Petition for Writ of Certiorari — Sunoco, Inc. v. McDonald (No. 08-1053)

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Supreme Court, U.S.

\( / FILED

\\"\ V).. 081053 FEB 13 2009

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

SUNOCO, INC., SUN OIL COMPANY,

and CORDERO MINING COMPANY,

Petitioners,

THOMAS McDONALD, MARIAN McDONALD,

and ALEX E. McDONALD,

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Haroip L. SEGALL

Counsel of Record

LEAH A. DUNDON

JAMES M. AUSLANDER

3EVERIDGE & DiamMonp, PC.

1350 I Street, NW, Suite 700

Washington, DC 20005

(202) 789-6000

(Counsel for Petitioners

QUESTION PRESENTED

Whether Section 309 of the Comprehensive

Environmental Response, Compensation, and Liability

Act (42 U.S.C. § 9658), which pre-empts “limitations

periods” “specified in the State statute of limitations or

under common law,” includes and pre-empts state

statutes of repose. There is a conflict between the United

States Court of Appeals for the Ninth Circuit and the

United States Court of Appeals for the Fifth Circuit on

this question.

PARTIES TO THE PROCEEDING

Additional parties to the proceedings below that are

not identified in the caption to the case are Third Party

Defendants J.T. Batterson and Susan Batterson.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioners

submit the following statement of their corporate

affiliations for the use of the Justices of this Court:

l. Petitioner Sunoco, Inc. is the successor in interest

to Sun Company, Inc. (R&M), which owned 100% of

Petitioner Sun Oil Company and Petitioner Cordero

Mining Company.

iw)

Petitioner Sunoco, Inc. is a publicly traded company,

which has no parent corporation. To the best of its

knowledge, no single shareholder owns 10% or more

of its stock.

iil

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDING

CORPORATE DISCLOSURE STATEMENT

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION ..

1. The Ninth Circuit’s Opinion Re-Writes

CERCLA Section 309 By Effectively

Inserting New Language into the

Statute

The Ninth Circuit and Fifth Circuit Are

in Conflict, as Are Other Courts

Contents

Ill. The Ninth Circuit’s Decision Contradicts

this Court’s CERCLA Jurisprudence .

IV. The Ninth Circuit’s Interpretation

Conflicts with this Court’s Pre-Emption

UE PI oo io 6 6 54S casas

8 SS ree er eee

Appendix A — Opinion Of The United States

Court Of Appeals For The Ninth Circuit Filed

INOVOMNOOE TE, TOO wos ck ccs tv ewcveseeesess

Appendix B — Opinion And Order Of The United

States District Court For The District Of

Oregon Dated March 14, 2006 ..............

Appendix C — Opinion And Order Of The United

States District Court For The District Of

Oregon Decided June 22, 2006 .............

Page

TABLE OF CITED AUTHORITIES

Page

Federal Cases

A.S.I., Inc. v. Sanders, 835 F. Supp. 1349 (D. Kan.

1993)

Abrams v. Olin Corp., 248 FR.D. 283 (S.D. Ala.

Bates v. Dow Agrosciences, LLC, 544 U.S. 431

(2005)

Bay Area Laundry & Dry Cleaning Pension

Trust Fund v. Ferbar Corp., 522 U.S. 192

(1997)

Buggsi, Inc. v. Chevron U.S.A., Inc., 857 F. Supp.

1427 (D. Or. 1994)

Burlington N. & Santa Fe Ry. Co. v. Skinner

Tank Co., 419 F.3d 355 (Sth Cir. 2005) passim

Chamberlain v. Schmutz Mfg. Co., Inc., 53:

FE. Supp. 588 (D. Kan. 1982)

Cited Authorities

City of Aurora v. American La France Corp.,

No. 81 C 6638, 1984 U.S. Dist. LEXIS 20667

(N.D. Ill. Jan. 6, 1984)

Clark v. Iowa City, 87 U.S. 583 (1875)

Cooper Indus. v. Aviall Servs., Imc., 543 U.S.

157 (2004)

Evans v. Walter Indus., Inc., 579 F. Supp. 2d

1849 (N.D. Ala. 2008)

Fisher v. Ciba Specialty Chems. Corp., No. 03-

0566, 2007 U.S. Dist. LEXIS 76174 (S.D. Ala.

Oct. 11, 2007)

Florida Lime & Avocado Growers, Inc. v. Paul.

373 U.S. 132 (1963)

German v. CSX Transp., Inc., 510 F. Supp. 2d

630 (S.D. Ala. 2007)

Raygor v. Regents of the Univ. of Minn.,

534 U.S. 533 (2002)

Rice v. Santa Fe Blevator Corp.,

United Ntates vo Atl. Research (‘orp.., 951 U.S

128, 127 S. Ct. 2381 (2007)

Ty rte d State S v Be stfoods, a24 US. 5] { LIDS)

Page

Cited Authorities

State Cases

Angeles Chem. Co. v. Spencer & Jones, 44 Cal.

App. 4th 112 (Cal. Ct. App. 1996)

Bauld v. J.A. Jones Constr Co., 3£

(Fla. 1978)

Clark County v. Sioux Equip. Corp., 753 N.W.2d

406 (S.D. 2008)

Raithaus v. Saab-Scandia of Am., Inc., 784 P2d

1158 (Utah 1989)

Tindol v. Boston Housing Auth., 487 N.E.:

(Mass 1986)

Yarbro v. Hilton Hotels Corp., 655 P2d 822

(Colo. 1982)

Federal Statutes and State Statutes

“f Rev. Stat. .

LEV. stat. S

Vil

Cited Authorities

Miscellaneous

H.R. Rep. No. 99-962, at 261 (1986) (Conf. Rep.),

reprinted in U.S.C.C.A.N. 2835, 38276, 3354

Petitioners Sunoco, Ine., Sun Oil Company, and

Cordero Mining Company (collectively, “Sunoco”)

respectfully seek a writ of certiorari to the United

States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Ninth Circuit (Appendix (“App.”) la-25a) is

reported at 548 F.3d 774. The Order and Opinion of the

District Court (App. 26a -63a) is reported at 423 F. Supp.

2d 1114.

JURISDICTION

The judgment of the Court of Appeals was entered

on November 19, 2008. The Jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 9658 provides:

Actions under state law for damages from

exposure to hazardous substances

(a) State statutes of limitations for

hazardous substance cases.

(1) Exception to state statutes. In the

case of any action brought under State law

for personal injury, or property damages,

which are caused or contributed to by

exposure to any hazardous substance, or

pollutant or contaminant, released into the

environment from a facility, if the applicable

limitations period for such action (as specified

in the State statute of limitations or under

common law) provides a commencement date

which is earlier than the federally required

commencement date, such period shall

commence at the federally required

commencement date in lieu of the date

specified in such State statute.

(2) State law generally applicable. Except

as provided in paragraph (1), the statute of

limitations established under State law shall

apply in all actions brought under State law

for personal injury, or property damages,

which are caused or contributed to by

exposure to any hazardous substance, or

pollutant or contaminant, released into the

environment from a facility.

(8) Actions under section 107

(42 U.S.C. § 9607]. Nothing in this section

shall apply with respect to any cause of action

brought under section 107 of this Act [42

U.S.C. § 9607].

(b) Definitions. As used in this section —

(1) Title I [42 U.S.C. §§ 9601 et seq.|

terms. The terms used in this section shall

have the same meaning as when used in title

I of this Act [42 U.S.C. §§ 9601 et seq.|.

(2) Applicable limitations period. The term

“applicable limitations period” means the

period specified in a statute of limitations

during which a civil action referred to in

subsection (a)(1) may be brought.

(3) Commencement date. The term

“commencement date” means the date

specified in a statute of limitations as the

beginning of the applicable limitations

period.

(4) Federally required commencement

date.

(A) In general. Except as provided in

subparagraph (LB), the term “federally

required commencement date” means the

date the plaintiff knew (or reasonably should

have known) that the personal injury or

property damages referred to in subsection

(a)(1) were caused or contributed to by the

hazardous substance or pollutant or

contaminant concerned.

(B) Special rules. In the case of a minor

or incompetent plaintiff, the term “federally

required commencement date” means the

later of the date referred to in subparagraph

(A) or the following:

(i) In the case of a minor, the date on

which the minor reaches the age of majority,

as determined by State law, or has a legal rep-

resentative appointed.

(ii) Inthe case of an incompetent individual,

the date on which such individual becomes com-

petent or has had a legal representative ap-

pointed.

Oregon Revised Statutes § 12.115 provides:

Action for negligent injury to person or

property.

(1) In no event shall any action for

negligent injury to person or property of

another be commenced more than 10 years

from the date of the act or omission

complained of.

(2) Nothing in this section shall be

construed to extend any period of limitation

otherwise established by law, including but not

limited to the limitations cstablished by ORS

12.110.

STATEMENT OF THE CASE

Section 309 of the Comprehensive Environmental

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

42 U.S.C. § 9658, pre-empts the trigger date for

“limitations periods” “as specified in the State statute of

limitations or under common law.” Below, the United

States Court of Appeals for the Ninth Circuit held that

the term “statute of limitations” in Section 309 includes,

and Section 309 therefore pre-empts, state statutes of

repose. The Ninth Circuit holding is in direct conflict with

a ruling by the Fifth Circuit, which held that Section 309

does not pre-empt statutes of repose because “[t]he plain

language of [§ 309]... refers to state statutes of limitations

—not state statutes of repose.” Burlington N. & Santa

Fe Ry. Co. v. Skinner Tank Co., 419 F.3d 355, 364 (5th Cir.

2005). The Ninth Circuit’s decision is contrary to this

Court’s CERCLA and pre-emption jurisprudence,

pursuant to which congressional intent must not be

inferred from a term or phrase absent in CERCLA.

Factually, this case arises out of a land sale from

Petitioner Sun Oil Company, which was wholly owned

by a predecessor in interest to Petitioner Sunoco, Inc.,!

to Respondents Tom and Marian McDonald

(“McDonalds”). The McDonalds allege that when they

purchased the property from Sunoco in 1973, Sunoco

orally misrepresented that former mercury mining

operations on the land had removed all mercury from

rock known as calcine, when in fact “trace amounts”

remained. The McDona:ds allege they lost the value that

1. Petitioners Sunoco, Inc., Sun Oil Company, and Cordero

Mining Company are collectively referred to herein as “Sunoco.”

would have been associated with mercury-free calcine

and will incur costs in removing calcine that they spread

on their private road. See App. 29a.

The McDonalds sued Sunoco in Jefferson County

Circuit Court in the State of Oregon, under state law.

Sunoco removed the case to the United States District

Court for the District of Oregon on the basis of diversity

jurisdiction. The McDonalds ultimately filed a third

amended complaint, adding claims for negligence and

negligence per se, and seeking a declaratory judgment.

After the completion of discovery, the district court

granted Sunoco’s motion for summary judgment,

dismissing all of the McDonalds’ claims, including the

negligence claim. The district court ruled that the

negligence claim was barred by Oregon’s ten year

Statute of Repose because it was brought more than

thirty years after the act complained of — the alleged

failure to warn and test the calcine at the time of the

sale of the property. Or. Rev. Stat. § 12.115(1); App. 45a.

The Oregon Statute of Repose bars the McDonalds’

negligence claim unless it is pre-empted by CERCLA

Section 309. App. Ya.

The CERCLA provision at issue (CERCLA Section

309), pre-empts the date that certain “state statute{s]

of limitations” begin to run on an accrued claim for

damages related to hazardous substances. 42 U.S.C.

§ 9658(a)(1). If the state statute of limitation begins to

run on such a claim before the plaintiff knows of the

damages and their cause, Section 309 inserts a rule of

discovery. The duration of the state statute of limitation

still applies, but it must begin to run on the basis of the

“federally required commencement date,” which is the

date the plaintiff “knew (or reasonably should have

known)” of the damages and their cause. 42 U.S.C.

§§ 9658(a)(1), (b)(4)(A).

The district court ruled that Section 309 did not pre-

empt Oregon’s Statute of Repose. App. 43a—45a. The

district court relied on Burlington Northern, 419 F3d

at 362, which held that Section 309 does not pre-empt

statutes of repose because in the plain language of

Section 309 there is “no mention of peremptory statutes

or statutes of repose.” Jd. at 362. The district court

reasoned under Burlington that

‘the plain language of § 9658 does not extend

to statutes of repose’ but only to statutes of

limitation and that the ‘differences between

statutes of limitations and statutes of repose

are substantive, not merely semantic.’

App. 44a (quoting Burlington Northern, 419 F.3d at 362).

The district court dismissed the McDonalds’ negligence

claim on this basis, and subsequently entered its Order

of final judgment on all of the McDonalds’ claims.

App. 64a.

The McDonalds appealed the dismissal of their

claims for negligence, breach of contract, fraud, and

contribution under Or. Rev. Stat. § 465.325. The Ninth

Circuit affirmed the district court’s dismissal of all

claims except the negligence claim. In evaluating

whether CERCLA Section 309 pre-empted the Oregon

Statute of Repose, the Ninth Circuit recognized that

the term “statute of repose” does not appear in Section

309. The court also recognized that statutes of limitation

and statutes of repose are “distinct legal concepts with

distinct effects.” App. 7a. However, the Ninth Circuit

stated “[t|he term ‘statute of limitations’ was ambiguous

regarding whether it included statutes of repose when

§ 309 was enacted in 1986.” App. 10a. The Ninth Circuit

also stated “some cases recognized the differences

between statutes of limitation and repose [but] a

number of cases confused the terms or used them

interchangeably.” App. 10a.

On this basis, the Ninth Circuit then referenced two

aspects of the legislative history. The first was a

congressionally commissioned CERCLA study report

that discussed the effects of state statutes of limitation,

but separately recommended the “repeal of the statutes

of repose which, in a number of states have the same

effect as some statutes of limitation in barring plaintiff’s

claim before he knows that he has one.” App. 14a

(quoting CERCLA Section 301(e) Study Group Report).

The second was a House Conference report stating: “[{i|n

the case of a long-latency disease, such as cancer, a party

may be barred from bringing his lawsuit if the statute

of limitations begins torun at the time of the first injury

— rather than from the time when the party ‘discovers’

[the injury and its cause].” App. 15a.

On the bases of the foregoing two reports and its

finding that the term “statute of limitation” was

ambiguous, the Ninth Circuit held that “it is evident

that the term ‘statute of limitations’ in $ 309 was

intended by Congress to include statutes of repose.”

App. 16a. The Ninth Circuit therefore found that Section

309 pre-empted the Oregon Statute of Repose, reviving

the McDonalds’ negligence claim.

The Ninth Circuit rejected the rule in the Fifth

Circuit, distinguishing Burlington Northern based on

factual differences and also criticizing the Fifth Circuit

because it “failed to analyze the meaning of ‘statute of

limitations’ at the time $ 309 was adopted.” App. 14a.

The Fifth Circuit, by contrast, had looked to the

“ordinary meaning of the words used” in Section 309,

Burlington Northern, 419 F.3d at 362 (quoting Am.

Tobacco Co. v. Patterson, 456 U.S. 68, 68 (1982)),

including ‘statute of limitations,’ and found it was “bound

by that plain language,” zd. at 364.

Review from this Court is now warranted to

reconcile the conflicting views of the Ninth and Fifth

Circuits regarding whether Section 309 of CERCLA pre-

empts state statutes of repose, and to remove the

confusion on this important question in the lower federal

and state courts.

REASONS FOR GRANTING THE PETITION

In this case, the Ninth Circuit effectively re-drafted

Section 809 of CERCLA by adding a non-existent

provision pre-empting state statutes of repose. The

Ninth Circuit’s decision intrudes into an area of law

traditionally belonging to the states and runs contrary

to this Court’s CERCLA jurisprudence, this Court’s

pre-emption doctrine, and a ruling on the same issue by

the Fifth Circuit. The conflict between the Ninth and

Fifth Circuits exemplifies similar conflict and disarray

on the same issue in some federal district and state

courts. A ruling from this Court is needed to reconcile

the split in the Circuits and end the confusion below.

I. The Ninth Circuit’s Opinion Re-Writes CERCLA

Section 309 By Effectively Inserting New

Language into the Statute

CERCLA Section 309 partially pre-empts

“limitations period[s]” “as specified in the State statute

of limitations or under common law.” 42 U.S.C.

§ 9658(a)(1) (emphasis added). It operates by imposing

a discovery rule on those state limitation periods that

do not already contain one. Jd. Specifically, Section 309

requires that any such “limitations period” begin

running only on the “federally required commencement

date” (“FRCD”) if that is earlier than the period

provided in the state “limitations period.” /d.; 42 U.S.C.

$ 9658(b)(4)(A). The FRCD is “the date the plaintiff knew

(or reasonably should have known) that the personal

injury or property damages ... were caused or

contributed to by the hazardous substance... .” /d.

Accordingly, where it applies, Section 309 changes the

trigger date, but notably not the duration or other

aspects, of the applicable state limitation period.

See 42 U.S.C. §§ 9658(a)(1), (a)(2).

Section 309 states on its face that it applies to “the

applicable limitations period,” and this is defined as “the

period specified in a statute of limitations during which

a civil action [for damages from hazardous substances]

may be brought.” 42 U.S.C. § 9658(b)(2) (emphasis

added). Section 309 contains no provision applicable to

statutes of repose, which are unmentioned in Section

309 or CERCLA in its entirety.

The Ninth Circuit’s opinion re-writes the text of

Section 309 by adding state statutes of repose.

Specifically, the Ninth Circuit ruled that Oregon’s ten

year Statute of Repose, which bars claims brought more

than ten years after the “act or omission complained

of,” Or. Rev. Stat. § 12.115, did not bar the McDonalds’

state tort claims (brought nearly thirty years after the

act complained of) because CERCLA Section 309 pre-

empted the Oregon Statute of Repose. App. 7a. This

holding conflicts with the express language in both

Sections 309(a)(1) and 309(b)(2) limiting pre-emption to

a “State statute of limitations.”

There is a fundamental distinction between statutes

of limitations and repose that has long been recognized

throughout state and federal jurisprudence. Statutes

of limitation begin to run when a cause of action

“accrues” — i.e., when a plaintiff incurs damages and a

claim therefore legally exists or, in the language of

Section 309, when the claim “may be brought.” 42 U.S.C.

§$ 9658(b)(2); Bay Area Laundry & Dry Cleaning

Pension Trust Fund v. Ferbar Corp., 522 U.S. 192, 201

(1997) (“All statutes of limitation begin to run when the

right of action is complete ....”) (quoting Clark v. Iowa

City, 87 U.S. 583 (1875). Statutes of repose, like the

Oregon Statute of Repose in this case, by contrast, run

from the “date of the act or omission complained of,”

regardless of when or whether a claim ever accrues, and

regardless of when or whether damages are incurred.

See Or. Rev. Stat. § 12.115(1); App. 7a (“statutes of repose

are designed to bar actions after a specified period of

time has run from the occurrence of some event other

than the injury which gave rise to the claim”) (quoting

Raithaus v. Saab-Scandia of America, Inc., 784 P2d

1158, 1160 (Utah 1989)).

Individually and together, CERCLA Sections

309(a)(1) and 309(b)(2) apply not to statutes of repose,

but only to those state laws that govern the “period

... during which a civil action... may be brought,”

42 U.S.C. § 9658(b)(2), “as specified in the State statute

of limitations or under common law,” 42 U.S.C.

§ 9658(a)(1). A statute of repose like the Oregon statute

is not a “statute of limitation” nor is it “common law,”

and it is not triggered only once a “civil action... may

be brought,” as is the case with statutes of limitation.

See Or. Rev. Stat. § 12.115(1). It begins running earlier,

once the initial “act” occurs, regardless of whether a

cause of action exists at that point. /¢.

The Ninth Circuit acknowledged the important

distinctions between statutes of limitation and repose.

App. 7a (“Statutes of limitations and statutes of repose

are distinct legal concepts with distinct effects.”). The

Ninth Circuit’s opinion therefore makes no “textual

sense” in light of Section 309’s express inclusion of

statutes of limitations and exclusion of statutes of

repose. See United States v. Atl. Research Corp., 127

S. Ct. 2331, 2336 (2007) (rejecting an interpretation of

CERCLA that made “little textual sense’”’).

Because a statute of repose begins to run when

the act or omission occurs, not when the resulting

injury occurs or is known, the federally required

commencement date applicable under Section 309

cannot be applied to a statute of repose without

invalidating the statute of repose altogether. See Or. Rev.

Stat. § 12.115; § IV, enfra. The FRCD runs from when a

party “knew (or reasonably should have known)” it was

injured by a hazardous substance, not from when the

initial act or omissions occurred. Thus, in the context of

“hazardous substances” claims, the Ninth Circuit’s

ruling invalidates state statutes of repose entirely,

converts them to statutes of limitation, and then inserts

the CERCLA discovery rule. This has no support in the

text of CERCLA. Certiorari is warranted to avoid such

judicial redrafting of a federal! statute, and avoid federal

vitiation of a state statute without a federal mandate.

Il. The Ninth Circuit and Fifth Circuit Are in

Conflict, as Are Other Courts

The Ninth Circuit’s addition of “statute of repose”

to Section 309 conflicts with an earlier ruling by the

Fifth Circuit in Burlington Northern, 419 F:3d at 363.

In Burlington Northern, the Fifth Circuit ruled that

Section 309 does not pre-empt state statutes of repose

because the express language of Section 309 is limited

to statutes of limitation, and the two types of statutes

are different. The Fifth Circuit stated: “The plain

language of § 9658, however, refers to state statutes of

limitations — not state statutes of repose. This court is

bound by that plain language, absent express

congressional intent to the contrary. Congress did not

express a contrary intent in this instance.” /d. at 364.

The Ninth Circuit attempted to distinguish

Burlington Northern based on dicta and factual

differences that were irrelevant to the Fifth Circuit’s

holding on this purely legal question of federal statutory

interpretation. The Ninth Circuit noted that the plaintiff

in Burlington Northern had knowledge of his damages

prior to the expiration of the Texas statute of repose,

whereas the McDonalds alleged they did not discover

their damages until after the expiration of the Oregon

Statute of Repose. App. l3a-l4da (“|bljecause the

discovery in Burlington Northern occurred prior to the

expiration of time under the statute of repose, § 309’s

policies against destroying a plaintiff’s claims before

they could be asserted underlying § 309 were not in

issue” in Burlington Northern).

This distinction was immaterial because the Fifth

Circuit did not base its ruling on whether the plaintiff

was on notice but on whether Section 309 applied to a

statute of repose in the first place. There is no escaping

that the Ninth and Fifth Circuit opinions conflict.

Perhaps for this reason, the Ninth Circuit attacked the

Fifth Circuit’s reasoning, arguing that it “failed to

analyze the meaning of ‘statute of limitations’ at the

time § 309 was adopted.” App. 14a. The Fifth Circuit,

however, need not have analyzed the meaning of “statute

of limitations” because the Fifth Circuit found no

ambiguity in the plain language of Section 309 or in the

term “statute of limitations,” and “{in] cases involving

statutory construction, a court begins with the plain

language of the statute.” Burlington Northern, 419 F.3d

at 362 (“the reach of the plain language of § 9658 does

not extend to statutes of repose”).

While both the Ninth and Fifth Circuits found that

statutes of repose and statutes of limitation are

different, the Ninth Circuit assumed Congress did not

know what the term “statute of limitations” meant when

it limited CERCLA preemption to a “State statute of

limitations.” The Ninth Circuit thus re-wrote the statute

to include statutes of repose, whereas the Fifth Circuit

presumed that Congress chose the language of Section

309 intentionally, and gave the language of the provision

its plain and ordinary meaning.

The conflict between the Ninth and Fifth Circuits

exemplifies broader confusion in federal and state

courts, which have reached conflicting rulings regarding

the pre-emptive effect of Section 309 with regard to

state laws of repose. See, e.g., Hvans v. Walter Indus.,

Inc.,, 579 F. Supp. 2d 1349, 1863-64 (N.D. Ala. 2008)

(following Burlington Northern, holding that Section

309 does not pre-empt the Alabama rule of repose);

German v. CSX Transp., Inc., 510 F. Supp. 2d 630, 633-

34 (S.D. Ala. 2007) (following Burlington Northern,

holding no Section 309 pre-emption of state common law

rule of repose); Fisher v. Ciba Specialty Chems. Corp.,

No. 03-0566, 2007 U.S. Dist. LEXIS 76174, at *64-67

(S.D. Ala. Oct. 11, 2007) (distinguishing Burlington

Northern, ruling that CERCLA pre-empts the state

common law rule of repose); Abrams v. Olin Corp., 248

F.R.D. 283, 290 (S.D. Ala. 2007) (holding that Section

309 pre-empts the state common law rule of repose);

A.S.I., Inc. v. Sanders, 835 F. Supp. 1349, 1358 (D. Kan.

1995) (Section 309 pre-empts Kansas statute of repose);

Clark County v. Sioux Equip. Corp., 753 N.W. 2d 406,

417 (S.D. 2008) (Section 309 does not pre-empt a statute

of repose); Angeles Chemical Co. v. Spencer & Jones,

4th Cal. App. 4th 112, 117, 126 (Cal. Ct. App. 1996)

(Section 309 “eliminatles]” the statute of repose).

In facet, the district court in this case, which ruled

Section 309 does not pre-empt statutes of repose, had

previously ruled the opposite in another case. Buggsi,

Inc. v. Chevron U.S.A., Inc., 857 F. Supp. 1427 (D. Or.

1994). While the district court’s subsequent decision in

this case was more consistent with the statute, it is plain

that absent this Court’s review, both federal and state

courts will be left in confusion, resulting in needless

expenditure of judicial and litigant resources.

Iii. The Ninth Circuit’s Decision Contradicts this

Court’s CERCLA Jurisprudence

The Ninth Circuit’s insertion of the term “statute

of repose” into Section 309 conflicts with this Court’s

direction that where a term is absent from CERCLA,

“CERCLA’s silence is dispositive” and requiring that

CERCLA be strictly construed according to its plain

terms. United States v. Bestfoods, 524 U.S. 51, 70 (1998)

(rejecting a CERCLA specific rule of derivative liability

because “such a rule does not arise from congressional

silence, and CERCLA’s silence is dispositive’’); see also

Cooper Indus. v. Aviall Servs., Inc., 548 U.S. 157, 167

(2004) (the clear meaning of CERCLA’s text must

control, regardless of the “principal concerns of our

legislators”).

Most recently, in Atlantic Research Corp., 127

S. Ct. at 2336, this Court cautioned against adopting a

“textually dubious construction” that would threaten

the meaning of the provision as a whole, ?d at 2337, or

“destroy the symmetry” between sections, zd. at 2336.

Ignoring this injunction, the Ninth Circuit opinion, by

incorporating statutes of repose into the term ‘statute

of limitations’ in Section 309 “destroy[s] the symmetry”

between Section 309(a)(1) (referring to “applicable

limitations period ... as specified in the State statute of

limitations ...”), Section 309(b)(2) (defining “applicable

limitations period” with reference to a “statute of

limitations” governing when an accrued claim “may be

brought”), and Section 309(b)(4)(A) (defining FRCD as

the date the plaintiff knew of his “personal injury or

property damages” and their cause). Statutes of repose

are unrelated to concepts of accrual, knowledge, and

damages, the mandatory factors under Sections 309(a)(1),

(b)(2), and (b)(4)(A). See 42 U.S.C. §§ 9658(a)(1), (b)(2),

(b)(4)(A).

More fundamentally, there simply is no reference

to a statute of repose in Section 309, and the Ninth

Circuit’s “textually dubious construction” thus runs

contrary to Atlantic Research, as well as the rest of the

Court’s line of CERCLA jurisprudence. Therefore, the

petition should be granted in order to help preserve

the integrity of this Court’s CERCLA jurisprudence.

IV. The Ninth Circuit’s Interpretation Conflicts with

this Court’s Pre-Emption Jurisprudence

In ruling that Section 309 pre-empts the Oregon

Statute of Repose, the Ninth Circuit pre-empted state

law, contrary to the criteria that govern pre-emption.

Adherence to this Court’s pre-emption jurisprudence

was required here because the Ninth Circuit pre-empted

a State statute of repose, a substantive state law that

falls squarely within the “historic power of the State.”

Raygor v. Regents of the Univ. of Minn., 5384 U.S. 538,

543 (2002) (“allowing federal law to extend the time

period in which a state sovereign is amenable to suit in

its own courts at least affects the federal balance in an

area that has been a historic power of the States”).

The governing principle in evaluating whether a

federal statute such as Section 309 pre-empts such state

statutory law, is:

iwlhen “Congress intends to alter the ‘usual

constitutional balance between the States and

the Federal Government,’ it must make its

intention to do so ‘unmistakably clear in the

language of the statute.” ... This principle

applies when Congress “intends to pre-empt

the historic powers of the States ....” In

such cases, the clear statement principle

reflects “an acknowledgement that the States

retain substantial sovereign powers under our

constitutional scheme, powers with which

Congress does not readily interfere.”

Raygor, 534 U.S. at 543-44 (internal citations omitted);

see also Rice v. Santa Fe Elevator Corp, 331 U.S. 218,

230 (1947) (“we start with the assumption that the

historic police powers of the States were not to be

superseded by the Federal Act unless that was the clear

and manifest purpose of Congress’”’).

Congress did not come close to imposing “an

unmistakably clear” or “clear and manifest” intent to

pre-empt the statute of repose with Section 309 as

required by this Court. See Rice 331 U.S. at 230

(Congressional intent to pre-empt must be “clear and

manifest”). The term ‘statute of repose’ appears

nowhere in the CERCLA. The Ninth Circuit asserted

that the use of the term “statute of limitations” was

ambiguous, and read ‘statute of repose’ into that term

and Section 309 based on a tortured reading of the

legislative history.~ But if the Ninth Circuit were correct

2. The Ninth Circuit found that the term “statute of

limitation” was ambiguous on the basis of some misuse of the term

“statute of repose” in some cases, App. 10a-lla, and based on two

(Cont'd

that the statute is ambiguous, this is only evidence that

the statute demonstrates no “unmistakably clear” or

“clear and manifest” intent to pre-empt as required by

(Cont'd)

law review articles identifying some confusion in the use of the

terms ‘statute of limitation’ and ‘statute of repose,’ App. 11a (n.4).

In none of the cases identified by the Ninth Cirenit was tne

distinction between statutes of limitation and repose an issue or

at all important to the outcome of the case. Where the difference

between the two statutes was squarely before a court prior to (and

since) enactment of Section 309 in 1986, the court identified

important differences between the two statutes. See, e.g., City of

Aurora v. American La France Corp., No. 81 C 6638, 1984 U.S.

Dist. LEXIS 20667, at *3-4 (N.D. Ill. Jan. 6, 1984) (two statutes

differ); Chamberlain v. Schmutz Mfg. Co., Ine., 532 F. Supp. 588,

590 (D. Kan. 1982) (discussing differences between statutes of

limitation and repose); Yarbro v. Hilton Hotels Corp., 655 P2d 822,

825 (Colo. 1982) (“[S]tatutes of repose differ from other statutes

of limitation since they may bar a cause of action before it accrues.”’);

Bauld v. J.A. Jones Constr. Co., 357 So. 2d 401, 402 (FI. 1978)

(recognizing the “fundamental difference in character” between

statutes of repose and of limitation); Tindol v. Boston Housing

Auth., 487 N.E.2d 488, 490 (Mass 1986) (statute of limitations is “of

an entirely different legal genre” than a statute of repose).

-etitioners have found no case in this Court turning on the

important differences between statutes of limitation and

statutes of repose. The Ninth Circuit relicd on a number of

Supreme Court cases it asserted “confused the terms or used

them interchangeably” to support its view that the term “statute

of limitation” was an ambiguous term, but none of these opinions

evaluated the difference between a statute of limitation and

repose. In such cases, the Court was discussing policies of

repose that underlie limitations periods, and was not confusing

or equating statutes of limitation with statutes of repose. The

Court's use of the word “repose” in some past cases addressing

(Cont'd)

the jurisprudence of this Court. Altria Group, Inc. v.

Good, 129 S. Ct. 538, 543 (2008) (presumption against

pre-emption applies if statute is susceptible of more than

one reading); Florida Lime & Avocado Growers, Inc. v.

Paul, 373 U.S. 182, 147 (1963) (a court is “not to

conclude” that Congress intended to pre-empt state law

“in the absence of an unambiguous congressional

mandate to that effect.”) (emphasis added); see also

Bates v. Dow Agrosciences, LLC, 544 U.S. 481, 449 (2005)

(faced with two plausible readings of a statute, there is

a “duty to accept the reading that disfavors pre-

emption”).

Based on the Ninth Circuit’s premise that the term

“statute of limitations” is ambiguous, the Ninth Circuit

turned to the legislative history of Section 309.

App. lla-12a, 14a. But this too demonstrates no clear

congressional intent to pre-empt statutes of repose.

A congressional report compiled prior to the enactment

of Section 309 noted the distinction between statutes of

limitation and statutes of repose. The omission of

statutes of repose from the language of Section 309 in

the wake of such discussion of statutes of repose in the

legislative history only highlights that Congress was

advised of the distinction, and pointedly opted not to

include statutes of repose in Section 309. App. l4a

(quoting CERCLA study recommending that in addition

to adoption of discovery rule on statutes of limitation,

(Cont’d)

statutes of limitation does not indicate that statutes of limitation

and statues of repose are the same, nor does it support the Ninth

Circuit's view that the term “statute of limitations” as used by

Congress in Section 309 was ambiguous.

that statutes of repose be “repealfed]”). This highlights,

if anything, that there was no clear intent to pre-empt

statutes of repose with Section 309; Congress left

Statutes of repose out intentionally.

The term “statute of limitations,” which was used

in Section 309, is well established in American

jurisprudence, see Bay Area Laundry, 522 U.S. at 201,

and the Ninth Circuit ignored this Court’s rule that even

if the “text of a pre-emption clause is susceptible of more

than one plausible reading, courts ordinarily ‘accept the

reading that disfavors pre-emption.’” Altria Group,

Inc. 129 S. Ct. at 543 (quoting Bates, 544 U.S. at 449);

Florida Lime & Avocado Growers, 373 U.S. at 147. The

plain meaning of the term “statute of limitations” is not

“statute of repose,” thus disfavoring inclusion of the

term under pre-emption doctrine.

Furthermore, Congress indicated the limited nature

of the pre-emption authorized by Section 309 with

respect to the statute of limitations. Section 309

provides only for a federal accrual date, and thus

changes only the trigger date of statutes of limitation

that do not already run based on a “discovery rule.”

Congress did not climinate state statutes of limitation,

much less repeal statutes of repose with respect to

hazardous substances, as would be the case with

statutes of repose under the Ninth Circuit’s decision.

See 42 U.S.C. § 9658(a)(2) (providing state statute of

limitation applies except as modified in Section 309);

H.R. Rep. No. 99-962, at 261 (1986) (Conf. Rep.),

reprinted in U.S.C.C.A.N. 2835, 3276, 3354 (Section 309

is meant to address “when the statute of limitation

begins to run rather than the number of vears it runs’”’).

In fact, contrary to Congressional intent with

respect to the statute of limitations, the Ninth Circuit

opinion has the effect of vitiating statutes of repose in

hazardous substances cases because the very nature of

a trigger date for a statute of repose is that it runs from

the act complained of rather than accrual, knowledge,

or reason to know of a cause of action. Or. Rev. Stat.

§ 12.1151). By imposing the contrary requirements of

the FRCD on statutes of repose, the Ninth Circuit

essentially renders them statutes of limitation, contrary

to state law and contrary to the stringent requirements

for pre-emption.

In short, the Ninth Circuit’s opinion not only runs

contrary to this Court’s pre-emption doctrine, it reveals

that the Ninth circuit simply gave no consideration to the

criteria governing pre-emption. These considerations

provide additional grounds to grant certiorari in this case.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari to the United States Court of Appeals for the

Ninth Circuit should be granted.

Respectfully submitted,

HAROLD L. SEGALL

Counsel of Record

LEAH A. DUNDON

JAMES M. AUSLANDER

BEVERIDGE & Dtamonp, PC.

1350 I Street, NW, Suite 700

Washington, DC 20005

(202) 789-6000

Counsel for Petitioners

February 13, 2009

APPENDIX

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT FILED NOVEMBER 19, 2008

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 06-35683

D.C. No.

CV-03-01504-ALH

THOMAS MCDONALD; MARIAN MCDONALD;

ALEX E. MCDONALD,

Plaintiffs-Appellants,

SUN OIL COMPANY, SUNOCO, INC.:;

CORDERO MINING COMPANY; J.T. BATTERSON;

SUSAN BATTERSON,

Defendants-Appellees.

OPINION

Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, District Judge, Presiding

Argued and Submitted

July 10, 2007—Portland, Oregon

Filed November 19, 2008

3efore: Harry Pregerson and Stephen Reinhardt

Appendix A

Circuit Judges, and Lyle E. Strom, District Judge.*

Opinion by Judge Strom

OPINION

STROM, District Judge:

Thomas McDonald, Marian McDonald and Alex

McDonald appeal from the district court’s grant of

summary judgment in favor of Sun Oil Company, Sunoco,

Ine. and Cordero Mining Company (collectively, “Sun”).

The McDonalds sued Sun for, among other things,

negligence, contribution, breach of contract and fraud.

Each of these claims arose out of an alleged oral

warranty that certain crushed rock at the Horse Heaven

Mine Property (“Horse Heaven”), a disused mercury

mine, was free of mercury. The district court held that

Oregon’s statute of repose barred the McDonalds’

negligence claim, that their claim for contribution failed

to comply with an administrative requirement, that

their breach of contract claim failed because of the

merger doctrine and the parol evidence rule, and that

their fraud claim failed to raise a genuine issue of

material fact. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm in part, reverse in part, and

remand for trial.

1. BACKGROUND

[In 1934, Ray Whiting Jr. and Harry Hoy developed

the Horse Heaven Mine and operated it until 1936. From

* The Honorable [Lyle FE. Strom, Senior United States

District Judge for the District of Nebraska, sitting by

designation

Appendix A

1936 to 19738, the mine was owned and intermittently

operated by Sun. Sun permanently ceased mining

operations at Horse Heaven in 1958. In 1973, among

over 2,600 acres of property in Jefferson County,

Oregon, Sun conveyed Horse Heaven to Thomas and

Marian McDonald via a bargain and sale deed. In the

deed conveying the property to the McDonalds, Sun

reserved “all of the oil, gas, and other mineral rights”

in the property to itself, but specifically excluded rights

to “surface materials which are used for road-building

or construction purposes, such as... calcine... except

such quantities as are reasonably used or useful in the

enjoyment of [Sun’s] reserved rights.” (FR 51.) At the

time of this purchase, the Horse Heaven property

contained a large pile or piles of calcine tailings.

Calcine is a waste product resulting from the

processing of mercury ore into mercury. Mercury sulfide

ore is mined, crushed, and heated in a furnace or “retort”

to separate mercury from the ore. After the heating

process is complete, the crushed rock, now called calcine,

is stockpiled. At Horse Heaven, the calcine tailings were

deposited in a pile or piles on the surface of the property

surrounding the mine. Some mercury still remains in

the calcine at Horse Heaven. However, the parties

dispute the amount and potential harmfulness of the

remaining mercury.

Prior to the 1975 sale of the property, Thomas

McDonald met with Ray Whiting and Sun’s Wally

Freeman at the mine to discuss the potential sale. In

his deposition, McDonald testified that while they were

standing on the calcine pile prior to the sale, Freeman

Appendix A

told him that because the “retort” process extracted

mercury and other heavy metals from the ore, there was

no mercury in the calcine. During that same

conversation, McDonald told Freeman that he intended

to use the calcine for road construction or to sell it

commercially as decorative rock.

In 1976, the McDonalds sold all the Jefferson

County property except for the forty acres comprising

the former Horse Heaven mine. In 1982, the MeDonalds

transferred these forty acres to Ray Whiting and his

wife. Whiting later conveyed his interest in the property

to his daughter and grandson. The deed to Whiting

reserved to McDonalds the rights to the calcine tailings

until 2007. On several occasions, Mr. McDonald brought

some of the calcine to his personal residence and placed

it on his driveway and parking lot.

In 2001, the Oregon Department of Environmental

Quality (“DEQ”) requested information regarding

possible contamination at Horse Heaven, and in 2002

determined that the McDonalds’ handling of the calcine

tailings had created an environmental release. The

McDonalds were then ordered to refrain from removing

or disturbing the calcine piles at Horse Heaven without

DEQ approval. The McDonalds allege that they did not

learn that the calcine was potentially contaminated until

2001.

On August 25, 2003, the McDonalds sued Sun in

Oregon state court, On November 3, 2003, Sun removed

the case to the United States District Court for the

District of Oregon. On March 14, 2006, the district court

Appendix A

granted summary judgment against the McDonalds on

all their claims. This appeal followed. The McDonalds

appeal only the district court’s rulings granting

summary judgment to Sun on their negligence,

contribution, contract, and fraud claims.

Il. STANDARD OF REVIEW

This Court reviews “de novo a district court’s

decision to grant summary judgment. We must

determine, viewing the evidence in the light most

favorable to the nonmoving party, whether there are

any genuine issues of material fact and whether the

district court correctly applied the relevant substantive

law.” Del. Valley Surgical Supply, Inc. v. Johnson &

Johnson, 523 F.3d 1116, 1119 (9th Cir. 2008) (citing Lopez

v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc)).

“A factual dispute is genuine only if a reasonable trier

of fact could find in favor of the nonmoving party. A mere

scintilla of evidence supporting a nonmovant’s position

is insufficient to withstand summary judgment.” /n re

Ahaza Sys., Inc., 482 F.3d 1118, 1128 (9th Cir. 2007)

(quoting Galen v. County of L.A., 468 F.3d 563, 568 (9th

Cir. 2006)).

Itl. DISCUSSION

A. NEGLIGENCE

The district court granted Sun’s motion for

summary judgment on the McDonalds’ negligence claim,

holding that the claim is barred by Oregon’s statute of

repose for negligent injury to person or property, Or.

Rev. Stat. § 12.115(1). The McDonalds argue that the

Appendix A

court below erred in applying the Oregon statute

because Section 309 of the Comprehensive

Environmental Response, Compensation, and Liability

Act (CERCLA) of 1980, 42 U.S.C. § 9601-9675, grafts a

discovery rule onto state statutes of limitations.’

| 42 U.S.C. § 9658 (CERCLA § 309) provides:

(a) State statutes of limitations for hazardous substance

CaSes

(1) Exception to State statutes

In the case of any action brought under State law for

personal injury, or property damages, which are caused or

contributed to by exposure to any hazardous substance, or

pollutant or contaminant, released into the environment from

a facility, if the applicable limitations period for such action (as

specified in the State statute of limitations or under common

law) provides a commencement date which is earlier than the

federally required commencement date, such period shall

commence at the federally required commencement date in lieu

of the date specified in such State statute.

(b) Definitions

2) Applicable limitations period

The term “applicable limitations period” means the period

specified in a statute of limitations during which a civil action

referred to in subsection (a)(1) of this section may be brought.

(Cont'd)

Appendix A

We agree. The district court held that CERCLA § 309

does not apply because § 12.115(1) is a statute of repose,

not a statute of limitations. However, the term “statute

of limitations” in CERCLA § 309 is ambiguous and the

legislative history of the section indicates that its

meaning includes statutes of repose like § 12.115(1).

Statutes of limitations and repose are distinct legal

concepts with distinct effects. “A statute of limitations

requires a lawsuit to be filed within a specified period of

time after a legal right has been violated ... On the

other hand, statutes of repose are designed to bar

actions after a specified period of time has run from the

occurrence of some event other than the injury which

gave rise to the claim.” Raithaus v. Saab-Scandia of

America, Inc., 784 P2d 1158, 1160 (Utah 1989). Statutes

of limitations

(Cont’d)

(3) Commencement date

The term “commencement date” means the date specified in a

statute of limitations as the beginning of the applicable

limitations period.

(4) Federally required commencement date

(A) In general

Except as provided in subparagraph (B), the term

“federally required commencement date” means the date the

plaintiff knew (or reasonably should have known) that the

personal injury or property damages referred to in subsection

(a)(1) of this section were caused or contributed to by the

hazardous substance or pollutant or contaminant concerned.

Appendix A

preclude[ | the plaintiff from proceeding, .. .

the right (moral or legal) goes on, but the

plaintiff simply cannot go to court in order to

enforce it....A statute of repose, however,

has a more substantive effect because it can

bar a suit even before the cause of action could

have accrued, or, for that matter, retroactively

after the cause of action has accrued. In

proper circumstances, it can be said to destroy

the right itself. It is not concerned with the

plaintiff’s diligence; it is concerned with the

defendant’s peace.

Underwood Cotton Co., Inc. v. Hyundai, 288 F.8d 405,

408-09 (9th Cir. 2002) (internal citations omitted)

(referring to the distinctions between the two types of

statute as “arcane”’).

The difference is manifest in Oregon’s statutory

scheme. For example, Or. Rev. Stat. § 12.110(1), not at

issue in this case, is a statute of limitations, providing

that “[a]n action for any injury to the person or rights

of another, not arising on contract... shall be

commenced within two years ....” Under this statute,

it is evident that injury must be experienced before the

time limit starts to run because an action cannot be

commenced until after the injury element of the prima

facie ease is satisfied. However, the statute of repose at

issue here, Or. Rev. Stat. § 12.115(1), states that “[ij/n no

event shall any action for neghgent injury to person or

property of another be commenced more than 10 years

from the date of the act or omission complained of.” This

statute does not require injury before it operates.

Appendix A

Therefore, if § 12.115(1) applies to the nearly thirty year

old negligence claim in this case, and § 309 does not

operate to impose a discovery rule upon it, that claim is

barred.

1. Plain Meaning vs. Ambiguity

The first step in construing the meaning of a statute

is to determine whether the language at issue has a plain

meaning. “The preeminent canon of statutory

interpretation requires us to ‘presume that [the]

legislature says in a statute what it means and means in

a statute what it says there.’ Thus, our inquiry begins

with the statutory text, and ends there as well if the

text is unambiguous.” BedRoc Ltd., LLC v. United

States, 541 U.S. 176, 1838 (2004) (internal citations

omitted). It should not be “presum[ed] that ‘the

legislature was ignorant of the meaning of the language

it employed.” /d. at 186-87. Section 309 contains five

uses of the term “statute of limitations,” but no use of

“statute of repose.” Sun argues that “statute of

limitations” has a plain meaning which excludes statutes

of repose from its ambit. Therefore, according to Sun,

it would be improper for a court to graft the words “and

repose” onto the already clear language of § 309. “[T]he

proper inquiry focuses on the ordinary meaning of the

[provision] at the time Congress enacted it,” and thus

the appropriate question is whether “statute of

limitations” was ambiguous when § 309 was passed.

BedRoc Lid., 541 U.S. at 184 (citing Amoco Prod. Co. v.

S. Ute Tribe, 526 U.S. 865, 874 (1999)):; see also Perrin

v. [nited States, 444 U.S. 37, 42 (1979) (“A fundamental

canon of statutory construction is that, unless otherwise

10a

Appendix A

defined, words will be interpreted as taking their

ordinary, contemporary, common meaning.”). In

addition, it is the plain meaning or ambiguity of

CERCLA, not the state statute involved, that this

inquiry is concerned with.’

The term “statute of limitations” was ambiguous

regarding whether it included statutes of repose when

§ 309 was enacted in 1986. At that time, although some

cases recognized the differences between statutes of

limitation and repose, a number of cases confused the

terms or used them interchangeably.’ In the legal

* A The question of plain meaning or ambiguity refers to

the meaning Congress considered when it passed § 309, and

therefore Oregon’s opinion of the meaning of the term carries

no more weight than does that of any other State. The

McDonalds make much of the fact that the Supreme Court of

Oregon referred to the statute of repose at issue in this case, Or.

Rev. Stat. § 12.115, as a “statute of limitations.” See Joseph v.

Burns, 491 P2d 203, 207 (Or. 1971). This is relevant to the

question of ambiguity merely as an example of a court using

the two terms interchangeably, but the fact that it is an Oregon

case addressing the statute of repose at issue here does not

entitle it to any additional weight. The object of our inquiry is

what the intent of Congress was when § 309 was adopted in

1986, not what Oregon courts may have said about Or. Rev. Stat.

§ 12.1151) in 1971.

>Compare City of Aurora v. Am. LaFrance Corp., No. 81-C

66338, 1984 U.S. Dist. LEXIS 20667, *2 (Dist. Il. Jan 6, 1984);

Chamberlain v. Shmutz Mfg. Co., 532 F. Supp. 588, 590 (D. Kan.

L982): Bauld v. J.A. Jones Constr Co., 357 So. 2d 401, 402 (FI.

1978); Tindol v. Boston Hous. Auth., 487 N.E.2d 488, 489-90

Cont'd)

lla

Appendix A

context, ambiguity is defined as “[a]n uncertainty of

meaning or intention.” Black’s Law Dictionary (8th ed.

2004). Here, considerable uncertainty about the

distinction existed in 1986.* Because of this ambiguity it

is evident that the term “statute of limitations” had no

plain meaning with respect to whether it included

statutes of repose when § 309 was adopted.’ It will

therefore be necessary for the Court to examine the

(Cont'd)

(Mass. 1986); James Ferrera & Sons Inc. v. Samuels, 586 N.E.2d

58, 60-61 (Mass. App. Ct. 1985); Berry v. Beech Aircraft Corp.,

717 P2d 670, 672 (Utah 1985); City of Dover v. Int’l Tel. & Tel.

Corp., 514 A.2d 1086, 1089 (De. 1986), with United States v.

Kubrick, 444 U.S. 111, 117 (1979); Bridges v. United States, 346

U.S. 209, 230-31 (1953); Anderson v. Yungkau, 329 U.S. 482, 485

(1947); United States v. Oregon Lumber Co., 260 U.S. 290, 300

(1922); Gates Rubber Co. v. USM Corp., 508 F.2D 603, 611 (7th

Cir. 1975); Bolick v. Am. Barmag Corp., 306 N.C. 364, 366 (1982).

* This becomes clear upon review of the scholarship of the

time. For example, one 1980 article suggest that there were at

least five definitions of “statute of limitations” in use, while a

1990 article stresses that there is no standard definition and

that “lojlder case-law and treatises use the phrases ...

interchangeably.” See Francis E. McGovern, The Variety, Policy

and Constitutionality of Product Liability Statutes of Repose,

30 Am. U.L. Rev. 579, 582 (1980); Lisa K. Mehs, Comment,

Ashestos Litigation and Statutes of Repose: The Application

of the Discovery Rule in the Eighth Circuit Allows Plaintiffs to

Breathe Easier, 24 Creighton 1.. Rev. 965, 966-68 (1990).

* Sun cites Cooper Indus., Inc. v. Aviall Servs., Inc., 543

U.S. 157 (2004), for the proposition that “the Supreme Court

has directed that CERCLA be construed according to its text.”

(Cont'd)

12a

Appendix A

statute’s legislative history in order to determine

Congress’s intent at the time of its adoption.

2. Burlington Northern

The district court based its decision that “the plain

language of (§ 309] does not extend to statutes of repose

...’on Burlington N. & Santa Fe R.R. Co. v. Poole Chem.

Co. 419 F.3d 355, 363 (5th Cir. 2005). Burlington Northern

involved two large above ground storage tanks in

Slanton, Texas, that were sold by Skinner Tank

Company (“Skinner”) to Poole Chemical Company

(“Poole”), an agricultural blender, on October 28, 1988.

Id. at 358. On January 29, 20038, one of the tanks

ruptured, releasing several hundred thousand gallons

of chemicals onto Poole’s property and an adjacent

railroad right-of-way. Jd. On April 19, 2004, Poole sued

Skinner, alleging that the tank Skinner sold to it was

defective. /d. “Section 16.012 of the Texas Civil Practice

and Remedies Code establishes a 15-year statute of

repose for products liability cases.” 7d. Because suit was

filed more than fifteen years after the sale of the tanks,

if Texas’s statute of repose applied, Poole would not

prevail. The district court granted Skinner’s motion for

summary judgment on several grounds, and the Fifth

Circuit affirmed, stating in pertinent part that the plain

language of CERCLA § 309 does not extend to statutes

(Cont'd)

(Br. of Appellee 13.) This misrepresents the much narrower

holding of Cooper, that CERCLA § 113(f)(1) has a plain meaning

in relation to the tissues in that case and therefore it was

unnecessary for the Court to look to CERCLA’s purpose to aid

interpretation

13a

Appendix A

of repose. /d. at 364. Although the court noted that

“courts considering the applicability of [$ 309] have not

always clearly distinguished a statute of repose from a

statute of limitations,” Jd. at 362-68, it failed to address

the question of whether the term was ambiguous when

it was adopted and instead held itself “bound by [the]

plain language, absent express congressional intent to

the contrary.” Jd. at 364. It then failed to find express

congressional intent. Jd.

We believe the district court’s reliance on

Burlington Northern is misplaced. After a review of the

legislative history, the court in Burlington Northern

stated that “Congress intended for [§ 309] to preempt a

state statute of limitations that deprives a plaintiff who

suffers a long-latency disease caused by the release of a

hazardous substance of his cause of action, but not to

preempt a state statute of repose like [Texas’s].” Jd.

However, that court pointed out that the case before it

“does not involve the delayed discovery for which | § 309]

was intended to address. The case does not implicate a

long-latency disease or involve a situation where the time

for filing a claim expired before the plaintiff learned that

a hazardous substance caused his injury.” /d. at 365.

This case does. Unlike the chemical spill in Burlington

Northern, which was discovered before the expiration

of time under the statute of repose, in this case the

McDonalds did not discover the mercury in the calcine

until after the statute had run. Because the discovery

in Burlington Northern occurred prior to the expiration

of time under the statute of repose, § 309’s policies

against destroying a plaintiff's claims before they could

l4a

Appendix A

be asserted underlying § 309 were not in issue. However,

they are in issue in this case. Moreover, the Burlington

Northern court failed to analyze the meaning of “statute

of limitations” at the time § 309 was adopted. Therefore,

the district court was mistaken in relying on that case

when it held that Or. Rev. Stat. § 12.115(1) was not

preempted by § 309.

3. Legislative History

Having determined that the term “statute of

limitations” was ambiguous at the time CERCLA § 309

was adopted with respect to whether the term includes

statutes of repose, the Court’s next task is to review

the legislative history of the section in order to

determine Congress’s intent. Two significant items of

legislative history referencing this issue appear in the

record. The first is a committee print filed under Section

301(e) of CERCLA which

recommends that all states that have not

already done so, clearly adopt the rule that

an action accrues when the plaintiff discovers

or should have discovered the injury or

disease and its cause. The Recommendation

is intended also to cover the repeal of the

statutes of repose which, in a number of states

have the same effect as some statutes of

limitation in barring plaintiff's claim before

he knows that he has one.

Superfund Section 301 (e) Study Group, 97th Cong.,

Injuries and Damages from Hazardous Wastes

Analysis and Improvement of Legal Remedies 256

lSa

Appendix A

(Comm. Print 1982) (the “301(e) Report”). The second

is from the House Conference Report, H.R. Conf. Rep.

No. 99-962, at 261 (1986), reprinted in 1986 U.S.C.C.A.N.

3276, 3354 (the “Conference Report”), which

immediately preceded enactment of the Superfund

Amendments and Reauthorization Act of 1986, Pub. L.

No. 99-499, 100 Stat. 1613 (1986), which adopted § 309.

The Conference Report, referring to CERCLA § 309,

States that “this section addresses the problem

identified in the 301(e) study.” /d. The Conference

Report also states that

State statutes of limitation define the time in

which an injured party may bring a lawsuit

seeking compensation for his injuries against

the party alleged to be responsible for those

injuries ....In the case of a long-latency

disease, such as cancer, a party may be barred

from bringing his lawsuit if the statute of

limitations begins to run at the time of the

first injury—rather than from the time when

the party “discovers” that his injury was

caused by the hazardous substance or

pollutant or contaminant concerned.

Id. Taken together, the reports show that Congress’s

primary concern in enacting § 309 was to adopt the

discovery rule in situations where a plaintiff may lose a

cause of action before becoming aware of it—precisely

the type of circumstance involved in this case. This

predicament can be caused by either statutes of

limitation or statutes of repose, and is probably most

likely to occur where statutes of repose operate. Thus,

l6a

Appendix A

given the ambiguity of the term “statute of limitations”

at the time of the adoption of § 309, taken alongside the

only evidence of Congressional intent, it is evident that

the term “statute of limitations” in § 309 was intended

by Congress to include statutes of repose.

Sun argues that because the 301(e) Report

differentiated between statutes of limitation and

statutes of repose that Congress, by only using the

former term, evidenced intent to exclude the latter.

However, this approach ignores the Conference Report,

which states that the statute “addresses the problem

identified in the 301(e) study.” 301(e) Report, at 256. The

problem of plaintiffs losing their cause of action before

they know they have it could not have been addressed

unless statutes of repose were addressed.

Sun cites the 301(e) Report for the proposition that

statutes of repose are excluded because “the question

is when the statute begins to run—the time when the

action accrues... .” Sun asserts that use of the word

“accrues” in the report, a word which typically applies

to discovery of injury in statutes of limitations cases, is

evidence that Congress intended to exclude statutes of

repose from the definition of statutes of limitation.

However, the cases Sun cites do not support this

proposition. For example, in Freier v. Westinghouse

lec. Corp., 303 F.3d 176, 196-97 (2d Cir. 2002), the court

stated that it is “indisputedly clear that Congress

intended, in the cases to which [§ 309] applies, that the

[Federally Required Commencement Date] preempt

state law accrual rules ....” However, this says nothing

about whether Congress intended that § 309 apply to

17a

Appendix A

statutes of repose. Statements that Congress clearly

intended § 309 to preempt state law accrual rules are

not evidence that those are the only rules it intended to

preempt.

Next, Sun argues that Congress could not have been

ignorant of statutes of repose because it has enacted

several of them. Sun cites four sections of the United

States Code that contain provisions which would qualify

as statutes of repose under the definition discussed

above. From this Sun concludes that Congress knew the

distinction when it omitted statutes of repose from

§ 309. It is telling, however, that none of the four sections

cited by Sun use the phrase “statute of repose.” In fact,

an electronic search of the text of the United States

Code also fails to reveal a single instance of the phrase

“statute of repose.” The fact that Congress knew how

to enact a statute of repose, but to date has chosen not

to label any as such is not legislative intent that supports

Sun. Rather, it is additional evidence that the term

“statute of limitations” was ambiguous.

Sun also argues that § 309 is inapplicable by its own

terms because it requires “personal injury, or property

damages, which are caused or contributed to by exposure

to any hazardous substance, or pollutant or

contaminant, released into the environment from a

facility ....” 42 U.S.C. § 9658(a). There are no known

personal injuries here. Sun argues there are also no

property damages caused by a release into the

environment. Even if one ignores the difference in value

between mercury-free calcine and the calcine the

McDonalds received, there is still damage in the form

18a

Appendix A

of $70,000 in cleanup costs associated with the spreading

of the calcine on Mr. McDonald’s driveway and parking

lot. Sun’s argument that under the statute there was

no property damage caused by a release into the

environment lacks merit.

Lastly, Sun argues that the negligence claim is

invalid because the alleged violations are within the

scope of contractual duties. It is true that in order to

“bring a tort claim based on conduct that is also a breach

of a contract, a plaintiff must allege... [that a breach of

an] independent standard of care stems from a

particular special relationship between the parties.”

Strader v. Grange Mut. Ins. Co., 39 P3d 903, 906 (Or.

Ct. App. 2002). Sun characterizes the conduct that it

claims gives rise to both the negligence and contract

claims as a “failure to provide mercury-free calcine and

associated omissions and misrepresentations.” However,

the negligence claim is not based on any alleged promise

to provide mercury-free calcine, but rather on alleged

failures to warn about the mercury in the calcine and to

test the calcine. A jury could find that there was no oral

agreement, but that Sun was negligent in failing to warn

that, for example, the calcine was not tested. The

negligence claim should not have been dismissed.

B. CONTRIBUTION

The district court also granted summary judgment

to Sun on the McDonalds’ claim for contribution under

Or. Rev. Stat. § 465. The statute provides that a class of

persons “shall be strictly liable for those remedial action

costs incurred by the state or any other person that are

19a

Appendix A

attributable to or associated with a facility and for

damages for injury to or destruction of any natural

resources caused by a release... .” Or. Rev. Stat.

§ 465.255(1). “Remedial action costs” are defined as

“reasonable costs which are attributable to or associated

with a removal or remedial action at a facility, including

but not limited to the costs of administration,

investigation, legal or enforcement activities, contracts

and health studies.” /d. at § 465.200(24). For there to

be reasonable costs, there must first be a removal or

remedial action. A “remedial action” is an action

“consistent with a permanent remedial action 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 a hazardous substance so that it does not

migrate to cause substantial danger to present or future

public health, safety, welfare or the environment.”

id. at (28).

The issue for the Court is whether remedial action

must be initiated by the government, or whether a

private party may bring the remedial action. The district

court and Sun take the view that, for “remedial action”

to exist, the State must undertake, require, or oversee

the action. We agree. Section 465.315(1)(b) anticipates

that the Director of the DEQ “shall select or approve

remedial actions .. .” and §465.400(2) directs DEQ to

“adopt rules establishing the levels, factors, criteria or

other provisions for the degree of cleanup including...

the selection of remedial actions necessary to assure

protection of the public.” Pursuant to § 465.400(2), DEQ

engaged in rulemaking resulting in Or. Admin. R. § 340-

20a

Appendix A

122-0071(3), which states that “[alfter a site evaluation

is completed, [DEQ] will determine whether a

preliminary assessment, removal, remedial action, other

action, or no further action is needed at the facility.”

This rule suggests that the determination whether

remedial action will oceur will be made by DEQ, after a

preliminary assessment is made, and not by the parties.

Therefore, in order to proceed with remedial action, it

was necessary for the McDonalds to get approval from

DEQ. As they did not, the district court’s grant of

summary judgment on this issue will be affirmed.

C. BREACH OF CONTRACT

The McDonalds asserted a breach of contract claim

based upon an alleged oral warranty by Sun’s Wally

I'reeman that the calcine was free of mercury. The

district court granted summary judgment to Sun on this

claim, citing the parol evidence rule and the merger

doctrine. The McDonalds argue that it was error to

grant summary judgment on either of these grounds.

Because the Court concludes that the district court

properly granted summary judgment to Sun based upon

the parol evidence rule, we affirm the district court’s

grant of summary judgment to Sun on the breach of

contract claim and find it unnecessary to reach the

merger doctrine issue.

1. Paro! Evidence Rule

Oregon's statutory parol evidence rule states that

“iwihen the terms of an agreement have been reduced

to writing by the parties, it is to be considered as

containing all those terms, and therefore there can be

2la

Appendix A

. no evidence of the terms of the agreement, other

than the contents of the writing ....” Or. Rev. Stat.

§ 41.740. “The term ‘agreement’ includes deeds ... as

well as contracts between parties.” /d. However, the rule

does not bar evidence extrinsic to the writing unless

the writing is an integrated agreement. Abercrombie v.

Hayden Corp., 883 P.2d 845, 850 (Or. 1994) (citing Land

Reclamation v. Riverside Corp., 492 P2d 263 (Or. 1972)).

An agreement is integrated if “the parties intended [it]

to be a final expression of some or all of the terms... .”

Abercrombie, 883 P2d at 850; see also Restatement

(Second) of Contracts § 209 (1979); 2 Farnsworth,

Farnsworth on Contracts § 7.3 (1990); Calamari & Perillo,

Contracts § 3-3 (3d ed 1989). If a writing is completely

integrated, it may not be contradicted or supplemented

by prior terms. Abercrombie, 883 P2d at 851. However,

if it is partially integrated, evidence of prior consistent,

additional terms is allowed so long as such terms do not

contradict the writing. 7d. Whether the parties intended

a writing to be integrated or not and whether an

integrated writing is completely or partially integrated

are both questions of fact for the court. Abercrombie,

883 P.2d at 851. The court may consider all the

circumstances, including parol evidence, to determine

whether the parties intended the writing to be a

complete or partial integration. /d. “An integrated

writing is partially integrated if the writing omits a

consistent, additional agreed-upon term, which was (1)

agreed to by the parties for separate consideration, or

(2) such a term as in the circumstances might naturally

be omitted from the writing.” /d.

iia

Appendix A

In this case, it is undisputed that if the alleged

warranty that the calcine was free of contamination had

been made, the warranty would be consistent with the

terms of the deed. It is similarly clear that there was no

separate consideration for the alleged warranty. The key

issue therefore is whether the alleged warranty “might

naturally be omitted from the writing.” Restatement

(Second) of Contracts § 216 cmt. d. (1979).

The district court found that Mr. McDonald, as the

owner of a number of businesses, a party to numerous

real estate transactions, and user of the property for a

business purpose, was a sophisticated businessman and

that “parties with business experience are more likely

to reduce their entire agreement to writing than parties

without such experience... .” Hatley v. Stafford, 588

P2d 603, 609 (Or. 1978). The court also found that the

deed was prepared by Mr. McDonald’s attorney and that

it expressly addressed the issue of calcine and did not

offer any warranties concerning its commercial viability.

Taken together, these circumstances show that if there

had been a prior oral agreement warranting the calcine,

it would have been unnatural for Mr. McDonald’s

attorney to omit that term from the deed. For these

reasons, we affirm the district court’s grant of summary

judgment to Sun on the parol evidence rule issue and

the contract claim.

23a

Appendix A

D. FRAUD

Last, the McDonalds argue that the district court

erred when it sustained Sun’s motion for summary

judgment and dismissed their fraud claim. In order to

succeed on their fraud claim, it is the McDonalds’

burden to show by clear and convincing evidence:

(1) a representation;

(2) its falsity;

(3) its materiality;

(4) the defendant's knowledge of its falsity

or ignorance of its truth;

(5) the defendant’s intent that the

representation should be acted on by the

plaintiff and in the manner reasonably

contemplated;

(6) the plaintiff’s ignorance of its falsity;

) the plaintiff’s reliance on its truth;

(8) the plaintiff’s right to rely on the

representation;

(9) and the plaintiff’s resulting injury.

—

Smallwood v. Fisk, 9384 P2d 557, 559 (Or. App. 1997)

(citing Rice v. McAlister, 519 P2d 1263 (Or. 1974)). The

key issue here is whether Sun’s emplovee Freeman knew

that his alleged statement that there was no mercury in

the calcine was false when he made it or that he was

ignorant regarding its truth or falsity. The McDonalds

24a

Appendix A

concede that no evidence in the record directly proves

what Freeman knew about the cleanliness of the calcine

at the time of the negotiations. The McDonalds argue

that a jury could find that in 1973 Freeman was reckless

to rely on antiquated 1958 field testing designed only to

evaluate whether there was commercially recoverable

mercury in the calecine when he allegedly made the

statement to McDonald, or that he was reckless because

of the high probability that he knew nothing about

Sunoco’s 1958 field assay. We disagree. The McDonalds

offered no evidence to support these theories. The only

evidence in the record bearing on Freeman’s mental

state at the relevant time is that tests conducted during

the 1930s, 1940s, and 1950s would have shown tiiat all

of the mercury had been removed from the calcine, that

by 1973 common assay methods would still not have

detected mercury in the calcine, and that calcine was

used in road construction at least into the 1980s.

The McDonalds suggest that because there is no

evidence that Freeman ever went to the mine before

meeting with McDonald, because there is no evidence

that Cordero Mining ever reported the results of its field

assays to corporate, because “|elvidence about what

Freeman knew or did not know about the ecalcine is

conspicuously absent from the voluminous documents

produced by Sunoco,” and because they are entitled to

ail reasonable inferences at summary judgment, that

they have shown that the “record fails to establish that

Kreeman had any basis for representing the calcine to

be mercury-free.” (Appellants’ Reply Br. 26 (emphasis

in original).) However, this statement ignores the burden

of proof. The McDonalds had the burden of presenting

Appendix A

evidence sufficient that a reasonable jury could find by

clear and convincing evidence that Freeman made the

statements with ignorance as to their truth. It was not

Sun’s burden to show that Freeman had a basis for

making the statements; it was the McDonalds’ burden

to show that he did not. The McDonalds provide no

evidence about Freeman’s knowledge of falsity, and

therefore they cannot meet their burden. The district

court’s grant of summary judgment on the fraud issue

will be affirmed.

IV. CONCLUSION

The district court erred in granting summary

judgment to Sun on the McDonalds’ negligence claim

and that claim is remanded for trial. The district court

correctly concluded that summary judgment was proper

on the McDonalds’ contribution, breach of contract and

fraud claim. Each party shall pay their own costs.

AFFIRMED in part, REVERSED in part, and

REMANDED.

26a

APPENDIX B — OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF OREGON DATED MARCH 14, 2006

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF OREGON

Civil No. 03-1504-HA

THOMAS MCDONALD; MARIAN

MCDONALD; and ALEX E. MCDONALD,

Plaintiffs and Counterclaim Defendants,

SUN OIL COMPANY, SUNOCO, INC., and

CORDERO MINING COMPANY,

Defendants and Counterclaim Plaintiffs,

THOMAS MCDONALD and MARIAN MCDONALD,

and ALEX E. MCDONALD,

Third-Party Plaintiffs,

J.T. BATTERSON and SUSAN BATTERSON,

Third-Party Defendants.

HAGGERTY, Chief Judge:

OPINION AND ORDER

This suit arises out of a deed sale to plaintiffs

Thomas McDonald and Marian McDonald of more than

2600 acres of real property located in Jefferson County,

Oregon. The purchase included the Horse Heaven Mine

27a

Appendix B

Property, an allegedly contaminated property

(hereinafter referred to as the “Site” or “Horse

Heaven”).

In 2008, plaintiffs filed a Complaint against the

sellers alleging breach of contract and fraud. Plaintiffs

also allege violations of O.R.S. § 465.250 et seq.

(Oregon’s “Superfund” statute) and 42 U.S.C. § 9600

et seq. (CERCLA) and seek cost recovery, contribution,

and a declaratory judgment regarding alleged

contamination that defendant’s! mining operations

caused on the Site and to plaintiffs’ residence property

(hereinafter referred to as the “McDonald Ranch”).

Defendants counterclaimed against plaintiffs for

contribution and cost recovery for the Site. In April

2004, plaintiffs filed a third-party complaint against J.T.

Batterson and Susan Batterson (the Battersons) seeking

cost recovery and contribution if plaintiffs were found

liable to defendant on the counterclaims.

Plaintiffs, defendant, and third-party defendants

each seek summary judgment |[110, 107, 101]. Defendant

filed two motions to strike portions of the declarations

of Thomas McDonald, Alex McDonald, and Marian

McDonald [120, 160]. Plaintiffs also filed a motion in

limine for sanctions and to remedy spoliation of evidence

[172]. Oral argument on the motions was heard on

January 30, 2006.

' Sun Oil Company was the predecessor of Sunoco, Ine.,

and Cordero Mining Company was a subsidiary of Sunoco, Inc.

that was dissolved in 1975. The three defendants are hereinafter

collectively referred to as defendant or Sunoco.

28a

Appendix B

I. FACTUAL BACKGROUND

Mercury mining operations began on the Site in 1934

under the direction of Horse Heaven Mines, Inc.

(HHM). In 1936 defendant acquired all of HHM’s stock.

Mining operations continued until 1944 when a fire

destroyed the mining facilities. In 1946, HHM sold all

of its mining interests in Jefferson County to Cordero

Mining Company, a solely owned subsidiary of

defendant, and defendant dissolved HHM. Mining

operations began again at the Site in 1955 and ceased

in 1958.

In 1278, defendant conveyed over 2600 acres to

plaintiffs, including the Site, via a Bargain and Sale Deed

(1973 Deed). At the time of this purchase, the Site

contained calcine tailings. Calcine tailings are remnants

left after mercury has been extracted from rocks.

According to plaintiffs, Wally Freeman (Freeman), a

representative of defendant, informed Mr. McDonald

that the calcine tailings had been put through a process

whereby all mercury and any residual contaminants

were removed. The 1973 Deed expressly reserved

defendant’s interests in the sub-surface mineral rights

located at the Site, but transferred defendant’s rights

in the calcine tailings to plaintiffs.

In 1976 plaintiffs sold all their property by Warranty

Deed except the forty acres containing the Site. In 1982,

plaintiffs deeded these forty acres to Ray Whiting

(Whiting), one of HHM’s original founders, as payment

for advice and assistance given during plaintiffs’

purchase of the real property from defendant. In that

29a

Appendix B

transaction, plaintiffs reserved their rights to the calcine

tailings on the Site until 2007. The Site was then

conveyed to Whiting’s daughter and grandson, third-

party defendants Susan Batterson and J.T. Batterson

(collectively the Battersons).

In 2001, the Oregon Department of Environmental

Quality (DEQ) requested information from defendant

regarding possible contamination on the Site. In 2002,

DEQ determined that plaintiff’s handling of the tailings

had created an environmental release and ordered

plaintiffs to refrain from removing or disturbing the

tailing piles on the Site without DEQ approval.

Plaintiffs aver that when they purchased the 2600

acres, defendant made intentionally or recklessly false

representations that the calcine tailings present on the

Site portion of the acreage were commercially valuable

and that all traces of mercury had been extracted out

of the tailings. Plaintiffs further aver that defendant

made these representations with the intent to induce

plaintiffs to purchase the property. Plaintiffs claim that

they relied on these representations regarding the

calcine tailings in deciding to purchase the entire 2600

acres, and were damaged as a result of this reliance.

Il. STANDARDS

Under Federal Rule of Civil Procedure 56(c),

summary judgment is appropriate only where “the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment

30a

Appendix B

as a matter of law.” The moving party has the burden of

demonstrating the absence of a genuine issue of fact

for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). If the moving party satisfies this burden,

the opponent must set forth specific facts showing that

there remains a genuine issue for trial. Fed. R. Civ. P

96(¢).

A non-moving party who bears the burden of proof

at trial to an element essential to its case must make a

showing sufficient to establish a genuine dispute of fact

with respect to the existence of that element of the case

or be subject to summary judgment. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). Such an issue of fact is

only a genuine issue if it can reasonably be resolved in

favor of either party. Anderson, 477 U.S. at 250-51. This

burden to demonstrate a genuine issue of fact increases

where the factual context makes the non-moving party’s

claim implausible. Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). Mere

disagreement or the bald assertion that a genuine issue

of material fact exists no longer precludes invoking

summary judgment. Cal. Architectural Bldg. Prods.,

Ine. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468

(9th Cir. 1987). In other words, “[w]hen the moving party

has carried its burden under Rule 56(c), its opponent

must do more than simply show that there is some

metaphysical doubt as to the material facts.”

Matsushita, 475 U.S. at 586 (footnote omitted). “If the

evidence is merely colorable, or is not significantly

probative, summary judgment may be granted.”

Anderson, 477 U.S. at 249-50 (citations omitted).

3la

Appendix B

III. ANALYSIS

1. Plaintiffs’ Motion in Limine

Defendant’s experts, Mr. Donald Haas and

Dr. Kathryn Johnson, prepared reports setting forth

their opinions and provided plaintiffs with all materials

considered in developing those opinions. They included

no notes or drafts in that submission. Plaintiffs also

omitted any notes or drafts in their expert submissions

to defendant.

Defendant submitted a request to plaintiffs under

Federal Rule of Civil Procedure 34 (Rule 34) for all

documents reviewed or relied upon by plaintiffs’ experts,

including notes and drafts. Plaintiffs did not serve such

a request on defendant. Following the deposition of

Mr. Haas, plaintiffs sent an e-mail to defense counsel

requesting expert report drafts and notes. This request

was made at the close of discovery, in conjunction with a

motion to extend discovery deadlines for a seventh time.

Defense counsel filed an objection to the request to

extend discovery.

On July 1, 2005, plaintiffs withdrew their request to

extend discovery and did not submit a request for the

information pursuant to Rule 34. Six weeks later,

plaintiffs filed their first Motion in Limine for Sanctions

and to Remedy Spoliation of Evidence.

Despite the lack of a Rule 34 request, in early

August defendant produced to plaintiffs (1) copies of all

draft reports prepared by the experts, including those

with defense counsel's red-lined editorial comments;

32a

Appendix B

(2) all e-mail and postal mail correspondence between

counsel and the experts; (3) all available handwritten

notes taken by the experts; and (4) copies of articles

and other publications reviewed by the experts,

including highlighting, underlining and/or notes.

Plaintiffs then withdrew their motion in limine.

Over four months after defendant’s production, and

after the summary judgment motions were briefed,

plaintiffs filed a second Motion in Limine for Sanctions

and to Remedy Spoliation of Evidence. Plaintiffs assert

that defendant’s experts destroyed drafts of their

expert reports and other discoverable notes, resulting

in prejudice to plaintiffs and compelling exclusion of the

expert testimony or an appropriate jury instruction.

Plaintiffs contend there was spoliation of handwritten

notes taken by the experts and that this spoliation

deprives them of any opportunity to either determine

the admissibility of the experts or to properly cross-

examine them. Plaintiffs also allege that defense counsel

improperly exerted control over the experts’ opinions.

Federal Rule of Civil Procedure 26(a)(2)(B) (Rule 26)

requires the disclosure of an expert’s identity, a

handwritten report containing a statement of all opinions

and the basis for those opinions, and the data considered

by the expert in forming the opinion. This rule does not

require the production of an expert’s working notes.

Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 34-35

(1st Cir. 2004). Subsequent to the 1993 amendments to

Rule 26, courts have held that disclosure of information

transmitted to or from the expert, including draft

reports, is discoverable if the expert considered the

33a

Appendix B

information. See Fidelity Nat. Title Ins. Co. of N.Y. v.

Intercounty Nat'l Title Ins. Co., 412 F.3d 745, 751 (7th

Cir. 2005) (“A testifying expert must disclose and

therefore retain whatever materials are given him to

review in preparing his testimony, even if in the end he

does not rely on them in formulating his expert opinion.”)

(citations omitted); see also Trigon Ins. Co. v. United

States, 204 FE. R.D. 277, 282-83 (E.D. Va. 2001); B.C.F! O2l

Refining, Inc. v. Consolidated Edison Co. of New York,

Inc., 171 F-R.D. 57, 63 (S.D.N.Y. 1997); Karn v. Ingersoll

Rand Co., 168 FL.R.D. 633, 635-38 (N.D. Ind. 1996);

United States v. City of Torrance, 163 F.R.D. 590, 592-

94 (C.D. Cal. 1995). There is a split in authority

regarding information given to an expert that contains

attorney work product. The Torrance court noted that

“the approach which is most consistent with the purpose

of the Federal Rules of Civil Procedure is to require

disclosure.” Torrance, 163 F-.R.D. at 598.

Defendant provided plaintiffs with all drafts and

correspondence between the experts and defense

counsel. The only information not produced were some

working notes that the experts failed to retain. This

information is not subject to Rule 26 disclosure.

Even assuming that the information sought was

subject to disclosure, there are no grounds for an

adverse inference that is required for spoliation

sanctions. See Trigon, 204 E-R.D. at 287 (an adverse

inference requires more than negligent loss, it “requires

a showing that the party knew the evidence was relevant

Lo some issue al trial and that his willful conduct resulted

in its loss or destruction” and “some quantum of

34a

Appendix B

blameworthiness is required”) (quotation and citations

omitted). There is no showing that the destroyed notes

would have been relevant to some issue at trial, or that

the experts or counsel knew of this relevance. Experts

have “no legal duty to be a pack rat” and are not

“required to retain every scrap of paper” created in

preparing their opinions. Fidelity National, 412 F3d

at 751. It was reasonable for the experts to assume that

retention of those notes was unnecessary.

Moreover, plaintiffs fail to establish the kind of

prejudice from the loss of the experts’ notes that is

required for Rule 37 sanctions. Rule 37 sanctions are

warranted for failure to disclose “without substantial

justification” unless “such failure is harmless.” Fed. Rule

Civ. Pro. 37(c). The type of evidence that has been

destroyed in this case is not related to a challenge of an

expert’s admissibility, as expert admissibility focuses

“solely on principles and methodology, not on the

conclusions” of the expert. Daubert v. Merrill Dow

Pharm., Inc., 509 U.S. 579, 595 (1993). Plaintiffs have

received all necessary information relating to the basis

of the experts’ opinions and their methodology.

Plaintiffs also assert that they cannot properly

cross-examine the experts because they cannot fully

determine the extent to which the expert opinions were

tainted by communications with counsel. However, this

court concludes that all communications with counsel

have been provided to plaintiffs. Moreover, the central

inquiry on cross-examination of an expert “is not the

question of if and to what extent the expert was

influenced by counsel,” but instead asks for the basis of

35a

Appe ndix B

the expert’s opinion. Nexxus Products Co. v. CVS New

York, Inc., 188 F.R.D.7, 10 (D. Mass. 1999) (distinguished

on other grounds by Adler v. Shelton, 778 A.2d 1181 (N.J.

Super. 2001). “Examination and cross-examination of the

expert can be comprehensive and effective on the relevant

issue of the basis for an expert’s opinion without an inquiry

into the lawyer’s role in assisting with the formulation of

the theory.” Bogosian v. Gulf Oil Corp., 738 F.2d 587, 595

(3d Cir. 1984).

Plaintiffs also argue that the experts’ opinions are

biased and were improperly influenced by defendant.

The suggestions made by defendant were editorial in

nature and in conjunction with guidance from counsel

that the experts’ judgment should govern and they

should only make changes they deemed accurate.

Counsel does not act improperly by “offering editorial

suggestions, which the expert [is] free to accept or

reject.” Goins v. Angelone, 52 F. Supp.2d 638, 664 (E.D.

Va. 1999).

2. Third-party Defendants’ Motion for Summary

Judgment

Plaintiffs sued defendant for cost recovery of

remedial action costs under O.R.S. 465.255, and for

contribution for remedial action under O.R.S. 465.325.

Defendant counterclaimed against plaintiffs for cost

recovery under O.R.S. 465.255 and CERCLA § 107(a)

and for contribution for remedial actions defendant has

incurred under O.R.S. 465.257 and CERCLA § 107(a).

Plaintiffs then sued the Battersons for the same four

claims that defendant alleged against plaintiffs, seeking

36a

Appendix B

recovery from the Battersons if plaintiffs are found liable

for any of the counterclaims brought against them by

defendant.

Defendant has agreed to dismiss its cost recovery

claims under O.R.S. 465.255 and CERCLA § 107(a).

Accordingly, plaintiffs’ cost recovery claims (the First

and Third Claims) against the Battersons are dismissed.

As to the contribution claims, plaintiffs have sued

the Battersons for recovery of any amount for which

plaintiffs are found liable as a potentially responsible

party (PRP). The Battersons seek summary judgment

on these claims.

The liability between PRPs under CERCLA is

limited to each party’s equitable share of the total

liability. Western Prop. Serv. Corp. v. Shell Owl Co., 358

F.3d 678, 685 (9th Cir. 2004) (between PRPs there is only

a claim for contribution and the liability corresponds to

each party’s equitable share of total liability and is not

joint and several); Pinal Creek Group v. Newmont

Mining Co., 118 F.3d 1298, 1306 (9th Cir. 1997) (a PRP

is limited to a contribution claim and “eannot assert a

claim against diner PRPs tor joint and several liability”).

PRPs can bring a third party action seeking direct

contribution from additional PRPs.

Here, plaintiffs did not bring a direct claim for

contribution against the Battersons, but instead chose

to bring a claim for reimbursement of their own

contribution liability. fhe Third Party Complaint states:

If Third-Party Plaintiffs are foundliable for

‘ontribution to Sunoco for any remedial action

37a

Appendix B

costs Sunoco incurs or incurred, Third-Party

Defendants are liable for those contribution

costs ascurrent or former owners of the

Horse Heaven Property.

Corrected Third Amended Complaint, {1 13.

This falls outside the proper scope of contribution

claims between PRPs. Plaintiffs seek reimbursement

from the Battersons for the equitable share of costs that

is allotted to plaintiffs. The Battersons can be held

responsible to plaintiffs only for direct contribution of

any costs that constitute the Batterson’s equitable

share. Plaintiffs never requested leave from the court

to amend the Complaint to bring a proper claim for

contribution. Accordingly, third-party plaintiffs’ motion

for summary judgment is granted.

3. Defendant’s Motion for Summary Judgment

Defendant moves for summary judgment against all

of the claims brought by plaintiffs. They are discussed

in turn below.

A. Claim One: Breach of Contract

Plaintiffs brought a breach of contract claim against

defendant, alleging that defendant represented orally

and in the 19738 Deed that the calcine on the Site had

commercial value. In response to defendant’s summary

judgment motion, plaintiffs rely exclusively on the

alleged oral representation Freeman made at the time

of the sale.

38a

Appendix B

Defendant argues that any purported oral

agreement is barred by the parol evidence rule and the

doctrine of merger. The parol evidence rule provides:

When the terms of an agreement have been

reduced to writing by the parties, it is to be

considered as containing all those terms, and

therefore there can be, between the parties

and their representatives or successors in

interest, no evidence of the terms of the

agreement, other than the contents of the

writing, except where a mistake or pleadings

or where the validity of the agreement is the

fact in dispute. However this section does not

exclude other evidence of the circumstances

under which the agreement was made, or to

which it relates, as defined in O.R.S. 42.220,

or to explain an ambiguity, intrinsic or

extrinsic, or to establish illegality or fraud.

The term “agreement” includes deeds and

wills as well as contracts between parties.

OR.S. 41.740.

Application of the parol evidence rule depends on

whether the writing is integrated. An integrated writing

is a final expression of the terms of the parties’

agreement. Whether the parties intended the writing

to be integrated is a question of fact for the court, not

the jury. Ambercrombie wv. Hayden Corp., 883 P2d $45,

S50 (Or. 1994) (citation omitted). In determining whether

a writing was meant to be integrated, the court mav

review all relevant evidence, including parol evidence.

Id. at 851.

39a

Appendix B

A court should look to the writing itself when

deciding the issue of integration, because “the apparent

compieteness and detail of the writing itself may lead

the court to conclude the parties intended the writing

to be a complete integration of their agreement.” Hatley

v. Stafford, 588 P2d 603, 609 (Or. 1978). Additionally, a

court “should be aware of the fact that parties with

business experience are more likely to reduce their entire

agreement to writing than parties without such

experience, and that this is especially true when the

parties are represented by counsel on both sides.” /d.

In reviewing the viability of an oral term, a court should

examine “whether the asserted oral term is such that

the parties, under the circumstances, might naturally

have omitted it from the writing.” State ex rel. Cipriano

v. Triad Mech., Inc., 925 P2d 918, 924 (Or. App. 1996).

The 1973 Deed was prepared for McDonald by his

own attorney and sets forth in detail the terms of the

conveyance. The 1973 Deed states that defendant

conveys rights to the “buildings, improvements,

privileges, hereditaments, and appurtenances to the

same belonging or in anywise appertaining.” Declaration

of James IT. Esselman, Exhibit F It also specifies that

defendant retains “all of the oil, gas, and other mineral

rights thereon” but that defendant does not reserve

rights to “surface rocks, such as agates, or other surface

materials which are used for road-building or

construction purposes, such as granite, marble,

limestone, gravel, clay, caliche, calcine, gravel, and sand.”

Td.

40a

Appendix B

Plaintiff Thomas McDonald has testified that he

owned a numoer of businesses, engaged in numerous

real estate transactions, and bought the property for a

business purpose. He was represented by counsel, and

it was his counsel who prepared the 1973 Deed. These

parties were sophisticated and likely would reduce their

final agreement to writing.

Moreover, the alleged oral representations

regarding the calcine would likely not have been omitted

from the writing. The 1973 Deed expressly addresses

the issue of calcine and offers no warranties as to its

commercial viability.

Plaintiffs argue the deed was not integrated because

it did not contain an integration clause. However, “the

mere absence of an integration clause is insufficient to

rebut the presumption of complete integration.” Triad,

925 P2d at 924.

The court finds the 1973 Deed was fully integrated.

Evidence of any oral agreements is barred by the parol

evidence rule.

Evidence of any oral agreement is also barred by

the merger doctrine. The merger doctrine provides that

when a deed is delivered pursuant to the terms of a

previous agreement, the deed supercedes the contract

as to all provisions. Archambault v. Ogier, 95 P3d 257,

261 (Or. App. 2004) (citations omitted).

Plaintiffs argue that the alleged oral promises

regarding the calcine were collateral to the deed and

thus not superceded by it. “|C]Jontractual provisions that

4la

Appendix B

are not included in the deed and do not affect the title,

possession, quantity, or emblements of the land are

deemed collateral to the promise to convey. . . and

merge only to the extent that the parties intended the

deed to be the final memorial of their bargain.” Jd. at

261 (quotation and citations omitted). The 1973 Deed

specifically addresses calcine. The argument by

plaintiffs that the alleged calcine representations were

a collateral oral agreement is without merit. /d.

B. Claim Two —- Fraud

Defendant also seeks summary judgment on

plaintiffs’ claim for damages based on fraudulent

representations allegedly made by Freeman on behalf

of defendant at the time of sale. To succeed on a fraud

claim, plaintiffs must show by clear and convincing

evidence that (1) defendant made a material

representation; (2) the representation was false;

(3) defendant knew it was false or acted recklessly

without any knowledge of its truth; (4) it was made with

the intention it should be acted upon by plaintiffs;

(5) plaintiffs were ignorant of its falsity; (6) plaintiffs

acted in reliance on its truth; (7) plaintiffs had a right to

rely on the representation; and (8) plaintiffs suffered

an injury. Smallwood v. Fisk, 934 P2d 557, 559 (Or. App.

1997) (citation omitted). Recklessness as to the truth of

an assertion is demonstrated by a “definite statement

of a material fact made by a party who does not know

the statement to be true, and has no reasonable grounds

for believing it to be true.” Amort v. Tupper, 282 P2d

660, 664 (Or. 1955).

42a

Appendix B

Plaintiffs assert defendant was reckless in that it

operated the mine and other mercury mines, failed to

test the calcine when it sold the property in 1973, and

Freeman represented that the calcine was free of

mercury while lacking knowledge regarding the truth

of the assertion. |

There is no dispute that defendant had tested the

calcine during mining operations in the late 1950s, using

the standard laboratory equipment at that time, and

that those tests concluded there was no mercury in the

calcine. In reality, there was one-half of one percent of

mercury remaining. Defendant’s Ex. R, Expert Report

of Dr. Kathryn Johnson, at 8.

Defendant admits it did not re-test the calcine in

1973 when it sold the property. However, plaintiffs offer

no evidence that a prudent seller in defendant’s position

would have re-tested the calcine. There is no evidence

in the record that at the time of sale anyone expressed

concern about health hazards relating to the calcine.

Moreover, any statement by Freeman in 1973 that

calcine could be used on roads was true at the time made

and for decades thereafter. Thomas McDonald testified

that at the time of the purchase he was aware that

Jefferson County used the calcine from the Site in its

road constructions. He also testified that after the

purchase he used the calcine for his roads, and that

Jefferson County continued to use the calcine from the

Site for its roads.

Plaintiffs fail to meet their burden of establishing a

question of fact relating to the recklessness of Freeman's

alleged representation.

43a

Appendix B

C. Claim Three: Negligence

Plaintiffs allege that defendant knew or should have

known that the mining waste was hazardous and that

the extraction process to remove all the contamination

was unreliable. Plaintiffs assert that defendant failed

to take reasonable care in testing the calcine, failed to

warn plaintiffs of hazards, and that it was foreseeable

the calcine would contain or release mercury. Plaintiffs

seek (1) $1,200,000 in damages calculated as to the loss

of value in the calcine currently as compared to the value

it would have if usable for roads; (2) additional damages

for costs to investigate and/or remediate the McDonald

Ranch and the Horse Heaven property; (3) damages for

mental anguish; and (4) punitive damages.

Defendant argues that this claim is barred by the

Oregon Statute of Repose. Section 309 of CERCLA

preempts state statutes of limitation, allowing untimely

actions to go forward, but is silent regarding state

statutes of repose. Section 309 of CERCLA provides:

(a) state statutes of limitations for

hazardous substance cases

(1) Exception to State statutes

In the case of any action brought

under State law for personal injury,

or property damages, which are

caused or contributed to by exposure

to any hazardous substance, or

pollutant or contaminant, released

intothe environment from. a

44a

Appendix B

facility, if the applicable limitations

period for such action (as specified

in the State statute of limitations or

under common law) provides a

commencement date which is earlier

than the federally required

commencement date in lieu of the

date specified in such State statute.

42 U.S.C. § 9658(a).

Plaintiffs oppose defendant’s motion by relying on

a ruling that held § 309 of CERCLA preempted the

Oregon Statute of Repose. Buggsi, Inc. v. Chevron

U.S.A., Inc., 857 F. Supp. 1427 (D Or. 1994). The Buggsi

court did not analyze the difference between a statute

of repose and a statute of limitations.

Subsequent to Buggsi, the Fifth Circuit Court of

Appeals held that “the plain language of § 9658 does

not extend to statutes of repose,” but only to statutes

of limitation and that the “differences between statutes

of limitations and statutes of repose are substantive,

not merely semantic.” Burlington N. & Santa Fe Ry.

Co. v. Poole Chem. Co., 419 F-3d 355, 362 (5th Cir. 2005).

The Burlington court acknowledged that courts have

sometimes failed to distinguish a statute of repose from

a statute of limitations when analyzing the applicability

of this section of CE RCIA, and cited Buggsi and other

cases. Nevertheless, the court noted that these types

of statutes are quite different. /d. at 363. A statute of

limitations establishes a time period in which there is a

right to sue after a plaintiff receives an injury, and a

45a

Appendix B

statute of repose establishes a right not to be sued after

a legislatively determined period from an act by

defendant. /d.

This court agrees with the analysis of the

Burlington court that there is a substantive difference

between a statute of limitations and a statute of repose,

and that § 309 of CERCLA extends only to statutes of

limitations. Accordingly, defendant is entitled to

summary judgment because plaintiffs’ negligence claim

is barred by Oregon’s Statute of Repose.

a. Punitive Damages

Plaintiffs seek punitive damages under the

negligence claim. As the court has found the negligence

claim is barred by the statute of repose, the punitive

damages claim fails for the same reason.

Assuming arguendo, the punitive damages claim

could be reviewed on its merits, it still fails. In analyzing

the fraud claim above, the court found that defendant’s

conduct failed to meet the standard of recklessness.

Plainly, defendant’s conduct did not rise to the level of

malice, a reckless and outrageous indifference to a highly

unreasonable risk of harm, or a conscious indifference

to the health, safety and welfare of others, as is required

for punitive damages. O.R.S. 31.730 (2003).

b. Mental Anguish

Mental anguish absent physical harm may be

pursued only for a violation of a legally protected interest

of a plaintiff apart from an ordinary tort claim for

negligence. Hammond v. Cent. Lane Comm. Ctr, 816

46a

Appendix B

P2d 593, 596 (Or. 1991) (citing Nearing v. Weaver, 670

P2d 137, 140 (Or. 1983)). Oregon courts have interpreted

“legally protected interest” as requiring a duty distinct

from the duty under negligence to avoid the foreseeable

risk of harm. Curtis v. MRI Imaging Serv. IT, 941 P2d

602, 608 (Or. App. 1997). Here, defendant had no such

duty. Accordingly, plaintiffs mental anguish claim fails.

D. Claim Four: Negligence Per Se

Plaintiffs allege two claims of negligence per se. If

proved, such claims would result in strict liability for

defendant. Plaintiffs allege defendant violated the

Oregon Hazardous Waste Statute and a regulation

promulgated under the Oregon Solid Waste Act. In order

to state a claim for negligence per se under a statute,

plaintiffs must allege that (1) defendant violated a

statute; (2) plaintiffs were injured as a result of that

violation; (3) plaintiffs were a member of the class of

persons meant to be protected by the statute; and (4)

the injury plaintiffs suffered is of a type that the statute

was enacted to prevent. McAlpine v. Multnomah

County, 883 P2d 869, 873 (Or. App. 1994).

For negligence per se based on violations of an

administrative regulation rather than a statute, the

statute must Support a private right of action under the

McAlpine four-part test. Ettinger v. Denny Chancler

Equip. Co., Inc., 910 P2d 420, 422 (Or. App. 1996).

a. Oregon Hazardous Waste Law

Plaintiffs claim defendant violated the labeling

requirements of O.R.S. 453.035. Under the terms of the

47a

Appendix B

statute, those labeling requirements would not take

effect until labeling standards were adopted by the

State Health Officer. Plaintiffs acknowledge the

necessary standards were adopted after the sale of the

Site at issue in this case, but argue that the Act itself

established some labeling requirements prior to the

adoption of the standards.

Section 5 of the Act states:

(1) The State Health Officer shall adopt

standards for the labeling of hazardous

substances.

(2) the State Health officer shall require:

[Nine items that must be included in

the regulations, but which are not

relevant to this court’s analysis. |

Oregon Laws 1971, c. 409, § 5(1) - (2).

The legislature did not frame the nine items as direct

requirements to the regulated community, but as points

to be included in the regulations promulgated by the

State Health Officer. Aecurdingly, no immediate effect

on the regulated community was intended.

Plaintiffs also argue that this section was meant to

have immediate effect because the statute prohibits any

misbranded hazardous substance, and “misbranded

hazardous substances” is defined as “a hazardous

substance that does not meet the labeling requirement

of O.R.S. 453.085 [the nine items in 5(2) above].” O.R.S.

153.005(13). Plaintiffs argue that if the legislature meant

48a

Appendix B

for those items to become effective only after the

promulgation of regulations, they would have made the

definition “a hazardous substance that does not meet

the labeling requirements of regulations promulgated

under O.R.S. 453.035.” Pls. Reply Br. at 30.

The plain language of O.R.S. 453.035 states that the

State Health Officer shall promulgate regulations, and

gives some requirements for those regulations.

Identifying a misbranded substance as one that does

not follow section 5 fails to negate the specific language

of 5(1) requiring regulations be promulgated. This court

concludes that the labeling requirements were not in

effect at the time of the 1973 Deed.

Even if the labeling requirements were in effect at

the time plaintiffs purchased the Site, the McAlpine

factors still must be established to succeed on a claim

for negligence per se. Plaintiffs fail to meet this burden.

The Act defines a hazardous substance as one which

“may cause substantial personal injury or substantial

illness during or as a proximate cause of any customary

or reasonably foreseeable handling or use, including

reasonably foreseeable ingestion by children.” Oregon

Laws 1971, c. 409, § 1(7)(a). This law was modeled after

a federal law, which both parties agree is inapplicable to

purchasers “alcine in acommercial land sale. Plaintiffs

argue reference to the federal law is inappropriate, vet

offer no evidence that the Oregon law differs in any

substantial manner from the federal law in order to

preclude such a comparison. The legislative history of

the Oregon Act indicates that the legislature was

49a

Appendix B

concerned with the same issue that the federal law

addressed — protecting children from dangerous

household products. Additionally, Oregon courts have

recognized that federal case law may be used to construe

state statutes that are patterned upon a federal statute.

Badger v. Paulson Inv. Co., 803 P2d 1178, 1182 (Or.

1991). Plainly, plaintiffs fall outside the class of persons

the statute was designed to protect, and plaintiffs fail

to meet the third prong of the McAlpine test.

Plaintiffs also cannot satisfy the injury requirement

of the McAlpine test. To meet this test, plaintiffs must

prove they were injured and that their particular injury

is the type that the statute was meant to protect.

Plaintiffs do not claim any physical injury. The only injury

plaintiffs claim is economic, and, as evidenced by the

language of the statute, such injuries fall outside the

scope of the statute.

b. Oregon Safe Storage Regulation

Plaintiffs also argue defendant violated O.A.R. 340-

61-070(1), a regulation establishing standards for the

safe storage of solid waste, which was promulgated

under the Solid Waste Management Act. This claim also

fails to meet the requirements of the McAlpine test.

Plaintiffs cannot establish the first requirement,

that defendant violated the regulation through improper

storage of the calcine. At the time of the land sale, the

calcine was not a solid waste, and was not subject to the

regulation. The Solid Waste Management Act defines

waste as “useless or discarded” materials. O.R.S.

159.005(24). At the time of the sale, the caleine at issue

50a

Appendix B

had been used by Jefferson County for road

construction, and was considered valuable by plaintiffs.

It was not a “useless or discarded” material.

Plaintiffs also cannot establish the third and fourth

factors of the McAlpine test. The statute’s enforcement

provision provides a mechanism for the Environmental

Quality Commission to enforce its regulations, not fora

private party in plaintiffs’ position to file a private right

of action. Moreover, plaintiffs have alleged no health-

related injury, which is the type of injury the regulation

was intended to prevent.

E. Claim Five: Cost Recovery Under Oregon

Law

Plaintiffs acknowledge that PRPs are not entitled

to cost recovery under Oregon law. Accordingly, they

dismiss their cost recovery claim with respect to the

McDonald Ranch. As to the Horse Heaven property,

plaintiffs assert cost recovery is property because they

are not PRPs under Oregon law.

PRPs include:

a) Any owner or operator at or during ne

bh) Any owner or operator who became the

yaner or operator after the time of the acts

or omissions that resulted in the release, and

who knew or reasonably should have known

of the release when the person first became

Sla

Appendix B

kK *

(d) Any person who, by any acts or omissions,

caused, contributed to or exacerbated the

release, unless the acts or omissions were in

material compliance with applicable laws,

standards, regulations, licenses or permits.

O.R.S 465.255(1)

Plaintiffs Thomas and Marian McDonald expressly

reserved “the calcine dump located on the property and

the right of removal of the calcine for twenty-five years”

when they conveyed the property. Affidavit of Stephen

L. Naito, Ex. 1. Accordingly, they have owned and

operated the calcine since 1973, and will own it until

February 4, 2007.

In Oregon, an owner of property on which

contaminants were placed is not a statutorily innocent

party, even if the owner did not know about the

contamination, did not give permission, derived no

benefit or use, and did not receive any ce 1hancement in

property value. Newell v. Weston, 946 P2d 691 (Or. App.

1997). The Newell court found that a property owner

who was unaware that a tank that leaked contaminants

was placed on his property was a PRP but under

equitable considerations had no liability. Here, a claim

of statutory innocence is misplaced, because plaintiffs

Thomas and Marian McDonald were the owners of the

Site and remain the owners of the calcine, even if they

were unaware of the contamination. Moreover, they

derived benefit from the calcine.

S$2a

Appendix B

This court has also found purchasers of

contaminated property to be PRPs even though they

did not know of the contamination but failed to conduct

“all appropriate inquiry” into the history of the property.

Catellus Dev. Corp. v. L.D. McFarland Co., 910 F. Supp.

1509, 1513 n.1 (D. Or. 1995) (reviewing and adopting the

prior findings and recommendations of the Magistrate

Judge).

Under CERCLA, in determining whether all

appropriate inquiries were conducted, a court reviews

any searches conducted of historical sources and public

records; relevant specialized knowledge; the

relationship of the purchase price to the value of the

property if the property was not contaminated;

commonly known or reasonably ascertainable

information about the property; the degree of

obviousness of the presence or likely presence of

contamination; and the ability to detect the

contamination by appropriate investigation. 42 U.S.C.

§ 9601(35)(B aii).

Ilere, plaintiffs Thomas and Marian McDonald knew

the property had been a mercury mine, understood that

mercury was dangerous, and were aware that some

bricks on the property were contaminated. Defendant’s

Ex. RR, Deposition of Thomas MeDonald, at page 13,

lines 16-19 (knew the Site was a former mercury mine);

page 166, lines 19-23 (knew mercury was dangerous);

page 216, lines 5-17 (knew the brick firehouse was

contaminated with mercury). They should have

conducted appropriate inquiries into any other potential

contamination. In arguments to this court, plaintiffs

53a

Appendix B

have asserted that tests were available at the time of

the purchase that would have detected the mercury in

the calcine. Thomas McDonald also testified that he felt

the calcine was a “sleeper” part of the purchase because

it had greater value than was being attributed to it

within the land sale. Defendant’s Ex. E, Deposition of

Thomas McDonald, at page 63, line 10 - page 64, line 2.

After weighing the CERCLA factors listed above, the

court finds that the McDonalds failed to conduct all

appropriate inquiries.

Plaintiffs Thomas and Marian McDonald are PRPs

under Oregon law for the Horse Heaven property and

therefore cannct seek cost recovery. Accordingly,

defendant is granted summary judgment on plaintiffs’

cost recovery claim.

FE Claim Six: Contribution Under Oregon

Law

Oregon law allows recovery of “reasonable costs

which are attributable to or associated with a removal

or remedial action at a facility.” O.R.S. 465.200(24).

Plaintiffs assert a remedial action on the McDonald

Ranch and seek contribution for that action. Remedial

action is defined as:

those actions consistent with a permanent

remedial action 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 a hazardous substance so that

it does not migrate to cause substantial

54a

Appendix B

danger to present or future public health,

safety, welfare or the environment.

O.R.S. 465.200(23)

Plaintiffs assert that under Oregon law there is no

requirement of government involvement as a

prerequisite for asserting remedial action. Plaintiffs rely

on the language of the statute that allows “any person”

to file a claim for contribution. O.R.S. 465.325(6)(a).

Plaintiffs also argue that a requirement of government

involvement would render redundant the clause allowing

a PRP who has cooperated with the government to sue

another PRP for contribution.

However, requiring government involvement for a

remedial action does not conflict with “any person” being

able to file a claim for contribution — once it has been

determined by the government that remedial action is

required, then any person can file a claim for

contribution. Additionally, government involvement does

not render redundant the clause allowing parties who

have cooperated with the government to sue those who

did not cooperate. Once the government determines that

remedial action is required, some parties cooperate and

some do not. The clause protects those who cooperate

and allows them to recover from those who do not.

In Oregon, the DEQ undertakes or requires a

remedial action. O.R.S. 465.260; O.R.S. 465.325; see also

Boeing Co. v. Cascade Corp., 920 F. Supp. 1121, 1124

(1996) (noting that the ultimate remedial action and the

extent of the remediation are controlled by Oregon's

DEQ and the federal Environmental Protection Agency

55a

Appendix B

either through consent decrees or mandate). The

Oregon Administrative Rules state that when DEQ

learns of a potential release it “shall” evaluate and “will”

determine whether “assessment, removal, remedial

action, or other action is needed.” O.A.R. § 340-122-

0071(1) & (3). Here, DEQ has evaluated the McDonald

Ranch and has determined that remedial action is not

required. Its tests revealed the mercury levels (8.18 ng/

kg) were below the state’s residential maximum (80mg/

kg).

Plaintiffs are not permitted to undertake

investigations on the McDonald Ranch, make

improvements to the land, call it a remedial action, and

then demand cost recovery or contribution. Defendant

is entitled to summary judgment on plaintiff’s

contribution claim.

G. Claims Seven and Eight: Declaratory

Judgment

Plaintiffs seek declaratory relief, alleging that

although DEQ has not ordered any remediation,

plaintiffs may still incur remedial costs in the future.

Plaintiffs seek declaratory relief to avoid future

repetitive, wasteful litigation.

Declaratory relief is allowable only as to a justiciable

controversy that can affect the present rights of the

parties. “To be justiciable, a controversy must involve a

dispute based on present facts rather than on

contingent or hypothetical events.” TVKO wv. Howland,

73 P3d 905, 908 (Or. 2003) (citations omitted); O.R.S.

28.010 (Oregon Declaratory Judgment Act). Oregon’s

56a

Appendix B

DEQ has not asked plaintiffs to perform remediation

on the McDonald Ranch, and defendant has performed

the work DEQ requested on the Horse Heaven property

voluntarily. Accordingly, addressing the merits of this

lawsuit resolves the parties’ justiciable disputes. Any

future claims for relicf by plaintiffs are speculative.

Additionally, a court should refuse issuing a

declaration “where a special statutory remedy has been

provided, or where another remedy will be more effective

or appropriate under the circumstances.” Brooks v.

Dierker, 552 P2d 533, 536 (Or. 1976). Here, plaintiffs seek

statutory relief for their alleged harm. Accordingly,

defendant’s motion for summary judgment as to

plaintiffs’ declaratory judgment must be granted.

4. Plaintiffs’ Motion for Summary Judgment

Plaintiffs move for summary judgment against

defendant’s four counterclaims and five of defendant’s

affirmative defenses. Plaintiffs also seek summary

judgment for their negligence per se claims.

By this Opinion and Order, summary judgment is

granted against plaintiffs’ negligence per se claims, so

plaintiffs’ motion on those claims is denied as moot. In

light of the court’s related decisions, plaintiffs’ motion

for summary judgment against defendant’s affirmative

defenses is also denied as moot. Defendant withdraws

Counterclaims One and Three, leaving only

Counterclaims Two and Four before the court as

remaining targets for plaintiffs’ motion for summary

judgment.

S7a

Appendix B

A. Counterclaim Two - Contribution Under

Oregon Law

Defendant counterclaimed for contribution under

ORS 465.257 for both the Horse Heaven property and

the McDonald Ranch. Plaintiffs seek summary judgment

on this counterclaim as to the McDonald Ranch on

grounds that defendant has incurred no costs related

to the ranch. However, plaintiffs sued defendant for

contribution for costs relating to the cleanup of the

McDonald Ranch. Defendant’s counterclaim ensures

that plaintiffs’ liability is included in any apportionment

of the McDonald Ranch cleanup costs in the event

defendant is found liable for such costs. Because

defendant is granted summary judgment as to the

cleanup costs at the McDonald Ranch, defendant has

no liability at the McDonald Ranch. Accordingly, this

portion of the counterclaim is dismissed as moot.

As to the Horse Heaven property, plaintiffs argue

they are not PRPs and cannot be sued for contribution.

In the analysis of defendant’s Motion for Summary

Judgment above, this court found that plaintiffs Thomas

and Marian McDonald are PRPs with respect to the

Horse Heaven property. Accordingly, this part of

plaintiffs’ Motion for Summary Judgment is denied as

to Thomas and Marian McDonald. Alex McDonald,

however, is not a PRP with respect to the Horse Heaven

property, as he is not, and has never been, the owner or

operator of the calcine or the Site. Accordingly, summary

judgment is granted as tou Alex McDonald.

58a

Appendix B

B. Counterclaim Four — Contribution under

CERCLA

Defendant brought this counterclaim under

CERCLA § 107. Plaintiffs seek summary judgment

against defendant’s counterclaim for contribution under

CERCLA, asserting that such claim cannot be brought

unless there is an underlying civil action.

CERCLA was amended in 1986 to include an express

action for contribution for PRPs under § 113(f). Prior

to this amendment, courts found contribution actions

were authorized implicitly under § 107. Key Tronic

Corp. v. United States, 511 U.S. 809, 816 (1994) (citing

cases). After the amendment, the two provisions are

viewed as providing “somewhat overlapping”

contribution remedies. /d.

Under CERCLA, § 118, parties who are PRPs may

sue for contribution only if there has been a civil action

under § 106 or § 107. Cooper Ind., Inc. v. Aviall Serv.,

Inc., 543 U.S. 157, 166 (2004). The Aviall Court

acknowledged that § 113 contained a saving clause that

“rebuts any presumption that the express right of

contribution provided by the enabling clause is the

exclusive cause of action for contribution available to a

PRP” /d. at 166-167. The Aviall Court declined to

decide whether there was an implied right of

contribution under § 107, but noted that in enacting

§ 113, Congress had explicitly recognized a particular

set of contribution rights previously implied by courts.

Id. at 170-171.

59a

Appendix B

The Ninth Circuit Court of Appeals addressed these

sorts of claims as follows:

Together, § 107 and § 113 provide and

regulate a PRP’s right to claim contribution

from other PRPs. While § 107 created the

right of contribution, the machinery of § 113

governs and regulates such actions, providing

the details and explicit recognition that were

missing from the text of § 107. [This court]

held that the enactment of § 113 in 1986 did

not replace the implicit right to contribution

many courts had recognized in § 107(a);

rather, § 113 determines the contours of

§ 107, so that a claim for contribution

requires the “joint operation” of both sections.

Western Props., 358 F.3d at 685 (citing Pinal Creek, 118

F.3d at 1301-02, 1306).

Because the Availl decision did not address

contribution claims under § 107, district courts in the

Ninth Circuit have continued to follow binding Ninth

Circuit precedent, holding that there remains a right of

contribution under § 107 regardless of the existence of

prior litigation, albeit in unpublished decisions. See, e.g.

Aggio v. Aggio, 2005 WL 2277037, at *5-6 (N.D. Cal.

Sept. 19, 2005); Ferguson v. Arcata Redwood Co., 2005

WL 1869445, at *6 (N.D. Cal. Aug. 5, 2005); Kotrous v.

Goss-Jewett Co. of N. California, Inc., 2005 WL 1417152,

at *2 (E.D. Cal. June 16, 2005).

60a

Appendix B

This case is analogous to the Catellus case. The

Catellus court addressed a situation similar to that which

defendant faces in this case:

Plaintiffs cannot sue under the express

provisions of § 107 because they are PRPs,

and they cannot sue under § 113 because they

have neither been ordered by EPA to clean

up the site nor been sued by a non-liable party

for cost recovery. However, as stated above,

§ 113(f)(1) expressly reserved actions for

contribution in the absence of a civil action

under § 106 or § 107. Therefore, a private

right of contribution under § 107(a) continues

to exist as a viable cause of action.

Catellus, 910 F. Supp. at 1515 (citations omitted).

Here, defendant is assisting voluntarily in the

assessment and cleanup of the Horse Heaven property.

This negates the need for litigation.

This court concludes that the Western Properties

and Pinal Creek decisions rule properly that when there

has not been a civil action, there still remains a private

right of action for contribution under § 107. When a

plaintiff falls outside the technical requirements of

§ 113, the contribution claim is allowed under § 107,

and the mechanics of apportionment are governed by

the factors established in § 113.

Plaintiffs also move for summary judgment because

they are not PRPs under CERCLA. Plaintiffs contend

that they possess only an easement, and so are not

6la

Appendix B

owners of the calcine pile. However, as discussed above,

plaintiffs Thomas and Marian McDonald retained full

rights to the calcine and are its owners. A party is a

PRP under CERCLA if the party is the current owner

or operator of a “facility.” 42 U.S.C. § 9607(a)(1).

A facility is any site where a “hazardous substance has

been deposited, stored, disposed of, or placed, or

otherwise come to be located.” 42 U.S.C. § 9601(9). The

term is construed broadly. See 3550 Stevens Creek

Assocs. v. Barclays Bank of Cal., 915 F.2d 1355, 1360

n.10 (9th Cir. 1990). Accordingly, those plaintiffs, but not

Alex McDonald, are PRPs under CERCLA.

Plaintiffs also assert a third-party defense available

under CERCLA. This defense applies when (1) the

release was caused solely by a third party; (2) the third

party was not an employee/agent of plaintiffs; and (3)

plaintiffs exercised due care with respect tc the

hazardous substance. 42 U.S.C. § 9607(b)(3). This

defense is construed narrowly. Lincoll‘n Props., Ltd. v.

Higgins, 823 F. Supp. 1528, 1539 (E.D. Cal. 1992).

Due care is established when the purchaser had no

reason to know there was contamination at the time of

purchase and the purchaser made “all appropriate

inquiries” into the previous ownership and uses of the

property. 42 U.S.C. § 9601 (35)(A)-(B). Due care also

requires prompt attention to any environmental hazard,

including attempts at removal or other remedies.

§ 9601(40)(D).

As discussed above, plaintiffs Thomas and Marian

McDonald knew that the property contained a mercury

62a

Appendix B

mine, knew the bricks on the property contained

dangerous levels of mercury, and knew that mercury

was a dangerous substance. Accordingly, plaintiffs

should have conducted “all appropriate inquiries,” but

failed to do so. Moreover, the only remediation efforts

performed by the McDonalds is having experts review

the file and visit the site for this lawsuit. Accordingly,

plaintiffs fail to meet the requirements of CERCLA’s

third-party defense.

5. Defendant’s Motions to Strike

Defendant’s moved to strike portions of the

declarations of Thomas, Marian and Alex McDonald that

were filed in support of plaintiffs’ motion and in

opposition to defendant’s motion. In light of the court’s

ruling granting defendant’s Motion for Summary

Judgment, these motions are denied as moot.

IV. CONCLUSION

For the reasons provided above, plaintiffs’ Motion

in Limine [172] is DENIED, third-party defendants’

Motion for Summary Judgment [101] is GRANTED;

defendant’s Motion for Summary Judgment [107] is

GRANTED; defendant’s Motions to Strike [120, 160]

are DENIED as moot; and plaintiffs’ Motion for

Summary Judgment [110] is GRANTED IN PART as

follows: defendant’s Counterclaims One and Three are

voluntarily dismissed, defendant’s Counterclaims Two

and Four are dismissed against defendant Alex

MeDonald, but remain against defendants Thomas and

Marian McDonald.

63a

Appendix B

ITISSO ORDERED.

DATED this 14 day of March, 2006.

ANCER L. HAGGERTY

United States District Judge

64a

APPENDIX C — OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF OREGON DECIDED JUNE 22, 2006

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF OREGON

Civil No. 03-1504-HA

THOMAS MCDONALD; MARIAN MCDONALD; and

ALEX E. MCDONALD,

Plaintiffs and Counterclaim Defendants,

SUN OIL COMPANY, SUNOCO, INC., and

CORDERO MINING COMPANY,

Defendants and Counterclaim Plaintiffs,

THOMAS MCDONALD and MARIAN MCDONALD,

and ALEX E. MCDONALD,

Third-Party Plaintiffs,

Vv.

J.T. BATTERSON and SUSAN BATTERSON,

Third-Party Defendants.

June 22, 2006, Decided

OPINION

ORDER

HAGGERTY, Chief Judge:

65a

Appendix C

In an Opinion and Order dated March 14, 2006, this

court granted summary judgment on all claims against

defendants and third-party defendants, leaving only two

counterclaims filed by defendant Sunoco remaining in

the case. Plaintiffs claims for breach of contract, fraud,

negligence, negligence per se, contribution under

Oregon law, and cost recovery under Oregon law have

been dismissed. The remaining counterclaims by

defendant are for contribution under 42 U.S.C. § 9600

et seg. (CERCLA) and Oregon Law. Defendant Sunoco

now brings a Motion for Entry of Final Judgment on

All of Plaintiffs’ Claims [184]. Plaintiffs object to this

motion on the ground that the pending counterclaims

are based on the same nucleus of facts and could result

in multiple appeals.

Federal Rule of Civil Procedure 54(b) authorizes a

court to enter final judgment “as to one or more but

fewer than all of the claims or parties.” Fed. R. Civ. Pro.

54(b). Judgment under Rule 54(b) “is proper if it will

aid ‘expeditious decision’ of the case. Texaco, Inc. v.

Ponsoldt, 939 F.2d 794, 797 (9th Cir. 1991) (quoting

Sheehan v. Atlanta Int'l Ins. Co., 812 F.2d 465, 468 (9th

Cir. 1987)). Rule 54(6) certification is not proper if it

will result in “piecemeal appeals in cases which should

be reviewed only as single units,” but the Rule 54(b)

claims “do not have to be separate from and independent

of the remaining claims.” /d. Rule 54(b) certification is

permitted “even though the remaining claims would

require proof of the same facts involved in the dismissed

claims.” Jd. at 798.

66a

Appendix C

Rule 54(b) certification is proper, despite

overlapping facts, when the only remaining claims are

counterclaims that arise out of the same transaction or

occurrence. See Wood v. GCC Bend, LLC., 422 F.3d 873,

881 (9th Cir. 2005); see also Curtiss-Wright Corp. v. Gen.

Elec. Co., 446 U.S. 1, 9, 100 S. Ct. 1460, 64 L. Ed. 2d 1

(1980); Cold Metal Process Co. v. United Eng’g &

Foundry Co., 351 U.S. 445, 451-52, 76 S. Ct. 904, 100 L.

Ed. 1311 (1956); Sheehan, 812 F.2d at 468. Here,

judgment under Ru/e 54(b) would aid in the expeditious

decision of the case. The only remaining claims are

counterclaims, and they will require proof of only a small

portion of the facts involved in the dismissed claims.

Moreover, there is little risk of “piecemeal” appeals

in this case. The counterciaims for contribution were

not dismissed at summary judgment because plaintiffs

are potentially responsible parties (PRPs) under

CERCLA and could not establish statutory innocence

as a matter of law. However, it is the court that allocates

response costs between PRPs, taking into consideration

“such equitable factors as it finds appropriate.”

42 ULS.C. § 9613(f(1). Courts often consider several

factors, which are known as the “Gore factors,” including

distinguishability of discharge; amount of hazardous

waste involved; degree of toxicity; degree of involvement

by each PRP in generating, transporting, treating,

storing or disposing of the waste; degree of care

exercised; and degree of cooperation with authorities.

Boeing Co. v. Cascade Corp., 920 F. Supp. 1121, 1132 (D.

Or. 1996). Considering the equitable factors applicable

va)

in this case, plaintiffs’ equitable share of the response

67a

Appendix C

costs is likely zero. Accordingly, there is a low probability

of multiple appeals in this case.

Defendant’s Motion for Entry of Final Judgment

on all of Plaintiffs’ Claims [189] is GRANTED.

IT ISSO ORDERED.

DATED this 22 day of June, 2006.

/s/ Ancer L. Haggerty

United States District Judge

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