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ADVANCED MICRO DEVICES v. NATIONAL SEMICONDUCTOR
February 12, 1999
ADVANCED MICRO DEVICES, INC., PLAINTIFF,
NATIONAL SEMICONDUCTOR CORPORATION AND UNITED TECHNOLOGIES CORPORATION, DEFENDANTS. AND RELATED ACTIONS
The opinion of the court was delivered by: Whyte, District Judge.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS'
MOTION FOR PARTIAL SUMMARY JUDGMENT
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:
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 !!
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
[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.
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
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. § ...