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February 12, 1999


The opinion of the court was delivered by: Whyte, District Judge.


Defendant and counter-claimant National Semiconductor and defendant United Technologies Corporation's ("defendants") motion for partial summary judgment was heard on January 29, 1999. The court has read the moving and responding papers and heard the argument of counsel. For the reasons set forth below, the court grants the motion in part and denies it in part. Summary judgment is granted as to the fourth, fifth, seventh, eighth and eleventh causes of action. Summary judgment is denied as to the first and third causes of action.


In 1982, plaintiff Advanced Micro Devices, Inc ("AMD") initiated subsurface investigations at its manufacturing facility at 1165 Arques Avenue, Sunnyvale, California (the "Site") as a result of suspicions of leakage from underground chemical solvent storage tanks and from chemical handling and storage areas.*fn1 Declaration of Malinda Allison in Support of Defendants' Motion for Partial Summary Judgment ("Allison Decl."), Ex. A at 4. That year, a number of monitoring wells were drilled, and tests detected volatile organic compounds, principally in the ground water of the A and B aquifers under the Site. Id. at 4-6. After two phases of investigation at the Site were completed, the California Regional Water Quality Control Board ("RWQCB") requested that AMD begin studies for the installation and operation of a ground water extraction and treatment system, and Phase 3 studies were developed to comply with the RWQCB's request.*fn2 Id. at 7.

In 1984, AMD removed two subsurface waste solvent tanks and two subsurface acid neutralization systems. Id. 7, Ex. A at 13, 14, 41.

In 1986, AMD "initiated an interim remedial measure in the `A' aquifer," consisting of the installation of ground water extraction wells, with the investigation continuing. Id. at ES-4, 8. Several of the borings that had been drilled into the aquifers were converted to monitoring wells, and several borings and monitoring wells were converted to extraction wells. Id. at 8-9. On August 20, 1986, the RWQCB issued Order No. 86-64, Waste Discharge Requirements, in which it reported:

  [f]urther investigation and interim remedial
  action are necessary to prevent the
  continued migration of pollutants to
  unaffected groundwaters and to preclude
  loss of existing and potential beneficial
  uses of said waters. The board
  intends to establish final cleanup objectives

  for the site after review of the
  results of actions required by this order.

Declaration of Reed M. Content in Opposition to Motion of Defendants for Partial Summary Judgment, ("Content Decl.") Ex. 2 at 2 ! 6. The extraction wells were connected to a centrally located ground water treatment facility, which began full-time operation in 1986. Declaration of Lance D. "Geselbracht in Support of Defendants' Motion for Partial Summary Judgment ("Geselbracht Decl.") Ex. B. ! 2.3. By 1987, the EPA had placed the Site on the National Priority List for cleanup. Allison Decl. at Table 1.

On June 15, 1987, in response to the RWQCB's Waste Discharge Requirements, AMD submitted a Ground Water Extraction System Installation report to the RWQCB. Geselbracht Decl.Ex. A. The report stated in part that "all ground water extraction efforts have been directed to the `A' level aquifer," that ground water extraction and treatment systems were operational, and that the eight A aquifer extraction wells should be operational "until the final zone of influence can be determined," at which point "additional extraction wells may be required." Id. at !! 1.1, 5.1.1-5.2.1.

On August 15, 1987, a Ground Water Extraction and Treatment System Status Report prepared for AMD reported that AMD was not responsible for contamination in the B aquifer, but that additional extraction wells may be required "in order to establish the necessary hydraulic control to contain and cleanup the MMU plume "in the A aquifer. Id. Ex. B at !! 4.2, 2.2. The report stated that "[t]he treatment facility has proved to be effective in removing volatile chemicals from ground water." Id. at ! 2.3. AMD initiated B aquifer extraction activities in 1988 as an "interim remedial measure." Allison Decl. Ex. A at 9.

On April 19, 1989, Administrative Order No. 89-061 adopted the cleanup site requirements for AMD. Id. Ex. A at 1.

In April, 1991, AMD's Final Draft Remedial Investigation ("RI") was prepared in response to the 1989 Administrative Order. Id. Ex. A. The RI stated that:

  [t]he purpose of this RI is to define the
  nature and extent of contaminants in the
  environment . . . to characterize the hydrogeological
  conditions to the extent
  necessary for the development, selection,
  and design of appropriate remedial
  actions; and to assess the risk to human
  health and the environment . . . These
  results will be used in the FS portion of
  the RI/FS [Draft Remedial
  Investigation/Feasibility Study] to determine
  remedial action alternatives and additional
  remedial action(s) necessary and appropriate
  for the Site.

Id. at 1-2. The RI noted that the existing "interim remediation program consists of pumping and treatment of ground water from several `A' aquifer extraction wells installed in August 1986," and that "the data collected as part of this RI are sufficient to complete the assessment of final remedial measures for the soil and ground water cleanup." Id. at ES-5. AMD submitted a final draft FS (Feasibility Study) Report on May 9, 1991. Allison Decl.Ex. B at 5.

On September 20, 1991, the RWQCB adopted California RWQCB Board San Francisco Bay Region Order No. 91-139, Site Cleanup for Advanced Micro Devices, National Semiconductor Corporation. Id. Ex. B. The September 20, 1991 order in part reviewed AMD's RI/FS and stated that the technical information in the RI and FS Reports "is acceptable for developing a final cleanup plan" and that the reports "contain an evaluation of applicable or relevant and appropriate requirements . . . the interim remedial actions, final remedial alternatives, and proposed remedial standards." Id. Ex. B at 5. The order also stated that AMD would be held "jointly responsible for ground water cleanup in the A and B aquifers" pursuant to the RWQCB cleanup order. Id. The order reviewed the "interim remedial actions" which AMD had implemented in 1986, consisting of the extraction and treatment of the A aquifer water from wells and the addition of three extraction wells in 1988. Id. at 9. The order evaluated the alternatives which had been set out in AMD's Feasibility Study, and provided a summary of the "final remedy for Subunit 2" based primarily on the information provided in the RI/FS Reports.*fn3 Id. at 12.

In September of 1991, the EPA issued its Record of Decision ("ROD"), which presented the "selected remedial action" for the Site. Content Decl.Ex. 1 at 6. The ROD described the current, ongoing ground water extraction activities, which were "implemented under RWQCB authority with the goal of controlling further contaminant migration while ongoing site investigations continued to collect the data necessary for final remedial action." Content Decl.Ex. 1 at 20. The ROD then presented the elements of the "selected final remedy" and the steps necessary to implement that remedy. Id. at 6-7, 20-22. The ROD reported that "the currently operating extraction system will be expanded" in order to implement the final remedy. Id. at 20. The ROD stated that

  [t]he goal of this remedial action is to
  restore the groundwater to its beneficial
  use, which is, at this site, a potential
  source of drinking water. Based on information
  obtained during the RI and on
  a careful analysis of all remedial alternatives,
  EPA and the RWQCB believe that
  the selected remedy will achieve this

Id. at 46.

AMD filed the present contribution action on September 19, 1997.


A. AMD's First and Third Causes of Action Under CERCLA

1. Actions for Contribution under CERCLA

Section 107(a) of CERCLA, 42 U.S.C. § 9607 (a), authorizes actions against statutorily defined "responsible parties" to recover a party's costs incurred in cleaning up hazardous waste disposal sites. Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1300 (9th Cir. 1997). 42 U.S.C. § ...

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