In a report and recommendation issued last week, a magistrate judge with the United States District Court for the District of Idaho found that disputes of fact preclude summary judgment on the majority of claims brought by a landfill against the United States Air Force and two other defendants. Idaho Waste Systems, Inc. v. U.S. Air Force, No. 1:18-cv-00229 (D.C. Idaho Jan. 27, 2020). The magistrate judge recommended dismissing state law claims brought against the Air Force on sovereign immunity grounds, but found that most of the remaining claims, including claims under CERCLA, should go to trial.

This case arises out of the removal and resurfacing of flooring at an Air Force military base. The Air Force contracted with co-defendant ProTech to handle the project, including sampling of the waste generated during construction. ProTech took grab samples of the waste, but before it received the sampling results, it contracted with the third defendant, Snake River, to transport the waste and construction debris for disposal. Snake River delivered the waste to the plaintiff’s landfill, and one month later, ProTech received test results that showed the construction debris was contaminated with chromium and qualified as hazardous waste. Plaintiff’s landfill was not permitted to accept hazardous waste.

One year later, the plaintiff filed suit against the Air Force, ProTech, and Snake River, alleging six counts: (1) Continuing Negligence; (2) Continuing Trespass; (3) Equitable Indemnity and Contribution; (4) Negligence and Negligence Per Se; (5) Cost Recovery under CERCLA; and (6) Contribution under CERCLA. Idaho Waste seeks more than $33,000 in costs spent hiring two consultants to address the issue and $2,000,000 for diminution in the property value of its landfill. All of the parties filed motions for summary judgment, the majority of which the magistrate judge recommended that the district judge deny.

The magistrate judge agreed that two sets of claims should be dismissed. First, he recommended dismissing the tort law claims brought against the Air Force. Under the independent contractor exception to the Federal Tort Claims Act, the Air Force cannot be held vicariously liable for ProTech’s actions. And the undisputed evidence shows that the Air Force properly delegated the responsible handling of the waste to ProTech, so the government also cannot be held directly liable in tort. Second, Judge Epps recommended dismissing the nuisance claims brought against the remaining defendants, finding that “[n]o evidence in the record shows the contamination of ground water or the environment in a manner consistent with a nuisance” and the experts for all the parties “found chromium levels within the relevant section of the landfill to be within legally-permissible limits.” The magistrate judge denied the remainder of the motions, finding that triable issues of fact existed for the plaintiff’s CERCLA claims against all defendants, and for its continuing trespass and negligence claims against ProTech and Snake River.

Of note with respect to the CERCLA claims, the Court found “unpersuasive” ProTech’s argument that the waste “was never hazardous because the tested samples” were grab samples that were “not representative of the waste’s entire composition.” The Court also found irrelevant Snake River’s argument that the waste never escaped the plastic bags in which it was contained, stating that “[w]hether hazardous waste escaped its container does not appear dispositive to a release or threatened release under CERCLA.” Last, Snake River argued that it is not a “transporter” under CERCLA and therefore, not a liable party under the Act, relying heavily on a Third Circuit case, Tippins, Inc. v. USX Corp., 37 F.3d 87, 94–95 (3d Cir. 1994), which held that a transporter is liable only when it has substantial input and active participation in the selection of the disposal site for hazardous waste. The magistrate judge recognized that although the Ninth Circuit has been silent on the issue, at least three district courts within the Ninth Circuit have found that a “transporter” under CERCLA must select the site of disposal to be liable, and he was “inclined” to follow that case law. But even applying that interpretation the magistrate judge found that “a genuine issue of material dispute exists because it is unclear whether Snake River assisted ProTech in choosing the disposal site.” The magistrate judge, therefore, recommended leaving this issue for the jury as well.

The parties have until February 10, 2020 to file written objections to the report and recommendation. Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations.”). And the district judge will determine de novo any part of the magistrate judge’s disposition to which a party has properly objected. Fed. R. Civ. P. 72(b)(3). The district judge is likely to issue a final order in the coming months, and if the magistrate judge’s report is adopted without change, the remaining claims will move forward to trial.