim Action Plan was not consistent with the NCP because no analysis of any alternative to excavation of the contaminated soil was done before implementation of the Interim Action Plan. Indeed, because Touchstone planned to redevelop the Property, including the construction of a five-story underground garage, excavation would have occurred regardless of the condition of the soil, and Touchstone had no reason to and did not consider any cleanup method other than a "dig and haul." To be consistent with the NCP, a private party response action must be preceded by a feasibility study, the "primary objective" of which is "to ensure that appropriate remedial alternatives are developed and evaluated such that ... an appropriate remedy [can be] selected." Id. at § 300.430(e)(1); see id. at § 300.700(c)(5)(viii). In a feasibility *1049 study, "[a]lternatives shall be developed that protect human health and the environment by recycling waste or by eliminating, reducing, and/or controlling risks posed through each pathway by a site." Id. at § 300.430(e)(2). The remedial action selected must satisfy the "threshold criteria" of "protection of human health and the environment" and compliance with applicable or relevant and appropriate requirements, as well as the "primary balancing criteria," which weigh long-term and short-term effectiveness, permanence, reduction of toxicity, mobility, or volume through treatment, implement-ability, and cost. Id. at §§ 300.430(f)(1)(i)(A)&(B) and (ii)(A), (B), & (D). A remedy is considered cost-effective if "its costs are proportional to its overall effectiveness." Id. at § 330.430(f)(1)(ii)(D). Because no alternative to excavation was considered before execution of the Interim Action Plan, 41 and the Interim Action Plan was therefore not consistent with the NCP, the CERCLA claim asserted by Seattle Times against LeatherCare and Mr. Ritt is hereby DISMISSED. 42
2. Owner or Operator
The Court agrees with Mr. Ritt that he cannot be held personally liable under either CERCLA or MTCA. This analysis forms an independent, alternative basis for dismissing the CERCLA claim against Mr. Ritt. Both CERCLA and *1050 MTCA premise liability for remediation on inter alia an entity's status as an "owner or operator." See 42 U.S.C. §§ 9607 (a)(1)&(4)(B) ; RCW 70.105D.040(1). 43 In addition, the federal and state statutes contain similar definitions of "owner or operator," which read as follows:
CERCLA: "The term 'owner or operator' means ... in the case of an onshore facility or an offshore facility, any person owning or operating such facility ...."
MTCA: " 'Owner or operator' means: (a) Any person with any ownership interest in the facility or who exercises any control over the facility; or (b) In the case of an abandoned facility, any person who had owned, or operated, or exercised control over the facility any time before its abandonment ...."
42 U.S.C. § 9601 (20)(A)(ii) ; RCW 70.105D.020(22). The parties have stipulated that, for purposes of CERCLA and MTCA, Seattle Times is an "owner," LeatherCare was an "operator," and Touchstone is both an "owner" and an "operator." See Stip. & Order at ¶¶ 3 & 4 (docket no. 41); Stip. & Order at ¶¶ 3 & 4 (docket no. 52); PTO at 18-19, ¶¶ 2, 4, 5, & 7. The parties also agree that Mr. Ritt is not an "owner" within the meaning of CERCLA and MTCA. They dispute, however, whether Mr. Ritt can be considered an "operator" and held individually responsible for remedial action costs. 44
The Court concludes that Mr. Ritt is not an "operator" for purposes of CERCLA and/or MTCA. In arguing that Mr. Ritt can be deemed an "operator," Seattle Times relies primarily on United States v. Bestfoods , 524 U.S. 51 , 118 S.Ct. 1876 , 141 L.Ed.2d 43 (1998). Bestfoods , however, does not concern an individual's liability for the actions of a corporate entity, but rather a parent corporation's liability for the conduct of its subsidiary. See id. at 70-72 , 118 S.Ct. 1876 . In Bestfoods , the Supreme *1051 Court indicated that a parent corporation can be held liable under CERCLA when (i) the parent operates the facility in the stead of its subsidiary or alongside the subsidiary in a joint venture; (ii) a dual officer or director departs so far from the norms of parental influence that he or she can be viewed as serving the parent even when ostensibly acting on behalf of the subsidiary; or (iii) an agent of the parent with no hat to wear but the parent's manages or directs activities at the facility. Id. at 71 , 118 S.Ct. 1876 . The Bestfoods Court also required that, for purposes of CERCLA, "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." Id. at 66-67 , 118 S.Ct. 1876 (emphasis added). This language, which was recently quoted with approval by the Washington Supreme Court in a MTCA case, see Pope Res., LP v. Wash. State Dep't of Natural Res. , 190 Wash. 2d 744 , 761, 418 P.3d 90 (2018), is the focus of the attempt by Seattle Times to hold Mr. Ritt individually liable.
Under this standard, however, the Court concludes that Mr. Ritt was not an "operator." Although he managed the day-to-day operations of LeatherCare at the Property and was personally involved in the selection, purchase, installation, and maintenance of the PCE equipment used at the Property between 1979 and 1985, see PTO at 10, ¶¶ 24-25, he had no control over the side sewers into which waste water was discharged 45 or over the dump truck into which filter muck, spent filter cartridges, and still residue were deposited for eventual removal to a transfer station. 46 The Court finds that Troy, as the landlord, was responsible for both the side sewers and the garbage system. No allegation has been made that, in running LeatherCare's PCE operation, Mr. Ritt acted inconsistently with the terms of the leases between Troy and LeatherCare or contrary to Troy's directions. The parties agree that the degradation of the side sewers and the manner of handling PCE-saturated waste were the mechanisms of PCE release into the soil and groundwater at the Property, and the Court concludes that Mr. Ritt cannot be treated as an "operator" with regard to those pollution-related operations or decisions under either federal or state law. The CERCLA and MTCA claims asserted by Seattle Times against Mr. Ritt are hereby DISMISSED.
*1052 3. MTCA: Substantial Equivalence
Pursuant to MTCA, both Touchstone and Seattle Times seek from LeatherCare the expenses associated with the Interim Action Plan (and Agreed Order No. 8996). Seattle Times also pursues under MTCA reimbursement from LeatherCare for the costs of the SVE system designed, installed, and operated by AECOM. The Court concludes that the MTCA claims related to the Interim Action Plan (and Agreed Order No. 8996) are cognizable, but the MTCA claim premised on AECOM's SVE system lacks merit.
A prerequisite to cost recovery under MTCA is demonstrating that the remedial action at issue was the "substantial equivalent" of an action conducted or supervised by Ecology. RCW 70.105D.080 ("Recovery of remedial action costs shall be limited to those remedial actions that, when evaluated as a whole, are the substantial equivalent of a department-conducted or department-supervised remedial action."). The Court evaluates substantial equivalence "with reference to the rules adopted by" Ecology. Id. Ecology has defined three ways in which a remedial action satisfies the "substantial equivalent" standard: (i) it was conducted by Ecology; (ii) it was conducted under an order or decree and "the remedial requirements of the order or decree have been satisfied for those portions of the remedial action for which the private right of action is being sought"; or (iii) it was conducted independently and meets the five criteria enumerated in Ecology's regulation. See WAC 173-340-545(2). Only the second and third tests for substantial equivalence are relevant in this matter.
Under the second "order or decree" definition articulated by Ecology, the Court concludes that the remedial action performed pursuant to the Interim Action Plan (and Agreed Order No. 8996), involving excavation and disposal of contaminated soil and installation of injection wells, qualifies as the "substantial equivalent of a department-conducted or department-supervised remedial action." The remedial requirements of Agreed Order No. 8996 have been satisfied with respect to the costs for which Touchstone and Seattle Times seek reimbursement from LeatherCare in this action. The "order or decree" test does not apply, however, to the SVE system for which Seattle Times incurred expenses because AECOM's work was conducted independently of any order or decree issued by Ecology.
Seattle Times contends that the SVE process was nevertheless substantially equivalent, relying on the third definition set forth by Ecology, which requires that the independent remedial action include the following elements:
(i) Information on the site and remedial actions conducted has been reported to the department in accordance with WAC 173-340-300, 173-340-450 and 173-340-515, as applicable;
(ii) The department has not objected to the remedial action being conducted or any such objection has been cured as determined by the court;
(iii) Except for emergency remedial actions, before conducting an interim action or cleanup action, reasonable steps have been taken to provide advance public notice;
(iv) The remedial actions have been conducted substantially equivalent with the technical standards and evaluation criteria described in subsection (4) of this section; and
(v) For facilities where hazardous substances have been disposed of as part of the remedial action, documentation is available indicating where these substances were disposed of and that this *1053 disposal was in compliance with applicable state and federal laws.
WAC 173-340-545(2)(c).
The Court concludes that the SVE work performed for Seattle Times by AECOM did not adequately comply with this regulation. Pursuant to WAC 173-340-300(2), which requires disclosure of any release of a hazardous substance that might pose a threat to human health or the environment, AECOM sent to Ecology, on January 12, 2011, a 765-page "Release Report." Ex. 111 (495). The Release Report indicated that AECOM was working with Seattle Times to install an SVE system on the Property. Id. at 2. The record contains no evidence of any subsequent communication between AECOM and Ecology, other than a request, on July 8, 2011, for approval to dispose of roughly four cubic yards of contaminated soil (generated in connection with subsurface borings and SVE installation) at a RCRA Subtitle D facility, rather than treating the soil as "dangerous waste." Ex. 113 (505); see WAC 173-303-040 & - 070 through - 100 (defining "dangerous waste"); see also 42 U.S.C. §§ 6941 - 6949a.
AECOM did not perform a remedial investigation/feasibility study, develop a cleanup action plan, or submit a written report to Ecology within 90 days after decommissioning the SVE system, all of which were necessary, in some form, to satisfy the technical criteria for substantial equivalence. WAC 173-340-545(4)(a) & (e) ; WAC 173-340-515(4)(a). Moreover, neither AECOM nor Seattle Times provided written notice to LeatherCare before commencing the SVE process, despite actual knowledge that LeatherCare might be a potentially liable party; such failure to advise LeatherCare violated WAC 173-340-545(3)(a)(v). 47 For these reasons, the Court concludes that the soil vapor extraction conducted by AECOM was not the "substantial equivalent of a department-conducted or department-supervised remedial action," and Seattle Times is not entitled to recover from LeatherCare for the costs ($348,087) associated with the SVE operation. The portion of the MTCA claim pursuant to which Seattle Times seeks reimbursement for its SVE expenses is DISMISSED. The extent to which Seattle Times may recover from LeatherCare under MTCA for work performed pursuant to the Interim Action Plan (and Agreed Order No. 8996) is addressed later, in connection with the allocation among the parties of the costs related to the excavation and disposal of contaminated soil and the installation and operation of injection wells.
*1054 B. Contractual Claim
Before turning to the equitable apportionment of remedial action costs among the parties, the Court must first focus on the contractual claim that Touchstone brings against Seattle Times for two reasons: (i) Seattle Times raises certain defenses to Touchstone's breach of contract claim that affect the amount to be allocated among the parties; and (ii) some of the expenses for which Seattle Times is liable under its agreement with Touchstone cannot be recovered from LeatherCare under MTCA.
The contract at issue, i.e. , the ERIA, is explicitly governed by Washington law. Ex. 100 at ¶ 9. Washington courts follow the "objective manifestation" theory of contracts. Hearst Commc'ns, Inc. v. Seattle Times Co. , 154 Wash.2d 493 , 503, 115 P.3d 262 (2005). Under this approach, the focus is on "the objective manifestations of the agreement, rather than on the unexpressed subjective intent of the parties." Id. Words in a contract are assigned their reasonable, "ordinary, usual, and popular" meaning unless the agreement "clearly demonstrates a contrary intent." Id. at 504, 115 P.3d 262 . If the parties' intent can be divined from the actual words within the four corners of the document, extrinsic evidence will not be considered. See id. at 503-04, 115 P.3d 262 ; see also id. at 503, 115 P.3d 262 (extrinsic evidence may be used to "determine the meaning of specific words and terms used " in the contract, but not to infer an intent "independent of the instrument" or to "vary, contradict, or modify" what was written (emphasis in original) ).
Seattle Times and Touchstone disagree about the significance of three provisions of the ERIA: (i) the definition of "incremental costs," (ii) the clause allowing Seattle Times to select the disposal site; and (iii) the paragraph concerning indemnification as to any third-party claims. Each of these provisions is clear and unambiguous, and extrinsic evidence has not been considered in construing them.
1. Incremental Costs
Seattle Times contends that the expenses associated with (i) delineating between contaminated and clean soil, (ii) keeping track of the vehicles that disposed of contaminated soil (and the tonnage associated therewith), (iii) setting up an extra conveyor, and (iv) training personnel about handling the hazardous materials at issue ("HAZWOPER training") were not "incremental costs" for which Seattle Times is responsible under the ERIA because they were not "costs of transporting or disposing" of contaminated soil. With regard to the last item, the Court agrees with Seattle Times and finds that the expense of HAZWOPER training ($51,588.65) constitutes an item of LCL's overhead and is not recoverable under the ERIA.
The other three challenges, however, fail because the expenditures at issue are "incremental costs" within the meaning of the ERIA. The definition of "incremental costs" says what it means, i.e. , Seattle Times must pay Touchstone for "the difference between the costs of transporting and disposing of Contaminated Soils and the costs of transporting and disposing of Clean Soils." Ex. 100 at ¶ 1(h). Soil delineation, truck monitoring, and operation of a second conveyor all satisfy this standard. Soil delineation was necessary to determine whether excavated soil was contaminated or clean and how the associated transportation and disposal costs would be treated under the ERIA. Tracking which trucks carried soil destined for RCRA Subtitle D facilities ensured an accurate accounting of transportation and disposal expenses. The extra conveyor was an integral part of the process of transporting the *1055 contaminated soil from the point of its excavation to the rail container or truck that would take it to a landfill, and the additional conveyor served to avoid cross-contamination of clean soil. The Court concludes that Seattle Times is obligated under the ERIA to reimburse Touchstone for (i) soil delineation work performed by SES ($475,875.75) and LCL ($43,041.72 48 ), (ii) the wages that LCL paid to trucking monitors ($41,659.34 48 ), and (iii) the costs of a second conveyor ($62,500). The Court further concludes that Seattle Times cannot, under MTCA, recover from LeatherCare the amounts associated with LCL's soil delineation ($43,041.72) and truck tracking ($41,659.34) efforts because they are related solely to implementation of the ERIA, to which LeatherCare is not a party. Seattle Times may, however, recoup from LeatherCare under MTCA a pro rata share of SES's billings and the expense of the extra conveyor.
2. Disposal Facility (Via Rail or Truck)
Seattle Times argues that, because it was allowed under the ERIA to select the disposal site, it should not have to pay the higher cost that Touchstone incurred to transport PCE-contaminated soil to a facility different from the one Seattle Times chose. On July 29, 2014, counsel for Seattle Times sent a letter to Touchstone indicating that it would treat as "incremental costs" only
those differentials between transport and disposal of Clean Soil[s] and Contaminated Soils, with the latter going either: a) by rail, through Republic Services, and disposed of at the Roosevelt Regional Subtitle D Landfill in Roosevelt, Washington ("Roosevelt"); or b) via another feasible option that is less expensive than option a), should such option become available.
Ex. 182 at 2 (footnote omitted). This view lacks merit. Although the ERIA authorized Seattle Times to designate the Roosevelt facility, the contract did not permit Seattle Times to also specify the manner in which soil would be transported to the landfill. The ERIA did not preclude Touchstone from sending PCE-contaminated soil to Roosevelt via truck, at a much higher cost than trucking the material to the RCRA Subtitle D facility in Wenatchee. The Court concludes that Touchstone was authorized under the ERIA to send PCE-contaminated soil via truck to Wenatchee, rather than Roosevelt, when rail containers were unavailable, and that Touchstone's decision to do so was reasonable.
Seattle Times also contends that the reason for delivering soil by truck to Wenatchee was to avoid construction delay as a consequence of rail container unavailability, and that the additional expense of trucking must be deducted from "incremental costs" in light of the ERIA's exclusion of "costs, if any, that Purchaser incurs due to construction delays, inefficiencies, business interruption or the like." Ex. 100 at ¶ 1(h). The Court is not persuaded. Although Touchstone's approach of trucking the soil (when rail containers could not be obtained) to a facility other than the one identified by Seattle Times served to keep the excavation on schedule, doing so was also consistent with the ERIA, which did not require Touchstone to use a particular mode of transportation, and which inhibited Seattle Times from unreasonably interfering *1056 with Touchstone's development of the Property. See id. at ¶ 2. The Court concludes that Seattle Times must compensate Touchstone for, at least, the base rates of sending PCE-contaminated soil by rail to Roosevelt (or a nearby facility in Arlington, Oregon) ($47.89/ton) 49 and by truck to Wenatchee ($59.14/ton). 50 The Court will not, however, permit Touchstone to recover for a premium 51 associated with delivering materials to the railway transfer station on Saturdays, which was necessary only to avoid delays or to compensate for inefficiencies during the work week, and was therefore not an "incremental cost."
3. Indemnity for Third-Party Claims (Injection Wells)
The ERIA requires Seattle Times to indemnify Touchstone for claims asserted by third parties, including Ecology, relating to contaminated soil or groundwater that "has or may have migrated off of the Property." Ex. 100 at ¶ 3. On the theory that Ecology has, by issuing Agreed Order No. 8996, made a "claim" concerning groundwater, Touchstone seeks reimbursement from Seattle Times, pursuant to Paragraph 3 of the ERIA, for the costs associated with the 12 angled and 48 boundary injection wells, but not the 43 interior wells installed at the Property. 52 Seattle Times objects, arguing that these various injection wells are not "associated with Contaminated Soils or Contaminated Groundwater that has or may have migrated off of the Property." Id. The Court finds that all 12 angled wells were necessary to address ongoing groundwater contamination resulting from PCE that migrated from the Property and into soil under Boren Avenue North and Thomas Street, which could not be removed during the excavation process, and that the ERIA requires Seattle Times to compensate Touchstone for the design, installation, maintenance, and operation of those wells.
The Court also concludes that Seattle Times must bear the expenses associated with the 19 boundary wells along the southern edge of the Property, which serve two purposes, one of which is to keep toxic substances from migrating to the Property from Thomas Street, and the other of which is to mitigate contamination to the surrounding area as the groundwater flows in a southeasterly direction from the Property to the adjacent right-of-way and beyond. See Ex. 478 at 5-6. The latter goal falls squarely within the terms of Paragraph 3 of the ERIA.
In contrast, the Court finds that the eight (8) boundary wells along the northern facade of Building 1 (IW01-IW08) and *1057 the 21 boundary wells running the length of the western border of the Property (IW09-IW15, IW26-IW32, IW45-IW46, and IW52-IW56) serve only to prevent further contamination of the groundwater beneath the Property; they act as a barrier to pollutants travelling from the north and west with the groundwater as it flows in a southeasterly direction toward the Property. See id. The Court therefore concludes that Seattle Times is not obligated by the ERIA to reimburse Touchstone for the 29 boundary wells near Harrison Street and Boren Avenue North. Seattle Times will be responsible for the 12 angled wells and the 19 boundary wells along Thomas Street, for a total of 31 wells, and the Court will use a ratio of 31 / 103 to calculate the pro rata share of injection-well costs that Seattle Times owes to Touchstone under the ERIA.
4. Other Components of Cost Recovery
Both Seattle Times and LeatherCare challenge various aspects of Touchstone's alleged expenses for transporting contained-out materials and for addressing soil and groundwater contamination.
a. Other Premium
In its bid, CTI included a premium of $4.75 per ton for an additional conveyor belt system, a belt scale, personal protective equipment ("PPE"), a health and safety plan ("HASP"), and decontamination. Ex. 2019 at 8. The Court finds that these costs were related to the transportation of contained-out soil and that they are recoverable under both the ERIA and MTCA.
b. Markup-City Transfer, Inc.
Touchstone seeks the following markups for CTI's services: (i) $3.36 per ton for PCE-contaminated material sent by rail to the Roosevelt or Arlington facilities; (ii) $6.01 per ton for PCE-contaminated material trucked to the Wenatchee disposal site; and (iii) $5.11 per ton for transporting petroleum-only polluted soil. See Ex. 2003 (reproduced in Cook Report at 5, Ex. 2006, filed as docket no. 116). The Court finds that only the CTI markup of $3.36 per ton is supported by the evidence. During trial, Touchstone did not call any CTI officer or employee as a witness and, on the subject of CTI's markups, Touchstone relied solely on the testimony of LCL's project manager Shannon Testa and summaries she had prepared.
According to Ms. Testa, CTI presented multiple written bids, but only one was offered as evidence in this case. See Trial Tr. (Jan. 31, 2018) at 7:19-21 (docket no. 268). This written bid from CTI, submitted on April 11, 2014, indicated that it was for contained-out soil to be transported to either the RCRA Subtitle D facility in Wenatchee, operated by Waste Management of Washington, Inc. ("WM"), or the RCRA Subtitle D facility in Roosevelt, Washington, operated by Republic Services, Inc. ("Republic"). See Ex. 2019 at 8. CTI's markup was not separately stated in the bid, but was instead imbedded in the rates CTI proposed to charge for transportation and disposal of the contaminated soil. See id. The relevant portion of CTI's written bid is reproduced below, with the disposal facilities highlighted:
*1058 Ex. 2019 at 8 (modified). Using a quotation from WM for its Columbia Ridge facility in Arlington, Oregon, which is across the Columbia River from Republic's Roosevelt facility and which accepts contaminated soil by rail container, Trial Tr. (Jan. 24, 2018) at 112:1-6 (docket no. 264), Ms. Testa translated CTI's bid into different unit rates, thereby breaking out CTI's markup, as follows:
ITEM CTI's Bid Shannon Testa's (April 11, 2014) Interpretation Disposal $24.00/ton $23.15/ton Transportation 53 $34.35/ton $31.84/ton Premium Costs $4.75/ton $4.75/ton CTI Markup imbedded $3.36/ton Clean Soil Credit ($7.10/ton) ($7.10/ton) TOTAL $56.00/ton $56.00/ton
[ Editor's Note: The preceding image contains the reference for footnote 53 ]
*1059 See Ex. 2003 (Ex. 2006 at 5); Ex. 2019 at 8 & 11-13; see also Trial Tr. (Jan. 31, 2018) at 15:20-17:14 (docket no. 268).
Because CTI's written bid listed both WM's facility in Wenatchee, which accepts contaminated materials only by truck, and Republic's facility in Roosevelt, to which soil may be transported by rail, confusion arose before, as well as during, trial about whether the rate of $56.00 per ton (including a $3.36 per ton markup) applied to shipping via both truck and rail. In July 2014, before excavation began, Riley Conkin, a geologist acting on behalf of Seattle Times in connection with the execution of the ERIA, posed a number of questions to Touchstone's representatives concerning how LCL had derived the rates for transportation of contained-out soil. In this pre-excavation correspondence, the following exchange occurred:
On page 2 of 4 of the CTI quote dated 4/11/14 [Ex. 2019 at 7-10], CTI references both WM's Wenatchee Subtitle D Landfill and Republic's Roosevelt Subtitle D Landfill as disposal locations. However, WM's Wenatchee landfill is not set-up for rail transport. The CTI quote for Contaminated Soil disposal and transport appears to only include pricing for rail transport. Correct, the pricing on page 2 of the CTI quote is for disposal via container to either WM or Republic's local transfer yard.
Ex. 181 at 2 (colors in original: Mr. Conkin's query on behalf of Seattle Times is in blue, and Ms. Testa's response on behalf of LCL and Touchstone is in red).
In the same email chain, Mr. Conkin requested on behalf of Seattle Times a "detailed breakdown" of the items included in Touchstone's proposed rates per ton for transporting contaminated soil, asking in particular about CTI's markup. Id. Touchstone offered only the following explanation:
The pricing for both facilities [WM's Columbia Ridge facility and Republic's Roosevelt facility] for disposal via [rail] container is based on 30 tons. Costs include disposal fee, refuse tax, liners, ODEQ fee, rail costs per load, trucking to the transfer station, other premium costs ..., CTI markup and a credit for the disposal of clean soil.
Id. (color in original). Unsatisfied with this response, Seattle Times again asked Touchstone to provide "the actual numerical costs per ton for each of the items listed," indicating that the information presented by Touchstone did not indicate "the exact fees for items such as trucking to the transfer station or CTI's markup." Id. According to Mr. Conkin, Touchstone never gave Seattle Times the requested data, and the first time he saw the dollar amounts of the CTI markups was when they appeared in Touchstone's expert's report, which is dated April 19, 2017, and which was admitted as Exhibit 2006 (filed as docket no. 116). See Trial Tr. (Jan. 29, 2018) at 151:4-14 & 160:3-7 (docket no. 267); see also id. at 157:17-23 (explaining on cross-examination that Touchstone's pre-litigation communications "didn't answer the question of what the CTI markup actually was or how much it was"). The Court finds that Touchstone did not quantify CTI's markups until it disclosed its expert's report during the course of discovery in this action. Moreover, despite Touchstone's (overdue) disclosure, the mystery surrounding how CTI's markups were calculated continued through trial.
During trial, after Ms. Testa had already testified, the Court had the following colloquy with Paul Klansnic, Touchstone's *1060 senior project manager for the development at the Property:
THE COURT: As I understood your testimony, this [Exhibit 2019 at 7-10] was a fixed bid by CTI for the disposal of all contaminated soil; is that right?
THE WITNESS: Yes.
THE COURT: It was a fixed price.
THE WITNESS: Fixed unit price.
THE COURT: It didn't matter where it went, did it? It could go to Wenatchee. It could go to Republic or Roosevelt. Isn't that what this says?
THE WITNESS: That is what it says.
....
THE COURT: But this bid doesn't differentiate between rail and truck, does it?
THE WITNESS: This bid does not, no.
THE COURT: That's the bid you said that you were relying upon in proceeding; isn't that right?
THE WITNESS: This is the bid I saw. Yeah, that's right.
THE COURT: That's the only bid you've testified about this morning in terms of the costs to move this contaminated soil; isn't that right?
THE WITNESS: That's correct.
THE COURT: And so that total bid was fixed, and it was $63.10, less credit for clean soil. Is that where we are?
THE WITNESS: That's what I see here.
Trial Tr. (Jan. 29, 2018) at 80:19-82:4 (docket no. 267).
In an attempt to address the problem identified in CTI's written bid, Touchstone recalled Ms. Testa, who explained that CTI "quoted the project several times" and "unfortunately, they had some things left behind on their quote." Trial Tr. (Jan. 31, 2018) at 7:20-22 (docket no. 268). According to Ms. Testa, CTI "left the fact that Waste Management, Wenatchee Regional Landfill, up under the contaminated soil, contained-out. That should not have been there." Id. at 7:25-8:3. When asked whether she received any other written bid from CTI after April 11, 2014, the date of the bid admitted as Pages 7 through 10 of Exhibit 2019, Ms. Testa indicated that she "did not receive a full bid from them," and only obtained "supplemental information to their bid." Trial Tr. (Jan. 31, 2018) at 9:9-13 (docket no. 268).
Although CTI's bid erroneously indicated that the quoted rates were for disposal at both the Roosevelt and Wenatchee facilities, regardless of whether the mode of transportation was rail or truck, see Ex. 2019 at 8, the Court finds, in light of Ms. Testa's testimony, that this bid was meant to apply solely to the hauling of soil via rail container, and that CTI's markup for PCE-contaminated soil transported to either the Roosevelt or the Arlington facility was $3.36 per ton. See Ex. 2003. With regard to the CTI markups for trucking PCE-contaminated soil to Wenatchee ($6.01/ton) and for transporting petroleum-laden material to the WM transfer station on Alaska Street ($5.11/ton), the Court concludes that the summary, namely Exhibit 2003 (Ex. 2006 at 5), offered to prove these amounts is not supported by any evidence in the record. The record contains no written bid from CTI relating to the costs of delivering soil to Wenatchee or the Alaska Street transfer station, and no person, including Ms. Testa, testified about the rates quoted by CTI for such services. 54 Moreover, because Touchstone paid *1061 a "guaranteed maximum price" to LCL, see supra note 5, Ms. Testa's representation that LCL paid CTI at the rates set forth in Exhibit 2003 (Ex. 2006 at 5), see Trial Tr. (Jan. 31, 2018) at 12:23-13:7 (docket no. 268), is not sufficient to establish that Touchstone paid the markups at issue. Thus, the Court will allow a CTI markup of only $3.36 per ton regardless of the mode of transportation or the type of toxic substance involved.
c. Markup-Lease Crutcher Lewis
Touchstone seeks reimbursement for LCL's allegedly standard markup of 4.414% over the charged amount. See Ex. 2002. According to counsel for Touchstone, Invo

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7250347. Public record. Not legal advice.