Petition for Writ of Certiorari — Moreland Properties LLC, a Colorado Limited Liability Company, Petitioner v. Goodyear Tire & Rubber Company, an Ohio Corporation, et al.

Supreme Court briefDec 22, 2025

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No. 25-__

In the Supreme Court of the United States

M ORELAND P ROPERTIES LLC,

Petitioner,

G OODYEAR T IRE & R UBBER C O .

AND G OODYEAR F ARMS , I NC .,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

STUART S. KIMBALL

GALLAGHER & KENNEDY

2575 E. CAMELBACK ROAD

PHOENIX, AZ 85016

(602) 530-8000

D ECEMBER 22, 2025

DOMINIC E. DRAYE

Counsel of Record

WILLIAM E. EYE

GREENBERG TRAURIG LLP

2101 L Street, N.W.

Washington, DC 20037

drayed@gtlaw.com

(202) 331-3100

QUESTION PRESENTED

Under CERCLA, private parties who clean up

contaminated land may recover their costs from polluters only if their cleanup substantially complies

with the National Contingency Plan. 42 U.S.C.

§ 9607(a). When the United States government, a

State, or an Indian tribe conducts a cleanup itself, it

enjoys a presumption of compliance with the National Contingency Plan. Id. And when private parties obtain EPA approval of their cleanup, they too

enjoy a presumption of compliance. 40 C.F.R.

§ 300.700(c)(3)(ii).

The question presented, which has divided the

circuits 3-4, is whether a private party whose cleanup is reviewed and approved by a State likewise enjoys a presumption of substantial compliance with

the National Contingency Plan.

RULE 14.1(b) STATEMENT

The parties listed in the caption were parties to

the proceeding below. There are no related proceedings.

Pursuant to this Court’s Rule 29.6, undersigned

counsel states that Moreland Properties, LLC is a

privately owned limited liability company and that

no parent corporation or publicly held corporation

owns 10% or more of its stock.

iii

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED........................................... i

RULE 14.1(b) STATEMENT ...................................... ii

TABLE OF CONTENTS ............................................iii

TABLE OF APPENDICES ......................................... v

TABLE OF AUTHORITIES ...................................... vii

PETITION FOR WRIT OF CERTIORARI ................. 1

OPINIONS BELOW .................................................... 3

JURISDICTION .......................................................... 3

PERTINENT STATUTORY AND

CONSTITUTIONAL PROVISIONS ....................... 3

STATEMENT OF THE CASE .................................... 4

Statutory, Regulatory, and Factual

Background ........................................................ 4

A. CERCLA Cost-Recovery .............................. 4

B. Cooperative Federalism .............................. 5

C. Factual Background .................................... 8

II. Proceedings Below ........................................... 11

REASONS FOR GRANTING THE PETITION ....... 13

The Ninth Circuit’s Decision Deepens an

Acknowledged Circuit Split on Whether

State Approval Establishes Substantial

Compliance with the NCP. .............................. 13

A. The Ninth Circuit’s Decision Conflicts

with Decisions from Three Other

Circuits ...................................................... 15

B. Four Circuits Hold that State

Approval Does Not Establish Substantial Compliance .................................. 19

II. This Case Is an Ideal Vehicle for

Resolving the Split. .......................................... 29

III. States’ Ability to Establish Substantial

Compliance Is an Issue of Structural

Importance. ...................................................... 30

CONCLUSION .......................................................... 34

TABLE OF APPENDICES

Page

APPENDIX A — ORDER AND MEMORANDUM OF THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED AUGUST 26, 2025 .................................... 1a

APPENDIX B — MEMORANDUM OF THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT, FILED JUNE

12, 2025 ............................................................. 12a

APPENDIX C — FINDINGS OF FACT AND

CONCLUSIONS OF LAW OF THE UNITED

STATES DISTRICT COURT FOR THE

DISTRICT OF ARIZONA, FILED JULY 27,

2023 ................................................................... 20a

APPENDIX D — JUDGMENT OF THE

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF ARIZONA, FILED JULY

27, 2023 ............................................................. 55a

APPENDIX E — MORELAND’S WORK PLAN

TITLED

“REMOVAL

ACTION

ADDRESS

RESIDUAL

ARSENIC

CONTAMINATION IN SHALLOW SOILS

AT THE FORMER MARSH AVIATION

SITE,” DATED JULY 10, 2019 ......................... 57a

APPENDIX F – ADEQ APPROVAL OF

MORELAND’S WORK PLAN, DATED

SEPTEMBER 30, 2019 ....................................... 96a

APPENDIX G – ADEQ CONFIRMATION OF

MORELAND’S

COMPLIANCE

WITH

SETTLEMENT

AGREEMENT,

DATED

OCTOBER 22, 2020 ........................................... 98a

APPENDIX H – EXCERPTS OF ADEQ TRIAL

TESTIMONY, DATED MARCH 28, 2023 .......... 99a

vii

TABLE OF AUTHORITIES

Page(s)

Cases

Atl. Richfield Co. v. Christian,

590 U.S. 1 (2020) ........................................... 7, 8, 31

Bangor v. Citizens Commc’n Co.,

532 F.3d 70 (1st Cir. 2008) ........................ 16-18, 27

Bedford Affiliates v. Sills,

156 F.3d 416 (2d Cir. 1998) .....17, 18, 21, 22, 26, 27

Burlington N. & Santa Fe Ry. v. United States,

556 U.S. 599 (2009) ....................................... 1, 5, 32

Carson Harbor Vill. v. County of Los Angeles,

433 F.3d 1260 (9th Cir. 2006) ................... 24, 25, 28

City of Colton. v. Am. Promotional Events, Inc. W.,

614 F.3d 998 (9th Cir. 2010) ................................. 29

Exxon Corp. v. Hunt,

475 U.S. 355 (1986) ................................................. 4

Exxon Mobil Corp. v. United States,

335 F. Supp. 3d 889 (S.D. Tex. 2018) ................... 29

Fireman’s Fund Ins. Co. v. City of Lodi,

302 F.3d 928 (9th Cir. 2002) ............................. 6, 14

Key Tronic Corp. v. United States,

511 U.S. 809 (1994) ............................................... 31

Morrison Enters. v. McShares, Inc.,

302 F.3d 1127 (10th Cir. 2002) .................... 8, 22-24

viii

New Mexico v. Gen. Elec. Co.,

467 F.3d 1223 (10th Cir. 2006) ............................. 31

Niagara Mohawk Power Corp. v.

Chevron USA, Inc.,

596 F.3d 112 (2d Cir. 2010) ................. 17-19, 29, 33

NutraSweet Co. v. X-L Eng’g Co.,

227 F.3d 776 (7th Cir. 2000) .......... 15-18, 24, 27, 29

Pierson Sand & Gravel, Inc. v. Pierson Twp.,

89 F.3d 835, 1996 WL 338624 (6th Cir. 1996) .... 19, 20

Pub. Serv. Co. of Colorado v. Gates Rubber Co.,

175 F.3d 1177 (10th Cir. 1999) ....................... 22, 23

Pub. Servs. Co. of Colo. v. Gates Rubber Co.,

175 F.3d 1177 (10th Cir. 2006) ......................... 6, 14

Santa Clarita Valley Water Agency v.

Whittaker Corp.,

99 F.4th 458 (2024) .......................................... 24-27

Union Pac. R.R. Co. v. Reilly Indus., Inc.,

215 F.3d 830 (8th Cir. 2000) ........................... 20, 21

Statutes, Rules and Regulations

28 U.S.C. § 1254(1) ..................................................... 3

42 U.S.C. § 9601 et seq. ............................................ 13

42 U.S.C. § 9605 ....................................................... 14

42 U.S.C. § 9606 ......................................................... 8

42 U.S.C. § 9607 ....................................................... 11

42 U.S.C. § 9607(a) ............................................... 4, 14

42 U.S.C. § 9607(a)(4)(A) ..................................... 4, 14

42 U.S.C. § 9607(a)(4)(B) ................................. 1, 4, 14

42 U.S.C. § 9613(f)(1) ............................................... 14

42 U.S.C. § 9621(d)(2)(A)(ii) ....................................... 6

42 U.S.C. § 9621(f)(1) ................................................. 6

42 U.S.C. § 9622 ..................................................... 8, 9

42 U.S.C. § 9628(a)(1)(A)(i) ........................................ 7

42 U.S.C. § 9628(a)(2) ................................................ 7

42 U.S.C. § 9628(b)(1)(A) ....................................... 2, 7

42 U.S.C. § 9713(f)(B)(3) .......................................... 18

40 C.F.R. § 300.415(a)(2) .......................................... 32

40 C.F.R. § 300.430(e)(7) .......................................... 10

40 C.F.R. § 300.700(c)(3)(i)......................................... 5

40 C.F.R. § 300.700(c)(3)(ii) ................................. 8, 14

40 C.F.R. § 300.700(c)(6) .......................................... 17

Ariz. Rev. Stat. § 49-173(A)(4)(b) ............................. 11

Ariz. Rev. Stat. § 49-176 .......................................... 10

Ariz. Rev. Stat. § 49-282.06(A)................................. 10

Ariz. Rev. Stat. § 49-285(B) ..................................... 10

Other Authorities

Ronald G. Aronovsky, Federalism and

CERCLA: Rethinking the Role of Federal Law

in Private Cleanup Cost Disputes, 33 Ecology

L.Q. 1 (2006) ...................................................... 6, 31

Michael Brogan, “EPA Awards $2.5 Million in

Grants to Assess and Clean Up Arizona

Communities,” United States Environmental

Protection Agency: News Releases (last

updated June 4, 2025), available at

https://tinyurl.com/4xvt8yxd ................................... 7

U.S. Amicus Br., Niagara Mohawk Power Corp.

v. Chevron U.S.A. Inc., 2008 WL 10610074 (2d

Cir. Dec. 29, 2008) ................................................... 6

PETITION FOR WRIT OF CERTIORARI

The Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”) covers

more sites than the federal government can remediate on its own. The statute therefore includes procedures to entice States and private parties to conduct cleanups. Central to that structure is a private

party’s ability to recover cleanup costs from those

responsible for the contamination.

42 U.S.C.

§ 9607(a)(4)(B). The condition for cost recovery is

that the cleanup be “consistent with the national

contingency plan.” Ibid. Contesting that condition

is a polluter’s best chance to avoid the expense of

cleaning up its mess, leaving the later property

owner who actually did the work stuck with the tab.

Where that strategy succeeds, it destroys CERCLA’s goals of achieving “timely cleanup of hazardous waste sites” paid for “by those responsible for

the contamination.” Burlington N. & Santa Fe Ry.

v. United States, 556 U.S. 599, 602 (2009). Specifically, owners of contaminated land lose the incentive to invest in remediation in proportion to the

risk that the responsible party can convince a court

doing post hac review that the cleanup was somehow inconsistent with one of the National Contingency Plan’s (“NCP’s”) many elements.

To solve this problem and preserve the incentive

for private response actions, the statute calls upon

federalism. The States play an essential role in

CERCLA’s operation. Among other things, States’

own cleanup operations presumptively comply with

the NCP, and their approval of a private cleanup

limits the federal government’s ability to take further action at the site. 42 U.S.C. § 9628(b)(1)(A).

Three circuits have held that State oversight and

approval of a private response has a similar effect

vis-à-vis responsible parties—that is, if a State regulator determines that a cleanup is sufficient under

a State regime that tracks the federal CERCLA requirements, the cleanup is presumed to substantially comply with the NCP. That rule cuts off the

gamesmanship by which polluters evade responsibility by nitpicking completed cleanups to argue inconsistency with the NCP. The First, Second, and

Seventh Circuits have concluded that permitting

that second-guessing of a State-approved cleanup

makes no sense in light of the role States play under

CERCLA.

Four other circuits—the Sixth, Eighth, Ninth,

and Tenth Circuits—do not recognize State oversight and approval as establishing substantial compliance with the NCP. The result, as this case

demonstrates, is that courts in these circuits scrutinize the very same response that State regulators

approved before implementation and certified after

its completion. Without the presumption of consistency with the NCP, property owners undertake

State-approved response actions at their own financial risk. That approach is contrary to both the incentives CERCLA attempts to create and the spirit

of cooperative federalism at its core. The Court

should grant certiorari to resolve the split and restore States to their proper role.

OPINIONS BELOW

The decision by the Court of Appeals for the

Ninth Circuit is available at 2025 WL 2452372 and

reproduced at App. 1a. The district court decision is

available at 2023 WL 11963448 and reproduced at

App. 20a.

JURISDICTION

The Ninth Circuit issued its decision on August

26, 2025. App. 1a. On November 4, 2025, Justice

Kagan extended the time within which to file a petition for a writ of certiorari to and including December 24, 2025. This Court has jurisdiction under 28

U.S.C. § 1254(1).

PERTINENT STATUTORY AND

CONSTITUTIONAL PROVISIONS

The central statute in this case is the costrecovery provision in Section 107 of CERCLA, which

provides, in relevant part:

Notwithstanding any other provision or

rule of law, and subject only to the defenses

set forth in subsection (b) of this section—

...

any person who at the time of disposal of

any hazardous substance owned or operated

any facility at which such hazardous substances were disposed of, . . . shall be liable

for . . . any other necessary costs of response

incurred by any other person consistent with

the national contingency plan . . . .

42 U.S.C. § 9607(a).

STATEMENT OF THE CASE

Statutory,

Regulatory,

Background

and

Factual

A. CERCLA Cost-Recovery

CERCLA “is not a model of legislative draftsmanship.” Exxon Corp. v. Hunt, 475 U.S. 355, 363

(1986). Its famously labyrinthine provisions include

a variety of options for responding to pollution and

countless delegations to EPA to promulgate rules to

make the system work. This case focuses on private

cleanups that State regulators have reviewed and

approved.

When Congress adopted CERCLA, it recognized

that EPA lacks resources to clean up every contaminated parcel in the country. CERCLA therefore

empowers States and private parties to clean their

own land and recover their response costs from the

persons responsible for releasing the contaminants

in the first place. 42 U.S.C. § 9607(a). States may

seek cost recovery for actions “not inconsistent with”

the NCP; private party actions must be “consistent

with” the NCP. 42 U.S.C. § 9607(a)(4)(A)–(B). EPA

defines an action as “‘consistent with the NCP’ if the

action, when evaluated as a whole, is in substantial

compliance with the applicable requirements [of the

NCP] and results in a CERCLA-quality cleanup.”

40 C.F.R. § 300.700(c)(3)(i). The regulation’s holistic approach and substantial-compliance threshold

are consistent with the Court’s construction of

CERCLA to ensure a prompt cleanup at the polluter’s expense. Burlington N., 556 U.S. at 602.

Unsurprisingly, polluters routinely dispute not

only their classification as potentially responsible

parties (“PRPs”) but also whether the completed

cleanup was consistent with the NCP. The strategy

is always the same: identify picayune departures

from CERCLA’s dizzying regulations and contend

that they add up to non-compliance. This attack

always occurs with the benefit of hindsight, without

any contemporaneous indication that the polluter

disagreed with the response, and freed from the

chore of actually complying with CERCLA. To reduce the risk of such tactics and ensure a CERCLAquality cleanup, owners of contaminated land have

two choices: either wait for the government to conduct a cleanup itself or obtain the government’s preapproval for the course of action the property owner

proposes to undertake. The former is inconsistent

with prompt cleanup; the latter is at issue in this

case.

B. Cooperative Federalism

EPA cannot oversee every environmental response in the country. Congress adopted CERCLA

in 1980 “after receiving estimates that there were

approximately 30,000–50,000 contaminated sites

across the country; more recent estimates reach into

the hundreds of thousands.” Ronald G. Aronovsky,

Federalism and CERCLA: Rethinking the Role of

Federal Law in Private Cleanup Cost Disputes, 33

Ecology L.Q. 1, 7–8 (2006). Mindful of that limitation, Congress gave the States a central role in regulating and approving response actions. U.S. Amicus Br., Niagara Mohawk Power Corp. v. Chevron

U.S.A. Inc., 2008 WL 10610074, at *4–5 (2d Cir.

Dec. 29, 2008). The States’ role begins with setting

the standard to which contaminated land must be

remediated. In determining the necessity and degree of remediation, CERCLA requires PRPs to satisfy the standards set by the State, even if those

standards are more exacting than federal law. 42

U.S.C. § 9621(d)(2)(A)(ii). As to the performance of

specific response efforts, the States are entitled to

“substantial and meaningful involvement by each

State in initiation, development, and selection of

remedial actions to be undertaken in that State.”

42 U.S.C. § 9621(f)(1).

And the States’ role remains central in confirming that cleanups substantially comply with the

NCP and are therefore eligible for cost recovery.

Where the State itself conducts a response action

under State law, its cleanup presumptively complies

with the NCP. See, e.g., Pub. Servs. Co. of Colo. v.

Gates Rubber Co., 175 F.3d 1177, 1183 (10th Cir.

2006) (contrasting presumption for government

cleanups with need for proof for private parties);

Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d

928, 949 (9th Cir. 2002) (same).

Moreover, when a State approves a private party’s response action as “in compliance with the State

program that specifically governs response actions

for the protection of public health and environment,” that compliance limits federal officials’ ability to pursue either enforcement or cost recovery actions in connection with the release. 42 U.S.C.

§ 9628(b)(1)(A). That is, if a response is adequate

for the State, it is adequate for EPA. These various

provisions reflect the “spirit of cooperative federalism that runs throughout CERCLA and its regulations.” Atl. Richfield Co. v. Christian, 590 U.S. 1, 24

(2020) (quotation and modification omitted).

CERCLA also gives the federal government a

mechanism for blessing a State’s regulatory regime.

If a State’s response program includes “oversight

and enforcement” to ensure response actions “will

. . . be conducted in accord with Federal and State

law,” those States are eligible for grants to assist

with cleanups.

42 U.S.C. §§ 9628(a)(1)(A)(i),

9628(a)(2). Arizona has qualified under that provision. See, e.g., Michael Brogan, “EPA Awards $2.5

Million in Grants to Assess and Clean Up Arizona

Communities,” United States Environmental Protection Agency: News Releases (last updated June 4,

2025), available at https://tinyurl.com/4xvt8yxd.

Thus, according to EPA, Arizona’s environmental

response program assures compliance with federal

law, which includes the requirement that private

response actions substantially comply with the elements of the NCP.

Importantly, EPA’s approval of a private party’s

response action—either via an administrative order

under 42 U.S.C. § 9606 or a consent order under 42

U.S.C. § 9622—confers a presumption of compliance

with the NCP. 40 C.F.R. § 300.700(c)(3)(ii) (“Any

response action carried out in compliance with the

terms of an order issued by EPA pursuant to section

106 of CERCLA, or a consent decree entered into

pursuant to section 122 of CERCLA, will be considered ‘consistent with the NCP.’”); Morrison Enters.

v. McShares, Inc., 302 F.3d 1127, 1136–1137 (10th

Cir. 2002).

In sum, response actions conducted by the States

themselves or conducted by private parties with

EPA’s approval are presumptively compliant with

the National Contingency Plan. And a State’s approval of a private cleanup prevents the federal

government from taking any enforcement action

against the private party. What remains is a circuit

split on whether a private response approved and

overseen by State officials is also presumptively

compliant with the NCP. That is the question presented here.

C. Factual Background

Petitioner Moreland Properties unknowingly

bought a parcel of land soaked in arsenic. In fact,

with peak concentrations reaching 800 mg/kg, the

arsenic on the property was eight times higher than

what is “considered too toxic for local landfills.” Atl.

Richfield, 590 U.S. at 35. Moreland discovered the

pollution when taking soil samples at the request of

a developer who expressed interest in buying the

property. The buyer walked away, and Moreland

notified the Arizona Department of Environmental

Quality (ADEQ). Years earlier, ADEQ had approved a Declaration of Environmental Use Restriction (DEUR) that Respondent Goodyear Tire &

Rubber Company recorded on the parcel. That document stated that residual, post-cleanup arsenic

concentrations were 10 mg/kg—exactly the maximum permitted under Arizona law. 3-ER-161–171.

But Moreland’s 2017 sampling indicated that the

representation in the DEUR was incorrect.

Over the following two years, Moreland discussed with ADEQ different sampling methodologies, potential modification of the DEUR, and the

extent of contamination at the parcel. Initially, Moreland and ADEQ discussed the possibility of taking

no remedial action at the site, but both agreed that

protection of public health and the environment required action. App. 30a. From those discussions,

Moreland and the agency entered an administrative

settlement patterned after 42 U.S.C. § 9622, pursuant to which Moreland produced its Work Plan for

the Removal Action to Address Residual Arsenic

Contamination. App. 57a. ADEQ reviewed the plan

under State law and approved it on September 30,

2019, finding that it would “remediate the property

through excavation [and] reduce concentrations in

arsenic and toxaphene, thereby bringing concentrations in compliance with the concentrations cited in

the existing [DEUR].” App. 96a.

After Goodyear declined to implement the ADEQ-approved cleanup, Moreland proceeded to carry

out the work plan under ADEQ’s supervision. Less

than a year later, Moreland completed the work and

submitted its three-volume Summary Report to

ADEQ on July 28, 2020. 3-ER-215–247. The agency reviewed the report, asked questions of Moreland, and three months later, “confirm[ed] that

Moreland Properties, L.L.C. has complied with its

obligations under the settlement agreement.” App.

98a.

Under Arizona law, “[a]ny remedial action so approved by the director shall be deemed to be in substantial compliance with the rules and procedures

adopted pursuant to section 49-282.06.” Ariz. Rev.

Stat. § 49-285(B). The cross-referenced provision

authorizes a panoply of State rules that mirror

CERCLA, including requiring that private cleanups

“[a]ssure the protection of public health and welfare

and the environment,” and are “reasonable, necessary, cost-effective and technically feasible.” Ariz.

Rev. Stat. § 49-282.06(A). These State-law criteria

track CERCLA’s requirement that “effectiveness,”

“implementability,” and “cost” “shall be used to

guide the development and screening of remedial

alternatives.” 40 C.F.R. § 300.430(e)(7). Arizona

law also requires that “community involvement activities shall be conducted appropriate to the scope

and schedule of the remediation.” Ariz. Rev. Stat.

§ 49-176. ADEQ’s approval confirmed satisfaction

of these conditions.

II. Proceedings Below

In November 2020, Moreland brought State-law

fraud claims and a cost-recovery action pursuant to

42 U.S.C. § 9607. Despite facts discovered during

the lawsuit that Goodyear fabricated most of the

samples to justify the DEUR and knew that more

cleanup was necessary, the district court dismissed

Moreland’s fraud case on statute of limitations

grounds. Moreland’s federal CERCLA claim proceeded to a bench trial. Following trial, the district

court held that the State’s oversight and approval

under the administrative settlement was insufficient to establish substantial compliance with the

NCP because Arizona offers a second option—apart

from administrative settlements—by which private

parties may conduct response actions. App. 33a,

48a. That option, known as the Voluntary Remediation Program (“VRP”), differs from an administrative settlement in two ways: (1) the fees that the

landowner must pay ADEQ, and (2) the benefit the

landowner obtains—a “No Action” letter for VRP

cleanups, and a covenant not to sue in the case of an

administrative settlement. App. 31a. Preferring

lower fees and more robust relief, Moreland entered

an administrative settlement. Unlike the VRP program, Moreland’s Administrative Settlement

Agreement required ADEQ’s review and approval of

the work plan and final report, rather than allowing

Moreland to seek approval of “remedial actions already performed.” Ariz. Rev. Stat. § 49-173(A)(4)(b).

The district court found insufficient State involvement on the (mistaken) assumption that ADEQ “did not evaluate the Work Plan as rigorously as

it would have under the VRP program.” App. 33a.

As a result, the court proceeded to evaluate Moreland’s substantial compliance with the NCP and

held that Moreland did not substantially comply.

Moreland appealed to the Ninth Circuit, which

avoided the issue of State oversight entirely and

proceeded to bless the district court’s reasoning on

substantial compliance, specifically faulting Moreland for relying on older feasibility studies that

the court believed were focused exclusively on toxaphene rather than arsenic. App. 18a. Although not

material to this appeal, that holding is mistaken because the earlier studies responded to soil sampling

finding elevated levels of both arsenic and toxaphene, making Moreland’s and ADEQ’s reliance on

the older studies reasonable and cost-effective. The

Ninth Circuit did not address the decisions in three

sister circuits that would have found substantial

compliance with the NCP based on ADEQ’s oversight and approval. The panel nevertheless necessarily rejected those decisions by analyzing substantial compliance and finding it lacking. Importantly,

the Ninth Circuit did not embrace the district

court’s rule that a private response must proceed

under a specific State program to establish substantial compliance.

On petition for rehearing, Judge Graber reversed

course on Moreland’s fraud claim, but the panel did

not reconsider its approach to CERCLA. App. 9a,

11a.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit’s decision is the latest addition to a deep division in the circuit courts as to

whether State review and approval of a private party’s CERCLA cleanup establishes substantial compliance with the NCP. The First, Second, and Seventh Circuits hold that it does; the Sixth, Eighth,

Ninth, and Tenth Circuits hold that it does not. See

Part I infra.

Only this Court can resolve the division. It

should do so in this case, which presents an ideal

vehicle because substantial compliance with the

NCP is the sole element on which the Ninth Circuit

denied Moreland cost recovery. See Part II infra.

And the stakes for both federalism and the environment are considerable. The resolution of the

question presented will shape the incentives for private parties to conduct environmental cleanups and

define the cooperative federalism that undergirds

CERCLA. See Part III infra.

The Ninth Circuit’s Decision Deepens an

Acknowledged Circuit Split on Whether

State Approval Establishes Substantial

Compliance with the NCP.

Congress enacted CERCLA to ensure the prompt

cleanup of polluted sites and to allocate cleanup

costs to responsible parties. 42 U.S.C. § 9601 et seq.

In service of those goals, CERCLA authorizes pri-

vate parties to undertake cleanups themselves and

recover their costs from those responsible for the

contamination. Id. § 9607(a). To obtain recovery,

private parties must show that their cleanup was

“consistent with the national contingency plan,” a

detailed federal regulatory framework governing

the selection of cleanup measures. Id. §§ 9605,

9607(a)(4)(B), 9613(f)(1).

Recognizing the burden of proving substantial

compliance, CERCLA presumes compliance with the

NCP when the United States, a State, or an Indian

tribe conducts a cleanup itself. See, e.g., Gates Rubber Co., 175 F.3d at 1183 (contrasting presumption

for government cleanups with need for proof for private parties); Fireman’s Fund, 302 F.3d at 949

(same); 42 U.S.C. § 9607(a)(4)(A).

Similarly, when private parties receive EPA approval for a cleanup, they too enjoy a presumption

of compliance. 40 C.F.R. § 300.700(c)(3)(ii). In

those instances, private parties need not litigate the

NCP’s many requirements before obtaining recovery

from polluters. The presumption thereby creates an

incentive to work with regulators to ensure CERCLA-quality cleanups and limits post hac litigation

risk.

The question presented is whether a private

cleanup reviewed, overseen, and approved by State

officials is also presumptively compliant with the

NCP. The Ninth Circuit answered that question in

the negative, directly conflicting with the decisions

of three circuits and deepening a longstanding cir-

cuit split. The First, Second, and Seventh Circuits

hold that a State’s review and approval of a private

cleanup establishes substantial compliance with the

National Contingency Plan. The Sixth, Eighth,

Ninth, and Tenth Circuits hold that it does not. In

those jurisdictions, courts overlook State approval

and give polluters a second chance to dispute substantial compliance with the National Contingency

Plan’s myriad and often unclear requirements.

The Ninth Circuit’s Decision Conflicts

with Decisions from Three Other Circuits.

Three circuits hold that a private party who undertakes a cleanup subject to State review and approval enjoys a presumption of substantial compliance with the NCP.

1. In NutraSweet Co. v. X-L Eng’g Co., 227 F.3d

776 (7th Cir. 2000), NutraSweet, a food manufacturing company, discovered that X-L, a neighboring

machine shop, routinely dumped wastewater laden

with hazardous chemicals into the soil along the

property line. Soil testing revealed high levels of

volatile organic compounds on NutraSweet’s property. Id. at 780. NutraSweet “designed and implemented a plan with Illinois EPA approval and under

its supervision,” and it “cleaned up the property until the agency told it that the remediation had succeeded to the maximum extent possible.” Id. NutraSweet then sued X-L seeking recovery of its

cleanup costs under CERCLA. Id. at 781.

X-L contended that NutraSweet was not entitled to recovery under CERCLA because its remediation did not substantially comply with the

NCP. Id. at 790–791. The Seventh Circuit recognized that “NutraSweet's compliance with the

NCP is required for X–L to be liable.” Id. at 791.

But rather than require NutraSweet to prove

compliance with the NCP, the Seventh Circuit instead reasoned:

The Illinois EPA approved NutraSweet’s clean-up plan, and the

agency monitored the progress of the

remediation. NutraSweet remediated

its property until the Illinois EPA advised it that it could stop because NutraSweet's efforts had succeeded to the

maximum extent possible. In light of

this evidence, we are satisfied that NutraSweet met this requirement [i.e.,

substantial compliance with the NCP]

for a CERCLA recovery.

Ibid. On that basis, the Seventh Circuit rejected

X-L’s argument and affirmed judgment against X-L

for 100% of NutraSweet’s cleanup costs. Id. at 792.

2. Likewise, in Bangor v. Citizens Commc’n Co.,

532 F.3d 70 (1st Cir. 2008), the First Circuit held

that a private party substantially complies with the

NCP when “the remediation work is carried out under the approval and monitoring of the appropriate

state environmental agency.” Id. at 91 (citing NutraSweet, 227 F.3d at 791). The First Circuit rea-

soned that under CERCLA, “States are given a

special role in defining allowable costs and cleanup

standards.” Id.

3. Most recently, the Second Circuit held that a

private party can establish substantial compliance

with the NCP by obtaining State review and approval of its response plan. Niagara Mohawk Power

Corp. v. Chevron USA, Inc., 596 F.3d 112, 136–137

(2d Cir. 2010) (citing Bangor, 532 F.3d at 91, and

NutraSweet, 227 F.3d at 791)).

In that case, the Niagara Mohawk Power Corporation (“NiMo”) entered into a Consent Order with

the New York Department of Environmental Conservation (“DEC”) to investigate and remediate four

sites contaminated by industrial activity from several potentially responsible parties (“PRPs”). Id. at

118–119.

When its work was complete, NiMo

brought a CERCLA cost-recovery action against

several PRPs. Id. at 119. At the summary judgment stage, the PRPs disputed whether NiMo established substantial compliance with the NCP, and

the district court found that there was a genuine issue of material fact on that question. Id. at 136.

On appeal, the Second Circuit observed that it

had “never squarely addressed whether compliance

with a state consent decree is sufficient to prove adherence to the National Contingency Plan.” Ibid. It

had previously held that State review and approval

was sufficient to satisfy one aspect of the National

Contingency Plan, viz. the public participation requirement in 40 C.F.R. § 300.700(c)(6). Bedford Affil-

iates v. Sills, 156 F.3d 416, 428 (2d Cir. 1998) (“Such

extensive involvement of a government agency

charged with the protection of the public environmental interest is an effective substitute for public comment.”). But the PRPs in Niagara Mohawk, challenged NiMo’s compliance with additional aspects of

the National Contingency Plan. 596 F.3d at 128.

In addressing the full effects of State approval,

the Second Circuit noted that “Courts presume that

actions undertaken by the federal, or a state, government are consistent with the National Contingency Plan.” Id. at 137. While “private parties that

have responded to hazardous substances must establish compliance,” the Second Circuit concluded

that “one way of establishing compliance with the

national plan is to conduct a response under the

monitoring, and with the ultimate approval, of the

state’s environmental agency.” Id. at 137 (citing

Bangor, 532 F.3d at 91, and NutraSweet, 227 F.3d

at 791)).

The Second Circuit relied on both the logic of

State approval and the structure of CERCLA’s costrecovery provisions. It noted a “bizarre” consequence of a contrary ruling: “a PRP’s settlement

with a state entitled it to seek contribution under

§ 113(f)(B)(3), but its actions taken in executing that

settlement disqualified the settlor from employing

the statute to recoup a portion of its expenses.”

Ibid. (citing 42 U.S.C. § 9713(f)(B)(3)). Following

NutraSweet and Bangor, the Second Circuit held

that “NiMo’s adherence to the DEC Consent Decree

established its compliance with the National Contingency Plan.” Ibid.

Had the current case arisen in any of these three

circuits, Moreland could have established substantial compliance with the NCP by establishing that

ADEQ reviewed and approved its cleanup.

Four Circuits Hold that State Approval

Does Not Establish Substantial Compliance.

On the other side of the split, the Sixth, Eighth,

Ninth, and Tenth Circuits hold that State review

and approval does not establish substantial compliance with the NCP, giving polluters a second chance

to dispute the technicalities of cleanup efforts and

relegating States to an inferior place in CERCLA’s

scheme of cooperative federalism.

1. In Pierson Sand & Gravel, Inc. v. Pierson

Twp., 89 F.3d 835 (Table), 1996 WL 338624 (6th

Cir. 1996), the plaintiff entered into a consent

judgment with the Michigan Department of Natural

Resources (“MDNR”) to clean up a landfill. Ibid. at

*1. MDNR supervised and ultimately approved the

plaintiff’s cleanup. Id. at *5. The plaintiff then

sued Pierson Township and other PRPs seeking to

recover its cleanup costs under CERCLA Section

107. Id. at *1.

The defendants moved for summary judgment,

contending that the plaintiff failed to substantially

comply with the NCP. Id. at *2. The district court

entered summary judgment for the defendants, rul-

ing that the plaintiff “failed to carry its burden of

showing substantial compliance with the NCP” because it did not “provide sufficient opportunities for

appropriate public comment.” Ibid.

On appeal, the plaintiff contended that “because

its cleanup was monitored by MDNR, a governmental agency, public comment was not necessary” to

comply with the NCP. Id. at *5. The Sixth Circuit

rejected that argument: “While governmental supervision of a cleanup may provide some of the

guarantees as a cleanup subject to public comment

and criticism, the NCP does not allow this type of

substitution.” Ibid. On that basis, the Sixth Circuit

affirmed the district court’s entry of summary

judgment to defendants, foreclosing recovery under

CERCLA. Id. at *5–6.

2. The Eighth Circuit likewise discounted the

import of State approval in Union Pac. R.R. Co. v.

Reilly Indus., Inc., 215 F.3d 830 (8th Cir. 2000). In

Reilly, Union Pacific Railroad Company brought

suit against Reilly Industries, whose corporate predecessor had leased land from Union Pacific to operate a creosoting plant. Id. at 832. Environmental

testing later revealed that the soil and groundwater

at the site were contaminated. Ibid. Union Pacific

commenced remediation efforts and enrolled the site

in the Minnesota Pollution Control Agency’s Voluntary Investigation and Cleanup Program. Ibid.

State regulators established the cleanup parameters

for the site, approved the cleanup plan and the

backfilling of the treated soil, confirmed that the

cleanup goal had been reached, and approved the

remedial action implementation report. Id. at 833.

Union Pacific sought recovery of its cleanup costs

from Reilly under CERCLA. Id. at 833–834. Reilly

obtained summary judgment because the remediation did not substantially comply with two aspects

of the NCP: (i) public participation, and (ii) a feasibility study. Id. at 834–835. The latter is the same

component of the NCP at issue in the current case.

On appeal, Union Pacific relied on Bedford to argue that the State’s involvement in developing a response plan established substantial compliance with

the public-participation requirement. Id. at 836 (citing Bedford, 156 F.3d at 428). The Eighth Circuit

“disagree[d].” Id. at 836, 841. It nevertheless

acknowledged the split with the Second Circuit but

attempted to distinguish Bedford on the basis that

“none of the parties to the action disputed the quality

or cost of the cleanup efforts.” Id. at 838. That distinction makes little sense; every cost-recovery defendant who challenges compliance with the NCP

necessarily disputes the “quality or cost of the cleanup efforts”—usually, as in Bedford, Union Pacific,

and the current case, for being too expensive. Costeffectiveness is one of the goals of the NCP for which

States review cleanup proposals. In the Eighth Circuit, that review does not have the same effect that it

does elsewhere.

3. The Tenth Circuit has considered the question

presented at least twice, holding both times that

State review and approval is insufficient to estab-

lish substantial compliance with the NCP. See Pub.

Serv. Co. of Colorado v. Gates Rubber Co., 175 F.3d

1177 (10th Cir. 1999); Morrison Enters. v.

McShares, Inc., 302 F.3d 1127 (10th Cir. 2002).

a. In Gates, the plaintiff negotiated cleanup parameters with the Colorado Department of Health

(“CDH”) and entered into a consent order setting

out “the work CDH expected [the plaintiff] to perform, particularly to ensure the proper management

of waste stockpiles and to continue soil and water

sampling to track levels of contamination.” 175

F.3d at 1180. CDH also ordered the plaintiff “to

submit monthly progress reports and a final report

documenting all soil removal activities.” Ibid. After

completing the cleanup, the plaintiff sued to recover

its costs under CERCLA. The defendants obtained

summary judgment because the district court ruled

that the plaintiff “did not substantially comply with

the NCP.” Ibid.

On appeal, the plaintiff contended that its cleanup was governed by CDH’s Consent Order and

therefore “should be presumed to be consistent with

the NCP.” Id. at 1183. The Tenth Circuit acknowledged that this “contention has precedent,” id. (citing Bedford, 156 F.3d at 428), but held that it “rings

hollow” because Colorado’s requirements “do not fully mirror those of the NCP,” id. at 1184. Of course,

some amount of incongruity exists between every

State’s rules and those EPA has promulgated. That

is the point of substantial compliance. Nevertheless, the Tenth Circuit broke with Bedford and re-

jected the plaintiff’s effort to “equat[e] the State’s

involvement with substantial compliance with the

NCP.” Id. at 1185.

b. The Tenth Circuit considered the same issue

in Morrison three years later. There, the plaintiff

cleaned a contaminated site pursuant to a consent

order with the Kansas Department of Health and

Environment. 302 F.3d at 1130. Under the consent

order, the plaintiff was to “develop a workplan describing its future activities on the site, a comprehensive investigation report describing the results

of its investigation of the contamination on the site,

and a corrective action study proposing activities to

address the contamination,” all of which were subject to the agency’s approval. Ibid. At the same

time the plaintiff was engaging in the cleanup, the

EPA developed a “state deferral pilot program” in

Kansas through which the EPA oversaw certain

cleanups, including the plaintiff’s, to ensure they

were “in compliance with various requirements of

federal law.” Id. at 1131.

In the ensuing cost-recovery action, the defendant obtained summary judgment because the plaintiff failed to establish “compliance with the National

Contingency Plan.” Ibid. On appeal, the plaintiff

contended “that it is entitled to a presumption that

its cleanup actions were consistent with the NCP

because those actions were conducted pursuant to a

consent order with the [Kansas Department of

Health and Environment].” Id. at 1137.

The Tenth Circuit observed that “a presumption

does exist for compliance with the NCP where the

private party has complied with the EPA orders.”

Ibid. But because the plaintiff “did not comply directly with the EPA orders, but rather with orders from a

state agency,” the “formal conditions necessary for the

regulatory presumptions established by the EPA have

not been met, although at least one other court has

concluded that compliance with state agency orders is

sufficient to establish compliance with the NCP.”

Ibid. (citing NutraSweet, 227 F.3d at 791).

While the Tenth Circuit recognized the split of

authority and rejected the Seventh Circuit’s holding

in NutraSweet—under which State approval would

alone have been sufficient to find substantial compliance with the NCP—it ultimately held that the

plaintiff was entitled to a presumption of compliance with the NCP because of “the specifics of the

EPA pilot program in this case.” Id. at 1138. That

holding underscores the distinction animating decisions on this side of the split: EPA approval constitutes substantial compliance with the NCP, while

State approval does not.

4. Finally, the Ninth Circuit has confronted the

question presented at least three times, reaching a

different decision in each instance. See Carson Harbor Vill. v. County of Los Angeles, 433 F.3d 1260 (9th

Cir. 2006); Santa Clarita Valley Water Agency v.

Whittaker Corp., 99 F.4th 458 (2024); App. 1a.

a. In Carson Harbor, the plaintiff owned a mobile

home park, where it discovered tar-like material that

contained high levels of lead. 433 F.3d at 1262. The

plaintiff submitted a “remedial action plan” to the

Regional Water Quality Control Board, which modified and ultimately approved the plan. Ibid. After

excavating more than 1,000 tons of material, the

property owner submitted a report to the Board,

which inspected the site, approved the cleanup, and

issued a “no further action” letter. Id. at 1264.

The property owner sued several defendants seeking to recover its cleanup costs under CERCLA. The

defendants moved for summary judgment, contending

that the plaintiff’s cleanup did not substantially comply with the NCP, specifically, the “public participation and feasibility study requirements.” Id. at 1265.

On appeal, the plaintiff contended that it established compliance with the NCP “because of the

‘substantial involvement’” of the State regulator.

Id. at 1266. The Ninth Circuit acknowledged that

“[s]everal other courts . . . have held that ‘participation by a public agency is sufficient to demonstrate

compliance with the National Contingency Plan

public comment requirement.’” Ibid. However, the

Ninth Circuit determined that it “need not decide

that issue of first impression” because the Board’s

involvement was allegedly too minor to establish

substantial compliance, “[e]ven if significant agency

involvement were enough.” Id.

b. In Santa Clarita Valley Water Agency, the

Ninth Circuit partially answered the question it left

open in Carson Harbor. There, a public water agency sued Whitaker Corporation, a munitions manufacturing company, along with several other PRPs

that had improperly disposed of hazardous chemicals for decades. 99 F.4th at 466–467. Those pollutants permeated the soil and groundwater, which

contaminated an aquifer from which the agency

sourced water via four wells. Id. at 467–469. For

three of the wells, it had to purchase clean water to

dilute the polluted water until the “blend” water

met applicable standards; it had to close the fourth

well entirely and purchase replacement water from

the State Water Project. Ibid.

In the CERCLA cost-recovery suit, the district

court held that Whitaker was not liable for the

agency’s “replacement water” and “blend water” responses because “it did not establish that it substantially complied with the National Contingency

Plan”—specifically, the NCP’s public participation

requirement. Id. at 469–470, 478.

On appeal, the Ninth Circuit reversed the district court and held the agency’s “blend water” response substantially complied by virtue of the

State’s substantial oversight. Id. at 480. That holding was narrow as a matter of law and fact. On the

law, the Ninth Circuit acknowledged that “some

courts have indicated that extensive government

oversight of the response actions may satisfy the

public participation requirement.” Id. at 479 (citing

Bedford). It did not mention the decisions holding

that State oversight and approval establishes compliance with the NCP as a whole. It embraced only

the former implication of State approval. On the

facts, Santa Clarita held that “the specific facts of

this case,” showed sufficient government involvement on the “blend water” response but not on the

“replacement water” response. Id. at 481–482.

c. This case raised the issue for a third time.

Moreland cited NutraSweet, Bedford, and Bangor in

arguing that the Ninth Circuit should reverse the

district court and fully join the circuits “treating

state oversight and approval as establishing substantial compliance with the NCP.” CA9 Appellant’s Br. 64; see also id. at 56–64, CA9 Reply Br.

27–31. Unlike Santa Clarita, which involved only

the NCP’s public-participation requirement, Goodyear also contended that Moreland’s cleanup did not

substantially comply with the NCP because, inter

alia, Moreland did not conduct an additional feasibility study. The district court entered judgment for

defendants on the basis that these shortcomings

foreclosed substantial compliance. App. 42a–48a;

see supra 11–12.

The Ninth Circuit did not address Moreland’s

arguments or those raised in the circuit decisions on

the other side of the split. Nor did it endorse the

reasoning of the district court, which relied on a

counterfactual assumption that, even if correct, did

not answer the question of whether ADEQ oversaw,

reviewed, and approved Moreland’s cleanup. Instead, the Ninth Circuit let silence do the work.

Without acknowledging the parties’ briefing and divergent circuit decisions, the panel proceeded to

evaluate whether Moreland’s response substantially

complied with the NCP. App. 8a–10a. That inquiry

would not have occurred in the three circuits that

recognize State review and approval as establishing

substantial compliance.

At the end of the day, the Ninth Circuit’s position further complicates the circuit split. It deems a

private party’s State-approved cleanup substantially compliant with the NCP’s public-participation requirement, but it holds that State oversight does

not suffice for substantial compliance with the

NCP’s other requirements. Nothing in CERCLA

suggests that States’ supervisory powers differ

across components of the NCP. Nor does CERCLA

suggest that State-approved cleanups should be

treated any differently than cleanups undertaken

by the State itself, which are presumed substantially compliant with the NCP. The Ninth Circuit’s selective embrace of State approvals for the NCP’s

public-participation requirement highlights the

lower courts’ confusion on the effect that a State’s

oversight has on judicial review of substantial compliance with the NCP.

Seven circuits have now weighed in on the question presented in this case. Three of them—the

Eighth, Ninth (in Carson Harbor), and Tenth—have

acknowledged the split, as have district courts in

other circuits that have yet to take a side. For instance, the Southern District of Texas recently observed that “[t]he Second and Seventh Circuits have

held that extensive state involvement is dispositive

evidence of a response action’s compliance with the

Plan.” Exxon Mobil Corp. v. United States, 335 F.

Supp. 3d 889, 919 (S.D. Tex. 2018) (citation omitted). And, although the Fifth Circuit has not

weighed in on the question, the district court opted

to follow Niagara Mohawk and NutraSweet: “The

undisputed record evidence shows that Texas and

Louisiana were extensively involved in Exxon’s

cleanup response activities at the two facilities, establishing compliance with the National Contingency Plan, as a matter of law.” Ibid.

The division on this issue is both entrenched and

acknowledged. Only guidance from this Court can

resolve whether State review and approval of private parties’ response actions presumptively establishes substantial compliance with the NCP. The

Court should grant the petition and resolve the

split.

II. This Case Is an Ideal Vehicle for Resolving

the Split.

A private party pursuing a CERCLA costrecovery action must satisfy four elements. See,

e.g., City of Colton. v. Am. Promotional Events, Inc.

W., 614 F.3d 998, 1002–1003 (9th Cir. 2010). Here,

the district court resolved three of those elements in

Moreland’s favor. App. 37a–39a. Goodyear did not

appeal those holdings. Thus, the sole element at issue is whether Moreland’s cleanup substantially

complied with the National Contingency Plan. Ibid.

Under Ninth Circuit precedent, it does not, so the

panel proceeded to examine substantial compliance

(and found it lacking based on Moreland’s and ADEQ’s reliance on older feasibility studies). The

question whether State approval establishes substantial compliance is therefore squarely presented.

Moreover, the question is a strictly legal one. Its

application to the facts of this case might require

remand to the Ninth Circuit, which said nothing on

the topic, but that does not impair this Court’s ability to resolve the split. Indeed, the circuit court’s

silence makes the legal question all the tidier. On

remand, the Ninth Circuit can evaluate whether the

district court was correct to hold that Arizona’s administrative settlement program did not entail

State oversight, contrary to testimony from ADEQ’s

Division Director that “[t]here’s a lot of oversight in

the Administrative Settlement.” App. 101a. That

debate need not, however, detain this Court. The

legal question is whether, in light of the vital role

States play in implementing CERCLA and the

many statutory provisions giving effect to State

regulations, State oversight and approval is enough

to establish substantial compliance. That issue has

divided the circuits, and it is the only question presented for this Court’s review.

III. States’ Ability to Establish Substantial

Compliance Is an Issue of Structural

Importance.

Not only does CERCLA address the important

issue of environmental remediation, but it embodies

the federalism at the heart of American govern-

ment. It does so as a matter of necessity, a point

that courts and the EPA itself have made for decades. Without a presumption that State approvals

establish substantial compliance with the NCP,

landowners lose an incentive to work with the

States and, with it, an incentive to take any action

at all.

This Court and others have noted the “spirit of

cooperative federalism” that permeates CERCLA

and its regulations. Atl. Richfield, 590 U.S. at 24.

That approach is not only principled, but inevitable.

“EPA plays a regulatory oversight role at only a relative handful of the nation’s many thousands of

sites. At most sites, state or local government agencies serve as the lead regulatory entity.” Ronald G.

Aronovsky, Federalism and CERCLA: Rethinking

the Role of Federal Law in Private Cleanup Cost

Disputes, 33 Ecology L.Q. 1, 7–8 (2006). Because of

the large number of sites to be remediated and

EPA’s limited resources, “Congress clearly expressed its intent that CERCLA should work in conjunction with other federal and state hazardous

waste laws in order to solve this country’s hazardous waste cleanup problem.” New Mexico v. Gen.

Elec. Co., 467 F.3d 1223, 1244 (10th Cir. 2006) (citation omitted).

Congress included a cost-recovery action to encourage private parties to “assume the financial responsibility of cleanup” by allowing them “to seek

recovery from others.” Key Tronic Corp. v. United

States, 511 U.S. 809, 819 n.13 (1994). That incen-

tive vanishes if the property’s previous owner can do

what Goodyear has done here: fraudulently claim

that it already cleaned the soil, sit quietly by while

the new owner works with the State to complete

remediation, and then review the cleanup with a fine-toothed comb in search of departures from the

daedal NCP. If that strategy is fruitful, it destroys

both of CERCLA’s purposes that the Court recognized in Burlington Northern: (i) encouraging a

prompt cleanup (ii) at the polluter’s expense. 556

U.S. at 602. No rational property owner will undertake a cleanup if even compliance with State regulators’ directions does not assure that courts will not

later second-guess compliance with the NCP. They

would be better served to do nothing and wait for a

governmental agency to carry out the response.

That undermines the promptness objective.

Even more obviously, Goodyear’s strategy allows

polluters to escape the cost of a cleanup. That

strategy begins with refusal to conduct the response

itself. See 40 C.F.R. § 300.415(a)(2) (“Where the responsible parties are known, an effort initially shall

be made, to the extent practicable, to determine

whether they can and will perform the necessary

removal action promptly and properly.”). Step two

is to scrutinize the completed cleanup and invest in

litigation rather than remediation. Goodyear’s approach here is illustrative. It disputed all four elements of the prima facie case for cost recovery,

launching theories as creative as a third party trespassing on the property and depositing arsenic. The

district court rejected all of them, save the substan-

tial-compliance point, which is unsurprising given

the NCP’s complexity. App. 37a–39a (rejecting other arguments). Under the Ninth Circuit’s approach,

the reward for Goodyear’s combination of denial and

hindsight is saddling Moreland with the entire cost

of cleaning Goodyear’s pollution.

That outcome destroys the incentives that are

essential to cleaning more sites than EPA could ever

remediate alone. As EPA explained in its amicus

brief in Niagara Mohawk, “[i]t is important that

[property owners] that agree to engage in response

activities in settlements with states have appropriate CERCLA claims for contribution against other

PRPs. Otherwise, PRPs will decline to enter into

administrative settlements . . . .” U.S. Br., Niagara

Mohawk, 2008 WL 10610074, at *2. That approach

“creates perverse incentives for private parties to

refuse to settle with state environmental agencies

and undertake cleanup activities.” Ibid.

CERCLA’s effective operation depends on the

States. If they lack the ability to impart a presumption of substantial compliance with the NCP, the

incentives shift toward inaction, and the only winners are polluters who can defer compensation until

EPA or a State agency carries out the cleanup

themselves.

CONCLUSION

The Court should grant the petition to bring

clarity on an issue that has created an acknowledged division among the circuit courts. And, as

EPA recognized in the Second Circuit, that division

discourages property owners from entering administrative settlements with the States, resulting in pollution remaining in the ground as a result of legal

uncertainty. That is the opposite effect that Congress intended CERCLA to have. The Court should

grant the petition, restore CERCLA’s focus on cooperative federalism and, in the process, revive the

incentives for private cleanups.

Respectfully submitted.

STUART S. KIMBALL

GALLAGHER & KENNEDY

2575 E. CAMELBACK ROAD

PHOENIX, AZ 85016

(602) 530-8000

December 22, 2025

DOMINIC E. DRAYE

Counsel of Record

WILLIAM E. EYE

GREENBERG TRAURIG LLP

2101 L Street, N.W.

Washington, DC 20037

drayed@gtlaw.com

(202) 331-3100

APPENDIX

TABLE OF APPENDICES

Page

A PPENDI X A — ORDER A ND MEMO R A NDUM OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH

CIRCUIT, FILED AUGUST 26, 2025 . . . . . . . . . . . 1a

A P PEN DI X B — M EMOR A N DU M OF

T H E U N I T ED S TAT E S C OU RT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED JUNE 12, 2025 . . . . . . . . . . . . . . . . . . . . . . 12a

A PPEN DI X C — FIN DING S OF FACT

AND CONCLUSIONS OF LAW OF THE

UNITED STATES DISTRICT COURT

FOR T H E DIST RIC T OF A RI ZONA ,

FILED JULY 27, 2023 . . . . . . . . . . . . . . . . . . . . . . . 20a

A PPENDI X D — J U DGMENT OF THE

UNITED STATES DISTRICT COURT

FOR T H E DIST RIC T OF A RI ZONA ,

FILED JULY 27, 2023 . . . . . . . . . . . . . . . . . . . . . . . 55a

A PPENDI X E — MOREL A ND’ S WORK

PL A N T I T LED “ REMOVA L AC T ION

T O A DDRES S RESI DUA L A RSENIC

CONTAMINATION IN SHALLOW SOILS

AT THE FORMER MARSH AVIATION

SITE,” DATED JULY 10, 2019 . . . . . . . . . . . . . . . . 57a

A PPEN DI X F – A DEQ A PPROVA L OF

MOREL A ND’S WORK PL A N, DATED

SEPTEMBER 30, 2019 . . . . . . . . . . . . . . . . . . . . . . . 96a

Table of Appendices

Page

A PPENDIX G – A DEQ CONFIRMATION

OF MOR EL A N D ’ S COM PLI A NCE

W ITH SET TLEM EN T AGREEM EN T,

DATED OCTOBER 22, 2020 . . . . . . . . . . . . . . . . . . 98a

APPENDIX H – EXCERPTS OF ADEQ TRIAL

TESTIMONY, DATED MARCH 28, 2023 . . . . . . 99a

Appendix

APPENDIX A — ORDER

ANDAMEMORANDUM OF

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT, FILED AUGUST 26, 2025

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 24-2451

D.C. No. 2:20-cv-02297-SRB

District of Arizona, Phoenix

MORELAND PROPERTIES LLC, A COLORADO

LIMITED LIABILITY COMPANY,

Plaintiff-Appellant,

GOODYEAR TIRE & RUBBER COMPANY, NAMED

AS THE GOODYEAR TIRE & RUBBER COMPANY,

AN OHIO CORPORATION AND GOODYEAR FARMS

INCORPORATED, AN ARIZONA CORPORATION,

Defendants-Appellees.

ORDER

Before: GRABER, BERZON, and BENNETT, Circuit

Judges.

The memorandum disposition filed on June 12, 2025, is

withdrawn. A replacement memorandum disposition and a

partial dissent by Judge Graber will be filed concurrently

with this order.

Appendix A

With these amendments, the panel has unanimously

voted to deny Appellant’s petition for rehearing. Judge

Bennett has voted to deny the petition for rehearing

en banc, and Judge Berzon and Judge Graber have so

recommended. The full court has been advised of the

petition for rehearing en banc, and no judge has requested

a vote on whether to rehear the matter en banc. Fed. R.

App. P. 40. The petition for rehearing en banc is denied.

No additional petitions for rehearing may be filed.

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 24-2451

D.C. No. 2:20-cv-02297-SRB

MORELAND PROPERTIES LLC, A COLORADO

LIMITED LIABILITY COMPANY,

Plaintiff-Appellant,

GOODYEAR TIRE & RUBBER COMPANY, NAMED

AS THE GOODYEAR TIRE & RUBBER COMPANY,

AN OHIO CORPORATION; GOODYEAR FARMS

INCORPORATED, AN ARIZONA CORPORATION,

Defendants-Appellees.

Appeal from the United States

District Court for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted March 26, 2025

Submission Withdrawn April 8, 2025

Resubmitted June 10, 2025

Phoenix, Arizona

MEMORANDUM*

* This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

Appendix A

Before: GRABER, BERZON, and BENNETT, Circuit

Judges.

Partial Concurrence and Partial Dissent by Judge

GRABER.

Plaintiff Moreland Properties, LLC (“Moreland”)

appeals (1) the district court’s grant of summary judgment

for Defendants Goodyear Farms, Inc. and the Goodyear

Tire and Rubber Company (collectively, “Goodyear”)

on Moreland’s fraud claim and (2) the district court’s

judgment for Goodyear following a bench trial on

Moreland’s Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”) claim. We

affirm on both issues.

1. The district court correctly concluded that

Moreland’s fraud claim was time barred. Arizona applies

a three-year limitations period to fraud claims. Ariz. Rev.

Stat. § 12-543(3). The statute of limitations does not begin

to run “until the discovery by the aggrieved party of the

facts constituting the fraud or mistake.” Id. Discovery

occurs at the point “when the defrauded party discovers or

with reasonable diligence could have discovered the fraud.”

Mister Donut of Am., Inc. v. Harris, 150 Ariz. 321, 723

P.2d 670, 672 (Ariz. 1986). Because a claim accrues when

a reasonably diligent party would have discovered it, this

discovery rule includes a corollary “duty to investigate.”

Doe v. Roe, 191 Ariz. 313, 955 P.2d 951, 962 (Ariz. 1998);

Walk v. Ring, 202 Ariz. 310, 44 P.3d 990, 994 (Ariz. 2002).

As a result, the statute of limitations “may begin to run

before a person has actual knowledge of the fraud or even

Appendix A

all the underlying details of the alleged fraud.” Mister

Donut, 723 P.2d at 672; see also Coronado Dev. Corp. v.

Superior Ct. of Ariz. ex rel. County of Cochise, 139 Ariz.

350, 678 P.2d 535, 537 (Ariz. Ct. App. 1984).

The report from Western Technologies Inc. (“WTI”)

in January 2015 showed an average arsenic concentration

of around 50 mg/kg. Goodyear’s 2004 Declaration of

Environmental Use Restriction (“DEUR”) had reported a

95% upper confidence limit mean arsenic concentration of

only 10 mg/kg. The WTI report’s findings were sufficiently

alarming that the prospective buyer to whom Moreland

had intended to sell the land withdrew from the sale, and

Moreland initiated remediation efforts. Further, William

Moreland testified that he understood the WTI report to

mean that “the property is not as stated in the DEUR” and

that, as a result, “I couldn’t sell it saying there’s a DEUR

as I bought it. And this DEUR is misrepresented or it’s

fraudulent. I couldn’t do it.” The WTI report therefore

put a reasonable person on notice that fraud may have

occurred and that an investigation was called for.

That scienter is one of the facts constituting fraud,

see Merck & Co. v. Reynolds, 559 U.S. 633, 648-49, 130

S. Ct. 1784, 176 L. Ed. 2d 582 (2010), does not affect the

date at which a reasonably diligent plaintiff in Moreland’s

position would have begun investigating. The WTI report’s

finding of extremely elevated arsenic levels was sufficient

to put a reasonable person on notice to investigate whether

Goodyear misrepresented the concentrations in the

DEUR and, if so, whether it did so knowingly, even though

the report did not address those issues.

Appendix A

When Moreland did investigate the reason for the

inconsistency between its sampling and the DEUR, it

took approximately one month for it to discover that

Goodyear allegedly had not “take[n] sufficient pre-and

post-confirmation arsenic samples” to “delineate, confirm,

or further excavate the areas of arsenic impacted soil,”

even though it was required to do so by the work plan

approved by the Arizona Department of Environmental

Quality (“ADEQ”). It is these findings on which Moreland

relied to allege both the falsity of the DEUR and scienter.

Had Moreland acted as a reasonably diligent plaintiff

would have and begun investigating the basis for the

arsenic inconsistency after receiving the WTI report,

it would have discovered the facts constituting fraud—

including those suggesting scienter—in early 2015.

Because Moreland filed suit on November 30, 2020, more

than three years later, its fraud claim is barred by the

statute of limitations.

2. The district court correctly found for Goodyear

on Moreland’s CERCLA claim. To recover, Moreland had

to show that its response action was “consistent with”

the National Contingency Plan (“NCP”). Carson Harbor

Vill., Ltd. v. County of Los Angeles, 433 F.3d 1260, 1265

(9th Cir. 2006); see 42 U.S.C. § 9607(a)(4)(B). “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.

. . .” 40 C.F.R. § 300.700(c)(3)(i).

A. “CERCLA and the National Contingency Plan

divide response actions into two broad categories: removal

Appendix A

actions and remedial actions.” United States v. W.R. Grace

& Co., 429 F.3d 1224, 1227 (9th Cir. 2005); see also 42 U.S.C.

§ 9601(23), (24). “[B]oth types of actions have substantial

requirements, but the [NCP’s] requirements for remedial

actions are much more detailed and onerous.” W.R. Grace,

429 F.3d at 1228 (citation omitted). “[R]emoval actions

encompass interim, partial time-sensitive responses taken

to counter serious threats to public health.” Id. at 1245;

see also Santa Clarita Valley Water Agency v. Whittaker

Corp., 99 F.4th 458, 478 (9th Cir. 2024). “Remedial actions,

on the other hand, are often described as permanent

remedies to threats for which an urgent response is

not warranted.” W.R. Grace, 429 F.3d at 1228 (footnote

omitted); see also Santa Clarita, 99 F.4th at 478.

The district court properly characterized Moreland’s

response as a remedial action. Moreland’s response did

not address a time-sensitive public health threat, because

there was “no evidence that the elevated arsenic or

toxaphene concentrations in the soil required ‘immediate

attention.’” The only evidence of risk Moreland provided

was that the degree of arsenic contamination on the land

exceeded the applicable Arizona Soil Remediation Level

(“SRL”) set by ADEQ; Moreland presented no evidence

that the risk was time-sensitive or substantial enough to

necessitate an immediate response. That the land was

a vacant, undeveloped lot suggests there was minimal

risk that someone would come into contact with the

contaminated soil, and there was evidence introduced

at trial that the soil presented no risk of groundwater

contamination.

Appendix A

Moreland’s response was also “comprehensive” and

“permanent,” not “interim” or “partial.” W.R. Grace,

429 F.3d at 1228, 1245. By Moreland’s own estimation,

the excavation reduced the soil’s arsenic concentration

to 9.9 mg/kg and the toxaphene concentration to 4.9 mg/

kg. These values are below the current residential SRLs,

indicating that Moreland’s response “fully eliminate[d]

the public health threat” posed by the contamination. Id.

at 1247.

That Moreland’s ADEQ-approved work plan referred

to the response as a “removal” is not pertinent. An

ADEQ employee explained during trial that ADEQ’s

approval of Moreland’s work plan involved no substantive

determination that Moreland’s response was a removal

action under CERCLA, nor would ADEQ’s interpretation

of CERCLA be entitled to deference. See Arizona v. City

of Tucson, 761 F.3d 1005, 1014 (9th Cir. 2014).

Accordingly, Moreland’s response is properly

characterized as a remedial action.

B. Because Moreland’s response was a remedial

action, the NCP required, among other things, that

Moreland conduct a feasibility study containing “[a]

detailed analysis” of “alternatives that represent viable

approaches to remedial action.” 40 C.F.R. § 300.430(e)

(9)(i). “One of the hallmarks of the feasibility study

requirement is assessing a variety of possible alternatives

and providing analysis of the costs, implementability, and

effectiveness of each, and choosing the best alternative for

the site at issue.” Carson Harbor, 433 F.3d at 1268; see

Appendix A

also 40 C.F.R. § 300.430(e)(9)(iii) (listing criteria that the

feasibility study must consider).

Moreland has submitted no evidence to show that

it conducted the required feasibility study or otherwise

analyzed remedial alternatives. Its work plan considered

only excavation. Its 2017 sampling report likewise did

not assess any remedial alternatives. Although the WTI

report noted that “[l]ess expensive remediation/mitigation

alternatives are potentially available,” it did not list those

alternatives, or analyze the costs, effectiveness, or other

features of such alternatives, aside from stating that they

“often involve increased agency interaction and frequently

less certainty in the schedule for the project.” Because

“discussing a single remediation alternative does not

establish substantial compliance with the feasibility study

requirements of the National Contingency Plan,” these

documents do not suffice. Carson Harbor, 433 F.3d at 1268.

The feasibility studies Marsh Aviation commissioned in

the 1990s do not satisfy the NCP’s requirement, as they

addressed only the toxaphene contamination; no remedial

options to resolve the arsenic contamination at issue in

Moreland’s remediation were discussed. Further, because

the studies were conducted before Goodyear’s remediation

attempt, they did not accurately characterize the scope

of the contamination Moreland confronted or the relative

merits of various remedial options available to Moreland.

In sum, Moreland did not substantially comply with

the feasibility study requirement, so its remediation was

inconsistent with the NCP. Because Moreland is barred

from recovering on that ground, we do not consider

10a

Appendix A

whether Moreland complied with the NCP’s public

participation requirement or whether its response costs

were necessary.

AFFIRMED.

11a

Appendix A

GRABER, Circuit Judge, concurring in part and

dissenting in part:

I agree with the disposition’s analysis of the federal

claim, and I join that part entirely. But I respectfully

disagree with the disposition’s analysis of the state-law

fraud claim. I would hold that, construing the facts in the

light most favorable to Plaintiff, as we must, a reasonable

juror could decide that the 2015 report did not trigger an

immediate duty to investigate whether Defendant had

committed fraud. See Walk v. Ring, 202 Ariz. 310, 44

P.3d 990, 995 (Ariz. 2002) (holding that a reasonable juror

could conclude that no immediate duty to investigate a

dentist’s negligence arose from severe pain following a

dental procedure); see also Satamian v. Great Divide Ins.,

257 Ariz. 163, 545 P.3d 918, 926 (Ariz. 2024) (holding that

the date of discovery may vary depending on the specific

cause of action). I therefore would reverse the summary

judgment and remand for further proceedings on the

state-law claim.

12a

APPENDIX B —Appendix

MEMORANDUM

OF THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT, FILED JUNE 12, 2025

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 24-2451

D.C. No. 2:20-cv-02297-SRB

MORELAND PROPERTIES LLC, A COLORADO

LIMITED LIABILITY COMPANY,

Plaintiff-Appellant,

GOODYEAR TIRE & RUBBER COMPANY, NAMED

AS THE GOODYEAR TIRE & RUBBER COMPANY,

AN OHIO CORPORATION; GOODYEAR FARMS

INCORPORATED, AN ARIZONA CORPORATION,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted March 26, 2025

Submission Withdrawn April 8, 2025

Resubmitted June 10, 2025

Phoenix, Arizona

13a

Appendix B

MEMORANDUM*

Before: GRABER, BERZON, and BENNETT, Circuit

Judges.

Plaintiff Moreland Properties, LLC (“Moreland”)

appeals (1) the district court’s grant of summary judgment

for Defendants Goodyear Farms, Inc. and the Goodyear

Tire and Rubber Company (collectively, “Goodyear”)

on Moreland’s fraud claim and (2) the district court’s

judgment for Goodyear following a bench trial on

Moreland’s Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”) claim. We

affirm on both issues.

1. The district court correctly concluded that

Moreland’s fraud claim was time barred. Arizona applies

a three-year limitations period to fraud claims. Ariz. Rev.

Stat. § 12-543(3). The statute of limitations does not begin

to run “until the discovery by the aggrieved party of the

facts constituting the fraud or mistake.” Id. Discovery

occurs at the point “when the defrauded party discovers or

with reasonable diligence could have discovered the fraud.”

Mister Donut of Am., Inc. v. Harris, 150 Ariz. 321, 723

P.2d 670, 672 (Ariz. 1986). Because a claim accrues when

a reasonably diligent party would have discovered it, this

discovery rule includes a corollary “duty to investigate.”

Doe v. Roe, 191 Ariz. 313, 955 P.2d 951, 962 (Ariz. 1998);

Walk v. Ring, 202 Ariz. 310, 44 P.3d 990, 994 (Ariz. 2002).

* This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

14a

Appendix B

As a result, the statute of limitations “may begin to run

before a person has actual knowledge of the fraud or even

all the underlying details of the alleged fraud.” Mister

Donut, 723 P.2d at 672; see also Coronado Dev. Corp. v.

Superior Ct. of Ariz. ex rel. County of Cochise, 139 Ariz.

350, 678 P.2d 535, 537 (Ariz. Ct. App. 1984).

The report from Western Technologies Inc. (“WTI”)

in January 2015 showed an average arsenic concentration

of around 50 mg/kg. Goodyear’s 2004 Declaration of

Environmental Use Restriction (“DEUR”) had reported a

95% upper confidence limit mean arsenic concentration of

only 10 mg/kg. The WTI report’s findings were sufficiently

alarming that the prospective buyer to whom Moreland

had intended to sell the land withdrew from the sale, and

Moreland initiated remediation efforts. Further, William

Moreland testified that he understood the WTI report to

mean that “the property is not as stated in the DEUR” and

that, as a result, “I couldn’t sell it saying there’s a DEUR

as I bought it. And this DEUR is misrepresented or it’s

fraudulent. I couldn’t do it.” The WTI report therefore

put a reasonable person on notice that fraud may have

occurred and that an investigation was called for.

That scienter is one of the facts constituting fraud,

see Merck & Co. v. Reynolds, 559 U.S. 633, 648-49, 130

S. Ct. 1784, 176 L. Ed. 2d 582 (2010), does not affect the

date at which a reasonably diligent plaintiff in Moreland’s

position would have begun investigating. The WTI report’s

finding of extremely elevated arsenic levels was sufficient

to put a reasonable person on notice to investigate whether

Goodyear knowingly misrepresented the concentrations

15a

Appendix B

in the DEUR, even though the report did not address

that issue.

When Moreland did investigate the reason for the

inconsistency between its sampling and the DEUR, it

took approximately one month for it to discover that

Goodyear allegedly had not “take[n] sufficient pre- and

post-confirmation arsenic samples” to “delineate, confirm,

or further excavate the areas of arsenic impacted soil,”

even though it was required to do so by the work plan

approved by the Arizona Department of Environmental

Quality (“ADEQ”). It is these findings on which Moreland

relied to allege both the falsity of the DEUR and scienter.

Had Moreland acted as a reasonably diligent plaintiff

would have and begun investigating the basis for the

arsenic inconsistency after receiving the WTI report,

it would have discovered the facts constituting fraud—

including those suggesting scienter—in early 2015.

Because Moreland filed suit on November 30, 2020, more

than three years later, its fraud claim is barred by the

statute of limitations.

2. The district court correctly found for Goodyear

on Moreland’s CERCLA claim. To recover, Moreland had

to show that its response action was “consistent with”

the National Contingency Plan (“NCP”). Carson Harbor

Vill., Ltd. v. County of Los Angeles, 433 F.3d 1260, 1265

(9th Cir. 2006); see 42 U.S.C. § 9607(a)(4)(B). “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

. . . .” 40 C.F.R. § 300.700(c)(3)(i).

16a

Appendix B

A. ”CERCLA and the National Contingency Plan

divide response actions into two broad categories: removal

actions and remedial actions.” United States v. W.R. Grace

& Co., 429 F.3d 1224, 1227 (9th Cir. 2005); see also 42 U.S.C.

§ 9601(23), (24). “[B]oth types of actions have substantial

requirements, but the [NCP’s] requirements for remedial

actions are much more detailed and onerous.” W.R. Grace,

429 F.3d at 1228 (citation omitted). “[R]emoval actions

encompass interim, partial time-sensitive responses taken

to counter serious threats to public health.” Id. at 1245;

see also Santa Clarita Valley Water Agency v. Whittaker

Corp., 99 F.4th 458, 478 (9th Cir. 2024). “Remedial actions,

on the other hand, are often described as permanent

remedies to threats for which an urgent response is

not warranted.” W.R. Grace, 429 F.3d at 1228 (footnote

omitted); see also Santa Clarita, 99 F.4th at 478.

The district court properly characterized Moreland’s

response as a remedial action. Moreland’s response did

not address a time-sensitive public health threat, because

there was “no evidence that the elevated arsenic or

toxaphene concentrations in the soil required ‘immediate

attention.’” The only evidence of risk Moreland provided

was that the degree of arsenic contamination on the land

exceeded the applicable Arizona Soil Remediation Level

(“SRL”) set by ADEQ; Moreland presented no evidence

that the risk was time-sensitive or substantial enough to

necessitate an immediate response. That the land was

a vacant, undeveloped lot suggests there was minimal

risk that someone would come into contact with the

contaminated soil, and there was evidence introduced

at trial that the soil presented no risk of groundwater

contamination.

17a

Appendix B

Moreland’s response was also “comprehensive” and

“permanent,” not “interim” or “partial.” W.R. Grace,

429 F.3d at 1228, 1245. By Moreland’s own estimation,

the excavation reduced the soil’s arsenic concentration

to 9.9 mg/kg and the toxaphene concentration to 4.9 mg/

kg. These values are below the current residential SRLs,

indicating that Moreland’s response “fully eliminate[d]

the public health threat” posed by the contamination. Id.

at 1247.

That Moreland’s ADEQ-approved work plan referred

to the response as a “removal” is not pertinent. An

ADEQ employee explained during trial that ADEQ’s

approval of Moreland’s work plan involved no substantive

determination that Moreland’s response was a removal

action under CERCLA, nor would ADEQ’s interpretation

of CERCLA be entitled to deference. See Arizona v. City

of Tucson, 761 F.3d 1005, 1014 (9th Cir. 2014).

Accordingly, Moreland’s response is properly

characterized as a remedial action.

B. Because Moreland’s response was a remedial

action, the NCP required, among other things, that

Moreland conduct a feasibility study containing “[a]

detailed analysis” of “alternatives that represent viable

approaches to remedial action.” 40 C.F.R. § 300.430(e)

(9)(i). “One of the hallmarks of the feasibility study

requirement is assessing a variety of possible alternatives

and providing analysis of the costs, implementability, and

effectiveness of each, and choosing the best alternative for

the site at issue.” Carson Harbor, 433 F.3d at 1268; see

18a

Appendix B

also 40 C.F.R. § 300.430(e)(9)(iii) (listing criteria that the

feasibility study must consider).

Moreland has submitted no evidence to show that

it conducted the required feasibility study or otherwise

analyzed remedial alternatives. Its work plan considered

only excavation. Its 2017 sampling report likewise did

not assess any remedial alternatives. Although the WTI

report noted that “[l]ess expensive remediation/mitigation

alternatives are potentially available,” it did not list those

alternatives, or analyze the costs, effectiveness, or other

features of such alternatives, aside from stating that they

“often involve increased agency interaction and frequently

less certainty in the schedule for the project.” Because

“discussing a single remediation alternative does not

establish substantial compliance with the feasibility study

requirements of the National Contingency Plan,” these

documents do not suffice. Carson Harbor, 433 F.3d at 1268.

The feasibility studies Marsh Aviation commissioned in

the 1990s do not satisfy the NCP’s requirement, as they

addressed only the toxaphene contamination; no remedial

options to resolve the arsenic contamination at issue in

Moreland’s remediation were discussed. Further, because

the studies were conducted before Goodyear’s remediation

attempt, they did not accurately characterize the scope

of the contamination Moreland confronted or the relative

merits of various remedial options available to Moreland.

In sum, Moreland did not substantially comply with

the feasibility study requirement, so its remediation was

inconsistent with the NCP. Because Moreland is barred

from recovering on that ground, we do not consider

19a

Appendix B

whether Moreland complied with the NCP’s public

participation requirement or whether its response costs

were necessary.

AFFIRMED.

20a

APPENDIX CAppendix

— FINDINGS

OF FACT

AND CONCLUSIONS OF LAW OF THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA,

FILED JULY 27, 2023

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV-20-02297-PHX-SRB

MORELAND PROPERTIES LLC,

Plaintiff,

GOODYEAR TIRE & RUBBER COMPANY, et al.,

Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case arises out of a Comprehensive Environmental

Response, Compensation, and Liability Act (“CERCLA”)

claim by Plaintiff Moreland Properties, LLC (“Moreland”)

for costs Moreland incurred by excavating arseniccontaminated soil at property formerly owned by

Defendants Goodyear Tire & Rubber Company and

Goodyear Farms, Inc. (collectively, “Goodyear”). The

Court conducted a ten-day bench trial on Moreland’s

CERCLA and breach of implied covenant of good faith and

fair dealing claims, which concluded on May 10, 2023. (See

Docs. 142, 143, 145, 149, 162, 167, 169, 174, 181, 182, Min.

Entries.) Having considered the evidence received at trial

21a

Appendix C

as well as the arguments of counsel, the Court makes the

followings findings of fact and conclusions of law.

FINDINGS OF FACT1

Goodyear’s Ownership and Remediation of the

Goodyear Property

From 1974 through 1988, Goodyear leased a large

parcel of land on the northwest corner of McDowell Road

and 159th Avenue in Maricopa County, Arizona (“Goodyear

Property”) to Marsh Aviation Co. (“Marsh”). Marsh used

the Goodyear Property to mix, store, and load chemicals

for its crop-dusting operation. The Goodyear Property

included an area known as the Operations Area, which

contained a pesticide mixing and storage zone, waste burn

areas, and an aircraft hangar and fueling facility. (See

Ex. 5, (“Summary Report Vol. 1”) at MOR00011.) In 1986,

Goodyear sold almost all of its real estate surrounding the

Goodyear Property to SunCor Development Company,

Inc. (“SunCor”), and sold SunCor an option to purchase

the Goodyear Property.

Marsh’s crop-dusting operation caused the release of

environmental contaminants onto the Goodyear Property,

including toxaphene and arsenic. Toxaphene was widely

used as a pesticide until the Environmental Protection

Agency (“EPA”) banned its use in the 1980s, and arsenic

1. Portions of the Court’s findings of fact have been adopted

from the Joint Proposed Pretrial Order, as well as Moreland’s and

Goodyear’s respective Proposed Findings of Fact and Conclusions

of Law, without separate citation. (See Docs. 130, 131, 141.)

22a

Appendix C

is a heavy metal commonly used as a plant defoliant. Both

are hazardous substances under CERCLA. 42 U.S.C.

§ 9601(14), 40 C.F.R. § 302.4. According to Dr. Stephen

Speyer, human receptors for arsenic include contact with

the skin, ingestion, and inhalation. (Stephen Speyer Trial

Tr. (“Speyer Tr.”) 159:13-17.) In May 1988, the Arizona

Department of Environmental Quality (“ADEQ”) issued

a Compliance Order that required Marsh to remediate

the Goodyear Property to remove chemicals deemed

dangerous to human health and the environment.

Goodyear retook possession of the Goodyear Property

after Marsh became insolvent and worked with ADEQ

from 1999 to 2004 to complete the remediation. 2

Goodyear’s Remediation of the Goodyear

Property

Ogden Environmental (“Ogden”) drafted a Site

Assessment Plan (“SAP”) on behalf of Goodyear, which

proposed to analyze the extent of toxaphene contamination

in the soil at the Goodyear Property. (Ex. 129, at

GOODYEAR00008274, 8281-86.) Ogden updated the SAP to

also evaluate arsenic contamination after ADEQ requested

Ogden include arsenic as a contaminant of concern at the

Goodyear Property. (Ex. 14, at GOODYEAR00004248;

2. By the time Goodyear retook possession of the Goodyear

Property, environmental investigations had been performed by

several environmental consultant groups. These investigations

were primarily focused on remediating toxaphene contamination

and did not consider arsenic to be a contaminant of concern. (Ex.

166, (“SAR/CAP”) at GOODYEAR00005018-20; see, e.g., Ex. 50, at

GOODYEAR00003734 (indicating no need for additional arsenic

analysis); Ex. 58; Ex. 59, at GOODYEAR00004057-60 (no discussion

of arsenic in its remedial alternatives).)

23a

Appendix C

Ex. 186, at GOODYEAR00004272.) ADEQ approved

the SAP. Ogden’s soil sampling, limited to the top 18

inches of soil in the Operations Area, revealed arsenic

concentrations as high as 801 milligrams per kilogram

(“mg/kg”) and toxaphene concentrations as high as 1,600

mg/kg. (Ex. 18, GOODYEAR00004628, 4631.)

Goodyear then retained Haley & Aldrich (“H&A”), to

draft a Site Assessment Report and Corrective Action Plan

(“SAR/CAP”), which, inter alia, proposed remediating

the Operations Area to meet the non-residential soil

remediation levels (“SRLs”) for arsenic and toxaphene. 3

(Ex. 18.) ADEQ approved H&A’s SAR/CAP in September

2002. (See SAR/CAP; Ex. 17; Ex. 187.) The SAR/CAP

identified seven distinct areas requiring remediation

within the Operations Area to reduce toxaphene and

arsenic contamination to non-residential SRLs. (SAR/

CA P at GOODY EA R0 0 0 05027, 5031 (identify ing

“excavation area[s] 4 through 10”).) H&A did not propose

to excavate the western third of the Operations Area

because pre-excavation soil samples tested below the

non-residential SRLs for arsenic and toxaphene. (Id. at

GOODYEAR00005022-23 (explaining that no remediation

was required near the aircraft hangar, fuel storage tank,

and parts storage); see Ex. 17 at GOODYEAR00000085.)

3. Arizona requires property owners to meet acceptable

SRLs that are protective of human health and the environment.

At the time of Goodyear’s remediation, Arizona’s statutory SRLs

for non-residential land uses were 10 mg/kg for arsenic and 17

mg/kg for toxaphene. The SRLs for residential purposes were

10 mg/kg for arsenic and 4 mg/kg for toxaphene. (SAR/CAP at

GOODYEAR00005023.)

24a

Appendix C

The SA R /CA P requi red H&A to take “step out” samples to “delineate” the lateral extent of

contamination where a given sample exceeded the nonresidential SRL for toxaphene or arsenic. (SAR/CAP

at GOODYEAR00005028-29; 5051 (illustrating preexcavation sampling procedure).) Before its excavation,

H&A tested four “confirmation” soil samples for arsenic,

two of which revealed arsenic concentrations above the

non-residential SRL. (Ex. 20, Corrective Action Report

(“CAR”) at GOODYEAR00006125.) But H&A did not

take any step-out samples to define the lateral extent of

arsenic contamination as required by the SAR/CAP. (Id.

at GOODYEAR00005753 (explaining that the lateral

extent of arsenic contamination at these two locations

were each “defined by one pre-excavation confirmation

sample”), 6125.) H&A excavated and disposed of 4,100

tons of contaminated soil from the Goodyear Property.

The SAR/CAP also required H&A to take post-excavation

confirmation samples, including two arsenic samples from

the base of the excavations, to verify adequate removal of

contaminated soils. (SAR/CAP at GOODYEAR00004979.)

But H&A did not take these post-excavation confirmation

samples for arsenic. (CAR at GOODYEAR00005753-55,

5768.) Because H&A failed to take step-out samples and

post-excavation confirmation samples, it failed to comply

with the SAR/CAP’s requirements for delineating arsenic

contamination across the Operations Area.

Goodyear submitted its Final Corrective Action

Report (“CAR”) to ADEQ on October 9, 2003, which

described Goodyear’s remediation of the Goodyear

Property. (See generally id.) Using its pre-excavation

soil sample data that represented soil remaining at the

25a

Appendix C

property after the excavation, H&A calculated the 95

percent upper confidence limit (“95% UCL”) mean arsenic

concentration for the entire Operations Area to be 10 mg/

kg.4 (Id. at GOODYEAR00006125.) ADEQ approved the

CAR.

The 2004 DEUR

On Sept ember 3 0, 2 0 0 4 , G oodyea r execut ed

a Declaration of Environmental Use Restriction,

which limited the Operations Area to non-residential

uses (“ 20 0 4 DEUR”). (Ex. 1, (“ 20 0 4 DEUR”) at

GOODYEAR00000004, 9.) A DEUR restricts property

from being put to residential use because contaminant

levels exceed residential SRLs. Goodyear placed the

2004 DEUR over the entire 6.9 acres of Operations Area,

even though the arsenic and toxaphene concentrations

on the western portion of the property were below the

4. The parties spent multiple days of trial discussing the

nuances of 95% UCL calculations and the appropriate methodologies

for the parties’ respective investigations of the arsenic and toxaphene

contamination, but a brief explanation will suffice. The 95% UCL

is a statistical measure that estimates the maximum contaminant

concentration distributed throughout the represented property,

with approximately five percent of randomized samples expected to

exceed this value. (See Scott Shock Trial Tr. (“Shock Tr.”) at 115:417.) The 95% UCL should be calculated using sampling data that is

“representative” of the site’s conditions. This is because data that

under-or overrepresents contamination levels across the property

will correlate directly to higher or lower 95% UCL calculations. The

95% UCL can be used to assess exposure risks to the contaminant

based on exposure pathways. (See id. at 54:25-55:2 (explaining that

an exposure pathway is the route of exposure between a contaminant

and receptor).)

26a

Appendix C

residential SRLs. (Id. at GOODYEAR00000009-10;

C A R a t G O ODY E A R 0 0 0 0 5 0 2 2 - 2 3 ; E x . 17 a t

GOODYEAR00000083, 85.) The 2004 DEUR represented

that the 95% UCL concentrations of arsenic and

toxaphene remaining across the Operations Area were

10 mg/kg and 13 mg/kg, respectively. (2004 DEUR at

GOODYEAR00000012.)

In 2004, SunCor exercised its option to purchase the

Goodyear Property and divided the Operations Area into

a residential parcel on roughly the western third of the

property and a non-residential parcel on the remaining

portion. SunCor sold the non-residential parcel and

performed soil sampling on the residential parcel, which

indicated that maximum concentrations of arsenic and

toxaphene were below the residential SRLs. (Ex. 103,

at MOR19430.) SunCor later amended the 2004 DEUR

to remove the residential parcel from the DEUR (“2009

DEUR”). (See Ex. 183, at SHOCK_000060 (illustrating

2004 DEUR and 2009 DEUR boundaries); see generally

Ex. 2.)

B. Moreland’s Ownership and Remediation of

Tract D

Moreland Discovers Elevated Arsenic

Concentrations

In December 2010, Moreland purchased a parcel

of land that was still subject to the DEUR (“Tract D”),

intending to resell it to a commercial developer. Tract

D encompassed approximately 4.50 acres of the DEURrestricted property and included all seven of Goodyear’s

27a

Appendix C

remedial excavations in the former Operations Area.5 (Ex.

183, at SHOCK_000011, 60 (illustrating Tract D boundary,

parcel 50814898), 71.)

5. The remaining property subject to the DEUR includes the

right-of-way bordering McDowell Road and 159th Avenue, as well as

an isolated segment of land in the northwest corner of the Operations

Area. (Ex. 183, at SHOCK_000060; Ex. 100, (“WTI Report”) at

GOODYEAR00006287.)

28a

Appendix C

Moreland reviewed the 2004 DEUR but did not

consult ADEQ’s additional records detailing Goodyear’s

remediation. In August 2014, Moreland and Spectrum

Acquisition Goodyear, LLC (“Spectrum”) signed a

purchase and sale contract for Tract D. Spectrum offered

Moreland a higher purchase price if Tract D was suitable for

residential use, so Moreland hired Western Technologies,

Inc. (“WTI”) to “conduct shallow soil sampling and testing

. . . to evaluate whether extensive surficial areas might

be impacted which would require remediation in order to

meet residential soil remediation levels” across Tract D.

(WTI Report at GOODYEAR00006289.)

WTI took 32 “grid samples” from 21 evenly distributed

locations across the property, with samples ranging from

1 to 12 inches in depth. (Id. at GOODYEAR00006289-91.)

WTI avoided sampling grid locations that contained

clean soil imported during Goodyear’s remediation

so WTI could more accurately delineate the extent of

remediation necessary to meet residential SRLs. (Id.

at GOODYEAR00006290.) Of the 26 samples tested for

arsenic, 18 exceeded the non-residential SRL.6 (Id. at

GOODYEAR00006309.) WTI also tested 16 “source area”

samples of the soil peripheral to Goodyear’s excavations

for arsenic, nine of which exceeded the non-residential

SRL. (Id. at GOODYEAR00006291, 6310.)

WTI notified Moreland in January 2015 that it was

possible that the 2004 DEUR had underestimated the

95% UCL concentrations. WTI informed Moreland that it

could excavate a portion of Tract D to achieve residential

6. Arsenic concentrations ranged from 3.9 mg/kg to 550 mg/

kg. (WTI Report at GOODYEAR00006309.)

29a

Appendix C

SRLs. (Id. at GOODYEAR00006295.) It indicated

that less expensive remediation alternatives were also

possible, but these would likely require “increased agency

interaction and frequently less certainty in the schedule

for the project.” (Id.) WTI did not identify these potential

alternatives in its report. (See generally id.) Spectrum did

not purchase Tract D.

Moreland’s Administrative Settlement

Agreement

Moreland hired Gallagher & Kennedy (“G&K”) and

Synergy Environmental, LLC (“Synergy”) in 2017 to

address the elevated arsenic and toxaphene levels found

at Tract D. In August 2017, G&K communicated to ADEQ

Moreland’s intent to conduct additional soil sampling

to define “the vertical and horizontal extent of arsenic

and toxaphene concentrations” at Tract D. (Ex. 38.)

Synergy issued a Remedial Refinement Sampling Report

(“Sampling Report”) in December 2017 that discussed

Synergy’s sampling of Tract D. (Ex. 6, (“Summary Report

Vol. 2”) at MOR00324-464.) Synergy collected 64 soil

samples, which identified arsenic concentrations ranging

from 5.05 to 135 mg/kg and toxaphene concentrations from

less than 0.40 to 20.5 mg/kg. (Id. at MOR00333-34.) The

Sampling Report indicated that Synergy sampled Tract

D assuming a site-specific SRL of 25 mg/kg for arsenic.7

(Id. at MOR00326.)

7. ADEQ may approve site-specific, risk-based SRLs when

contaminants exceed Arizona’s statutory SRLs. A.R.S. § 49-152(B);

(LePage Tr. 35:18-38:14.) A site-specific SRL would have required

Moreland to conduct a “site-specific human health risk assessment.”

As explained below, Moreland did not do this.

30a

Appendix C

Following the Sampling Report, G&K scheduled a

meeting with ADEQ in February 2018 to discuss initiating

a cleanup of Tract D, “[s]ite-specific standards consistent

with other DEURs issued by ADEQ,” and issuing a new

DEUR or modifying the 2004 DEUR. (See Ex. 39.) ADEQ

subsequently informed Moreland in June 2018 that no

further remediation was necessary to use Tract D for nonresidential purposes. (See Ex. 41.) However, on December

20, 2018, Moreland published a “Notice of 30-day Public

Comment Period Administrative Settlement Agreement”

(“Notice of Settlement”) in the Arizona Business Gazette.

(Ex. 63, (“Notice of Settlement”) at MOR01342.) The

Notice of Settlement explained that Moreland and ADEQ

would enter into a proposed administrative settlement

agreement that would “resolve[] ADEQ’s claims against

Moreland,” through a covenant not to sue. (Id.)

In March 2019, ADEQ and Moreland entered into

the Administrative Settlement Agreement (“Settlement

Agreement”), which required Moreland to “prepare

and implement a remedial action plan [to] address the

soil contamination at [Tract D] to meet applicable nonresidential standards that are protective of public health

and the environment, based on the 95% [UCL] estimates

of the mean concentrations of the soils left in place.” (Ex.

3, (“Settlement Agreement”) at GOODYEAR00002960.)

The Settlement Agreement indicated that the 95% UCL

concentration at Tract D was 34.7 mg/kg for arsenic. (Id.

at GOODYEAR00002956.) The Settlement Agreement

would also release Moreland from liability upon its

successful implementation of a remedial action plan. (Id.

at GOODYEAR00002961.)

31a

Appendix C

Witness Dennis Shirley, the owner of Synergy, testified

that Moreland entered into the Settlement Agreement to

avoid the additional costs and procedures associated with

the Voluntary Remediation Program (“VRP”). (Dennis

Shirley Trial Tr. (“Shirley Tr.”) 281:20-282:3.) Witness

Tina LePage8 explained that ADEQ prefers for property

owners to proceed through the VRP because it enables

ADEQ to have greater oversight of the remediation

process. (Tina LePage Trial Tr. (“LePage Tr.”) 9:16-19,

10:21-11:2.) While the VRP requires the property owner

to pay an application fee plus an hourly rate for ADEQ’s

time, ADEQ’s guidance often helps minimize a party’s

response costs. (Id. at 9:20-10:2, 10:18-11:2; Laura Malone

Trial Tr. (“Malone Tr.”) 57:23-25.) By contrast, ADEQ

reviews and comments on reports submitted by parties

under an administrative settlement agreement but does

not directly supervise the response. (Malone Tr. 56:2557:16, 58:8-11; LePage Tr. 11:3-6.) A landowner proceeding

through the VRP receives a “No Further Action” letter

from ADEQ, which, unlike an administrative settlement

agreement, does not release the landowner of liability.

(Malone Tr. 10:1-11:3.)

Synergy’s Work Plan to Excavate Tract D

In July 2019, Synergy submitted to ADEQ a draft

work plan to satisfy Moreland’s obligations under the

Settlement Agreement (“Work Plan”). The Work Plan

stated that WTI and Synergy’s cumulative soil sampling

8. Ms. LePage is the Manager of Remedial Projects at ADEQ

and helped oversee Moreland’s cleanup of Tract D. (LePage Tr.

6:6-22.)

32a

Appendix C

results indicated a 95% UCL arsenic concentration of

35.5 mg/kg and toxaphene concentration of 7.8 mg/kg on

Tract D. (Ex. 4, (“Work Plan”) at MOR02205.) Based on

this sampling data, the Work Plan purported “to optimally

plan for the appropriate excavation of contaminated soils

to reduce the resulting arsenic concentration in residual

soils to achieve the cleanup criteria of 10 mg/kg specified

in the [2004] DEUR.” (Id. at MOR02206.) The Work Plan

“propose[d] to excavate and transport the most highly

impacted soil to an offsite disposal facility” and scrape the

“upper six inches of the surface soils” with lower arsenic

concentrations to place in the primary excavation sites.

(Id. at MOR02196.) ADEQ did not request or require

Moreland to excavate the six inches of surface soils.

(LePage Tr. 30:16-31:5.)

The Work Plan did not assess the possibility of a sitespecific SRL. (Id. at MOR02203 (indicating that Synergy

was asked to analyze the potential for a site-specific

SRL); Shirley Tr. 16:18-17:4 (stating that Moreland “went

quite a ways” to consider a site-specific SRL but chose

excavation).) Mr. Shirley testified that this was because a

site-specific SRL would have “still require[d] a significant

amount of soil excavation,” in addition to more ADEQ

oversight. (Shirley Tr. 224:9-23.) The Work Plan did not

address any remediation alternatives to soil excavation,

analyze the cost-effectiveness of the excavation, or discuss

whether the proposed excavation was necessary to protect

human health and the environment. (Id. at 224:24-226:2;

see generally Work Plan.) Though Synergy had drafted

the Work Plan before the Settlement Agreement, the

Work Plan was not included for public review and comment

33a

Appendix C

in the Notice of Settlement. (See generally Settlement

Agreement; Notice of Settlement; Ex. 123.)

ADEQ reviewed the Work Plan and requested

additional information on, inter alia, Moreland’s intended

future use for Tract D because “ADEQ [needed to]

understand the end use for the land (i.e. residential,

commercial, parking, etc.) to drive critical decisions,

such as size of Decision Units for sampling.” (Ex. 122,

at MOR01165.) These Decision Units would “represent

future exposure areas” and help “to develop a remedial

endpoint.” (Id.) ADEQ also informed Moreland that it

could evaluate risk-based, site-specific SRLs for Tract D

instead of achieving the statutory SRLs. (Id.) ADEQ also

stated that it was unclear whether Moreland planned to

remove or modify the 2004 DEUR. (Id.) G&K responded

that Moreland “always” intended “to actually achieve the

specified soil-contaminant concentrations that ADEQ

confirmed existed in the DEUR prior to [its] purchase

of the property.” (Ex. 123, at MOR18532.) Ms. LePage

testified that she did not know whether Moreland ever

proposed a risk assessment to pursue site-specific SRLs

for Tract D.9 (LePage Tr. 37:10-16.)

Because Moreland elected to pursue the Settlement

Agreement, ADEQ did not evaluate the Work Plan as

vigorously as it would have under the VRP program. (Id.

at 23:11-24:5, 27:11-28:19.) ADEQ approved the Work Plan

on September 30, 3019. (Ex. 10, at GOODYEAR00007636.)

9. Synergy did not have a risk assessor working on the

remediation of Tract D who could have aided in creating a risk

assessment. (Shirley Tr. 128:16-129:13.)

34a

Appendix C

Synergy’s Excavation of Tract D

Approximately two weeks before beginning its

excavation, Synergy distributed flyers to nearby homes

and installed a sign at Tract D describing the excavation

and stating that the Work Plan was available for review.

(Summary Report Vol. 1 at MOR00028; Summary Report

Vol. 2 at MOR0716-720.) The flyer provided contact

information for interested parties to submit “questions

regarding the planned soil cleanup or concerns or

complaints during the course of the work” but did not

otherwise solicit public feedback on the Work Plan.

(Summary Report Vol. 2 at MOR0717.)

Synergy identified a 1.5 acre “Area of Impact”

that “contain[ed] the highest concentrations of arsenic

(and toxaphene)” at Tract D. (Summary Report Vol. 1

at MOR00021-22.) Synergy excavated and disposed of

nearly 3,500 tons of soil from the Area of Impact. (Id. at

MOR00031.) Though Synergy originally planned to reuse

the clean soil H&A imported into the Area of Impact as fill,

Synergy “abandoned” this “relatively small” cost-saving

approach and instead disposed of the soil because of the

effort required to isolate it from contaminated soil. (Id. at

MOR00030; see Shirley Tr. 105:21-107:1.) Synergy instead

“scraped” the upper six inches of the entirety of Tract D

and used that scraped soil as fill in the Area of Impact.

(Summary Report Vol. 1, at MOR00022, 31.) Synergy

excavated this peripheral soil, approximately 3,150 tons,

as a “cautionary step,” even though the soil was “generally

at or below the specified contaminant limits in the 2004

DEUR.” (Id. at MOR00022.) Synergy imported clean soil

35a

Appendix C

to fill the Area of Impact and to cover all of Tract D with

6 inches of clean soil. (Id. at MOR00022-23, 32.)

Synergy issued a report titled “Removal Action to

Address Residual Arsenic Contamination in Shallow Soils”

(“Summary Report”) on July 28, 2020, which documented

Synergy’s excavation of contaminated soil at Tract D.10

(See generally Summary Report Vol. 1; Summary Report

Vol. 2; Ex. 7.) In the Summary Report, Synergy calculated

pre-excavation 95% UCL concentrations of 154 mg/kg for

arsenic and 28 mg/kg for toxaphene.11 (Summary Report

Vol. 1 at MOR00020, 46-47.) Synergy chose to use only

WTI’s 21 grid samples collected at 3 to 6 inches below

10. Synergy characterized its excavation in both the Work

Plan and Summary Report as a “removal action.” (Work Plan at

MOR02192; Summary Report Vol. 1 at MOR00001.) ADEQ did not

approve Synergy’s excavation specifically as a removal action as

defined under CERCLA, however. (LePage Tr. 20:3-21:4 (explaining

that ADEQ does not distinguish between “removal” or “remedial”

actions under Arizona law).)

11. Synergy and WTI’s cumulative sampling shows that H&A

may have failed to adequately excavate portions of the Operations

Area, leaving higher levels of residual arsenic across Tract D.

However, because both Synergy and WTI only used sampling data

from Tract D, a fraction of the Operations Area, the Court cannot

conclude that Goodyear’s 95% UCLs for the entire Operations Area

in the 2004 DEUR were in fact underestimated. (Shirley Tr. 138:1216, 179:17-180:3.) Though Moreland’s expert, Dr. Speyer, disagreed

with H&A’s 95% UCL methodology and questioned the validity of its

data, neither he nor any of Moreland’s witnesses provided evidence

that Goodyear’s 95% UCL calculation for the entire Operations Area

was inaccurate. (See, e.g., Ex. 22, at SPEYER_000040-69; Shirley

Tr. 140:25-142:7 (explaining that Synergy did not “interpolate” data

to evaluate arsenic impact over the Operations Area).)

36a

Appendix C

ground surface to calculate the 95% UCL because Synergy

believed that this sample set was most representative of

the arsenic contamination on Tract D. (Id. at MOR00019,

46-47.) Using the soil samples representative of the soil

remaining at Tract D, Synergy calculated the postexcavation UCLs to be 9.9 mg/kg for arsenic and 4.9 mg/

kg for toxaphene but estimated that excavating the top six

inches of Tract D reduced the concentrations closer to 5.7

mg/kg and 1.7 mg/kg, respectively.12 (Id. at MOR0002324, 54-57.) Synergy did not conduct post-remediation soil

sampling. (Shirley Tr. 99:9-16.)

Though Mr. Shirley testified that he was unaware of

any viable remedial alternatives for Tract D, Synergy did

not prepare a feasibility study as part of its Work Plan

or Summary Report that assessed any such alternatives.

(Id. at 177:20-178:2, 305:11-306:15, 403:7-404:8 (stating

that various remedial alternatives would not have been

reasonable).) Synergy’s reports also did not evaluate

whether the arsenic on Tract D posed an imminent threat

to human health or the environment. (Id. at 354:11-14;

12. When asked why Synergy did not use all of WTI’s grid

samples to calculate the pre-excavation 95% UCL, Mr. Shirley

testified that the 21 samples represented “the most consistent data”

of Tract D. (Shirley Tr. 296:1-298:10.) However, Synergy used all

available grid samples to calculate the expected 95% UCL of soils

remaining in place after its excavation, without explaining why it

departed from its pre-excavation methodology. (Id. 298:13-299:19;

Summary Report Vol. 1 at MOR00023, 23 n.16.) This, plus the fact

that Synergy used different data sets for its calculations in each of

the Settlement Agreement, Work Plan, and Summary Report (none

of which included any samples from Goodyear’s excavation sites)

cast doubt on the reliability of Synergy’s pre-excavation 95% UCLs.

37a

Appendix C

see generally Work Plan; Summary Report Vol. 1.) In

October 2020, ADEQ confirmed that Moreland satisfied its

obligations under the Settlement Agreement. (See Ex. 11.)

II. CONCLUSIONS OF LAW

CERCLA Claim 13

CERCLA “generally imposes strict liability on owners

and operators of facilities at which hazardous substances

were disposed.” Carson Harbor Vill., Ltd. v. Unocal Corp.

(Carson Harbor I), 270 F.3d 863, 870 (9th Cir. 2001) (en

banc) (quoting 3550 Stevens Creek Assocs. v. Barclays

Bank, 915 F.2d 1355, 1357 (9th Cir. 1990)), cert. denied

sub nom. Carson Harbor Vill., Ltd. v. Braley, 535 U.S.

971, 122 S. Ct. 1437, 152 L. Ed. 2d 381 (2002). To succeed

on its CERCLA claim, Moreland must prove the following

elements by a preponderance of the evidence:

(1) the site on which the hazardous substances

are contained is a “facility” as defined in 42

U.S.C. § 9601(9); (2) a “release” or “threatened

release” of a “hazardous substance” has

occurred; (3) the “release” or “threatened

13. The Court finds that Moreland abandoned its WQARF

claim. Moreland makes only a passing reference to WQARF in

a footnote in the parties’ joint proposed pretrial order, in which

Moreland stated that it “reserve[d] the right to pursue recovery

under WQARF in the alternative to its [§] 107/113 claims under

CERCLA.” (Doc. 141 at 2 n.1.) Nor did Moreland include its WQARF

claim in its proposed findings of fact and conclusions of law, or argue

the WQARF claim during closing argument.

38a

Appendix C

release” has caused the plaintiff to incur

response costs that were “necessary and

“consistent with the national contingency plan”;

and (4) the defendants are in one of four classes

of persons subject to liability under § 9607(a).

Carson Harbor Vill. v. County of Los Angeles (Carson

Harbor III), 433 F.3d 1260, 1265 (9th Cir. 2006).

A facility includes “any site or area where a hazardous

substance has been deposited, stored, disposed of, or

placed, or otherwise come to be located.” 42 U.S.C.

§ 9601(9). Courts construe the term “facility” in broad

terms, such that a “plaintiff need only show that a

hazardous substance under CERCLA is placed there or

has otherwise come to be located there.” Stevens Creek,

915 F.2d at 1360 n.10 (quoting United States v. Metate

Asbestos Corp., 584 F. Supp. 1143, 1148 (D. Ariz. 1984)).

Tract D is a facility, as Marsh’s crop-dusting operations

caused the release of hazardous substances there.14 See 42

U.S.C. § 9601(22) (defining “release”); 40 C.F.R. § 302.4

(listing arsenic and toxaphene as hazardous substances).

Goodyear is also a potentially responsible party

subject to liability as a former owner of Tract D, as

there was a “disposal” of “hazardous waste” during its

ownership. Specifically, Marsh’s operations caused the

14. Tract D is not a facility distinct from the Goodyear Property.

That Moreland purchased a fraction of the Goodyear Property does

not negate that Marsh released arsenic and toxaphene on what later

became Tract D. Further, Moreland proved by a preponderance of

the evidence that the arsenic and toxaphene at Tract D was residual

contamination released by Marsh.

39a

Appendix C

“dumping, spilling, leaking, or placing” of “solid, liquid,

[or] semisolid” materials onto Tract D. 42 U.S.C. § 9601(29)

(adopting definitions of “disposal” and “hazardous waste”

in section 1004 of the Solid Waste Disposal Act); see Carson

Harbor I, 270 F.3d at 875 (a past owner is a potentially

liable party under § 9607(a)(2) if there was a “‘discharge,

deposit, injection, dumping, spilling, leaking, or placing’ of

contaminants on the property during their ownership”).

This leaves only the third element at issue: whether

Moreland’s response costs in excavating the contaminated

soil at Tract D were necessary and consistent with the

national contingency plan (“NCP”). See Carson Harbor

I, 270 F.3d at 870-71; AmeriPride Servs. Inc. v. Texas E.

Overseas Inc., 782 F.3d 474, 490 (9th Cir. 2015) (holding

that response costs must be necessary and consistent

with the NCP for contribution claims). The Court finds

that Moreland has not shown that its response costs were

necessary or consistent with the NCP.

Moreland’s Response Was a Remedial

Action

A threshold question is whether Moreland’s response

to the contamination at Tract D was a removal action

or a remedial action, as the NCP prescribes heightened

procedural requirements for remedial actions. United

States v. W.R. Grace & Co., 429 F.3d 1224, 1228 (9th Cir.

2005); compare 40 C.F.R. § 300.415 (removal actions), with

40 C.F.R. § 300.430 (remedial actions). Whether a response

is a removal action or remedial action is a question of law.

Carson Harbor Vill., Ltd. v. Unocal Corp. (Carson Harbor

II), 287 F. Supp. 2d 1118, 1157 (C.D. Cal. 2003), aff’d 433

F.3d 1260.

40a

Appendix C

CERCLA defines a “removal” as:

[T]he cleanup or removal of released hazardous

substances from the environment, such actions

as may be necessary taken in the event of the

threat of release of hazardous substances

into the environment, such actions as may be

necessary to monitor, assess, and evaluate

the release or threat of release of hazardous

substances, the disposal of removed material,

or the taking of such other actions as may be

necessary to prevent, minimize, or mitigate

damage to the public health or welfare or to

the environment, which may otherwise result

from a release or threat of release.

42 U.S.C. § 9601(23). By contrast, remedial actions are:

[T]hose actions consistent with permanent

remedy taken instead of or in addition to

removal actions in the event of a release or

threatened release of a hazardous substance

into the environment, to prevent or minimize

the release of hazardous substances so that they

do not migrate to cause substantial danger to

present or future public health or welfare or

the environment.

Id. § 9601(24).

Recognizing the ambiguity of these terms, the Ninth

Circuit distinguished between removal and remedial

41a

Appendix C

actions in W.R. Grace. There, the EPA conducted a cleanup

of asbestos contamination after the EPA “extensively

documented” the contamination’s “ imminent and

substantial threat to human health and the environment.”

429 F.3d at 1234. The Ninth Circuit noted that removal

actions are “prompt action[s]” to mitigate “the immediacy

of a threat” to human health or the environment. Id. at

1244. In other words, “removal actions encompass interim,

partial time-sensitive responses taken to counter serious

threats to public health,” whereas remedial actions are

“comprehensive” responses to contamination at a site.

Id. at 1245. The Court explained that “[c]rucial to [its]

determination [was] the documented evidence that, absent

immediate attention, the airborne toxic particles would

continue to pose a substantial threat to public health.”

Id. at 1247 (emphasis added); see also Carson Harbor

II, 287 F. Supp. 2d at 1155 (landowner’s cleanup of leadcontaminated tar and slag materials was a remedial

action because the landowner presented no evidence of

an imminent threat to human health or the environment).

The Court concludes that Moreland’s cleanup of

Tract D was a remedial action and not a removal action.

Moreland presented no evidence that the elevated

arsenic or toxaphene concentrations in the soil required

“immediate attention” to mitigate a substantial threat to

public health or environment.15 For example, groundwater

15. Moreland argued that Tract D required a prompt response

because potential buyers were interested in purchasing the property.

Unlike imminent threats to health and the environment, a prospective

business deal is not the type of “time-sensitive” matter for which the

NCP was designed to afford “considerable leeway in structuring the

42a

Appendix C

contamination was not of concern. (Summary Report Vol.

1 at MOR00012.) Nor did Moreland show that “absent

immediate attention,” the arsenic or toxaphene, which

had remained undisturbed in the soil for several years,

threatened human health. (See Speyer Tr. 159:13-17

(explaining that human exposure to arsenic includes

inhalation, contact with the skin, and ingestion).) Moreover,

it took Moreland more than two years of planning before

it began its excavation. (See Ex. 39 (setting agenda for

meeting with ADEQ in February 2018); Summary Report

Vol. 1 at MOR00030 (excavation began April 28, 2020).)

This “slow pace of the cleanup underscores the lack of any

imminent threat to health or safety that is typically viewed

as a critical element of any ‘removal action.’” Long Beach

Unified Sch. Dist. v. Santa Catalina Island Co., No. CV

19-1139-JFW(ASx), 2021 WL 4706552, at *11 (C.D. Cal.

Aug. 17, 2021) (citing W.R. Grace, 429 F.3d at 1244).16

Moreland Did Not Substantially Comply

with the NCP

Moreland has the burden of proving that the

remediation costs were “consistent with” the NCP. Carson

cleanup.” W.R. Grace, 429 F.3d at 1227-28. The Court is unaware of

any caselaw or EPA guidance that suggests otherwise.

16. Nor was Moreland’s excavation a non-time critical removal

action. See Long Beach Unified Sch. Dist., 2021 WL 4706552,

at *11 (requiring a “sufficiently serious” threat to health or the

environment such “that the added time needed to comply with

remedial requirements . . . would be unacceptable” (citation omitted)

(alteration in original)).

43a

Appendix C

Harbor III, 433 F.3d at 1265 (citing 42 U.S.C. § 9607(a)

(4)(B)). “It is ‘designed to make the party seeking response

costs choose a cost-effective course of action to protect

public health and the environment.’” Id. (quoting Wash.

State Dep’t of Transp. v. Wash. Nat. Gas Co., 59 F.3d

793, 802 (9th Cir. 1995)). A private remedial action is

“‘consistent with the NCP’ if the action, when evaluated

as a whole, is in substantial compliance with” the NCP’s

applicable requirements. 40 C.F.R. § 300.700(c)(3)(i).

The EPA endorses holistic evaluations of remediations

rather than requiring “a list of rigid requirements” that

could otherwise “defeat cost recovery for meritorious

cleanup actions based on a mere technical failure by the

private party.” Carson Harbor II, 287 F. Supp. 2d at 1160

(quoting National Oil and Hazardous Substance Pollution

Contingency Plan, 55 Fed.Reg. 8666, 8793 (Mar. 8, 1990));

see 40 C.F.R. § 300.700(c)(4) (tolerating “immaterial or

insubstantial deviations” from the NCP). Relevant to this

lawsuit, the NCP requires a private party to (1) prepare

a remedial investigation and feasibility study and (2)

provide an opportunity for public participation. 40 C.F.R.

§ 300.700(c)(5)(viii), (6)(iii)-(iv).

No Feasibility Study

Moreland made no attempt to develop a feasibility

study. A feasibility study “ensure[s] that appropriate

remedial alternatives are developed and evaluated such

that relevant information concerning the remedial action

options can be presented to a decision-maker and an

appropriate remedy selected.” Id. § 300.430(e)(1). Using

44a

Appendix C

the data collected during the remedial investigation,17

the party must conduct a feasibility study that develops

and screens potential remedial alternatives, including a

“no-action alternative, which may be no further action if

some removal or remedial action has already occurred at

the site.” Id. § 300.430(e)(1)-(2), (6). When developing these

alternatives, the party should consider each alternative’s

effectiveness, ease of implementation, and cost. Id.

§ 300.430(7). The feasibility study must then analyze a

“limited number” of these “alternatives that represent

viable approaches to remedial action.” Id. § 300.430(9).

Synergy did not include a feasibility study in its

Work Plan or Summary Report.18 Instead, The Work

17. A remedial investigation “collect[s] data necessary to

adequately characterize the site for the purpose of developing

and evaluating effective remedial alternatives” in the feasibility

study. Carson Harbor III, 433 F.3d at 1267 (quoting 40 C.F.R.

§ 300.430(d)(1)). Moreland substantially complied with the NCP’s

remedial investigation requirements. See 40 C.F.R. § 300.430(d)(1)-(4).

Synergy and WTI assessed the extent of arsenic and toxaphene

contamination at Tract D and identified Marsh’s aerial spraying

activities as the source of the contamination. See id. § 300.430(d)(2).

Synergy also identified that the arsenic and toxaphene were not

risks to groundwater, though it did not characterize any “current

and potential threats to human health.” Id. § 300.430(d)(4) (requiring

party to conduct a risk assessment of the contaminants to “help

establish acceptable exposure levels”).

18. Moreland also did not produce anything suggestive of a

“focused” or “streamlined” feasibility study. See 55 Fed.Reg. 8793

(enumerating appropriate circumstances for a “streamlined analysis”

and explaining that fewer remedial alternatives in a “focused”

feasibility study may be consistent with the NCP in “appropriate

45a

Appendix C

Plan offered only a single solution: to excavate the

contaminated soil at Tract D.19 (Work Plan at MOR0219697, 2206.) Moreland’s decision to not consider any remedial

alternatives is evidenced by the fact that it “always”

intended to remediate Tract D to the arsenic level stated

in the 2004 DEUR. (See Ex. 123.) This is no “mere

technicality” or “insubstantial deviation” from the NCP,

but noncompliance. See Carson Harbor III, 433 F.3d at

1268-69 (finding no substantial compliance with NCP

where party’s remedial action plan did not discuss any

alternatives to physical removal and did not assess the

effectiveness, cost, or ease of implementation of its chosen

remediation).

No Opportunity for Meaningful

Public Participation

T he NCP a lso requ i res “ mea n i ng f u l publ ic

participation” for a party to achieve a CERCLA-quality

cases”). Nor is the Court persuaded that Moreland could use

previous investigations of the Goodyear Property as a substitute

for conducting its own feasibility study. These investigations did

not consider arsenic a contaminant of concern. (Work Plan at

MOR02197-2200, 2206-08 see generally Ex. 58; Ex. 59 (proposing

remedial alternatives for toxaphene and not arsenic).) Even after

Ogden drafted its SAP, ADEQ required Ogden to amend the SAP

to sample for arsenic. Moreland provided no other evidence of any

remedial alternatives specific to address the arsenic contamination

at Tract D, which was the focus of its own remediation.

19. Similarly, the WTI Report informed Moreland that less

expensive remedial alternatives to excavation might have been

available but did not identify or discuss these possibilities. (WTI

Report at GOODYEAR00006295.)

46a

Appendix C

cleanup. 55 Fed.Reg. 8793. The party conducting the

cleanup must make reasonable efforts to interview local

officials, community residents, and other interested

parties “to solicit their concerns.” 40 C.F.R. § 300.430(c)

(2)(i). The party must also maintain an “information

repository” near the property and develop a “community

relations plan.” Id. at § 300.430(c)(2)(ii)-(iii). Following

the feasibility study, the party “shall” make a “proposed

plan” available to the public that describes the remedial

alternatives, proposes the party’s preferred remedial

alternative, and identifies the information used to select

this preferred alternative. Id. at § 300.430(f)(2)-(3). “The

purpose of the proposed plan is to supplement the RI/FS”

and provide the public an opportunity “to participate in

the selection of [the] remedial action.” Id. at § 300.430(f)(2).

Moreland did not substantially comply with the NCP’s

public participation requirement. There is no evidence

that Moreland prepared a community relations plan or

published any proposed plan 20 to ensure that the public

had a “meaningful” opportunity “to participate in the

selection of [the] remedial action.” 40 C.F.R. § 300.430(f)

(2)-(3); see Carson Harbor III, 433 F.3d at 1266 n.5 (finding

no public participation where there was no evidence of

a “community relations plan, that the public was given

notice of the remedial action, that the remediation

plan was published or otherwise made available to the

public, that any public meeting was held, or that any

other opportunity for public comment was given”). The

20. Even had the Work Plan included a feasibility study, it

was never published to the public, despite being drafted before the

Settlement Agreement.

47a

Appendix C

Notice of Settlement indicated only that the Settlement

Agreement was available for review and comment, but

the Settlement Agreement did not propose any remedial

action. 21 (See Notice of Settlement; Settlement Agreement

at GOODYEAR00002960-61 (requiring Moreland to

“prepare and implement a remedial action plan”).)

Moreover, Moreland’s notice to nearby residents just two

weeks before Synergy began its excavation did not solicit

feedback on the chosen remediation itself but invited

neighbors to submit “concerns or complaints during the

course of work.” (Summary Report Vol. 2 at MOR00717

(emphasis added)); c.f. Waste Mgmt. of Alameda Cnty.,

Inc. v. East Bay Reg’l Park Dist., 135 F. Supp. 2d 1071,

1102 (N.D. Cal. 2001) (finding no “meaningful public

participation” where the remediating party “was unlikely

to seriously reconsider its intended remedy” that it had

proposed three years before publishing notice of the

remedy).

Nor was ADEQ’s involvement with Moreland’s

remediation an adequate substitute for public participation.

In Carson Harbor III, the Ninth Circuit held that an

21. Moreland was required to publish notice of the Settlement

Agreement pursuant to A.R.S. § 49-289.03(A)(4) and A.A.C. R1816-301. The Court finds that these provisions are not “substantially

equivalent” to the NCP’s public participation requirement because

they did not require Moreland to provide the public any opportunity

to participate in the selection of a remedy. See 40 C.F.R. § 300.700(c)(6)

(permitting public participation through “substantially equivalent

state and local requirements”); compare A.R.S. § 49-289.03(A)(4)

and A.A.C. R18-16-30140, with C.F.R. § 300.430(f)(3)(i)(A) (requiring

published “notice of availability and brief analysis of the proposed

plan in a major local newspaper”) (emphasis added)).

48a

Appendix C

agency’s actions did not fulfill Carson Harbor’s public

participation requirement because the agency “was

involved in a very limited fashion.” 22 433 F.3d at 1267.

The agency “did not take a lead role” in the remediation

or “oversee the cleanup,” but “merely approved” the

plaintiff’s proposed remedial action plan “with very minor

modifications,” and inspected the property after the

remediation. Id. at 1263-64, 1267. ADEQ’s involvement

with Moreland’s excavation was similar. ADEQ reviewed

and approved the Work Plan and Summary Report, but

otherwise did not directly participate in the remediation

because Moreland was not in the VRP. Ms. Malone and

Ms. LePage both testified that they were unaware of the

extent to which ADEQ verified the accuracy and adequacy

of information that Moreland submitted throughout the

remediation. (See, e.g., Malone Tr. 78:24-83:12; LePage Tr.

19:8-12, 23:18-25:13, 27:11-25, 30:5-7, 32:19-33:8.)

The Court finds that Moreland’s remediation did not

substantially comply with the NCP because Moreland did

not conduct any feasibility study or provide the public with

a meaningful opportunity to participate in developing its

remediation of Tract D.

Moreland Did Not Show its Response Costs

Were “Necessary”

Response costs are “necessary” if “there is a threat

to human health or the environment and . . . the response

22. The Ninth Circuit declined to decide whether “significant

agency involvement” could satisfy the public participation

requirement because the agency’s involvement with Carson Harbor

was nevertheless insufficient. 433 F.3d at 1266-67.

49a

Appendix C

action is addressed to that threat.” Carson Harbor I, 270

F.3d at 872. “The issue is not why the landowner decided

to undertake the cleanup, but whether it was necessary”

to address “an actual and real threat human health or

the environment.” Id. at 871-72 (rejecting the “ulterior

motive” analysis which focuses on a party’s business or

other motive in remediating its property).

Moreland has not shown that its response costs were

necessary. Moreland has not detailed how many truckloads

of excavated soil might have been necessary to protect

human health and the environment at Tract D. In fact,

Moreland presented no analysis of the arsenic’s threat

to human health or the environment. Notably, ADEQ

informed Moreland that it could explore site-specific SRLs

for Tract D, but G&K represented that Moreland “always”

intended to remediate Tract D to the contaminant

concentrations in the 2004 DEUR 23 and declined to

analyze this alternative. See A.R.S. § 49-152(B). Without

a risk assessment or feasibility study, there no evidence

that remediating Tract D to the contaminant levels in the

2004 DEUR was necessary to protect human health or

23. Even then, Moreland incurred costs that it knew were

disproportionate to achieve this goal. Specifically, Synergy “scraped”

the top six inches of soil across the entirety of Tract D even though

this peripheral soil was “at or below” the non-residential SRLs.

(Summary Report Vol. 1 at MOR00022, 51-53 (listing toxaphene

and arsenic concentrations of the excavated surficial soils).) Synergy

estimated that this reduced Tract D’s 95% UCL concentration of

arsenic to 5.7 mg/kg and toxaphene to 1.7 mg/kg, both well below

the residential SRLs. (Id. at MOR00024.) Moreland has not shown

that such excavation was necessary to remediate to the levels stated

in the 2004 DEUR, or to protect human health or the environment.

(Id. at MOR00022, 31; see Shirley Tr. 180:10-184:3, 228:6-18.)

50a

Appendix C

the environment, particularly when Moreland disregarded

ADEQ’s suggestion to assess a site-specific SRL. 24 And

while “an actual agency cleanup order is highly relevant

and, in some cases, compelling on the necessity question,”

the evidence suggests that ADEQ considered Moreland’s

remediation to be voluntary, even though Moreland did not

proceed through the VRP. (LePage Tr. 28:20-29:4; Malone

Tr. 54:13-55:4 (explaining that Moreland contacted ADEQ

voluntarily to remediate Tract D).)

The Court concludes that Moreland is not entitled

to damages because it did not prove that its response

costs were “necessary” and “consistent with” the NCP. 25

Carson Harbor III, 433 F.3d at 1269 (affirming summary

judgment were plaintiff failed to substantially comply

with the NCP); Washington Nat. Gas Co., 59 F.3d at 805.

24. Contrary to Mr. Shirley’s testimony, the Settlement

Agreement did not require Moreland to remediate Tract D to the

contaminant levels stated in the 2004 DEUR, but instead specified

only that Moreland had “to meet applicable non-residential standards

that are protective of public health and the environment.” (Shirley Tr.

61:19-24; Settlement Agreement at GOODYEAR00002960.) ADEQ

suggested site-specific SRLs to Moreland after the Settlement

Agreement as a method to satisfy this objective. See A.R.S. § 49152(B) (site-specific SRLs are risk-based); AZ ADC R18-7-206.

25. Because Moreland is not entitled to damages under

CERCLA, the Court need not address whether Moreland’s claim was

a § 107 cost recovery action or a § 113 contribution claim. AmeriPride

Services Inc., 782 F.3d at 489-90 (explaining that response costs must

be necessary and consistent with the NCP for both cost recovery

and contribution actions).

51a

Appendix C

B. Implied Covenant of Good Faith and Fair

Dealing

Moreland also brings a claim for Goodyear’s alleged

breach of an implied covenant of good faith and fair

dealing. Arizona “law implies a covenant of good faith and

fair dealing in every contract.” Rawlings v. Apodaca, 726

P.2d 565, 569 (Ariz. 1986) (en banc). “The implied covenant

of good faith and fair dealing prohibits a party from doing

anything to prevent other parties to the contract from

receiving the benefits and entitlements of the agreement.”

Wells Fargo Bank v. Arizona Laborers, Local No. 395

Pension Trust Fund, 201 Ariz. 474, 38 P.3d 12, 28 (Ariz.

2002) (en banc). The duty “exists by virtue of a contractual

relationship.” Id. The 2004 DEUR did create a contractual

relationship between Goodyear and ADEQ because it

is a restrictive covenant and restrictive covenants are

contracts. Powell v. Washburn, 211 Ariz. 553, 125 P.3d 373,

376 (Ariz. 2006) (en banc); see A.A.C. R18-7-601 (defining

“DEUR”); (see generally 2004 DEUR.) Moreland was not

a party to the 2004 DEUR between Goodyear and ADEQ,

but instead argues that it was an intended third-party

beneficiary of the 2004 DEUR.

To recover as a third-party beneficiary of a contract,

“the contracting parties must intend to directly benefit

that person and must indicate that intention in the contract

itself.” Sherman v. First Am. Title Ins. Co., 201 Ariz. 564,

38 P.3d 1229, 1232 (Ariz. Ct. App. 2002) (citing Norton

v. First Fed. Sav., 128 Ariz. 176, 624 P.2d 854, 856 (Ariz.

1981)). “The contemplated benefit must be both intentional

and direct.” Norton, 624 P.2d at 856. Turning to the 2004

52a

Appendix C

DEUR, the Court must “give effect to the intention of the

parties” based on the language used in the covenant or

the circumstances surrounding the covenant’s creation.

Powell, 125 P.3d at 377 (quoting Restatement (Third) of

Property: Servitudes § 4.1(1) (2000)).

The 2004 DEUR is a “covenant that runs with and

burdens the [Operations Area], binds [the landowner] and

its heirs, successors, tenants, and assigns, and inures to

the benefit of the Department and the State of Arizona.”

(2004 DEUR at GOODYEAR00000005); see A.R.S. § 49152(F). It requires the landowner to “assure that the

restricted area not be subject to residential use” and that

the 2004 DEUR remain in effect “because contaminant

levels exceed residential standards.” (2004 DEUR at

Goodyear000000004.) As Ms. LePage explained, a DEUR

notifies all future landowners that the restricted property

cannot be used for residential purposes. (LePage Tr.

42:19-24.) And it is required whenever a landowner “elects

to leave contamination on a property that exceeds the

applicable residential standard for the property.” A.D.C.

R18-7-208. A DEUR benefits Arizona by providing funding

to the DEUR program and limits the State of Arizona’s

liability by preventing the residential use of property

that ADEQ knows exceeds acceptable contaminant levels.

(LePage Tr. 41:16-42:4); see A.R.S. § 49-152(F) (explaining

that a DEUR “inures to the benefit of [ADEQ] and the

state”); § 49-158(B) (same). ADEQ is also authorized by

statute to enter a DEUR-restricted property to ensure

the landowner is abiding by the use restriction. A.R.S.

§ 49-158(I).

53a

Appendix C

The 2004 DEUR is a restrictive covenant that imposes

a burden on Moreland. And while the 2004 DEUR “limits

the use of [Tract D] to non-residential use,” even if this

restriction could be considered a “benefit” to Moreland,

it is not “intentional and direct,” but merely incidental

to its primary purpose of preventing Moreland from

putting Tract D to residential use. (2004 DEUR at

GOODYEAR00000004.) The Court is unaware of any

caselaw that would support finding otherwise. 26 Because

Moreland was not an intended beneficiary of the 2004

DEUR, its breach of implied covenant of good faith and

fair dealing claim fails as a matter of law.

III. CONCLUSION

The evidence suggests that H&A did not comply with

all of the provisions in the SAR/CAP both in connection

with its sampling requirements and some of the depths

of excavation. However, the evidence does not show that

26. Moreland’s reliance on Zambrano v. M & RC II LLC, 254

Ariz. 53, 517 P.3d 1168 (Ariz. 2022), is misplaced. In Zambrano,

the Arizona Supreme Court held that the implied warranty of

workmanship and habitability “is enforceable by subsequent

purchasers, despite a lack of contractual privity with the builder.”

517 P.3d at 1174. The warranty guarantees that the builder-vendor

“built the home in a workmanlike manner and that it is habitable,”

thereby protecting purchasers from latent defects in the home’s

construction. Id. Unlike the covenant of good faith and fair dealing,

the warranty “is enforceable by subsequent purchasers” because it

“arises from construction of the home itself.” Id. (citation and internal

quotations omitted). Further, the warranty is clearly intended to

benefit of the home buyer, whereas the 2004 DEUR only “inures to

the benefit” of ADEQ and the State of Arizona.

54a

Appendix C

its calculation of the 95% UCL for the Operations Area

was inaccurate. Nor has the evidence shown which of

any of Synergy’s 95% UCL calculations over Tract D

reflect a correct 95% UCL prior to its remediation. Even

if there were evidence that H&A’s mistakes resulted in

an erroneous 95% UCL and the representations of the

95% UCL in the 2004 DEUR were therefore inaccurate,

Moreland would still be unable to obtain either CERCLA

contribution or cost recovery because Moreland did not

substantially comply with the NCP. And as explained

above, Moreland does not have a claim for breach of

contract based on the implied covenant of good faith and

fair dealing.

IT IS ORDERED that judgment be entered in favor

of Defendants Goodyear Tire & Rubber Company, and

Goodyear Farms, Inc.

Dated this 27th day of July, 2023.

/s/ Susan R. Bolton

Susan R. Bolton

United States District Judge

55a

APPENDIX DAppendix

— JUDGMENT

OF THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF ARIZONA, FILED JULY 27, 2023

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

NO. CV-20-02297-PHX-SRB

MORELAND PROPERTIES LLC,

Plaintiff,

GOODYEAR TIRE & RUBBER COMPANY, et al.,

Defendants.

JUDGMENT IN A CIVIL CASE

Decision by Court. This action came for consideration

before the Court for a bench trial. The issues have been

tried and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that pursuant to

the Court’s Order filed July 27, 2023, judgment is entered

in favor of Defendants Goodyear Tire & Rubber Company,

and Goodyear Farms Incorporated and against Plaintiff.

Plaintiff to take nothing, and the complaint and action are

dismissed.

56a

Appendix D

Debra D. Lucas

District Court Executive/Clerk of Court

July 27, 2023

s/ S. Ferdig

Deputy Clerk

57a

Appendix E

APPENDIX E — MORELAND’S

WORK PLAN

TITLED “REMOVAL ACTION TO ADDRESS

RESIDUAL ARSENIC CONTAMINATION IN

SHALLOW SOILS AT THE FORMER MARSH

AVIATION SITE,” DATED JULY 10, 2019

WORK PLAN

REMOVAL ACTION TO ADDRESS

RESIDUAL ARSENIC CONTAMINATION

IN SHALLOW SOILS AT THE

FORMER MARSH AVIATION SITE

DEUR ID 27423 / SITE CODE 509360-00

NWC MCDOWELL ROAD AND 159TH AVENUE

GOODYEAR, ARIZONA

1.0 PROPERTY DESCRIPTION AND BACKGROUND

Moreland Properties LLC (Moreland) owns Maricopa

County parcel number 508-14-898 in Goodyear, Arizona.

As shown in Figure 1, this parcel is located at the

northwest corner of McDowell Road and 159th Avenue and

encompasses an area of approximately 4.5 acres (hereafter

referred to as the “Site”). Most of the Site is covered by

a 2004 Declaration of Environmental Use Restriction

(“DEUR”) as a result of the historical occurrence of

toxaphene and arsenic in shallow soils at concentrations

above respective Arizona residential soil remediation

levels (SRLs) over portions of the parcel. The residual

arsenic and toxaphene are associated with the past

use of the property as an aerial pesticide and herbicide

application airstrip with associated operations. This “crop

58a

Appendix E

dusting” facility was operated by Marsh Aviation under

lease from the land owner Goodyear Tire & Rubber

Company (GTRC) for aerial application of pesticides

(including organochlorine pesticides) and herbicides

(including arsenous acid based defoliants) to local

farmland. Toxaphene was the primary organochlorine

pesticide used until the U.S. Environmental Protection

Agency (EPA) banned it in the 1970s.

The Marsh Aviation spraying services operated between

the early 1970s and the late 1980s. The operation consisted

of an air strip that was oriented north-south on the land

closest to 159th Avenue, a hangar for the fixed-wing

aircraft along with fueling and maintenance facilities, a

pesticide/herbicide mixing and storage area, and two burn

areas. The former pesticide/herbicide mixing and storage

area and burn areas were located in the area currently

covered by the DEUR as depicted in Figure 2. The hangar,

maintenance, and fueling facilities were located just west

of the Moreland Properties parcel.

The parcel has been the subject of substantial prior

investigations and remedial activities beginning in the

mid-1980’s, following a site inspection conducted by the

Arizona Department of Environmental Quality (ADEQ)

Hazardous Waste Operations Unit.

2.0 PROJECT OVERVIEW AND OBJECTIVES

As explained in the ensuing sections of this Work Plan,

Moreland Properties acquired the subject property

with the understanding that historical activities at the

59a

Appendix E

Site had contributed to environmental conditions that

restricted land uses. Specifically, arsenic and toxaphene

contamination were present in shallow soils based on the

former use of the Site as a crop dusting facility. The DEUR

approved by ADEQ and recorded by the previous property

owner identified residual concentrations of:

• 10 milligrams per kilogram (mg/kg) arsenic, and

• 13 mg/kg toxaphene

as representative of the maximum contaminant distribution

at the Site, based on the statistically determined, upperbound estimate derived from soil sampling results.1 The

DEUR was required based on the identified toxaphene

impact to soils at concentrations that exceeded the

residential SRL (5 mg/kg) established by ADEQ at that

time and arsenic impact to soils at concentrations that

equal the residential/non-residential SRL (10 mg/kg)

established by ADEQ.

Recent site character ization work conducted by

environmental consultants working on behalf of Moreland

Properties has identified areas within the Site that contain

higher than expected residual arsenic concentrations in

soils. The arsenic concentrations in soils are above the

non-residential SRL and substantially exceed the cleanup

1. As will be explained in more detail in this report, the 95%

upper confidence limit (UCL) of the arithmetic mean of the soil

sampling results is used to provide an upper bound estimate of

the maximum contaminant distribution. The 95% UCL provides

reasonable confidence that the true site average will not be

underestimated.

60a

Appendix E

criterion that was specified in the DEUR. The existing

data indicate concentrations of:

• 35.5 mg/kg arsenic, and

• 7.8 mg/kg toxaphene

are representative of the existing, statistically defined

maximum contaminant distribution at the Site.

To address the substantially more extensive arsenic

contamination in the surficial and shallow subsurface

soil at the Site, this Work Plan proposes to excavate and

transport the most highly impacted soil to an offsite

disposal facility. Other areas having lower level arsenic

concentrations in the upper six inches of the surface soils

will be removed and placed in the base of the excavation

and the entire area covered by clean, imported fill material

to restore the Site to the original grade. The planned soil

removal action is intended to achieve concentrations of

residual arsenic in surface and underlying soils that meet

the applicable residential/non-residential SRL of 10 mg/

kg, as specified in the DEUR. 2

2. In meeting the soil remediation levels, the residual arsenic

levels at the Site are substantially below concentrations that may

pose a threat to groundwater (e.g. the minimum Groundwater

Protection Level for arsenic is 290 mg/kg). Toxaphene is a

compound that is not a threat to groundwater quality due to its

limited mobility in the subsurface (as indicated in A Screening

Method to Deter mine Soil Concentrations Protective of

Groundwater Quality, ADEQ Substantive Policy Statement

0144.000, prepared by the Leachability Working Group of the

Cleanup Standards Task Force, September 1996).

61a

Appendix E

3.0 SUMMARY OF SITE INVESTIGATIONS AND

REMEDIAL ACTIONS

Environmental investigations and remedial activities

conducted at the Site occurred in two distinct cycles

which will be discussed separately in this section. The

initial work was conducted by environmental consulting

firms representing GTRC and SunCor Development

Corporation 3 that defined the extent of soil contamination

specified in the DEUR. Subsequent site assessment work

was conducted by environmental consultants working

for Moreland Properties which identified higher residual

arsenic soil contamination than determined by the

previous property owners and is the basis for the proposed

soil removal action in this Work Plan.

The site assessment work and corrective actions leading

up to the ADEQ authorization and execution of a DEUR

for the Site are briefly highlighted below. Summaries of

referenced soil data and relevant consulting reports are

contained in ADEQ files and are not reproduced in this

Work Plan. Subsequent work done on behalf of Moreland

Properties, which characterizes current conditions at

the Site following the soil remediation conducted by the

previous property owners, is reviewed in detail in this

Work Plan, with the results of all sampling and analysis

provided as appendices. The results of the additional site

characterization work conducted by Moreland Properties

demonstrates that the levels of residual arsenic soil

3. SunCor Development Corporation acquired land holdings

in this area, including the Site and the former Marsh Aviation

operations area to the west, from GTRC in October 2004.

62a

Appendix E

contamination in surface soils at the Site are significantly

higher than the upper bound estimates that were alleged

in the DEUR.

3.1 Previous Site Characterization Work by Prior

Property Owners

The earliest work at the Site, conducted from 1988 to

1995 to determine the nature of contamination and area

of impact at the Site, is documented in:

• Draft Site Investigation Report, Existing Marsh

Aviation Site 1-2, prepared by Dames and Moore

and submitted to ADEQ in 1988;

• Site Characterization and Sampling Plan and Site

Characterization and Phase II Sampling Plan,

prepared by Pegler-Welch and submitted to ADEQ

in 1988 and 1989, respectively;

• Site Characterization and Phase II Sampling

Plan Report, prepared by Ameritec Environmental

Services and submitted to ADEQ in 1989; and,

• Cleanup Action Plan, Soil Remediation, Estrella

Flying Services, Goodyear, Arizona, prepared by

PC Toxic and submitted to ADEQ in 1995.

These investigations included surface and subsurface soil

sampling to determine the extent of contamination from

pesticide and herbicide compounds. Over 145 sampling

points were advanced to a maximum depth of 20 feet below

ground surface (bgs) and sampled to delineate soil impacts

63a

Appendix E

at the Site. The results of the early investigation work

were reviewed by PC Toxic (1995) and identified three

pesticides of concern at the Site, including toxaphene,

dichlorodiphenyltrichloroethane (DDT), and Malathion.

Toxaphene was the most prevalent pesticide found in soil

samples with concentrations of up to 1,890 mg/kg reported.

Concentrations of DDT and Malathion were detected

at relatively low levels. Additionally, arsenic, a toxic

herbicide, was reported in soil samples at concentrations

up to 801 mg/kg. PC Toxic reported that the lateral and

vertical extent of contaminant concentrations had not been

adequately delineated and suggested that additional site

characterization was needed.

Ogden Environmental and Energy Services conducted

additional site-wide assessment of soil impacts in June

2000. The assessment was performed in accordance

with a Site Assessment Plan (SAP) dated May 2000 and

intended to identify the limits of contaminant impacts

in soil for the stated purposes of Site characterization,

human health risk assessment, remedial planning, and

Site closure. Ogden collected and analyzed soil samples

from 52 sampling locations, including five borings to a

depth of 10 feet bgs. The selected soil sample locations

were from areas where previous investigation identified

the highest pesticide concentrations. The soil samples were

submitted for chemical analysis of target pesticides and

herbicides, including organochlorine compounds, by EPA

Methods 8081A, 8141A, and 8151A, and for total arsenic,

by EPA Method 6010B.

64a

Appendix E

The results of the June 2000 soil sampling and analyses

are included in the April 2002 Site Assessment Report

and Corrective Action Plan prepared by Haley & Aldrich.

According to this report, only toxaphene and arsenic were

found to exceed the 1997 then-established residential

SRLs. Toxaphene reportedly occurred across the Site with

a maximum reported concentration of 1,600 mg/kg, while

arsenic was said to occur only in isolated locations at a

concentration up to 801 mg/kg. The maximum toxaphene

and arsenic concentrations were from soils at the former

pesticide storage and mixing area. At the time of this

investigation, the residential and non-residential SRLs

for toxaphene were 4 and 17 mg/kg, respectively, whereas

the residential and non-residential SRL for arsenic was

10 mg/kg. 4 The residential SRL for toxaphene has since

been revised to 5 mg/kg, following revisions to the Soil

Remediation rules in 2007. The residential and nonresidential SRLs established for arsenic and the nonresidential SRL for toxaphene remained unchanged in

the 2007 rule making.

Based on a review of the available data, the maximum

reported concentration of all other pesticide compounds

detected at the Site, along with their respective 2007

residential SRLs, are as follows:

4. According to ADEQ rules, arsenic standards are not riskbased standards, but based on background.

65a

Appendix E

Pesticide Compound

Diazinon

Dichloro-diphenyltrichloro-ethane (DDT)

Dichloro-diphenyldichloro-ethylene (DDE)

Dichloro-diphenyldichloro-ethane (DDD)

Dichloromethane

Disulfoton

Endosulfan

Ethion

Ethyl parathion

Heptachlor epoxide

Methyl parathion

Malathion

Maximum

Residential Soil

Observed

Remediation

Concentration

Level (mg/kg)

(mg/kg)

0.14

1.1

2.0

0.88

0.112

0.11

24.3

30.9

74.5

0.18

0.007

0.15

2.4

370

0.60

1,200

Due to the fact that the maximum concentrations of the

pesticide compounds listed above were less than the

then-established 1997 residential SRLs, Haley & Aldrich

determined that these chemicals did not pose a significant

risk to public health and were not addressed as part of

subsequent remedial actions. 5

5. The maximum concentrations of the pesticides in this

listing are also less than the residential SRLs in the revised 2007

soil remediation rule.

66a

Appendix E

3.2 Soil Remediation Conducted by Previous Property

Owners

Haley & Aldrich developed a corrective action plan (CAP)

to address the observed areas of elevated toxaphene and

arsenic contamination at the Site. Site cleanup goals

were established to be protective of human health in

accordance with future land use at the Site, which was

designated for non-residential/commercial land use.

The CAP defined cleanup criteria by calculating the

exposure point concentration for toxaphene and arsenic

in areas of impact and determining the amount of soil that

would need to be excavated to reduce the exposure point

concentration to below the non-residential SRLs. The 95

percent upper confidence limit of the mean (95% UCL) of

soil concentrations was calculated for each contaminant

and used as the exposure point concentration.

The CAP identified 10 specific areas for excavation, seven

of which were on-Site within the existing area covered by

the DEUR. Four of the excavations covered larger areas,

ranging from 3,050 to 10,350 square feet, located at the

former pesticide storage and mixing area, burn area #1,

burn area #2, and the northwestern operations area (see

Figure 2). At each of these locations, soils were excavated

to depths of 1 to 2 feet bgs, with sub-areas of the pesticide

storage and mixing area and burn area #2 deepened to

7.5 feet and 5 feet bgs, respectively. Prior to excavation

activities, Haley & Aldrich collected 38 additional soil

samples to further delineate the vertical extent of

toxaphene- or arsenic-impacted soils within the areas

targeted for excavation. In retrospect, the additional soil

67a

Appendix E

sampling appears to have adequately assessed the extent

of toxaphene impact but was insufficient to appropriately

define arsenic impacts. 6

Excavation of the impacted soils was conducted in

February and March 2003. A total of 4,100 tons of

contaminated soil was excavated and stockpiled onsite. The stockpile was profiled for hazardous waste

characteristics and transported to the Northwest

Regional Landfill in Surprise, Arizona for disposal as a

non-hazardous waste. Approximately 4,200 tons of backfill

material was imported to the Site to fill the excavations.

The imported soil was pre-screened for previous land use

and analyzed for soil contamination to ensure the soils

were acceptable as clean fill.

Based on the results of the site characterization work

conducted, and confirmation samples obtained following

the soil removal action, Goodyear recorded a DEUR

indicating the maximum concentrations of toxaphene

and arsenic present at the Site were 13 mg/kg and 10

mg/kg, respectively. In representing the environmental

contaminant information for the Site, the maximum

concentration is indicated to be the 95% UCL of the mean

concentration of the site-specific contaminant distribution.

A DEUR was necessary due to the presence of toxaphene

contamination exceeding the residential SRL. Although it

was stated that only a limited portion of the Site contained

concentrations of toxaphene that exceeded the residential

6. 36 of the 38 samples were analyzed for toxaphene

contamination while only 4 of the 38 samples were analyzed for

arsenic.

68a

Appendix E

SRL after remediation, the DEUR included the entire

Site. ADEQ authorized the DEUR in August 2004.7

3.3 Recent Site Characterization Work Conducted by

Moreland Properties

Moreland Properties acquired the Site in 2010 and

conducted an initial site assessment based on their

potential interest of pursuing removal of the DEUR from

the property. The site assessment work was conducted

by Western Technologies, Inc. in 2014. The results of the

site assessment indicated that residual concentrations

of arsenic were widely present in soils at the Site at

levels that exceeded the environmental contaminant

concentrations specified in the DEUR. Later in 2017,

Synergy Environmental LLC (Synergy) expanded

sampling and analysis of surface and subsurface soils

across the Site to determine the necessary remediation

to restore the Site to the environmental contaminant

concentrations specified in the DEUR.

7. The DEUR originally encompassed approximately 1.5

acres of land to the west of the Site that was part of the former

Marsh Aviation operational area. Although the land was planned

for residential development, SunCor Development Company

inadvertently included this land in the DEUR as a result of a

survey and engineering design error. SunCor subsequently

submitted a DEUR Amendment to ADEQ to remove the DEUR for

this western parcel after conducting further work to remove soils

from areas containing arsenic and/or toxaphene at concentrations

exceeding their respective residential SRLs. ADEQ authorized

the modification to the DEUR for unrestricted use of the western

property parcel in 2009. Seven residential lots were subsequently

developed on the land removed from the DEUR.

69a

Appendix E

3.3.1 2014 Site Assessment Conducted by Western

Technologies, Inc.

Western Technologies, Inc. (WTI) conducted soil sampling

with two objectives: 1) to characterize general conditions

of surficial soils at the Site by uniformly sampling locations

throughout the Site laid out on a grid, and 2) to evaluate

residual levels of soil contaminants that surround and

underlay the previous remedial excavations of source areas

associated with the CAP conducted by Haley & Aldrich on

behalf of a previous property owner. The sampling activity

resulted in the collection of 58 soil samples associated

with both the “grid samples” and “source area samples”,

as explained further in the discussion that follows.

The field sampling was conducted in November 2014 and

summarized in a WTI Report dated January 14, 2015. A

copy of the text, tables, and figures included in this WTI

Report is provided as Attachment 1 to this Work Plan.8 The

attached report documents the sample plan and rationale

and describes the sampling methodology. The samples were

analyzed for organochlorine pesticides using EPA Method

8081 and for total arsenic by EPA Method 6010B.

To characterize general Site conditions, a total of 32 soil

samples were obtained at 21 sample locations that were

8. A copy of the full 184-page report, entitled Environmental

Consulting Services, Declaration of Environmental Use

Restriction Release, Pre-VRP Entry Soil Sampling and Testing,

Former New Marsh Aviation, NWC McDowell Road and 159th

Avenue, Goodyear, Arizona 85395, is provided in Attachment 1

on the electronic file copy of this Work Plan.

70a

Appendix E

on a grid with dimensions of approximately 60 by 65 feet,

established to evenly distribute the sample locations

within the Site. Samples of surficial soil were obtained

from the 3- to 6-inch depth interval at these locations. At

five of the grid sample locations, additional soil samples

were obtained from the 1- to 3-inch depth interval and

from the 9- to 12-inch depth interval to provide a cursory

evaluation of the vertical soil profile. The grid samples

were identified with the letters “HS-” and a number

indicating their map location, followed by the number

indicating the depth of the sample in inches bgs.

The grid sample analytical results are provided in Table

2 and the sample locations and reported toxaphene and

arsenic concentrations are shown in Figures 4 and 5 of

the WTI Report. Results of the laboratory analysis of

grid samples indicated the following ranges of measured

contaminant concentrations:

Arsenic:

3.9 to 550 mg/kg; with an average of

55.7 mg/kg

Toxaphene: <0.40 to 280 mg/kg; with an average

of 13.6 mg/kg

DDE:

<0.020 to 2.5 mg/kg; with an average

of 0.51 mg/kg9

No other analytes were reported exceeding their

respective method reporting limits in the grid soil samples

analyzed.

9. The observed DDE concentrations in soils are less than

the residential SRL of 20 mg/kg for DDE.

71a

Appendix E

To verify remedial action effectiveness in the source

areas that were excavated as part of the previous soil

removal action, a total of 26 source area samples were

collected in the area surrounding and in soils underlying

the four largest excavations on the Site (the former

pesticide

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