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Cooper Industries, LLC v. Spectrum Brands, Inc.

United States District Court, E.D. Missouri, Northern Division

September 12, 2019

COOPER INDUSTRIES, LLC, Plaintiff,
v.
SPECTRUM BRANDS, INC., Defendant/Counter Plaintiff,
v.
COOPER INDUSTRIES, LLC, et al., Counter Defendants.

          MEMORANDUM OPINION AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.

         This case presents competing claims for contribution and requires the Court to allocate responsibility for environmental remediation costs between two companies who are both former owners and operators of a small appliance manufacturing plant in Macon, Missouri. The plant used trichloroethylene (TCE) to degrease metal components used in appliances such as toasters and waffle irons. I conclude that plaintiff/counterdefendant Cooper Industries, LLC is responsible for 4% of the clean up costs associated with the west side of the property and under the building's footprint, and defendant/counterplaintiff Spectrum Brands, Inc., is responsible for 96% of those costs.

         The predecessor of plaintiff Cooper (McGraw Edison) sold several manufacturing plants to the predecessor of defendant Spectrum (Toastmaster)[1]under an Asset Purchase Agreement in 1980. The subject of this case is the plant located in Macon, Missouri. After the sale, environmental contamination from TCE was discovered at the Macon site and remediation efforts began.

         Cooper and Spectrum assert contribution claims against each other under Section 113 of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (CERCLA).[2] These claims were tried to the Court during a four-day bench trial. The parties have submitted a joint stipulation of uncontested facts, post-trial briefs, proposed findings of fact, and proposed conclusions of law. After careful consideration of all relevant, admissible evidence under the appropriate standards, I determine that Cooper and Spectrum are both liable under CERCLA for the cleanup of the Macon Site, and I allocate responsibility for response costs associated with the west side of the property and under the building's footprint 4% to Cooper and 96% to Spectrum, for the reasons set out below.

         Spectrum also requests that I reconsider my ruling granting Cooper's motion for judgment as a matter of law regarding its responsibility for contamination on the east side of the property. That motion was made orally by Cooper at the close of Spectrum's case on the second day of trial and was granted orally after argument from both sides. The motion, argument, and my ruling appear in Volume 2 of the Trial Transcript at pages 117 through 122, Doc. 208. The motion for reconsideration will be denied, as I continue to believe that Spectrum offered no evidence that the contamination on the east side of the property occurred before Cooper sold the property. Therefore, Spectrum is allocated 100% of the response costs associated with the east side of the property.

         Findings of Fact

         Ownership and Operations at the Macon Site

         McGraw-Edison Company, through its Portable Appliance and Tool Group, manufactured small appliances at a plant located at 704 South Missouri Street, Macon, Missouri (hereinafter “Macon Site” or “Site”) from approximately 1956 until approximately July 16, 1980. Annotated Joint Stipulation of Uncontested Facts ¶ 1, Doc. 214 (hereafter “Stipulation”). McGraw-Edison sold the Portable Appliance and Tool Group, including the Macon Site, via a July 16, 1980 Asset Purchase Agreement (“1980 APA”) with Toastmaster Holding Company and Toastmaster Inc. (collectively “Toastmaster”). Stipulation ¶ 2, Doc. 214; 1980 APA (Deft.-A-21). Toastmaster was formed by senior managers of the Portable Appliance and Tool Group for purposes of this acquisition. Stipulation ¶ 3, Doc. 214. Cooper is the legal successor to McGraw-Edison. Stipulation ¶ 4, Doc. 214. Spectrum is the legal successor to Toastmaster. Stipulation ¶ 5, Doc. 214.[3]

         Spectrum owned and/or operated the Macon Site from approximately July 16, 1980 through June of 2012. Stipulation ¶ 6, Doc. 214. Spectrum manufactured small appliances at the Macon Site from approximately July 16, 1980 until 2001. Stipulation ¶ 6, Doc. 214. Spectrum thereafter used the Macon Site for distribution and repair until 2012. Stipulation ¶ 6, Doc. 214. The Macon Site consists of approximately fifteen acres and is located in an area that is primarily light industrial or residential. Stipulation ¶ 7, Doc. 214. Structures at the Macon Site include an approximately 175, 000 square-foot building and a metal canopy and shed adjacent to the west side of the building. Stipulation ¶ 8, Doc. 214.

         TCE Use and Contamination at the Macon Site

         Both Cooper and Spectrum used TCE for small appliance manufacturing operations at the Macon Site. Stipulation ¶ 9, Doc. 214.[4] TCE was used at the Macon Site from at least 1971 to 2001. Trial Tr. Vol. 1 at 100:17-21 (Waller Cross), Doc. 207; Halterman Tr. 52:20-53:2, 57:25-58:3, Doc. 196-1. TCE is a non-flammable liquid chlorinated hydrocarbon used as an industrial solvent and degreaser. Stipulation ¶ 10, Doc. 214.

         Two former Cooper and Spectrum employees who worked at the Macon Site testified live at trial. The first was Michael Waller, who worked at the Macon Site (first for Cooper then for Spectrum) from February 2, 1971 until 2008. Stipulation ¶ 82, Doc. 214; Trial Tr. Vol. 1 at 42:10-25 (Waller Direct), Doc. 207; Trial Tr. Vol. 1 at 91:22-92:1 (Waller Cross), Doc. 207. Mr. Waller held the title of Maintenance Foreman from 1976 until 1986. Stipulation ¶ 83, Doc. 214; Trial Tr. Vol. 1 at 45:6-8 (Waller Direct), Doc. 207. The second former Cooper/Spectrum employee who testified was Larry Clark, who worked first as the Group Safety Coordinator for Cooper from 1976 through 1980. Stipulation ¶ 86, Doc. 214; Trial Tr. Vol. 1 at 109:6-22, 113:19-21 (Clark Direct), Doc. 207. As environmental laws were enacted, he also assumed responsibility to oversee environmental compliance at Cooper's various Portable Appliance and Tool Group facilities. Stipulation ¶ 86, Doc. 214. Mr. Clark continued in this role from 1980 through 2006 for Spectrum. Stipulation ¶ 86, Doc. 214. Mr. Clark was based in Columbia, Missouri, and was responsible for facilities in in eight different locations in Missouri, Iowa, and North Carolina. Trial Tr. Vol. 1 at 112:23-113:12, 116:24-25 (Clark Direct). He was therefore spread out all over and was not at the Macon Site every day. Trial Tr. Vol. 1 at 194:24-195:8 (Clark Cross), Doc. 207.

         Portions of David Halterman's deposition testimony were also read into the record by agreement of the parties as Mr. Halterman was unable to appear at trial. Mr. Halterman worked at the Macon Site for both Cooper and Spectrum from 1977 until 2009. Halterman Tr. 16:16-23, 27:5-20, 29:16-19, 30:14-15, Doc. 196-1. He was Assistant Plant Manager at the Site in 1977, became Operations Manager in 1980, and was later Vice President of Operations until 2000. Halterman Tr. at 16:21-23, 17:8-13, 27:5-8, Doc. 196-1. During his tenure, the Macon Site produced toaster ovens and toasters. Halterman Tr. at 36:1-4, Doc. 196-1. To make them, the raw materials would be processed into the various component parts, assembled on a production line, and then the parts were cleaned with TCE. Halterman Tr. at 36:16-37:4, 52:20-53:16, 27:5-8, Doc. 196-1. Eventually, vanishing oil was also used to clean parts, but it never completely replaced TCE. Halterman Tr. at 54:1-23, Doc. 196-1. Parts were sometimes cleaned with TCE using a batch degreaser and a monorail degreaser. Halterman Tr. at 56:1-57:14, 57:25-58:3, Doc. 196-1. The batch degreaser had heating coils, and large baskets of parts would be lowered into the degreaser where the TCE vapor would dissipate the oil on the parts. Halterman Tr. at 58:4-10, Doc. 196-1. The basket was then left over the batch degreaser to allow the parts to dry before they were removed. Halterman Tr. at 108:25-109:6, Doc. 196-1. The monorail degreaser was a conveyor which moved larger parts through a degreaser, where they would be treated with TCE and come out clean. Halterman Tr. at 60:20-61:3, Doc. 196-1. The parts were semi-dry when they emerged, and Mr. Halterman did not recall any TCE dripping off the parts onto the floor. Halterman Tr. at 105:21-106:1, Doc. 196-1. As with the batch degreaser, the parts were left on the conveyor to allow them to fully dry before they were removed. Halterman Tr. at 109:9-12, Doc. 196-1. Mr. Halterman never witnessed any TCE spilling onto the floor. Halterman Tr. at 105:24-106:11, Doc. 196-1. He believed that maintenance and tool room people may have, at one time, cleaned their hands with TCE at the Macon Site. Halterman Tr. at 103:8-13, Doc. 196-1.[5]

         Originally, new TCE was stored at the Macon Site in a 5, 000-gallon aboveground storage tank (“AST”) located outside, directly adjacent to the west of the facility building. Trial Tr. Vol. 1 at 48:20-49:1 (Waller Direct), Doc. 207. The AST sat on a pedestal that was within a containment area surrounded by a two-and-a-half to three-foot cement wall. Trial Tr. Vol. 1 at 53:18-21 (Waller Direct), Doc. 207. Mr. Waller testified that the floor of the containment area was originally dirt, but was changed to cement in the latter part of the 1970s. Tr. Vol. 1 at 62:24-63:13, 68:17-21 (Waller Direct), Doc. 207. However, the bottom of the pedestal or platform where the TCE AST sat was sand or gravel; there was no cement underneath the AST. Tr. Vol. 1 at 170:3-12 (Clark Cross), Doc. 207. The AST was filled with TCE by delivery tankers via hoses connected from the tanker to the AST. Trial Tr. Vol. 1 at 59:23-60:17 (Waller Direct), Doc. 207. TCE was then transferred from the AST to the batch and monorail degreasers by an above ground galvanized steel pipe. Trial Tr. Vol. 1 at 87:21-88:25 (Waller Cross), Doc. 207. Spent TCE was collected in barrels and disposed of off-site. Trial Tr. Vol. 1 at 98:10-99:14 (Waller Cross), Doc. 207; Halterman Tr. 62:7-13, Doc. 196-1.

         Over the course of his thirty-seven year career at the Macon Site, Mr. Waller only witnessed one delivery of TCE to the AST at the Macon Site, which was in 1977 or 1978 when Cooper still owned the property. See Trial Tr. Vol. 1 at 58:10- 13 (Waller Direct), Doc. 207. At the end of the delivery, Mr. Waller saw two or three gallons of residual TCE drain from the delivery driver's hose onto an asphalt and concrete area. Trial Tr. Vol. 1 at 55:15-25, 58:19-24, 62:24-63:5 (Waller Direct), 92:11-19 (Waller Cross), Doc. 207. He testified that it evaporated “pretty quickly.” Trial Tr. Vol. 1 at 58:19-59:8 (Waller Direct), Doc. 207.[6] Between 1976 and 1986, Mr. Waller washed his hands with TCE to remove grease. Trial Tr. Vol. 1 at 47:17-21 (Waller Direct); Annotated Joint Stipulation of Uncontested Facts ¶ 85, Doc. 214 (PageID 11364).

         Mr. Waller testified that a pinhole leak was discovered in the AST in 1983, resulting in the release of “a hundred gallons or so” of TCE. Trial Tr. Vol. 1 at 64:13-72:22 (Waller Direct), Doc. 207. Mr. Waller's employee smelled the TCE and reported it to Mr. Waller, who personally drained the tank and discovered the hole. Trial Tr. Vol. 1 at 69:12-25(Waller Direct), Doc. 207. During this process Mr. Waller determined, based on his own observations and calculations as maintenance foreman, that approximately 100 gallons of TCE had leaked into the containment area. Trial Tr. Vol. 1 at 72:19-22 (Waller Direct), Doc. 207. Mr. Waller testified that Spectrum never returned the AST to service but instead started storing TCE in fifty-five gallon drums at that time.[7] Trial Tr. Vol. 1 at 74:1-22 (Waller Direct), Doc. 207. TCE was transferred from the fifty-five gallon drums to the degreasers by putting a valve in a drum, laying the drum on its side on a forklift, raising it up, and draining it into the degreasers. Trial Tr. Vol. 1 at 89:2-12 (Waller Cross), Doc. 207. Mr. Waller was certain of the 1983 date based upon corresponding personal events and I credit his testimony. Trial Tr. Vol. 1 at 75:1-22 at 76:7 (Waller Cross), Doc. 207. Mr. Waller's testimony is also credible given its consistency with the findings of Dr. Reynolds, discussed below.

         A leak in a diesel fuel storage tank was discovered in 1991. At that time, Mr. Clark tested the soil in the surrounding the AST's location for TCE, which indicated that TCE was present. Trial Tr. Vol. 1 at 123:1-124:25 (Clark Direct), Doc. 207. Mr. Clark then undertook an investigation into the source of the TCE contamination, which included hiring an outside consultant. Trial Tr. Vol. 1 at 125:4-25 (Clark Direct), Doc. 207. The results of the soil survey performed by the consultant indicated elevated levels of TCE (Pltf-20 at 4-6). Mr. Clark then reached conclusions based upon the sources of the TCE contamination, which he later reported to the Missouri Department of Natural Resources (MDNR). Trial Tr. Vol. 1 at 131:6-13 (Clark Direct), Doc. 207. Mr. Clark concluded that one of the sources of contamination was TCE spillage occurring during filling of the AST. Trial Tr. Vol. 1 at 129:2-7 (Clark Direct), Doc. 207.

         I do not credit Mr. Clark's conclusion with respect to the source of the TCE contamination because it is based upon inadmissible hearsay relating to TCE spills during deliveries at other plants.[8] Mr. Clark's conclusions about the source of the TCE contamination were not based upon his observations at the Macon Site. Instead, they were based upon conversations he had with an employee of the Boonville plant and an employee of the Kirksville plant about TCE spills occurring at those plants. Trial Tr. Vol. 1 at 129:15-130:11 (Clark Direct), Doc. 207. Mr. Clark was unable to recall any conversations with Macon employees regarding TCE spills during deliveries. Trial Tr. Vol. 1 at 184:18-185:4, 187:2-18 (Clark Cross), Doc. 207. Mr. Clark never observed a TCE delivery to the AST. Trial Tr. Vol. 1 at 187:2-4 (Clark Cross), Doc. 207. Mr. Clark was not involved in the purchasing or delivery of TCE. Trial Tr. Vol. 1 at 188:1-19 (Clark Cross), Doc. 207.

         The only TCE spill Mr. Clark ever witnessed was a leak coming from a 55 gallon drum of TCE, which was located in the back of a truck parked on the east side parking lot of the Macon Site. Trial Tr. Vol. 1 at 137:16-138:22 (Clark Direct), 191:9-192:2 (Clark Cross), Doc. 207. This drum leak on the east side of the Macon Site occurred after 1991, when Spectrum owned the property. Trial Tr. Vol. 1 at 191:9-192:2 (Clark Cross), Doc. 207. This was the sole evidence offered by Spectrum with respect to the source of TCE contamination on the east side of the Macon Site.

         The only admissible evidence of TCE contamination resulting from spills during deliveries to the AST comes from Mr. Waller, who testified to a sole spillage of two or three gallons in 1977-78 when Cooper owned the property. Spectrum has offered no credible, admissible evidence that any additional TCE leaks occurred during the filling of the AST. The only credible, admissible evidence submitted at trial demonstrates that virtually all TCE contamination on the west side of the Macon Site was caused not by spillage during the filling of the AST, but by the pinhole leak in the AST in 1983 when Spectrum owned the property.

         Discovery of TCE in Soil and Groundwater at the Macon Site and Site Investigation

         Spectrum discovered TCE in soil at the Macon Site in 1991; it discovered TCE in groundwater in 1992. Stipulation ¶ 13, Doc. 214. Spectrum did not report the contamination to any governmental authority in 1991, but instead waited until after it had obtained the results of the groundwater survey in 1992. As Spectrum had purchased the property from Cooper, it knew that Cooper was the prior owner and operator of the Macon Site. Trial Tr. Vol. 1 at 194:4-23 (Clark Cross), Doc. 207; Trial Tr. Vol. 2 at 79:10-13 (Hutter[9] Cross), Doc. 208. Despite this knowledge, Spectrum provided no notice to Cooper regarding the contamination at that time. Trial Tr. Vol. 2 at 79:6-19 (Hutter Cross), Doc. 208.

         An April 14, 1992 Phase II Environmental Site Assessment completed by consultant Groundwater Technology, Inc. found TCE in all groundwater samples tested, with the highest concentration being 160, 000 µg/1. Groundwater Technology, Inc., Phase II Environmental Site Assessment (Apr. 14, 1992) § 3.2.2 (Pltf-21 at 22). TCE was also detected in twelve of fourteen soil samples. Groundwater Technology, Inc., Phase II Environmental Site Assessment (Apr. 14, 1992) § 3.2.1.1 (Pltf-21 at 17).

         On June 17, 1992, Spectrum reported a spill of TCE at the Macon Site to the U.S. Coast Guard's National Response Center. MDNR, Envtl. Emergency Response Report (June 17, 1002) (Pltf-22). This report indicated that Spectrum had performed a site assessment and discovered off-site contamination of TCE in groundwater. (Pltf-22 at 2); Stipulation ¶ 14, Doc. 214. Mr. Clark, who reported the contamination on behalf of Spectrum, claimed that the contamination was the result of historical leaks of TCE at the AST. MDNR, Envtl. Emergency Response Report (June 17, 1002) (Pltf-22 at 2); Stipulation ¶ 14, Doc. 214.[10] Mr. Clark was unable to explain why he did not report the TCE soil contamination to the National Response Center in 1991 when it was discovered. Trial Tr. Vol. 1 at 196:17-23 (Clark Cross), Doc. 207. Despite reporting the contamination to regulatory authorities in 1992, Spectrum still provided no notice to Cooper about contamination at the Macon Site. Trial Tr. Vol. 2 at 79:25-80:4 (Hutter Cross), Doc. 208.

         In 1996, MDNR, acting under a cooperative agreement with the U.S. Environmental Protection Agency (“EPA”), conducted an integrated preliminary assessment/site investigation (“PA/SI”) at the Macon Site. Stipulation ¶ 18, Doc. 214; MDNR, Integrated PA/SI Report (Aug. 30, 1996) § 1 (Pltf-46 at 2). The purpose of the PA/SI investigation “was to collect sufficient information concerning conditions at the site to assess the threat posed to human health and the environment, and to determine the need for additional investigation under CERCLA or other authority.” Stipulation ¶ 19, Doc. 214 (quoting MDNR, Integrated PA/SI Report (Aug. 30, 1996) § 1 (Pltf-46 at 2)). The scope of the PA/SI investigation included reviewing file information, sampling environmental media, and collecting nonsampling information. Stipulation ¶ 20, Doc. 214; MDNR, Integrated PA/SI Report (Aug. 30, 1996) § 1 (Pltf-46 at 2). Investigation included Macon Site visits by MDNR personnel on April 10, 1996 and May 6, 1996, and a sampling event on May 24, 1996. Stipulation ¶ 20, Doc. 214; MDNR, Integrated PA/SI Report (Aug. 30, 1996) § 1 (Pltf-46 at 2).[11]

         During the May 24, 1996 sampling event, MDNR detected TCE in the indoor air in three nearby homes, the highest concentration of which was “borderline for posing a long-term human health risk.” MDNR, Integrated PA/SI Report (Aug. 30, 1996) § 7 (Pltf-46 at 22). Therefore, Spectrum knew of vapor intrusion issues in off-site homes in 1996. Trial Tr. Vol. 1 at 190:6-18 (Clark Cross), Doc. 207; Spectrum's Answer to Cooper's Interrog. No. 13 (Pltf-124 at 12-13). The PA/SI concluded that:

Based on the results of groundwater and indoor air sampling, there are significant health concerns at the Toastmaster-Macon site, which warrant further action. Toastmaster, Inc. is currently addressing those concerns with state oversight through the [MDNR Hazardous Substances Environmental Remediation Program (HSER)] Program. If Toastmaster, Inc. fails to address this site under the HSER program, DNR will refer the site to EPA for further action under CERCLA authority.

Stipulation ¶ 21, Doc. 214 (quoting MDNR, Integrated PA/SI Report (Aug. 30, 1996) § 7 (Pltf-46 at 22)).

         Participation in the Missouri Voluntary Cleanup Program and Sale to Compton's, LLC

         In 1996, Spectrum enrolled the Macon Site into the MDNR's Brownfields Voluntary Cleanup Program (“VCP”). Stipulation ¶ 16, Doc. 214; Letter from MDNR to Spectrum (Mar. 29, 1996) (Pltf-36). Spectrum did not provide notice to Cooper of the contamination at the Macon Site at the time Spectrum enrolled the Site in the VCP. Trial Tr. Vol. 2 at 79:20-24 (Hutter Cross), Doc. 208.

         During the period when the Macon Site was enrolled in the VCP, periodic site monitoring was conducted. Stipulation ¶ 17, Doc. 214; Spectrum's Answer to Cooper's Interrog. No. 12 (Pltf-124 at 11-12).

         MDNR repeatedly asked Spectrum to prepare a remedial action plan for the Macon Site as part of its participation in the VCP. Letter from MDNR to Toastmaster (Jan. 2, 2001) at 5 (Pltf-50 at 5); Letter from MDNR to Environmental Resources Management (Apr. 6, 2010) at 2 (Pltf-62 at 2); Letter from MDNR to Environmental Resources Management (Feb. 3, 2011) at 1 (Pltf-63 at 1); Trial Tr. Vol. 2 at 68:12-69:7, 95:1-14 (Hutter Cross), Doc. 208. Spectrum never prepared a remedial action plan and did not remediate the Macon Site during its participation in the VCP. Spectrum's Answer to Cooper's Interrog. No. 12, (Pltf-124 at 11-12) (“Participation in the Missouri BVCP Program has not involved cleanup, response, or remediation.”).

         Contamination at the Macon Site spread during the period that Spectrum was enrolled in the VCP without performing remediation work. Trial Tr. Vol. 2 at 21:12-16-22:2-11 (Gass[12] Cross), Doc. 208; Trial Tr. Vol. 3 at 150:23-151:20 (Gass Cross), Doc. 209; Letter from MDNR to Environmental Resources Management (Apr. 6, 2010) at 2 (Pltf-62 at 2) (stating “that the deep groundwater plume appears to be expanding”).

         In September 2011, Spectrum and Compton's, LLC (“CLLC”) executed a Property Transfer Agreement (with Assignment and Assumption of Environmental Liabilities) (Pltf-64). Stipulation ¶ 23, Doc. 214. In May 2012, Spectrum and CLLC executed the First Amendment to Property Transfer Agreement (Pltf-66). Stipulation ¶ 24, Doc. 214. The Property Transfer Agreement (with Assignment and Assumption of Environmental Liabilities) and First Amendment to Property Transfer Agreement are collectively referred to herein as the “PTA.” Under the PTA, Spectrum sold CLLC the Macon Site for $150, 000, and CLLC agreed to assume all environmental obligations and perform all environmental remediation associated with the Macon Site. Stipulation of ¶ 25, Doc. 214; Property Transfer Agreement (with Assignment and Assumption of Environmental Liabilities) §§ 7.3, 9 (Pltf-64 at 6-8); First Amendment to Property Transfer Agreement ¶ 2 (Pltf-66 at 1).

         Richard Compton personally guaranteed CLLC's obligations under the PTA (Pltf-65). Stipulation ¶ 26, Doc. 214. Spectrum transferred the deed of the Macon Site to CLLC in June of 2012. Stipulation ¶ 27, Doc. 214; Special Warranty Deed (Pltf-67). CLLC and Mr. Compton are referred to collectively as CLLC.

         CLLC notified MDNR in March 2012 that it had purchased the Macon Site and would assume responsibility for continuing to investigate and remediate the Site through the VCP. Stipulation ¶ 28, Doc. 214; Letter from MDNR to Spectrum (June 15, 2012) (Pltf-69) (describing correspondence from CLLC). CLLC's role as participant in the VCP for the Macon Site was memorialized in an Environmental Remediation Oversight Letter of Agreement between CLLC and MDNR executed in May 2012. Stipulation ¶ 29, Doc. 214; Letter from MDNR to Spectrum (June 15, 2012) (Pltf-69) (confirming CLLC as the new VCP participant for the Macon Site and terminating Spectrum's role in the program). Subsequently, CLLC did not continue to investigate and remediate the Macon Site in a manner satisfactory to MDNR. Stipulation ¶ 30, Doc. 214; Letter from MDNR to CLLC (Jan. 15, 2014) (Pltf-70). The Macon Site was removed from the VCP by MDNR on January 15, 2014. Stipulation ¶ 31, Doc. 214; Letter from MDNR to CLLC (Jan. 15, 2014) (Pltf-70).

         Referral of the Macon Site to the EPA

         MDNR conducted indoor air sampling in the building at the Macon Site in May 2014. Letter from the Missouri Department of Health and Senior Services (“MDHSS”) to MDNR (June 26, 2014) at 1 (Pltf-71 at 1). MDHSS reviewed the results of the sampling and concluded that “TCE[] in indoor air currently poses a health risk to individuals working in the building (i.e., an urgent public health hazard).” (Pltf-71 at 1). On June 27, 2014, MDNR notified EPA that it had conducted air sampling in and around the Macon Site and that, due to the detected levels of TCE, MDNR was referring the Site to EPA for further action. Stipulation ¶ 32, Doc. 214; Letter from MDNR to EPA (June 27, 2014) (Pltf-72). As of July 2014, the TCE screening levels for indoor air for EPA and MDNR were 2 µg/m3 for residential structures and 8.8 µg/m3 for commercial structures. Stipulation ¶ 34, Doc. 214; Letter from MDHSS to MDNR (June 26, 2014) at 8 (Pltf-71 at 8).

         In September 2014, EPA contacted CLLC and Spectrum and advised that EPA desired continued investigation of whether TCE vapor intrusion was impacting the facility and the neighborhood and requested that they take action at the Macon Site and enter into an administrative settlement agreement and order on consent to investigate TCE vapor intrusion at the Macon Site and nearby homes. Stipulation ¶ 35, Doc. 214; Email from Spectrum to CLLC (Sept. 10, 2014) (Pltf-73 at 1); Email from Spectrum to CLLC (Oct. 6, 2014) (Pltf-74 at 7); Email from EPA to Spectrum and CLLC (Oct. 29, 2014) (Pltf-74 at 8). Spectrum emailed CLLC's attorney, Richard Winkie, on September 10, 2014 regarding EPA's request and sought to have CLLC perform. Stipulation ¶ 36, Doc. 214; Spectrum Email (Sept. 10, 2014) (Pltf-73 at 1).

         On September 16, 2014, Spectrum provided to EPA a Macon Site history that detailed past ownership and operations, including the Cooper period of operations. Stipulation ¶ 37, Doc. 214; Letter from Spectrum to EPA (Sept. 16, 2014) (Pltf-75). It was only at this point that Spectrum sought to involve Cooper at the Macon Site. Trial Tr. Vol. 2 at 50:22-51:20 (Hutter Direct), Doc. 208.

         On October 2, 2014, EPA installed vapor intrusion mitigation systems in two residences with elevated levels of TCE, located at 406 and 504 Kohl Street. Stipulation ¶ 38, Doc. 214; Administrative Settlement Agreement and Order on Consent to Investigate Vapor Intrusion (“VI ASAOC”) ¶ 30 (Pltf-84 at 8-9); Arcadis, Engineering Evaluation/Cost Analysis Report (“EE/CA Report”) (Sept. 7, 2018) § 3.4.1 (Pltf-141 at 17).

         EPA's Notice to Cooper and Subsequent Correspondence Between Cooper and Spectrum Regarding the Macon Site

         On November 21, 2014, EPA sent a Request for Information pursuant to Section 104(e) of CERCLA to Eaton Corporation, a separate subsidiary of Cooper's now ultimate parent company. Stipulation ¶ 39, Doc. 214; Letter from EPA to Eaton Corporation (Nov. 21, 2014) (Pltf-76). This was the first written notice Cooper received about contamination at the Macon Site. Trial Tr. Vol. 2 at 208:6-9 (Allen[13] Direct), Doc. 208.

         On December 12, 2014, Cooper sent a letter to Spectrum, demanding defense and indemnity under the 1980 APA for liabilities arising from the Macon Site. Stipulation ¶ 40, Doc. 214; Letter from Cooper to Spectrum (Dec. 12, 2014) (Pltf-78); Trial Tr. Vol. 2 at 209:25-210:11 (Allen Direct), Doc. 208. Eaton Corporation responded to EPA's November 21, 2014 Request for Information by letter dated December 16, 2014, attaching the 1980 APA. Stipulation ¶ 41, Doc. 214; Letter from Eaton Corporation to EPA (Dec. 16, 2014) (Pltf-79). Eaton Corporation explained that Cooper was the successor to McGraw-Edison. Trial Tr. Vol. 2 at 208:13-209:24 (Allen Direct). Doc. 208; Letter from Eaton Corporation to EPA (Dec. 16, 2014) (Pltf-79 at 2).

         On January 12, 2015, Spectrum sent Cooper a letter stating that Spectrum did not assume any liability related to the Macon Site under the 1980 APA. Stipulation ¶ 42, Doc. 214; Letter from Spectrum to Cooper (Jan. 12, 2015) (Pltf-80). This letter was the first time Spectrum contacted Cooper regarding contamination at the Macon Site. Trial Tr. Vol. 2 at 211:24-212:6 (Allen Direct), Doc. 208; Trial Tr. Vol. 2 at 78:9-13 (Hutter Cross), Doc. 208 (“Mr. Hutter, isn't it true that until January of 2015, neither Spectrum nor any of its predecessors had ever given notice to Cooper Industries or McGraw-Edison of the contamination at the Macon facility? A. Yes.”).

         On February 2, 2015, EPA sent a Request for Information to Cooper pursuant to Section 104(e) of CERCLA regarding the Macon Site. Stipulation ¶ 43, Doc. 214; Letter from EPA to Cooper (Feb. 2, 2015) (Pltf-81). Cooper responded to EPA's February 2, 2015 Request for Information by letter dated February 26, 2015. Stipulation ¶ 44, Doc. 214; Letter from Cooper to EPA (Feb. 26, 2015) (Pltf-82).

         On April 13, 2016, Cooper received a General Notice Letter from the EPA, dated April 5, 2016, identifying it as a Potentially Responsible Party (“PRP”) for the remediation of the Macon Site pursuant to CERCLA Sections 106(a) and 107(a). Stipulation ¶ 45, Doc. 214; Letter from EPA to Cooper (Apr. 5, 2016) (Pltf-86). This was the first time that EPA notified Cooper that EPA considered Cooper a PRP for the Site. Trial Tr. Vol. 2 at 213:2-23 (Allen Direct), Doc. 208.

         EPA's Administrative Orders

         On November 20, 2015, EPA, Spectrum, and CLLC entered into an Administrative Settlement Agreement and Order on Consent to Investigate Vapor Intrusion (“VI ASAOC”), EPA Docket No. CERCLA-07-2015-0006, to further investigate vapor intrusion concerns pertaining to the Macon Site. Stipulation ¶ 46, Doc. 214; VI ASAOC (Pltf-84). Spectrum and CLLC entered into an agreement entitled “Former Macon, Missouri Toastmaster Facility Environmental Work and Indemnity Agreement” on November 12, 2015 (“Environmental Work and Indemnity Agreement”) (Pltf-83). Stipulation ¶ 47, Doc. 214. The Environmental Work and Indemnity Agreement referred to the fact that CLLC had assumed all environmental obligations and liabilities associated with or arising from the Macon Site under the PTA in ...


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