Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 01-cv-01807-MSK-MJW BANK ONE, N.A., (Successor to Bank One, Colorado, N.A.) and BANK ONE TRUST COMPANY, N.A., as Trustee of the Dora Lucille Jamison Trust and the Jamison Family Trust, Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners and JOHNNY ON THE SPOT, INC., Defendants.

BOULDER CLEANERS, INC., and JOHN'S CLEANERS, INC. Cross-Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners, Cross-Defendant.

SECOND AMENDED FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES The Final Pretrial Conference was held at 4:30 p.m. May 24, 2007 in Courtroom A901, Ninth Floor, Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado. All parties and their counsel appeared. The parties were represented by the following:

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Laura J. Riese Jonathan W. Rauchway Davis Graham & Stubbs LLP for Plaintiffs Bank One, N.A. and Bank One Trust Company, N.A.

C. Michael Montgomery Max K. Jones, Jr. Montgomery, Kolodny, Amatuzio & Dusbabek, LLP for Defendant and Cross-Defendant C.V.Y. Corporation and Defendant Johnny on the Spot, Inc.

Scott Jurdem Buchanan Jurdem & Cederberg, P.C. for Cross-Plaintiffs Boulder Cleaners, Inc. and John's Cleaners, Inc.

By Orders dated May 8, 2007 and May 9, 2007 the Court directed the parties to submit a revised final pretrial order, list of witnesses, and list of exhibits. 2. JURISDICTION All parties agree that this Court has jurisdiction pursuant to 28 U.S.C. § 1331, 42 U.S.C. § 9613(b), 42 U.S.C. § 6972(a)(1)(B) and statutory supplemental jurisdiction pursuant to 28 U.S.C. § 1367. 3. CLAIMS AND DEFENSES Summarized below are the remaining claims and defenses of the parties, their respective versions of the facts and legal theories, and the specific relief sought. A. Plaintiffs' Claims

Claim 1: RCRA Citizen Suit, asserted by both Plaintiffs against Defendant CVY This claim is triable to the bench. Plaintiffs have the burden of proof on all elements by a preponderance of the evidence.

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Elements: Defendant does not stipulate that any element of this claim is satisfied. (1) CVY is a past or present owner or operator of a facility where hazardous waste was stored, handled, or disposed. Evidence in Support (a) CVY purchased a dry cleaning business in Boulder, Colorado from Gerald E. Marlowe and Lorraine Marlowe on April 3, 1967. (Testimony of John A. Yelenick, Exhibit 113). (b) The dry cleaning business owned by CVY was located in a building at 2520 Broadway in Boulder, Colorado ("the property"). CVY assumed the existing lease on the property in 1967 and continued to lease the property until April 8, 1991. (Testimony of John A. Yelenick, Exhibits 113, 117, 119, 120, 139, 148). Evidence Against CVY entered into an agreement dated April 3, 1967 with Gerald E. Marlowe and Lorraine Marlowe for the purchase certain assets and leased certain assets as reflected in Exhibit 113. (Testimony of John A. Yelenick). The Marlowes agreed to assign to CVY their interest as tenants in a lease as reflected in Exhibit 113. Exhibit 117 does not reflect any lease to which CVY was a party. Exhibit 119 is not a lease and does not reflect the details of any lease. Exhibit 120 is not executed by CVY. CVY stipulates that Exhibit 139 is July 3, 1989 lease between it and First National Bank of Boulder. That lease terminated on February 28, 1991. The lease was extended on a month to month basis and Exhibit 148 confirms such termination was no later than April 8, 1991. (Testimony of John A. Yelenick and John J. Yelenick). None, but Exhibit 112 does not support this proposition. CVY did not operate a dry cleaning business at the property from 1970 to 1985. JOS operated the business during such period. Exhibit 119 reflects that JOS operated the business. Exhibit 112 relates to matters from 1992 forward. (Testimony of John A. Yelenick, John J. Yelenick, Kendall Holm, and Exhibits 119, 121, 122, 123, 124, 194, 321, 370, 371, 387, 395, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 417, 501, 502, 503, 504, 505, 506, 617, 618, 619, 638, 639, 645, 646, 647, 648, 649, 650-694, 703, 704, 705, 706, 7073

(c) CVY operated a dry cleaning business at the property from 1967 to 1970. (Testimony of John A. Yelenick, Exhibits 112, 142, and 171). (d) CVY and Johnny on the Spot ("JOS") operated a dry cleaning business at the property from 1970 to 1985. (Testimony of John A. Yelenick, Rose Duran, Ed Martinez, Exhibit 112 and 119).

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Evidence in Support

Evidence Against

719, 720-751, 759, 815, 821, 824, 826, 859, 861-877, 887, 895, 912, 913, 914 and 915.) (e) JOS merged into CVY in 1985. None. (Testimony of John A. Yelenick, Ken Holmes). (f) Between at least 1967 and 1991, dry None, but Exhibit 112 does not support this cleaning operations were conducted at the fact. property utilizing the solvent perchloroethylene or "PCE". (Testimony of John A. Yelenick, Exhibits 112, 171). (g) The waste products containing PCE CVY and JOS do not know the details to what generated at the property between at least 1967 Plaintiff contends are "waste products" or and 1991 included waste "mud" or "cake" "mud" or "cake" or "waste lint" or "waste from a PCE still, waste carbon cylindrical filter carbon . ." but acknowledge that residual cartridges from a filter unit, and waste lint. materials containing small amounts of PCE (Testimony of Jack Hempstead, Rose Duran, resulting from their respective dry cleaning Ed Martinez, Exhibit 152) operations were captured, collected and properly disposed of from time to time between 1967 and 1985. Neither CVY nor JOS operated the business from 1986 to 1991. With respect to the testimony of Ed Martinez and Jack Hempstead, they were not present for the vast majority of this time frame and much of their testimony, especially that of Mr. Martinez, is without foundation, not credible, and inconsistent with the testimony of Rosemarie Duran and Larry Montgomery. (Testimony of Rosemarie Duran, Larry Montgomery). (h) PCE is a listed hazardous waste. (42 None. U.S.C. Section 6901 et seq., 40 C.F.R. Part 261, Appendix VII.) (2) CVY contributed to such storage, handling, or disposal of the hazardous waste. Evidence in Support Evidence Against

(a) CVY operated a dry cleaning business at None, but Exhibit 112 does not support this the property from 1967 to 1970. (Testimony of proposition. John A. Yelenick, Exhibits 112, 142, and 171). (b) CVY and Johnny on the Spot ("JOS") CVY did not operate a dry cleaning business at

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Evidence in Support operated a dry cleaning business at the property from 1970 to 1985. (Testimony of John A. Yelenick, Rose Duran, Ed Martinez, Exhibits 112 and 119).

Evidence Against

the property from 1970 to 1985. JOS operated the business during such period. Exhibit 119 reflects that JOS operated the business. Exhibit 112 relates to matters from 1992 forward. (Testimony of John A. Yelenick, John J. Yelenick, Kendall Holm, and Exhibits 119, 121, 122, 123, 124, 194, 321, 370, 371, 387, 395, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 417, 501, 502, 503, 504, 505, 506, 617, 618, 619, 638, 639, 645, 646, 647, 648, 649, 650-694, 703, 704, 705, 706, 707719, 720-751, 759, 815, 821, 824, 826, 859, 861-877, 887, 895, 912, 913, 914 and 915.) (c) JOS merged into CVY in 1985. None. (Testimony of John A. Yelenick, Ken Holmes). (d) CVY was identified as a generator on CVY admits that certain manifests included in Uniform Hazardous Waste Manifests of wastes Exhibit 152 identify CVY as one of the shipped from the property between 1/10/86 and companies in Box 3, "Generator's name and 9/20/88. (Testimony of Rose Duran, Exhibit mailing address" but deny this was accurate or 152). that CVY made such entry. It appears to have been made by a government employee. Neither CVY nor JOS operated the business at such location during such time period. (Testimony of Rosemarie Duran, John A. Yelenick and John J. Yelenick). (e) Prior to 1986, PCE wastes generated at the CVY and JOS admit that Ms. Duran testified property were placed in a dumpster behind the that some cartridges were placed in a waste building. (Testimony of Jack Hempstead, dumpster from time to time. CVY and JOS Rose Duran, Exhibits 777, 805, 806). could not find any such references in Jack Hempstead's deposition. CVY and JOS contest Plaintiffs' characterization and reserve the right to fully explore any such testimony for both substance and credibility. Further, CVY and JOS had multiple safeguards and policies in place during the respective years they operated the business related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE and to follow 5

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Evidence in Support

Evidence Against protocols for preventing waste of PCE. (Testimony of John A. Yelenick, John J. Yelenick, Larry Montgomery and Rosemarie Duran.) CVY and JOS admit that both federal and state laws and regulations have changed from time to time as they relate to environmental matters, but do not know the particulars of Plaintiffs' contentions in this regard. CVY and JOS reserve the right to explore and contest any such particulars offered at trial and to contest the foundation for and credibility of any testimony of any witness in respect to the same. Exhibit 128 appears to be a copy of a Notification of Hazardous Waste Activities dated September 9, 1986. However, neither CVY nor JOS were operating the business as of such time and CVY and JOS do not know whether Ms. Duran can identify or authenticate such document. CVY and JOS admit that Exhibit 152 contains what appears to be copies of Uniform Hazardous Waste Manifests bearing various dates from 1986 to 1991. However, neither CVY nor JOS were operating the business during such time and do not know the details of any testimony Ms. Duran may give in respect to such documents. CVY and JOS reserve the right to challenge the foundation for or credibility of any such testimony or Plaintiffs' characterization thereof.

(f) In 1986, new federal and State regulations governing the disposal of PCE wastes were enacted. (Testimony of Walter Avramenko, Mark Levorson, David Rau, Rose Duran, 40 C.F.R. Parts 261 and 262).

(g) In September of 1986, a "Notification of Hazardous Waste Activity" at the property was filed with the Colorado Department of Health. (Testimony of Rose Duran, Exhibit 128).

(h) Between 1986 and 1991, PCE wastes generated at the property were shipped off-site via Uniform Hazardous Waste Manifests. (Testimony of Rose Duran, Exhibit 152).

(3) CVY's storage, handling, or disposal of the waste may present an imminent and substantial endangerment to health or the environment. 42 U.S.C. § 6972(a)(1)(B). Evidence in Support (a) PCE is a listed hazardous waste. 42 None. U.S.C. Section 6901 et seq., 40 C.F.R Part 261, Appendix VII. 6 Evidence Against

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Evidence in Support (b) The United States Environmental Protection Agency has identified PCE as a possible human carcinogen. (Testimony of Walter Avramenko, David M. Rau, and John Rohde, Exhibit 42).

Evidence Against The characterizations by the Environmental Protection Agency are self limited threshold and dose related characterizations and there are disputes in the scientific community regarding many of them. Further, CVY and JOS have not taken the deposition of Mr. Avramenko and do not know what testimony he will give in this regard and do not recall that Mr. Rau or Mr. Rohde were questioned on this. However, given that there is no pathway for human exposure in this case, there is no PCE involved in this dispute that is a possible human carcinogen. (Testimony of Adrian Brown, David Rau, Brian Glade and John Rohde). Jack Hempstead testified that certain equipment was moved in or about 1967, but his testimony in this regard does not fully support the characterization by Plaintiffs nor can CVY or JOS determine from Plaintiffs' description whether the equipment to which Plaintiffs refer is the same equipment that Mr. Hempstead referenced in his deposition. (Testimony of John A. Yelenick and Jack Hempstead). Mr. Hempstead testified generally about a plumber breaking a line causing PCE to spill on him, but he admitted he did not see this and does not know that any such material caused any relevant contamination to the environment. (Testimony of Jack Hempstead). Jack Hempstead's testimony is not exactly as described by Plaintiffs, but CVY acknowledges that, during the brief time it operated the business, it utilized in its operations what it believed to be a proper and non-defected floor drain provided with the building by Plaintiffs.

(c) In approximately 1967, CVY moved the dry cleaning equipment including a dry cleaning machine, still, extractor, and sniffer to the front room at the property. (Testimony of Jack Hempstead, Exhibits 112, 805, 806).

(d) PCE was spilled onto one of the individuals helping to move the dry cleaning equipment, causing him to slump and stagger. (Testimony of Jack Hempstead).

(e) CVY's still was plumbed to the floor drain in the front room. (Testimony of Jack Hempstead, Exhibits 805 and 806).

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Evidence in Support (f) Wastewater from CVY's dry cleaning equipment was contaminated with "parts per million" of PCE. This wastewater was discharged from CVY's dry cleaning machine into the floor drain. PCE was drained into a bucket. According to Mr. Martinez, a maintenance man who frequently visited the property between approximately 1974 and 1986, the idea was to catch the bucket before it overflowed and dump it back into the button trap of the dry cleaning machine. (Testimony of Ed Martinez, Exhibits 105, 106, 107 and 108). (g) In 1982, in order to modernize its store and expand its operation, CVY replaced the old dry cleaning machine with a new "Vic" dry cleaning machine. (Testimony of John A. Yelenick, Rose Duran, Ed Martinez, Exhibits 103, 119, 121, 171). (h) The "Vic" dry cleaning machine was installed in the same front room location as the old machine and had a separator with two pipe systems ­ one for wastewater and one for PCE. Wastewater containing "parts per million" of PCE was discharged to the floor drain, and the PCE was piped to a bucket. (Testimony of Rose Duran, Ed Martinez, Exhibits 105, 106, 107, 108). (i) After the "Vic" dry cleaning machine was purchased, it broke down and Ed Martinez and Leonard Kepner were called to the property to service the machine. (Testimony of Ed Martinez). (j) When Mr. Martinez arrived at the property, he observed that the "Vic" was being emptied of PCE and saw PCE being poured into a floor drain. (Testimony of Ed Martinez, Exhibits 106 and 107).

Evidence Against CVY did not operate the business from 1974 to 1986. Mr. Martinez could not identify any CVY or JOS employee who was present. Mr. Martinez changed his testimony on cross examination. His testimony is not credible and, to the extent his testimony is proffered as proof of how the business was operated by JOS, his testimony is not consistent with the testimony of Rosemarie Duran or Larry Montgomery.

CVY did not operate the business in 1982. JOS operated the business in 1982. It is believed that new equipment was installed in about 1982. Exhibit 103 does not exist. Exhibit 119 and 121 do not seem to address this issue. (Testimony of John A. Yelenick). Neither the testimony of Ms. Duran nor that of Mr. Martinez can reasonably be construed as supporting this proposition. Mr. Martinez's testimony relates to events which he alleges occurred before 1982. Further, Mr. Martinez has no foundation for any such testimony and neither he nor Ms. Duran have any foundation for any "parts per million" testimony. Mr. Martinez changed much of his testimony on cross examination and is not credible. CVY and JOS admit that Mr. Martinez testified that prior to 1982 he went to the business because a machine had broken down. In general, Mr. Martinez's testimony is unreliable and not credible. Mr. Martinez's testimony relates to events which allegedly occurred prior to 1982 and accordingly, cannot relate to any machine installed in 1982 as suggested by Plaintiffs. Further, Mr. Martinez changed his testimony numerous times on cross examination. His testimony is not credible and his testimony is inconsistent with the testimony of Larry 8

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Evidence in Support

Evidence Against Montgomery and Rosemarie Duran. Mr. Martinez's testimony lacks foundation, is not credible and is not consistent with the testimony of Larry Montgomery or Rosemarie Duran. Mr. Martinez's testimony lacks foundation, is not credible and is not consistent with the testimony of Larry Montgomery or Rosemarie Duran.

(k) On one occasion, Mr. Martinez observed a bucket of PCE in the area of the dry cleaning machine overflowing onto the floor and into the floor drain. (Testimony of Ed Martinez, Exhibits 105, 106, 107 and 108). (l) Wet waste filter cartridges containing PCE liquids from CVY's dry cleaning machine were stacked onto the floor. Mr. Martinez observed PCE leaking out of the filters and saturating the cardboard underneath the filters. (Testimony of Ed Martinez, Exhibits 105, 106, 107 and 108). (m) PCE contamination in soil at the site in the area of the floor drain exceeds State standards by three orders of magnitude. (Testimony of Brian Glade, John Rohde, David Rau, Exhibits 7, 8, 9, 10, 11, 15, 17 and 18).

CVY and JOS are unclear as to what standards are referenced, or what time frame is referenced or what the details of the testimony are that allegedly will be provided by Messrs. Glade, Rohde or Rau in this regard, but reserve the right to cross-examine them as to foundation, substance and credibility and with regard to their lack of knowledge that either CVY or JOS were responsible for any such alleged contamination. CVY and JOS had multiple safeguards and policies in place related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE in the stores and to follow protocols for preventing waste of PCE. The property does not present an imminent and substantial endangerment to health or the environment. (Testimony of Adrian Brown, Larry Montgomery, Rosemarie Duran, John A. Yelenick, John J. Yelenick, David Rau, Brian Glade, and John Rhode, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, 465499, and 933.)

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Evidence in Support (n) PCE contamination in groundwater at the site in the area of the floor drain and elsewhere at the site exceeds federal and State standards by three orders of magnitude. (Testimony of John Rohde, David Rau, Exhibits 7, 22, 23, 24, 31, 36, 39, 41, 43, 50 and 52).

Evidence Against CVY and JOS are unclear as to what standards are referenced, or what time frame is referenced or what the details of the testimony are that allegedly will be provided by Messrs. Glade, Rohde or Rau in this regard, but reserve the right to cross-examine them as to foundation, substance and credibility and with regard to their lack of knowledge that either CVY or JOS were responsible for any such alleged contamination. CVY and JOS had multiple safeguards and policies in place related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE in the stores and to follow protocols for preventing waste of PCE. The property does not present an imminent and substantial endangerment to health or the environment. (Testimony of Adrian Brown, Larry Montgomery, Rosemarie Duran, John A. Yelenick, John J. Yelenick, David Rau, Brian Glade, and John Rhode, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, 465499, and 933.)

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Evidence in Support (o) PCE-contaminated groundwater at levels two and three orders of magnitude above federal and State standards is migrating from the property onto three adjacent properties. (Testimony of John Rohde, David Rau, Exhibits 22, 24, 31, 36, 39, 41, 43, 50 and 52).

Evidence Against CVY and JOS are unclear as to what standards are referenced, or what time frame is referenced or what the details of the testimony are that allegedly will be provided by Messrs. Glade, Rohde or Rau in this regard, but reserve the right to cross-examine them as to foundation, substance and credibility and with regard to their lack of knowledge that either CVY or JOS were responsible for any such alleged contamination. CVY and JOS had multiple safeguards and policies in place related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE in the stores and to follow protocols for preventing waste of PCE. The property does not present an imminent and substantial endangerment to health or the environment. (Testimony of Adrian Brown, Larry Montgomery, Rosemarie Duran, John A. Yelenick, John J. Yelenick, David Rau, Brian Glade, and John Rhode, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, 465499, and 933.) There is a lack of evidence documenting that any PCE contamination has migrated off site to the extent stated by Plaintiffs, and no evidence that any such contamination presents imminent and substantial endangerment to health or the environment. (Testimony of David Rau, Brian Glade, John Rohde, Adrian Brown, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, and 465-499).

(p) A shopping center, day care center, school yard, and residential area are located in the path of PCE contamination emanating from the site. (Testimony of Don Sack, John Rohde, Exhibits 42 and 54).

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Evidence in Support (q) PCE in soil and groundwater may migrate through the air into occupied structures and create indoor air hazards. (Testimony of Walter Avramenko, John Rohde, Donald Sack, David Rau, Exhibits 3, 27, 29, 32, 34, 35 and 42).

Evidence Against No credible evidence exists that any completed air pathway exists in this case, and any such testimony would be contrary to the scientific and technical evidence. The property does not present an imminent and substantial endangerment to health or the environment. (Testimony of David Rau, Brian Glade, John Rhode and Adrian Brown, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, and 465-499.) There is no evidence that any construction worker has been exposed or that there is any construction contemplated that would expose any worker to any such alleged health risk. (Testimony of Adrian Brown, Phil Baggerly, Paul Border, Greg Brown, Julie Florez, Ron Hatchard, Bob Little, David Livingston, Warren Marble, Scott Reichenberg, and Don Sack and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, 465-499, 933.). In as much as the contamination does not present any imminent and substantial threat and will self attenuate, there is no requirement that any other "clean up" is necessary. (Testimony of Adrian Brown and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, 465-499, 933.)

(r) Construction workers conducting work in areas with contaminated soil and groundwater may be exposed to health risks if exposed to PCE contaminated soil or groundwater. (Testimony of Walter Avramenko, John Rohde, David Rau, Exhibit 41).

(s) The contamination of soil and groundwater in the areas where PCE is known to have been spilled or handled during CVY's lease term is required to be cleaned up pursuant to federal and State law. (Testimony of Walter Avramenko, David Rau, Mark Levorsen, Exhibits 8, 13, 18, 20, 35, 38, 40, 42, 44, 47, 49, 51, and 53).

Claim 2:

Cost Recovery & Declaratory Judgment Under Section 107 of CERCLA, asserted by Plaintiff Bank One, N.A. against Defendants CVY and JOS.

This claim is triable to the bench. Plaintiff has the burden of proof on all elements by a preponderance of the evidence. Elements: Defendants do not stipulate that any element of this claim is satisfied.

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(1) CVY and JOS are covered persons under 42 U.S.C. § 9607. Evidence in Support (a) CVY and JOS owned and operated the dry cleaning business known as "Your Valet Cleaners" and all associated dry cleaning equipment from 1967 until 1985. (Testimony of John A. Yelenick, Exhibits 112, 113, 138, 142, 143, 144). Evidence Against CVY did not operate a dry cleaning business at the JOS did not operate the business from 1967 to 1970. CVY owned and operated the business from 1967 to 1970 and JOS owned and operated the business from 1970 to 1985. Exhibit 119 reflects that JOS operated the business. Exhibit 112 relates to matters from 1992 forward. (Testimony of John A. Yelenick, John J. Yelenick, Kendall Holm, and Exhibits 119, 121, 122, 123, 124, 194, 321, 370, 371, 387, 395, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 417, 501, 502, 503, 504, 505, 506, 617, 618, 619, 638, 639, 645, 646, 647, 648, 649, 650-694, 703, 704, 705, 706, 707-719, 720-751, 759, 815, 821, 824, 826, 859, 861-877, 887, 895, 912, 913, 914 and 915.) CVY entered into an agreement dated April 3, 1967 with Gerald E. Marlowe and Lorraine Marlowe for the purchase certain assets and leased certain assets as reflected in Exhibit 113. The Marlowes agreed to assign to CVY their interest as tenants in a lease as reflected in Exhibit 113. Exhibit 117 does not reflect any lease to which CVY was a party. Exhibit 119 is not a lease and does not reflect the details of any lease. Exhibit 120 is not executed by CVY. CVY stipulates that Exhibit 139 is July 3, 1989 lease between it and First National Bank In Boulder. That lease terminated on February 28, 1991. The lease was extended on a month to month basis and Exhibit 148 confirms such termination was no later than April 8, 1991. (Testimony of John A. Yelenick and John J. Yelenick). JOS operated the business and occupied the subject property from 1970 to 1985. Exhibit 112 does not relate to this. (Testimony of John A. Yelenick).

(b) CVY leased the property from 1965 until 1991 by virtue of its assumption of the lease dated February 26, 1965 held by Gerald and Lorraine Marlowe and subsequent leasing arrangements. (Testimony of John A. Yelenick, Exhibits 113, 117, 118, 119, 120, 139, 144, 148).

(c) JOS occupied the property during CVY's lease term. (Exhibit 112).

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Evidence in Support (d) CVY and JOS utilized PCE as a dry cleaning solvent in their dry cleaning operations. (Testimony of John A. Yelenick, Exhibit 171). (e) PCE is a CERCLA hazardous substance. 40 C.F.R. § 302.4. (f) The dry cleaning business and associated equipment owned and operated by CVY and JOS are a "building, structure, installation, equipment, or pipe" and qualify as a "facility" pursuant to 42 U.S.C. § 9601(9). (g) The property is also a "facility" pursuant to 42 U.S.C. §9601(9) because the term "facility" includes "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located." (h) PCE and PCE-containing wastes were disposed of at the facility between 1967 and 1985. (Testimony of John Yelenick, Jack Hempstead, Rose Duran, Ed Martinez).

Evidence Against Both CVY and JOS utilized PCE as a dry cleaning solvent in their dry cleaning operations at the subject property during the respective years that they operated the business at the property. PCE is a listed hazardous substance in 40 C.F.R. § 302.4. This is a legal conclusion and not evidence. CVY and JOS reserve the right to contest the sufficiency of any evidence proffered by Plaintiffs in this regard. This is a legal conclusion and not evidence. CVY and JOS reserve the right to contest the sufficiency of any evidence proffered by Plaintiffs in this regard.

CVY and JOS do not know the details as to what Plaintiff contends are "wastes" but acknowledge that residual materials containing small amounts of PCE resulting from their respective dry cleaning operations were captured, collected and properly disposed of from time to time between 1967 and 1985. With respect to the testimony of Ed Martinez and Jack Hempstead, they were not present for the vast majority of this time frame and much of their testimony, especially that of Mr. Martinez, is without foundation, not credible, and inconsistent with the testimony of Rosemarie Duran and Larry Montgomery. (Testimony of Rosemarie Duran, Larry Montgomery).

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(2) CVY and JOS released a hazardous substance at the facility. Evidence in Support (a) The term "release" includes any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)." 42 U.S.C. § 9601(22). Evidence Against This is a legal conclusion and not evidence. CVY and JOS reserve the right to contest the sufficiency of any evidence proffered by Plaintiffs in this regard. However, CVY and JOS had multiple safeguards and policies in place related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE in the stores and to follow protocols for preventing waste of PCE, and CVY and JOS acted reasonably in substantial compliance with all applicable laws and regulations. (Testimony of John A. Yelenick, John J. Yelenick, Larry Montgomery and Rosemarie Duran.) Mr. Hempstead testified generally about a plumber breaking a line causing PCE to spill on him, but he admitted he did not see this and does not know that any such material caused any relevant contamination to the environment. (Testimony of Jack Hempstead). Jack Hempstead's testimony is not exactly as described by Plaintiffs, but CVY acknowledges that, during the brief time it operated the business, it utilized in its operations what it believed to be a proper and non-defected floor drain provided with the building by Plaintiffs.

(b) In 1967, PCE was spilled onto one of the individuals helping to move the dry cleaning equipment, causing him to slump and stagger. (Testimony of Jack Hempstead).

(c) CVY's still was plumbed to the floor drain in the front room. (Testimony of Jack Hempstead, Exhibits 805 and 806).

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Evidence in Support (d) Wastewater from CVY's dry cleaning equipment was contaminated with "parts per million" of PCE. This wastewater was discharged from CVY's dry cleaning machine into the floor drain. PCE was drained into a bucket. According to Mr. Martinez, a maintenance man who frequently visited the property between approximately 1974 and 1986, the idea was to catch the bucket before it overflowed and dump it back into the button trap of the dry cleaning machine. (Testimony of Ed Martinez, Exhibits 105, 106, 107 and 108). (e) In 1982, in order to modernize its store and expand its operation, CVY replaced the old dry cleaning machine with a new "Vic" dry cleaning machine. (Testimony of John A. Yelenick, Rose Duran, Ed Martinez, Exhibits 103, 119, 121, 171). (f) The "Vic" dry cleaning machine was installed in the same location as the old machine and had a separator with two pipe systems ­ one for wastewater and one for PCE. Wastewater containing "parts per million" of PCE was discharged to the floor drain, and the PCE was piped to a bucket. (Testimony of Rose Duran, Ed Martinez, Exhibits 105, 106, 107, 108). (g) After the "Vic" dry cleaning machine was purchased, it broke down and Ed Martinez and Leonard Kepner were called to the property to service the machine. (Testimony of Ed Martinez).

Evidence Against CVY did not operate the business from 1974 to 1986. Mr. Martinez could not identify any CVY or JOS employee who was present. Mr. Martinez changed his testimony on cross examination. His testimony is not credible and, to the extent his testimony is proffered as proof of how the business was operated by JOS, his testimony is not consistent with the testimony of Rosemarie Duran or Larry Montgomery.

CVY did not operate the business in 1982. JOS operated the business in 1982. It is believed that new equipment was installed in about 1982. Exhibit 103 does not exist. Exhibit 119 and 121 do not seem to address this issue. (Testimony of John A. Yelenick). Neither the testimony of Ms. Duran nor that of Mr. Martinez can reasonably be construed as supporting this proposition. Mr. Martinez's testimony relates to events which he alleges occurred before 1982. Further, Mr. Martinez has no foundation for any such testimony and neither he nor Ms. Duran have any foundation for any "parts per million" testimony. Mr. Martinez changed much of his testimony on cross examination and is not credible. CVY and JOS admit that Mr. Martinez testified that prior to 1982 he went to the business because a machine had broken down. In general, Mr. Martinez's testimony is unreliable and not credible.

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Evidence in Support (h) When Mr. Martinez arrived at the property, he observed that the "Vic" was being emptied of PCE and saw PCE being poured into a floor drain. (Testimony of Ed Martinez, Exhibits 106 and 107).

Evidence Against Mr. Martinez's testimony relates to events which allegedly occurred prior to 1982 and accordingly, cannot relate to any machine installed in 1982 as suggested by Plaintiffs. Further, Mr. Martinez changed his testimony numerous times on cross examination. His testimony is not credible and his testimony is inconsistent with the testimony of Larry Montgomery and Rosemarie Duran. Mr. Martinez's testimony lacks foundation, is not credible and is not consistent with the testimony of Larry Montgomery or Rosemarie Duran. Mr. Martinez's testimony lacks foundation, is not credible and is not consistent with the testimony of Larry Montgomery or Rosemarie Duran.

(i) On one occasion, Mr. Martinez observed a bucket of PCE in the area of the dry cleaning machine overflowing onto the floor and into the floor drain. (Testimony of Ed Martinez, Exhibits 105, 106, 107 and 108). (j) Wet waste filter cartridges containing PCE liquids from CVY's dry cleaning machine were stacked onto the floor. Mr. Martinez observed PCE leaking out of the filters and saturating the cardboard underneath the filters. (Testimony of Ed Martinez, Exhibits 105, 106, 107 and 108). (k) The waste products containing PCE generated at the property between at least 1967 and 1991 included waste "mud" or "cake" from a PCE still, waste carbon cylindrical filter cartridges from a filter unit, and waste lint. (Testimony of Jack Hempstead, Rose Duran, Ed Martinez, Exhibit 152).

CVY and JOS do not know the details to what Plaintiff contends are "waste products" or "mud" or "cake" or "waste lint" or "waste carbon . ." but acknowledge that residual materials containing small amounts of PCE resulting from their respective dry cleaning operations were captured, collected and properly disposed of from time to time between 1967 and 1985. Neither CVY nor JOS operated the business from 1986 to 1991. With respect to the testimony of Ed Martinez and Jack Hempstead, they were not present for the vast majority of this time frame and much of their testimony, especially that of Mr. Martinez, is without foundation, not credible, and inconsistent with the testimony of Rosemarie Duran and Larry Montgomery. (Testimony of Rosemarie Duran, Larry Montgomery).

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Evidence in Support (l) Prior to 1986, PCE wastes generated at the property were placed in a dumpster behind the building. (Testimony of Jack Hempstead, Rose Duran, Exhibits 777, 805, 806).

Evidence Against CVY and JOS admit that Ms. Duran testified that some cartridges were placed in a waste dumpster from time to time. CVY and JOS could not find any such references in Jack Hempstead's deposition. CVY and JOS contest Plaintiffs' characterization and reserve the right to fully explore any such testimony for both substance and credibility. Further, CVY and JOS had multiple safeguards and policies in place during the respective years they operated the business related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE and to follow protocols for preventing waste of PCE. (Testimony of John A. Yelenick, John J. Yelenick, Larry Montgomery and Rosemarie Duran.)

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(3) The release of hazardous substance caused Plaintiff to incur response costs. Evidence in Support (a) PCE contamination in soil at the site in the area of the floor drain exceeds State standards by three orders of magnitude. (Testimony of Brian Glade, John Rohde, David Rau, Exhibits 7, 8, 9, 11, 15, 17 and 18). Evidence Against CVY and JOS are unclear as to what standards are referenced, or what time frame is referenced or what the details of the testimony are that allegedly will be provided by Messrs. Glade, Rohde or Rau in this regard, but reserve the right to cross-examine them as to foundation, substance and credibility and with regard to their lack of knowledge that either CVY or JOS were responsible for any such alleged contamination. CVY and JOS had multiple safeguards and policies in place related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE in the stores and to follow protocols for preventing waste of PCE. The property does not present an imminent and substantial endangerment to health or the environment. (Testimony of Adrian Brown, Larry Montgomery, Rosemarie Duran, John A. Yelenick, John J. Yelenick, David Rau, Brian Glade, and John Rhode, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, 465499, and 933.)

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Evidence in Support (b) PCE contamination in groundwater at the site in the area of the floor drain and elsewhere at the site exceeds federal and State standards by three orders of magnitude. (Testimony of John Rohde, David Rau, Exhibits 7, 22, 23, 24, 31, 36, 39, 41, 43, 50 and 52).

Evidence Against CVY and JOS are unclear as to what standards are referenced, or what time frame is referenced or what the details of the testimony are that allegedly will be provided by Messrs. Glade, Rohde or Rau in this regard, but reserve the right to cross-examine them as to foundation, substance and credibility and with regard to their lack of knowledge that either CVY or JOS were responsible for any such alleged contamination. CVY and JOS had multiple safeguards and policies in place related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE in the stores and to follow protocols for preventing waste of PCE. The property does not present an imminent and substantial endangerment to health or the environment. (Testimony of Adrian Brown, Larry Montgomery, Rosemarie Duran, John A. Yelenick, John J. Yelenick, David Rau, Brian Glade, and John Rhode, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, 465499, and 933.)

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Evidence in Support (c) PCE-contaminated groundwater at levels two and three orders of magnitude above federal and State standards is migrating from the property onto three adjacent properties. (Testimony of David Rau, John Rohde, Exhibits 22, 24, 31, 36, 39, 41, 43, 50 and 52).

Evidence Against CVY and JOS are unclear as to what standards are referenced, or what time frame is referenced or what the details of the testimony are that allegedly will be provided by Messrs. Glade, Rohde or Rau in this regard, but reserve the right to cross-examine them as to foundation, substance and credibility and with regard to their lack of knowledge that either CVY or JOS were responsible for any such alleged contamination. CVY and JOS had multiple safeguards and policies in place related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE in the stores and to follow protocols for preventing waste of PCE. The property does not present an imminent and substantial endangerment to health or the environment. (Testimony of Adrian Brown, Larry Montgomery, Rosemarie Duran, John A. Yelenick, John J. Yelenick, David Rau, Brian Glade, and John Rhode, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, 465499, and 933.) There is a lack of evidence documenting that any PCE contamination has migrated off site to the extent stated by Plaintiffs, and no evidence that any such contamination presents imminent and substantial endangerment to health or the environment. (Testimony of David Rau, Brian Glade, John Rohde, Adrian Brown, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, and 465-499).

(d) A shopping center, day care center, school yard and residential area are located in the path of PCE contamination emanating from the site. (Testimony of Walter Avramenko, Don Sack, John Rohde, Exhibits 42 and 54).

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Evidence in Support (e) PCE in soil and groundwater may migrate through the air into occupied structures and create indoor air hazards. (Testimony of Walter Avramenko, John Rohde, David Rau, Exhibits 42 and 54).

Evidence Against No credible evidence exists that any completed air pathway exists in this case, and any such testimony would be contrary to the scientific and technical evidence. The property does not present an imminent and substantial endangerment to health or the environment. (Testimony of David Rau, Brian Glade, John Rhode and Adrian Brown, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, and 465-499.) There is no evidence that any construction worker has been exposed or that there is any construction contemplated that would expose any worker to any such alleged health risk. (Testimony of Adrian Brown, Phil Baggerly, Paul Border, Greg Brown, Julie Florez, Ron Hatchard, Bob Little, David Livingston, Warren Marble, Scott Reichenberg, and Donald E. Sack and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, 465-499, 933.) In as much as the contamination does not present any imminent and substantial threat and will self attenuate, there is no requirement that any other "clean up" is necessary. (Testimony of Adrian Brown).

(f) Construction workers conducting work in areas with contaminated soil and groundwater may be exposed to health risks if exposed to PCE contaminated soil or groundwater. (Testimony of Walter Avramenko, John Rohde, David Rau, Exhibit 41).

(g) The contamination of soil and groundwater in the areas where PCE is known to have been spilled by CVY and JOS exceeds federal and State cleanup standards and is required to be cleaned up pursuant to federal and State law. (Testimony of Walter Avramenko, David Rau, Mark Levorsen, Exhibits 8, 13, 18, 20, 35, 38, 40, 42, 44, 47, 49, 51, and 53).

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Evidence in Support (h) The first significant releases of PCE at the property occurred no later than the late 1960's and discharges of PCE continued in effluent water at the latest up to the mid-1980's, when such discharges came under regulatory scrutiny. In addition, discharges of PCE as a pure non-aqueous phase liquid onto the floor or into the floor drain area and to the ground surface occurred prior to 1983. (Testimony of Mark Levorsen).

Evidence Against There is evidence to suggest and a reasonable inference can be drawn that releases of PCE occurred during the time that Marlowe's operated the dry cleaning business from 1948 to 1967. CVY and JOS had multiple safeguards and policies in place related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE in the stores and to follow protocols for preventing waste of PCE. There is also evidence of releases after 1991. (Testimony of Harvey Luckett, Jack Hempstead, Adrian Brown, John A Yelenick, John J. Yelenick, Larry Montgomery and Rosemarie Duran). See also affirmative defenses and defenses to Claim 1. Plaintiffs do not identify the "environmental data" to which they refer. CVY and JOS reserve the right to cross-examine any witness who testifies concerning the same as to knowledge and source of information and credibility. There is evidence to suggest and a reasonable inference can be drawn that releases of PCE occurred during the time that Marlowe's operated the dry cleaning business from 1948 to 1967. CVY and JOS had multiple safeguards and policies in place related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE in the stores and to follow protocols for preventing waste of PCE. There is also evidence of releases after 1991. (Testimony of Harvey Luckett, Jack Hempstead, Adrian Brown, John A Yelenick, John J. Yelenick, Larry Montgomery and Rosemarie Duran). See also affirmative defenses and defenses to Claim 1.

(i) The environmental data is consistent with witness testimony about the location of spills and releases of PCE at the property. The highest concentrations of PCE were observed to be around the floor drain located in the front room of the Property, where CVY and JOS's dry cleaning machines and equipment drained. (Testimony of David Rau, Exhibits 1-55).

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Evidence in Support (j) Plaintiff tested for PCE in two areas of the floor that appeared to be heavily stained after Boulder Cleaners vacated the property in 1999. One stained area contained no PCE and the other contained extremely low levels of PCE. (Testimony of Brian Glade, Dave Rau, Mark Levorsen, Exhibit 1).

Evidence Against Plaintiffs do not identify what they are referring to. CVY and JOS reserve the right to cross-examine any witness who testifies concerning the same as to knowledge and source information and credibility. There is evidence to suggest and a reasonable inference can be drawn that releases of PCE occurred during the time that Marlowe's operated the dry cleaning business from 1948 to 1967. CVY and JOS had multiple safeguards and policies in place related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE in the stores and to follow protocols for preventing waste of PCE. There is also evidence of releases after 1991. (Testimony of Harvey Luckett, Jack Hempstead, Adrian Brown, John A Yelenick, John J. Yelenick, Larry Montgomery and Rosemarie Duran). See also affirmative defenses and defenses to Claim 1. The exhibits cited do not support this proposition as is evident from the actions taken by Plaintiffs upon observing such conditions. (Testimony of Brian Grade, Mary Griggs, Adrian Brown, David Rau and Mark Levorson). Plaintiffs' consultant spoiled any evidence concerning its actions in this regard concerning the hatch and condition of the building's defective floor drain. Also, Exhibit 6 does not support this. (Testimony of Adrian Brown, Brian Glade, David Rau and John Rohde).

(k) No environmental remediation would have been necessary at the property to address the stained concrete observed to be present on the floor after Boulder Cleaners vacated the property. Testimony of Brian Glade, David Rau, Mark Levorsen, Exhibits 1 and 2). (l) In approximately November of 2000, Plaintiff's environmental consultant pried off the wooden hatch sealing the floor in the area of the former floor drain utilized by CVY and JOS and found extremely high levels of PCE contamination. (Testimony of Brian Glade, David Rau, Exhibits 7 and 9).

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Evidence in Support (m) Boulder Cleaners did not discharge any liquids to the floor drain. The floor drain was closed up and sealed prior to 1991. (Testimony of Mike Ellwood, Exhibit 197).

Evidence Against The evidence is that Boulder Cleaners' predecessor, The Dugout, Inc., continued to operate just as had PURUS, Inc. Any testimony by Mike Ellwood is self-serving and subject to cross-examination as to substance and credibility. (Testimony of Rosemarie Duran and Seymour Katzson). CVY and JOS admit that Exhibit 152 contains what appears to be copies of Uniform Hazardous Waste Manifests bearing various dates from 1986 to 1991. However, neither CVY nor JOS were operating the business during such time and do not know the details of any testimony Ms. Duran may give in respect to such documents. CVY and JOS reserve the right to challenge the foundation for or credibility of any such testimony or Plaintiffs' characterization thereof. Mike Ellwood's testimony is self-serving and subject to cross-examination for substance and credibility. Large numbers of chemical drums were found on the property when Boulder Cleaners vacated the property. (Testimony of Julie Florez and Mark Levorson). This statement is contrary to the testimony of Jack Hempstead and Harvey Luckett that Marlowe's utilized PCE prior to the mid-1960s and years before selling the business to CVY. (Testimony of Jack Hempstead, Harvey Luckett, John A. Yelenick and Adrian Brown).

(n) PURUS shipped its PCE wastes off-site between 1986 and 1991. (Testimony of Rose Duran, Exhibit 152).

(o) Boulder Cleaners shipped its PCE wastes off-site between 1991 and 1993. (Testimony of Mike Ellwood).

(p) Until approximately the mid- to late 1960's, Marlowe Cleaners utilized a petroleum-based dry cleaning solvent known as "Stoddard solvent" during dry cleaning operations conducted at the property. When Boulder enacted an ordinance to prohibit use of Stoddard solvent, the Stoddard solvent tank underneath the driveway was removed and PCE was utilized as a dry cleaning solvent. (Testimony of Harvey Luckett, John Rohde, Mark Levorsen, Adrian Brown, Exhibits 17 and 171).

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Evidence in Support (q) The vast majority of PCE contamination at the site occurred between 1967 and 1985 during the time period that CVY and JOS were operating at the property. (Testimony of Dave Rau, Mark Levorsen).

Evidence Against There is evidence to suggest and a reasonable inference can be drawn that releases of PCE occurred during the time that Marlowe's operated the dry cleaning business from 1948 to 1967. CVY and JOS had multiple safeguards and policies in place related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE in the stores and to follow protocols for preventing waste of PCE. There is also evidence of releases after 1991. (Testimony of Harvey Luckett, Jack Hempstead, Adrian Brown, John A Yelenick, John J. Yelenick, Larry Montgomery and Rosemarie Duran). See also affirmative defenses and defenses to Claim 1. CVY and JOS acknowledged that Plaintiffs have expended monies to identify and remove PCE contamination at the property. However, many such expenditures were not reasonable or necessary, did not result from any imminent and substantial endangerment to health or the environment and were not necessary to comply with any valid federal or state laws, nor were they performed consistent with the National Contingency Plan. CVY and JOS further reserve the right to cross-examine any witness and challenge any documents presented by Plaintiffs respecting the details of any such efforts, as set forth in sub-sections (a) ­ (s) below, their reasonableness, necessity, and amount. (Testimony of Adrian Brown, Brian Glade, David Rau, Mark Levorson, John Rohde, Mary Griggs, Donald E. Sack, and Exhibits 465-499). See above.

(r) In response to the discovery of PCE contamination at the facility, Plaintiff Bank One has incurred response costs including costs to:

(i) investigate the nature and extent of soil and groundwater contamination at the facility;

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Evidence in Support (ii) study alternative cleanup methods to determine the most cost effective method to remediate source area soil contamination at the facility; (iii) work with the appropriate regulatory agencies including the United States Environmental Protection Agency, Colorado Department of Public Health and Environment, and City of Boulder to obtain regulatory approvals to investigate and remediate the site; (iv) prepare and subsequently implement a voluntary phased corrective action plan to remove contaminated soils from underneath and around the dry cleaning facility; (v) install a sub-slab depressurization system underneath the building to prevent PCE vapors from entering the building; (vi) conduct indoor air sampling to monitor for PCE contamination in the area; (vii) conduct a risk assessment and feasibility study to determine appropriate methods to cleanup contaminated groundwater; (viii) conduct a pilot study to test a groundwater remediation method; (ix) conduct periodic groundwater monitoring; (x) prepare work plans and periodic reports for submission to the Colorado Department of Public Health and Environment.

Evidence Against See above.

See above.

See above.

See above.

See above. See above.

See above. See above. See above.

(Testimony of Ron Hatchard, Don Sack, Brian Glade, John Rohde; Exhibits 1-55, 109 and 110). (s) Plaintiff's past response costs including See above. past interest recoverable under CERCLA now exceed $900,000. (Testimony of Ron Hatchard, Don Sack, Mary Jo Short, Exhibits 109 and 110).

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(4) Plaintiff's costs of response were necessary costs of response. Evidence in Support (a) PCE contamination in soil at the site in the area of the floor drain exceeds State standards by three orders of magnitude. (Testimony of Brian Glade, John Rohde, David Rau, Exhibits 7, 8, 9, 11, 15, 17, and 18). Evidence Against CVY and JOS are unclear as to what standards are referenced, or what time frame is referenced or what the details of the testimony are that allegedly will be provided by Messrs. Glade, Rohde or Rau in this regard, but reserve the right to cross-examine them as to foundation, substance and credibility and with regard to their lack of knowledge that either CVY or JOS were responsible for any such alleged contamination. CVY and JOS had multiple safeguards and policies in place related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE in the stores and to follow protocols for preventing waste of PCE. The property does not present an imminent and substantial endangerment to health or the environment. (Testimony of Adrian Brown, Larry Montgomery, Rosemarie Duran, John A. Yelenick, John J. Yelenick, David Rau, Brian Glade, and John Rhode, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, 465499, and 933.)

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Evidence in Support (b) PCE contamination in groundwater at the site in the area of the floor drain and elsewhere at the site exceeds federal and State standards by three orders of magnitude. (Testimony of John Rohde, David Rau, Exhibits 7, 22, 23, 24, 31, 36, 39, 41, 43, 50 and 52).

Evidence Against CVY and JOS are unclear as to what standards are referenced, or what time frame is referenced or what the details of the testimony are that allegedly will be provided by Messrs. Glade, Rohde or Rau in this regard, but reserve the right to cross-examine them as to foundation, substance and credibility and with regard to their lack of knowledge that either CVY or JOS were responsible for any such alleged contamination. CVY and JOS had multiple safeguards and policies in place related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE in the stores and to follow protocols for preventing waste of PCE. The property does not present an imminent and substantial endangerment to health or the environment. (Testimony of Adrian Brown, Larry Montgomery, Rosemarie Duran, John A. Yelenick, John J. Yelenick, David Rau, Brian Glade, and John Rhode, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, 465499, and 933.)

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Evidence in Support (c) PCE-contaminated groundwater at levels two and three orders of magnitude above federal and State standards is migrating from the property onto three adjacent properties. (Testimony of David Rau, John Rohde, Exhibits 22, 24, 31, 36, 39, 41, 43, 50 and 52).

Evidence Against CVY and JOS are unclear as to what standards are referenced, or what time frame is referenced or what the details of the testimony are that allegedly will be provided by Messrs. Glade, Rohde or Rau in this regard, but reserve the right to cross-examine them as to foundation, substance and credibility and with regard to their lack of knowledge that either CVY or JOS were responsible for any such alleged contamination. CVY and JOS had multiple safeguards and policies in place related to the use of PCE. Employees were instructed that PCE was not to be wasted, spilled or improperly disposed of, and CVY and JOS routinely advised staff that every effort was to be taken to preserve and protect the PCE in the stores and to follow protocols for preventing waste of PCE. The property does not present an imminent and substantial endangerment to health or the environment. (Testimony of Adrian Brown, Larry Montgomery, Rosemarie Duran, John A. Yelenick, John J. Yelenick, David Rau, Brian Glade, and John Rhode, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, 465499, and 933.) There is a lack of evidence documenting that any PCE contamination has migrated off site to the extent stated by Plaintiffs, and no evidence that any such contamination presents imminent and substantial endangerment to health or the environment. (Testimony of David Rau, Brian Glade, John Rohde, Adrian Brown, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, and 465-499).

(d) A shopping center, day care center and school yard are located in the path of PCE contamination emanating from the site. (Testimony of Don Sack, John Rohde, Exhibits 42 and 54).

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Evidence in Support (e) PCE in soil and groundwater may migrate through the air into occupied structures and create indoor air hazards. (Testimony of Walter Avramenko, John Rohde, David Rau, Exhibits 42 and 54).

Evidence Against No credible evidence exists that any completed air pathway exists in this case, and any such testimony would be contrary to the scientific and technical evidence. The property does not present an imminent and substantial endangerment to health or the environment. (Testimony of David Rau, Brian Glade, John Rhode and Adrian Brown, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, and 465-499.) There is no evidence that any construction worker has been exposed or that there is any construction contemplated that would expose any worker to any such alleged health risk. (Testimony of Adrian Brown, Phil Baggerly, Paul Border, Greg Brown, Julie Florez, Ron Hatchard, Bob Little, David Livingston, Warren Marble, Scott Reichenberg, and Donald E. Sack and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, 465-499, 933.) CVY and JOS acknowledge that Plaintiffs' efforts have contributed to the reduction of soil contamination, but dispute that the same was reasonably necessary to comply with federal or state laws or to protect human health or the environment. The property does not present an imminent and substantial endangerment to health or the environment. (Testimony of Adrian Brown, David Rau, Brian Glade and John Rohde, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, and 465-499.) CVY and JOS acknowledge that Plaintiffs' efforts have contributed to the reduction of soil contamination, but dispute that the same was reasonably necessary to comply with federal or state laws or to protect human health or the environment. The property does not present an imminent and substantial endangerment to health or the environment. (Testimony of Adrian Brown, David Rau, Brian Glade and John Rohde, and Exhibits 3, 7, 9, 17, 22, 24, 28, 29, 30, 32, 34, 35, 41, 48, and 465-499.)

(f) Construction workers conducting work in areas with contaminated soil and groundwater may be exposed to health risks if exposed to PCE contaminated soil or groundwater. (Testimony of Walter Avramenko, John Rohde, David Rau, Exhibit 41).

(g) Plaintiff's clean-up efforts to date have resulted in a removal of most of the vadose zone soil contamination at the site and reduced source-area PCE groundwater concentrations from 70,000 ug/l to 70 ug/l. (Testimony of John Rohde, Exhibits 17, 24, 36, 41, 43).

(h) Plaintiff's clean-up efforts have been cost effective and necessary to mitigate risks to human health and the environment and to bring the site into compliance with State standards. (Testimony of Walter Avramenko, John Rohde, David Rau).

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Case 1:01-cv-01807-MSK-MJW

Document 469

Filed 05/22/2007

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Evidence in Support (i) Plaintiff continues to incur necessary response costs at the site in an effort to achieve compliance with the State's groundwater standard of 5 ug/l of PCE at the property boundary. In addition, Plaintiff continues to incur response costs to reduce the breakdown products of PCE to State standards. Future response costs to remediate groundwater are now estimated at approximately $750,000. (Testimony of Don Sack, Ron Hatchard, John Rohde, Dave Rau Exhibit 41 and Pilot Test Implementation Report).

Evidence Against CVY and JOS acknowledge that Plaintiffs continue to expend monies to identify and remove PCE contamination at the property. However, many such expenditures are not reasonable or necessary, do not result from any imminent and substantial endangerment to health or the environment and are not necessary to comply with any valid federal or state laws, nor are they consistent with the National Contingency Plan. CVY and JOS further reserve the right to cross-examine any witness and challenge any documents presented by Plaintiffs respecting the details of any such planned efforts, their reasonableness, n