APL Co. Pte. Ltd. v. Remira Water Solutions, Inc. (999 F. Supp. 2d 590, 2014)

OPINION & ORDER

KATHERINE B. FORREST, District Judge.

This case arises from two shipments of ferrous chloride crystals sent from Taiwan to California that, simply put, did not go as planned. The bags in which the crystals were originally packaged leaked as a result of improper packaging at some point between their departure from Taiwan and their arrival in California. The result was contamination of the containers in which the bags were stored and of the ships that transported the containers, as well as at the ports where the containers were discharged. Cleanup and response efforts ultimately lasted more than seven months and were fraught with unexpected delays and setbacks along the way — both on-site at the ports and back at the corporate offices of the companies involved.

In the end, the bill for these efforts totaled more than five million dollars. Plaintiffs, APL Co. Pte. Ltd. (“APL”) and its insurers, footed that bill — APL was the carrier of the ferrous chloride cargo. Though this case has been narrowed considerably since its inception, the fundamental question now before the Court is whether defendant Kemira Water Solutions, Inc. (“Kemira”), the end purchaser and consignee of the ferrous chloride, must bear the brunt of the joint and several liability provisions of Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601 et seq., for the cleanup and response costs incurred by APL. Kemira entered into an agreement with Fairyland Envitech Co. Ltd. (“Fairyland”), a Taiwanese company, to purchase the ferrous chloride crystal; in that agreement, Kemira specified the use of bulk bags to transport the material. The bags that were then chosen and ultimately used by Fairyland to transport the material leaked, and a parade of horribles ensured. Fairyland, for its part, was and is nowhere to be found.

This Court finds that Kemira is liable under CERCLA for cleanup costs.

Plaintiffs brought this admiralty and maritime action, pursuant to 28 U.S.C. § 1333, in the Northern District of California on August 27, 2009 against defendants Kemira and Fairyland for breach of contract, negligence, and recovery under CERCLA related to the cleanup and response costs they incurred as a result of the two shipments. This action was transferred to the Southern District of New York on March 11, 2011 and transferred to the undersigned on November 8, 2011.

After the parties cross-moved for summary judgment, on August 22, 2012, this Court granted Kemira summary judgment on APL’s breach of contract and negligence claims. (SJ Decision at 16, 24-25, ECF No. 96.) The Court declined to grant summary judgment for Kemira on APL’s CERCLA claim. {Id. at 22.) In doing so, the Court held that (1) the bags in which the ferrous chloride crystals were packaged and shipped are “facilities” under 42 U.S.C. § 9601(9)(B); and (2) Remira is a “potentially responsible party” (or “PRP”) because it was an “operator,” under 42 U.S.C. § 9607(a)(2), and not the “shipper” under 42 U.S.C. § 9607(20)(B). {Id. at 17, 22.) Accordingly, at the June 3. 2013 final pretrial conference, the Court made clear that the limited issues for trial were the scope of damages and the potential divisibility of such damages under 42 U.S.C. § 9607(a). {See 6/3/13 Tr. at 31, ECF No. 122; 6/4/13 Order ¶ 2, ECF No. 121.)

On August 26-28, 2013, the Court held a bench trial in this matter. The following individuals testified on behalf of APL: Dale Strieter, Technical Service Manager for Patriot Environmental Services (“Patriot”), Walt Dorn, Director of Emergency Services for Patriot, Haldis Fearn, Director of Hazardous Materials for the Americas for APL, Curtis Shaw, Director of Safety for APL, Mark Peterson, Manager of Insurance and Claims for APL, and Michael Bohlman, APL’s proposed expert witness concerning the custom and practice in the steamship industry as to ensuring proper cargo packaging and the opening of cargo containers prior to transport. The following individuals testified on behalf of Remira: Jerome Fahey, Vice President of Procurement at Remira, Jan Pavlicek, Technical Product and Applications Manager at Remira, Robert J. Ten Eyck, Remira’s proposed expert as to the bulk bags containing the ferrous chloride crystals, and Dr. Jeffrey V. Dagdigian, Remira’s proposed expert as to the adequacy and reasonableness of the cleanup and response efforts for both shipments of ferrous chloride under CERCLA.

The parties also submitted deposition designations for eight witnesses in lieu of live testimony: Melvin Blaine, Operations Manager at Remira’s facility in Fontana, California, William F. Sheridan, Director of Network Operations in the Western Region for APL, Shannon Mizell, Dangerous Goods Specialist at APL, Diane Terrien, Senior Manager of Documentation at APL, Robert Wetzel, General Manager at Trans-loading Environmental Corporation (“TEC”), Eri Soto, a TEC foreman, Robert Wolters, Operations Superintendant at California United Terminals (“CUT”), and John Chiu, Owner of FTS International Express.

This Opinion constitutes this Court’s findings of fact and conclusions of law in this matter. As set forth below, this Court finds that plaintiffs are entitled to judgment on their CERCLA claim under 42 U.S.C. § 9607(a). The Court finds that the expenses incurred by APL were both necessary and incurred for cleanup and response efforts that were substantially consistent with the National Contingency Plan (“NCP”). The Court also finds that Remira has failed to meet its burden of showing that any portion of the costs for which it is solely responsible are divisible.

FINDINGS OF FACT

A. The Parties

1. APL is a global transportation and logistics company providing, among other services, container transportation services. APL was the carrier of the two ferrous chloride crystal shipments aboard the M/V HYUNDAI INDEPENDENCE (“Hyundai Independence”) and the M/V APL SINGAPORE (“APL Singapore”) in the fall of 2006 that are at issue in this litigation. (See SF ¶¶ 2,15.)

2. Remira is a company that sells water treatment chemicals. Remira was the consignee and importer of the ferrous chloride into the United States and arranged for its clearance through U.S. Customs. (See SJ Decision at 1; SF ¶ 4; Chiu Dep. at 11-12, 20-21, 26-28; JX19.)

3. At the time of the events alleged in the complaint, Fairyland was a Taiwanese chemical supplier. Fairyland was the supplier of the two shipments of ferrous chloride at issue. Fairyland has ceased all business and operations, and cannot be located. As a result, according to the docket, Fairyland does not appear to have been served with the complaint. (See SF ¶ 3; SJ Decision at 1, 2 n. 1.)

B. Background on Ferrous Chloride Crystal

4. Ferrous chloride crystal (also referred to as “FeC12 crystal”) is a salt that is highly hygroscopic, which means that it attracts liquid and is prone to liquefaction when exposed to moisture. When ferrous chloride crystal liquefies, it is aggressively corrosive to most metals. (See Strieter Decl. ¶ 19; Trial Tr. at 76-78 (Strieter); JX12 at 1.)

5. Ferrous chloride crystal is a hazardous chemical classified as “Class 8: Corrosive” under the International Maritime Dangerous Goods (“IMDG”) Code promulgated by the International Maritime Organization of the United Nations. (See SF ¶ 14.)

6. In this case, Remira purchased the ferrous chloride crystals from Fairyland to be sold to municipal and industrial entities for use as a water treatment product. These entities use ferrous chloride to remediate sewer odor (by neutralizing hydrogen sulfide) and to remove phosphorous at their wastewater plants. (See SF ¶ 9; Trial Tr. at 326 (Fahey), 363 (Pavlicek).)

C. The Fairyland-Kemira Purchase Agreement

7. On August 3, 2006, Remira and Fairyland entered into a purchase agreement pursuant to which Remira agreed to purchase ferrous chloride crystal from Fairyland, and Fairyland agreed to ship the chemical from Taiwan to California (the “Purchase Agreement”). The Purchase Agreement confirmed the product and price provisions for the sale of the ferrous chloride crystal. (See SJ Decision at 2; SF ¶ 12; JX6 at 1-2.)

8. The Purchase Agreement set forth the terms of sale as “DDP” or “delivery duty paid” by Fairyland to Remira’s plant in Fontana, California. (See SF ¶ 12.)

9. Schedule A of the Purchase Agreement set forth the “General Requirements” for packaging the ferrous chloride. In it, Kemira directs Fairyland that the ferrous chloride crystal shall:

1. Be shipped in bottom unloading 1 metric ton net weight bulk bags with four' loops capable of suspending the entire bag.

2. The bulk bags will be shipped in such a manner to assure that all material arrives at destination with sacks intact and without material leakage.

3. The bulk bags shall be impermeable' to water.

4. The bulk bags shall be loaded into the container such that they will be able to be unloaded via forklift trucks or via pallet jacks of U.S. specifications.

5. Material quality will be consistent throughout the shipment and within the bulk bags with respect to stated specifications.

6. Quantities of material in the bulk bags will be consistent throughout the shipment and net weight will be greater than 1 MT less than 1.2MT.

7. All bulk bags and sea containers will be marked with information appropriate for meeting all regulatory requirements of the United States of America and the States of California, Missouri and Indiana.

(See SJ Decision at 2,18-19; SF ¶ 13; JX6 at 3.)

10. The shipments of ferrous chloride crystal that APL carried aboard the Hyundai Independence and the APL Singapore were purchased by Kemira from Fairyland pursuant to this Purchase Agreement. (See SF ¶¶ 11-13,15.)

D. Shipment #1 — The Hyundai Independence

11. APL carried the two shipments of ferrous chloride under two separate bills of lading. The first shipment, under NonNegotiable Sea Waybill No. APLU 451382861, dated September 30, 2006, was carried aboard the Hyundai Independence pursuant to a slot sharing agreement. The second shipment, under Non-Negotiable Sea Waybill No. APLU 401403279, dated October 17, 2006, was carried aboard the APL Singapore. (See SF ¶ 15.)

12. A Dangerous Goods Declaration is a required document provided by the shipper when it tenders containers for transport, and which must accompany every shipment of hazardous materials. Carriers are required to receive a Dangerous Goods Declaration prior to accepting such goods and may rely on them unless there are obvious discrepancies in the paperwork or obvious issues with the containers themselves. (See Fearn Decl. ¶ 17; Bohlman Deck ¶ 6.)

13. According to Haldis Fearn, APL’s Director of Hazardous Materials for the Americas, APL relies on Dangerous Goods Declarations when deciding whether to accept and load a shipment. APL will not receive, load, or transport hazardous materials without a properly completed and certified Dangerous Goods Declaration. (See Fearn Deck ¶¶ 17-18.)

14. As Director of Hazardous Materials, a position she assumed in 1991, Fearn was responsible for the department that oversaw the movement of hazardous materials by APL both domestically and internationally. Fearn’s department was charged with, inter alia, the review and approval of Dangerous Goods Declarations and responding to emergency situations involving hazardous materials. Fearn has nineteen years experience managing and responding to incidents involving hazardous materials, at a rate of approximately 85 to 100 such incidents a year. (See Fearn Deck ¶¶ 1, 9, 12-13, 17; JX11; Trial Tr. at 192 (Fearn).) Though the Court found Fearn to be credible, it also found her to be confused at times during her testimony.

15. Fairyland signed the Dangerous Goods Declaration for the cargo shipped on board the Hyundai Independence (the “Hyundai Declaration”), and submitted it to APL. The Hyundai Declaration states the dangerous substance being shipped (“Corrosive Solid, NOS (Ferrous Chloride Crystal)”), the UN identification number (“1759”), the Class (“8”), the Packing Group (“II”), and the specific type of packaging used for the identified substance (“UN13H3 (IN 220 PALLET) (412 BAGS)”). This meant that the Hyundai Independence was carrying 22 containers of ferrous chloride crystal shipped in 412 separate bags. (See SF ¶¶ 16-17; JX7 at 1; Strieter Decl. ¶ 19; Fearn Decl. ¶¶ 18-19.)

16. In the Hyundai Declaration, Fairyland provided certifications to APL as to the packaging of the ferrous chloride aboard the Hyundai Independence. Fairyland certified that the ferrous chloride had been packed and loaded into the containers in accordance with the IMDG Code. Fairyland also declared “that the contents of this consignment are fully and accurately described below by the proper shipping name, and are classified, packaged, marked and labeled/placarded and are in all respects in proper condition for transport according to the applicable international and national government regulations.” (See SF ¶ 19; JX7 at 1.)

17. The Court finds that the Hyundai Declaration contains all of the required information and does not contain any obvious inaccuracies. According to Fearn, there is nothing in the Hyundai Declaration that would have caused APL to refuse the shipment or open the containers for further inspection. Fearn believes the Hyundai Declaration was properly approved by her department, and the Court agrees. (See Fearn Decl. ¶ 19; Bohlman Decl. ¶ 6; Ten Eyck Decl. ¶¶ 11-13.)

E. Leakage Aboard the Hyundai Independence

18. On Friday, October 13, 2006, Dale Strieter received a call to Patriot’s 1-800 emergency response number from a representative of CUT. CUT asked Patriot to dispatch a team to assess and respond to three leaking containers that had been discharged from the Hyundai Independence, and which were placarded as Corrosive 8, UN No. 1759. From this information, Strieter understood that the containers likely contained a corrosive hazardous material. When Strieter arrived at CUT later that day, he observed this same placarding on the containers. (See Strieter Decl. ¶ 18; PX73 at 4.)

19. Patriot is an environmental contractor that has extensive experience with hazardous material cleanup and response operations at the ports of Long Beach and Los Angeles, California. It has handled and continues to handle operations for almost every commercial terminal at those ports, including the two terminals at issue in this case — CUT and Global Gateway South (“GGS”). Prior to the incidents in this case, Patriot had handled approximately 40 to 50 separate cleanup and response operations for APL. (See Strieter Decl. ¶ 5.)

20. Similarly, for Strieter, October 13, 2006 was not his first time answering the proverbial “red phone.” Strieter was a Technical Service Manager for Patriot, a position he has held since the company was founded in 2002. He has more than 33 years in the environmental services business under his belt. In his role at Patriot, Strieter was generally responsible for initial response operations, documentation, and interfacing with regulatory agencies (like the United States Coast Guard (“USCG”)), for spills and other environmental threat responses. Prior to the events at issue, Strieter had worked on four to five incidents involving ferrous chloride crystals (though not in as large quantities). (See Strieter Decl. ¶¶ 1, 6, 14; Trial Tr. 38, 44 (Strieter).) The Court found Strieter to be a credible and serious witness.

21. Upon his arrival at CUT, Strieter requested and received from CUT personnel a copy of the Hyundai Declaration. He learned from the Declaration that the Hyundai Independence was carrying 22 containers of ferrous chloride crystal shipped in 412 separate bags. Strieter also learned, after consulting a reference guide, that ferrous chloride is extremely hygroscopic and is aggressively corrosive to most metals when in liquid form. (See Strieter ¶ 19; JX7 at 1.)

22. After reviewing this information, Strieter determined that the ferrous chloride did not pose a major health hazard for the kind of cleanup and response work that needed to be performed at that stage (although there was a serious threat from direct physical contact with the hazardous material) and that Patriot would be able to get close to the material without it posing a threat to worker safety. (See Strieter Decl. ¶ 20.)

23. Prior to Strieter’s arrival at CUT, CUT personnel had discharged four or five leaking containers and placed them on a standard 24-foot chassis. Strieter observed these containers, and the leakage was readily apparent — -brown liquid was leaking from some of the containers, while others were streaked with brown liquid running down their sides. According to Strieter, the liquid appeared more viscous than water but less so than molasses, and did not have an odor. (See Strieter Decl. ¶ 21; PX73 at 3-4.)

24. Strieter observed the corrosive effect of the ferrous chloride on the unpainted, exposed metal on the containers. Strieter performed a pH test on the liquid; it tested at a pH of 1-1.5, which confirmed that the liquid was highly acidic and corrosive. (See Strieter Decl. ¶ 21; JX12 at 1; JX26 at 1.)

25. Strieter accompanied other Patriot and CUT personnel to assess Bay 35 — the bay on the Hyundai Independence from which the leaking containers had been previously discharged. They determined that an additional eighteen containers (nine of which, actually contained ferrous chloride crystal) in Bay 35 were contaminated. Strieter also determined that twenty other containers had been previously discharged from the Hyundai Independence and had been moved into the terminal. Thirteen of those containers were actively leaking ferrous chloride, while the others were “victim” containers — containers that had been impacted by the leaking ferrous chloride liquid. (See Strieter Decl. ¶¶ 23-24.)

26. Patriot and CUT personnel moved all leaking and victim containers to the “5000” area of the CUT terminal and enveloped them in plastic, in advance of rain that was expected that night. They decontaminated and cleaned the asphalt on the CUT terminal where the contaminated containers had been, and tested the cleaned area using pH paper test. (See Strieter Decl. ¶ 24.)

27. The USCG sent representatives from two different sections (the pollution section and the container section) to assess the incident that day, October 13, 2006. Strieter interfaced with them while they were on-site about the threat posed to worker safety by the spill as well as the appropriate initial response. According to Strieter, the USCG was heavily involved in and oversaw the cleanup^and response process. In addition to on-site observation, Patriot provided the USCG with detailed oral briefings as to them cleanup and response efforts. During the course of Patriot’s cleanup and response efforts, for both the Hyundai Independence and later for the APL Singapore, Patriot never once received an objection from the USCG as to their methods or work. (See Strieter Decl. ¶¶ 14-15, 25; Trial Tr. at 81 (Strieter).)

28. A “Captain of the Port Order” is a directive used by the USCG to ensure steps are taken in an expeditious manner to meet safety, security, and environmental mandates within the USCG’s purview. A party that fails to meet the requirements of a Captain of the Port Order runs the risk that the USCG may assume complete command of the cleanup and response, and thus charge the responsible party or parties for those costs (which are often very high). A Captain of the Port Order also means that the USCG will be heavily involved in the cleanup and response process at the regulated facility and will require USCG approval of the steps the party intends to take in cleaning up and responding to a release. Once a cleanup response is completed, it is up to the USCG to assess whether a party has complied with the Captain of the Port Order and has met all other legal and regulatory requirements. At that point, the Captain of the Port Order is said to be “lifted.” (See Shaw Deck ¶ 7.)

29. On October 13, 2006, the USCG issued Captain of the Port Order 2006-502 to CUT in connection with the leaking ferrous chloride aboard the Hyundai Independence. The Order directed CUT to move all contaminated containers to a safe and secure location at least 75 feet from the water, and to submit a detailed plan for repairing, cleaning, and transporting each affected container on the Hyundai Independence and at the port. The Order required USCG approval for transport of any affected containers. Finally, the Older set forth the monetary penalties for violations of the Order under the Ports and Waterways Safety Act, 33 U.S.C. § 1221 et seq. (See JX9 at 1; Strieter Deck ¶ 26; Dorn Deck ¶ 18; Fearn Deck ¶ 26.)

30. APL received notice from CUT that the ferrous chloride crystal shipment aboard the Hyundai Independence had arrived at its terminal in Long Beach, and that the contents of the containers were leaking and had spilled along the outside walls of containers. CUT informed APL that it would hold APL responsible for all costs associated with the incident. (See SF ¶ 20; Fearn Deck ¶¶ 15-16; JX11; JX14.)

31. Haldis Fearn was the person at APL who received this notification, and who was tasked with overseeing and managing APL’s response. Upon receiving this notification, APL thereafter assumed responsibility for responding to the Hyundai Independence incident. (See Fearn Decl. ¶ 16.)

32. Upon learning of the leaking ferrous chloride aboard the Hyundai Independence, Fearn left a message for the emergency contact at Fairyland at the number listed on the Hyundai Declaration. (See Fearn Decl. ¶ 20; JX7; Trial Tr. at 233 (Fearn).)

33. Fearn then called Kemira. She informed the person with whom she spoke of the leaking ferrous chloride aboard the Hyundai Independence, that she had been unable to get in touch with anyone from Fairyland, and that APL had brought in a spill response team. Fearn also indicated that APL would hold Kemira responsible for the cleanup and response costs if Fairyland did not step up and pay them. (See Fearn Decl. ¶ 21; JX10 at 1; PX17.)

34. In the internal Kemira email memorializing this notification by Fearn, Mel Blaine raises the issue of obtaining a California Department of Transportation (“DOT”) exemption in order to move the ferrous chloride to its facility in Fontana, California. Blaine states: “We have to get an exemption from DOT in order to move the crystal to Fontana. They say that we cannot ship fecl2 crystal in supersacks. Please get in touch with Vanessa [Tsai, of Fairyland]. We need help.” Jerome Fa-hey responded to Blaine’s email by copying Tsai to notify her of the leak. (See Fahey Decl. ¶¶ 6-7; Blaine Dep. at 92-94; PX17.)

35. Fearn next established contact with Patriot (who had already been brought in by CUT) and approved them as the lead response contractor for the assessment and cleanup. Because of the need to clean the vessel and the victim containers so that the vessel could leave on schedule, Fearn also contacted Robert Wetzel at TEC and requested that TEC assist Patriot with the response. (See Fearn Decl. ¶¶ 23-24; Strieter Decl. ¶ 27.)

36. TEC was another environmental contractor with extensive experience conducting clean-up and response operations. TEC had worked in this capacity for APL approximately one hundred times in the ten to fifteen years prior to these incidents, though there is no evidence in the record that this work involved ferrous chloride (and certainly not in the quantities involved here). No representatives of TEC testified at trial; instead, the parties submitted deposition designations for two individuals from TEC: General Manager Robert Wetzel and foreman Eri Soto. (See Wetzel Dep. at 12, 15-18; Soto Dep. at 5-6.)

37. The next day, October 14, 2006, Patriot discharged the eighteen remaining victim containers in Bay 35 of the Hyundai Independence, as well as twenty-four additional victim containers on the bottom rows of Bays 30 and 33. During discharge from the vessel and transport of the containers, Patriot draped 6 millimeter PVC plastic sheeting over the vessel’s hatches, along the side of the vessel, and over the “bomb carts” used to transport the containers into the 5000 area of the CUT terminal. (See Strieter Decl. ¶¶ 28-29; Dorn Decl. ¶ 14; JX12 at 2; PX73 at 1-4).

38. Walt Dorn, Director of Emergency Services for Patriot since 2002, supervised the operations. Dorn has more than 20 years of experience with environmental cleanup and response efforts, both on water and land, all over the world. (See Dorn Decl. ¶¶ 1, 3, 13; Trial Tr. at 148 (Dorn).) The Court found Dorn to be highly experienced and credible.

39. Following the discharge of the contaminated containers, Patriot discovered that the ferrous chloride liquid had leaked into the ship’s rainwater collection bilges. These bilges needed to be decontaminated and cleaned before the Hyundai Independence could be released back into service; according to Dorn, this was a “structural integrity issue” for the ship because the ferrous chloride liquid was attacking the ship itself. The USCG, which remained on-site on a daily basis, directed the order of priority for these tasks — the tasks set forth in Captain of the Port Order 2006-502. Strieter reported these developments to Fearn at APL. Based on a report Strieter prepared to CUT describing these initial response activities, he believes Patriot finished discharging the containers from the Hyundai Independence around 11:45 p.m. that night. (See Strieter Decl. ¶ 30; Dorn Decl. ¶ 15; Trial Tr. at 141-43 (Dorn); JX12 at 2; PX73 at 5-9.)

40. On Sunday, October 15, 2006, Dorn supervised the construction of a temporary wet wash area to decontaminate and clean the victim containers that needed to be reloaded onto the Hyundai Independence before its departure. Patriot constructed a temporary rather than permanent containment area due to time constraints, space constraints at CUT, and conversations with the USCG regarding the priority of operations. The area was a 50 foot by 30 foot temporary containment area constructed out of 10 millimeter visqueen plastic and industrial rug as padding. Patriot used the terminal lift to raise the containers one at a time, and used a sodium bicarbonate solution to rinse and clean the containers. After Patriot finished this process, the USCG inspected the containers and released them for reloading aboard the Hyundai Independence. The decontamination and cleaning residue was collected and pumped into poly drums for disposal. (See Dorn Decl. ¶ 16; Strieter Decl. ¶¶ 31-32; Trial Tr. at 100-101 (Strieter), 145 (Dorn); JX12 at 2.)

41. APL also brought in a team from TEC to assist with cleaning the rainwater collection bilges in Bay 35 of the Hyundai Independence that day. Patriot worked alongside TEC to decontaminate the floors in Bays 35, 33 and 30, as well as other portions of Bay 35, using a sodium bicarbonate and water solution. Patriot then pressure washed these areas with a cold water washer. Strieter reported on the status of the cleaning process to Fearn at some point that day. (See Strieter Decl. ¶ 31; Fearn Decl. ¶ 29; JX10 at 2; PX73 at 10-16.)

42. Once the cleaning of the bilges and vessel were complete, Strieter conducted pH paper testing and confirmed the cleanliness and decontamination of the affected areas. The vessel was then released back into service by the USCG. (See Strieter Decl. ¶ 34; JX26 at 2.)

43. USCG representatives remained on-site during each day of the initial response to the leaking containers from the Hyundai Independence, and they did not raise any objections as to Patriot’s work or process. In particular, according to Dorn, the USCG never raised any issues as to the location of the temporary containment area on the CUT terminal in terms of its proximity to the water (i.e., that the containers were to be at least 75 feet from the water per Captain of the Port Order 2006-502). (See Strieter Decl. ¶ 37; Trial Tr. at 139 (Dorn).)

44. On or about October 16, 2006, Fearn called and spoke with Mel Blaine from Kemira. Fearn told Blaine that the response and cleanup operations were ongoing and that the containers had been fully discharged from the Hyundai Independence. Fearn had still not heard from Fairyland. Fearn called Blaine a second time that day to request the Material Safety Data Sheet (“MSDS”) for the product Kemira had imported; Blaine did not have a copy and gave Fearn the number of someone in Kemira’s East Coast offices. Fearn called that number and spoke with someone about the MSDS; this person, who said he was a Vice President, told Fearn that he would get her one. Fearn also recalls that this person told her the shipment was a door-to-door delivery, Kemira did not own the cargo, and APL would need to go back to Fairyland on this. Fearn does not recall ever receiving an MSDS from Kemira. (See Fearn Decl. ¶ 25; Trial Tr. at 234-35 (Fearn).)

45. Fearn was finally able to speak with Vanessa Tsai of Fairyland on or about October 17, 2006. Fearn informed Tsai of the leaking containers and the ongoing containment and cleanup operations at CUT. Based on this conversation, Fearn’s understanding was that Fairyland would take full responsibility for the costs of the cleanup. (See Fearn Decl. ¶ 30.)

46. Following completion of the initial temporary containment, Dorn took over as the lead project manager for Patriot to manage the longer term cleanup and response operations (though Strieter remained involved). (See Dorn Decl. ¶ 17; Strieter Decl. ¶ 38.)

47. Patriot’s first step was to work with CUT and the USCG to locate an appropriate site at CUT for the containment structure. Once a site was located and approved by the USCG, Patriot precleaned it and began construction. Patriot rolled out absorbent rug material on the asphalt and covered the rug with 60 millimeter plastic. Patriot then placed another absorbent rug on top of the plastic as a friction barrier, and placed a multi-layered plywood landing surface on top. Patriot placed more absorbent rug material in specific areas on top of the landing area where the leaking containers were placed, and built up the edges of the containment area to prevent the release of any material. Once the leaking containers were in containment, Patriot removed and disposed of the liners from the bomb carts and cleaned the bomb carts in the wet decontamination area. Patriot also decontaminated and cleaned the area where the containers had been placed in temporary containment. (See Dorn Decl. ¶ 20; Strieter Decl. ¶ 41; PX74 at 19-34.)

48. The containers of ferrous chloride continued to leak while in containment. (See Dorn Decl. ¶ 21; Strieter Decl. ¶ 41; PX74 at 13-14, 36.)

49. Patriot also constructed a wet decontamination area in the 5000 area of the CUT terminal to clean the equipment and contaminated containers. The containers were decontaminated using a sodium bicarbonate and water solution, and cleaned using a cold water pressure washer. The decontamination and cleaning residue was then collected and pumped into 6,500 gallon poly tanks for disposal. (See Dorn Deck ¶ 22; Strieter Deck ¶ 40; PX74 at 1-11,16-18.)

50. Patriot continued to provide regular updates to Fearn at APL. On October 19, 2006, Strieter and Dorn called Fearn and informed her that Patriot had finished decontaminating and cleaning several affected containers and that they would stage these containers on plastic pending USCG review and approval for release back into active service. Patriot also requested that APL approve extending operations to 12-hour days because, after subtracting the time spent on setup, lunch, and shut down, Patriot was only getting five hours of real work each day out of its workers. Fearn approved the request. The Court finds that this request was made and approved in order to increase productivity and efficiency and, ultimately, to lower costs in the long run. (See Strieter Deck ¶ 42; Dorn Deck ¶ 23; Fearn Deck ¶ 31; JX10 at 2; Trial Tr. at 147-48 (Dorn).)

51. Fearn also called Tsai at Fairyland again that day concerning the need for Fairyland to obtain a one-time EPA identification number in order to dispose of the hazardous waste that resulted from the cleanup operations. (See Fearn Deck ¶ 31; JX10 at 2.)

52. On or about October 23, 2006, Fearn received fax copies of the requests for release, and the USCG approval of release, of the victim containers that Patriot had cleaned and decontaminated up to that point. (See Fearn Deck ¶ 32; PX20.)

F. Storage Options in Advance of Delivery to Kemira

53. While the construction of a more permanent containment area at CUT was underway, Patriot, APL, TEC, the USCG, and the DOT engaged in discussions about alternatives for addressing the leaking containers so that the hazardous material could be delivered to the end-user, Kemira. (See Dorn Deck ¶ 24; Fearn Deck ¶33.)

54. There were two options under consideration. The first was to transload the material into “roll-off bins.” In a pilot test of this option, Patriot removed the ferrous chloride material from the container, drained the liquid into poly drums, suspended the packaging over a bulk bin that was double-lined with visqueen plastic, cut the bottom out of the super sacks, and collected the ferrous chloride crystal in the sealable bulk bins. (See Dorn Deck ¶ 25; JX26 at 2; PX74 at 39-50.)

55. This option had its drawbacks. The roll-off bin process was labor and manpower intensive, expensive, and came with potential safety hazards — it required workers to get closer to the hazardous material in its crystal state rather than contained in canvas or plastic packaging. Additionally, the type of poly drums that were required were not available in the volume that was needed (APL and Patriot would have needed to special order these drums from the Midwest or the East Coast). (See Dorn Deck ¶ 26; Fearn Deck ¶ 33; Trial Tr. at 251-52, 256, 260 (Fearn); PX74 at 46, 57.)

56. The second option under discussion was what was referred to as an “over-bagging.” For this option, the leaking packages would be removed from their original container and then “dewatered” by draining the liquid into a poly drum. The original package would then be placed into a large plastic over-bag, and the over-bagged package would be placed on top of a wooden pallet. New containers would then be lined with plastic on the floor and up the walls, and absorbent rug material would be placed on top of the plastic on the floor. The over-bagged package and pallet would then be placed into the newly lined container, single-stacked. Once a container was full, the end of the plastic liner would be rolled up in the container (like a diaper) and the container doors closed. (See Dorn Decl. ¶ 28.)

57. While these options were under consideration, Fearn called Blaine at Kemira to see how many bins of repacked material Kemira would be able to take on a daily basis. Fearn did not hear back from Blaine for some time. (See Fearn Decl. ¶ 33; JX10 at 3.)

58. The only solution that would both contain the product for months on end and allow transport without a DOT exemption was to use roll-off bins with custom liners. To create these custom liners would have first required Patriot to test various plastics; it would have then taken three to four weeks to create the liners themselves. According to Dorn, he did not believe Patriot and APL had this amount of time given the emergency nature of the response and the fact that they believed they needed only a temporary solution to buy enough time to deliver the product to Kemira. (See Dorn Decl. ¶ 27.)

59. On or about November 1, 2006, a meeting was held with Dorn of Patriot, Fearn of APL, Wetzel from TEC, and representatives of the USCG and DOT. After the two options under consideration were discussed at length, it was agreed by all of the parties and agencies present at the meeting that the overbagging method would be used to temporarily contain the leaking and to allow for delivery of the product. (See Dorn Decl. ¶ 29; Fearn Decl. ¶ 34; Trial Tr. at 235-36 (Fearn).)

60. The driving factor in selecting this method appears to have been the possibility of an exemption from the DOT that would allow the over-bagged packages to move over public roads (and thus to be delivered to Kemira). According to both Dorn and Fearn, their understanding from the DOT representatives at the meeting was that such an exemption would be favorably processed if the containers could be secured against leaking and a transportation plan approved by the USCG. (See Dorn Decl. ¶ 29; Fearn Decl. ¶ 34.)

61. There is no dispute that representatives of both the USCG and DOT were present at the November 1, 2006 meeting at which the need for an exemption was discussed. There is also no dispute that all parties at the meeting agreed on the over-bagging process discussed above.

62. At the time of the meeting and while the over-bagging process was underway, the over-bagging method was viewed as a temporary solution, but one which required a DOT exemption in order to move the product over the roads in this form. The prevailing view was that Kemira would take delivery of the ferrous chloride once it was ready and, therefore, that the over-bagged material would not remain on the terminal for more than a month. (See Dorn Decl. ¶ 30; Fearn Decl. ¶ 34; Trial Tr. at 89-90 (Strieter), 158-59 (Dorn).)

63. The over-bagging process was the most time-efficient and cost-effective option, and it was also less likely to impose health and safety concerns on the workers. According to Dorn, in the selection of this method, there was never any expressed desire by APL to cut costs. (See Strieter Decl. ¶ 47; Dorn Decl. ¶ 30; Trial Tr. at 153-54 (Dorn).)

64. Kemira argues that either APL or Patriot should have reached out to Kemira in order to ask for its suggestions as to how to handle the product prior to delivery (i.e., which of the two options to pursue). There is no evidence in the record that they did so. If Kemira had received such a notification, it would have likely been to Jan Pavlicek, Kemira’s North American Director of Health, Safety, Environmental, and Quality. (See Fahey Decl. ¶ 10; Trial Tr. at 350-51 (Fahey), 366 (Pavlicek).)

65. Nevertheless, the Court finds that it was reasonable for APL and Patriot not to specifically seek out Kemira’s views as to how to handle the product at this time— on or about November 1, 2006. As Dorn explained, Kemira handled the product on a day-to-day industrial basis rather than in emergency response situations. There is no reason to believe they would have had relevant information to provide. This conclusion is bolstered by Pavlicek’s testimony. Though the Court found Pavlicek to be an articulate witness at trial, his opinions, regarding what the cost of the cleanup (using lined roll-up bins) should have been, carry little weight. In addition to not being a CERCLA expert, Pavlicek has no first-hand knowledge of either incident and has never been involved in responding to a reported release under the direction of the USCG. (See Pavlicek Decl. ¶¶ 1, 15-17; Trial Tr. at 149 (Dorn), 366 (Pavlicek).)

66. Finally, the Court notes that Fearn was in frequent communication with Kemira between October 13, 2006 and November 1, 2006, but was repeatedly told to contact Fairyland instead. There is no reason to believe that yet another phone call from Fearn to Kemira asking for assistance in this context would have been any more fruitful.

68. After considering the evidence in the record concerning the pros and cons of these two options, and in light of what was known to the parties at the time, the Court finds that the selection of the temporary over-bagging method by APL, its contractors, and the involved regulators to have been eminently reasonable.

68. Following the November 1, 2006 meeting, Fearn directed Patriot to begin the over-bagging process and to prepare a transportation plan so that they could obtain the necessary DOT exemption. It was only after the meeting, and after the decision to over-bag the ferrous chloride at both sites, that issues arose as to getting the USCG and the DOT to reach a consensus on who would actually issue the exemption and take responsibility for movement of the product. (See Fearn Decl. ¶ 34; Dorn Decl. ¶ 29.)

69. On or about November 9, 2006, the USCG issued an amendment to the USCG’s Captain of the Port Order 2006-502. Patriot received a copy from CUT and faxed it to Fearn at APL the next day. According to Strieter and Dorn, it was their belief and understanding that this amendment directed APL (through CUT) to clean and safely remove the 22 contaminated containers using the over-bagging method approved at-the November 1, 2006 meeting. Patriot then began the process of removing the leaking packages from their original containers and executing the over-bagging process at both CUT and GGS. (See Strieter Decl. ¶¶ 48-49; Dorn ¶¶ 31-32; Fearn Decl. ¶ 36; PX33 at 2; PX76 at 18, 57-58, 62, 64, 90, 92, 137-140.)

70. After the process was underway at CUT, CUT informed Patriot that it needed to move operations to a new location because the 5000 area was needed for a shipment of bulk steel. This took Dorn, Strieter, and Fearn by surprise. None of them had been told previously that CUT might need this area for another shipment. Dorn reported the issue to Fearn, and Fearn told him to move the operations as directed by CUT. According to Fearn, the Captain of the Port Orders would not have permitted the removal of the containers from CUT entirely. As a result, Patriot constructed new containment, staging, and wet decontamination areas in a new location at CUT called the “PIT” area and moved the containers there. (See Strieter Decl. ¶ 50; Dorn Decl. ¶ 33; Fearn Decl. ¶ 37; JX26 at 3; Trial Tr. at 87-88 (Strieter).)

71. Patriot completed the over-bagging and decontamination process at CUT in mid-to-late November 2006. At that time, the containment and decontamination areas were dismantled, and the containers of over-bagged, ferrous chloride were relocated for storage pending release and delivery. The over-bagging process resulted in thirty-nine (39) containers of material; more containers were necessary because the bags were now single-stacked instead of double-stacked. (See Strieter Decl. ¶ 51; Dorn Decl. ¶ 34; Fearn Decl. ¶ 38; JX26 at 3.)

72. According to Fearn, she believed that these repacked containers would be released and delivered to Kemira immediately (and certainly within a few weeks). Additionally, Fearn had been in regular contact with Fairyland concerning the spill, and Tsai had never told her that Fairyland would not pay APL’s cleanup and response costs or that Fairyland was abandoning the shipments. Fearn also believed that she could not release the shipments until she received approval from the USCG to do so and APL had been paid “at least a good part of’ the costs and expenses Fairyland had committed to paying. (See Fearn Decl. ¶ 38; PX19; PX24; PX27.)

73. The Court finds that there was only one over-bagging performed by Patriot at CUT related to the Hyundai Independence. Kemira argues that there were two, however, the Court finds that the evidence on which Kemira relies for this assertion was easily (and credibly) explained at trial.

74. Though Strieter mistakenly testified at one point during his deposition that he thought the over-bagging process was done twice, he clarified this testimony later in his deposition and then again at trial. The confusion arose over the fact that he was shown pictures of the original containers when they were first opened; Strieter recalls that some of the packages in the containers aboard both the Hyundai Independence and APL Singapore had a second set of bags already placed over them. Dorn also testified that there was only one over-bagging and that, when Patriot opened the original containers, they found that many of the sacks had already been over-bagged. Similarly, Fearn confirmed that some of the sacks were already over-bagged in two of the containers she observed that were discharged from the Hyundai Independence. (See Strieter Decl. ¶ 52; Trial Tr. at 56-58, 63-66, 96 (Strieter), 124-28, 134 (Dorn), 229-30 (Fearn); Dorn Decl. ¶ 35; PX76 at 13, 21, 23, 30, 42-43.)

G. Shipment # 2 — The APL Singapore

75. While the decontamination and over-bagging process was underway at CUT, Fearn learned that a second shipment of ferrous chloride crystal from Fairyland to Kemira had already shipped aboard the APL Singapore on October 17, 2006 and was scheduled to arrive at APL’s GGS terminal on October 28, 2006. (See SF ¶ 15; Fearn Decl. ¶ 42; JX15; JX16 at 1; PX23.)

76. Fearn first learned of the second shipment on or about October 26, 2006, in an email from John Huang, APL’s account representative in Asia responsible for Fairyland. The email indicated that a second shipment of ferrous chloride from Fairyland was scheduled to arrive on October 28, 2006. (See Fearn Decl. ¶42; PX23.)

77. By the time Fearn learned of this second shipment on board the APL Singapore, the vessel had been at sea for several days and was about to arrive at GGS. Fearn had Shannon Mizell, an APL employee working under Fearn in the HAZ-MAT Department, pull the container numbers and stow locations of the containers with ferrous chloride onboard the APL Singapore. Fearn then forwarded that information to the Captain of the APL Singapore and asked him to check for leakage. A few hours later, the Chief Mate of the APL Singapore called Fearn (and followed up with a confirming email), reporting that leaking ferrous chloride could be seen in Bay 27, but that the configuration of the loaded containers aboard the vessel prevented farther investigation. (See Fearn Decl. ¶¶ 42-43; JX16; JX10at3.)

78. Upon learning of the second leaking shipment, Fearn immediately notified the USCG. (See Fearn Decl. ¶ 44; JX10 at 3.)

79. After notifying the USCG, Fearn emailed Huang and informed him that Fairyland was embargoed, that APL was not to accept or load any further shipments from Fairyland, and that she was cancel-ling a third shipment from Fairyland that she had located in APL’s computer system. Fearn also notified Tsai, GGS, and TEC of the leak aboard the APL Singapore. (See Fearn Decl. ¶ 45; PX24; Trial Tr. at 223 (Fearn).)

H. The Failure to Stop the Shipment

80. Prior to learning of the second shipment of ferrous chloride aboard the APL Singapore, Fearn’s focus had been on the Hyundai Independence incident at CUT and the pressures related to cleaning it up quickly. She was working around the clock. In her nineteen years of experience responding to incidents involving hazardous materials — -hundreds if not thousands of incidents in total — there had never been a second shipment with defective packaging sent by the same shipper within such close time proximity. As a result, it was not Fearn’s regular practice or procedure to check the APL computer system to see if another shipment from the same shipper with the same cargo was coming in the immediate future. (See Fearn Decl. ¶ 42; Trial Tr. at 224-26 (Fearn).)

81. Further, and importantly, despite Fearn’s communications with representatives of both Fairyland and Kemira following the discovery of leaking ferrous chloride aboard the Hyundai Independence, there is no evidence in the record that anyone mentioned this second shipment to her (in fact, the evidence clearly indicates that they did not). (See Fearn Decl. ¶ 42; JX10 at 1-3.)

82. Kemira was certainly aware of the second shipment. On October 14, 2006, Fahey advised Tsai that the shipment of ferrous chloride on the Hyundai Independence was leaking in violation of the Product Specifications in the Purchase Agreement (which prohibited leakage), and instructed Tsai not to ship any more until this “non-conformance issue” was resolved. (See Fahey Decl. ¶ 8; DX2.)

83. The clear implication of this email is that Fahey was aware of the possibility of additional shipments, and Fahey admitted as much at trial. Fahey testified that he was aware that the initial order called for two shipments “during the month” and that, as reflected in multiple emails over the month preceding the first shipment in October 2006, Fahey was actively involved in discussions concerning multiple shipments of ferrous chloride from Fairyland. (See Trial Tr. at 331-38 (Fahey); PX12; PX13.)

84. Despite having knowledge of both problems with the first shipment and the upcoming second shipment, there is no evidence that Fahey, Blaine, or anyone else at Kemira reached out to Fearn at APL to tell her about the second shipment. They could have picked up the phone or sent an email. They did not. They could have mentioned this information during phone calls with Fearn on October 13 and 16, 2006. They did not.

85. Similarly, despite having knowledge of both problems with the first shipment and the upcoming second shipment, there is no evidence that anyone at Fairyland (Tsai) notified Fearn of the second shipment. Tsai could have mentioned this fact during her conversations with Fearn on either October 17 or 19, 2006. She did not.

86. The Court is not persuaded by the declaration and testimony of Robert J. Ten Eyck, a witness Kemira offered to show that the bulk bags used to transport the ferrous chloride aboard the Hyundai Independence should have themselves put APL on notice to check for other shipments and open those containers. Ten Eyck admitted on cross-examination that he lacks the requisite experience to draw such conclusions — he has never worked at a shipping terminal or for a steamship line, he has no personal knowledge of when steamship lines will open containers, and he has no personal experience as to how steamship lines use Dangerous Goods Declarations. (See Trial Tr. at 377-78 (Ten Eyck).)

87. In contrast, William Sheridan, Director of Network Operations in the Western Region for APL, testified at his deposition that APL will typically only open containers if they are prompted by a regulatory agency or were otherwise on notice of an issue — circumstances that were not present here prior to the departure of the APL Singapore. (See Sheridan Dep. at 33-35.)

88. The Court is also not persuaded that either the existence or content of the Dangerous Goods Declaration for the APL Singapore (the “APL Singapore Declaration”) should have led Fearn to take steps to halt the departure of the APL Singapore.

89. The APL Singapore Declaration contained substantially the same information as the Hyundai Declaration. It states the dangerous substance being shipped (“Corrosive Solids NOS (Ferrous Chloride crystal)”), the UN identification number (“1759”), the Class (“8”), the Packing Group (“2”), and the specific type of packaging used for the identified substance (“UN13H3 (in 290 PLTS) (530 BAG)”). This meant that the APL Singapore was carrying 29 containers of ferrous chloride crystal shipped in 530 separate bags. (See Fearn Decl. ¶ 44; Strieter Decl. ¶ 54; JX8 at 1; SF ¶¶ 16,18.)

90. As with the Hyundai Declaration, the APL Singapore Declaration contained certain certifications by Fairyland as to the packaging of the ferrous chloride. Fairyland certified that the ferrous chloride had been packed and loaded into the containers in accordance with the IMDG Code. Fairyland also declared “that the contents of this consignment are fully and accurately described below by the proper shipping name, and are classified, packaged, marked and labeled/placarded and are in all respects in proper condition for transport according to the applicable international and national government regulations.” (See JX8 at 1; SF ¶ 19.)

91. The Court finds that the APL Singapore Declaration contains all of the required information and does not contain any obvious inaccuracies. According to Fearn, there is nothing in the APL Singapore Declaration that would have caused APL to refuse the shipment or open the containers for further inspection. Fearn believes the APL Singapore Declaration was properly approved by her department, and the Court agrees. (See Fearn Decl. ¶ 44; Bohlman Decl. ¶ 6; Ten Eyck Decl. ¶¶ 11-13.)

92. According to Fearn, given its October 13, 2006 date and the time difference with Taiwan, the APL Singapore Declaration would have been received and approved by APL in California on or about October 12, 2006. Fearn became aware that the ferrous chloride aboard the Hyundai Independence was leaking by the afternoon of October 13, 2006. If Fearn . had checked the APL computer system for another shipment by the same shipper at that time, she would have discovered the APL Singapore Declaration reflecting the second shipment aboard the APL Singapore. Further, if Fearn had discovered the APL Singapore Declaration prior to October 17, 2006 (the date on which the APL Singapore departed Taiwan), she theoretically could have taken steps to stop the shipment from leaving Taiwan. Though October 14 and 15, 2006 were both weekend days, Fearn was working over that weekend (on the response to the Hyundai Independence incident) and theoretically could have accessed the APL computer system. (See Fearn Decl. ¶ 44; Trial Tr. at 218-21 (Fearn); JX15.)

93. Nevertheless, the Court finds that APL’s failure to check for a second shipment of ferrous chloride from Fairyland to Kemira, after learning of the leak aboard the Hyundai Independence on October 13, 2006 but prior to the departure of the APL Singapore from Taiwan on October 17, 2006, was reasonable. The Court thus finds that (1) APL’s failure to stop the second shipment of ferrous chloride aboard the APL Singapore was reasonable; and (2) it was foreseeable by Kemira that APL would fail to do so. In making these findings, the Court credits the unusual nature of these shipments, Fearn’s prior practice in checking APL’s computer systems, and the lack of any notification of the second shipment by either Kemira or Fairyland (despite having multiple opportunities to do so).

1. Cleanup at GGS

93. Fearn arranged for TEC to meet the APL Singapore upon its arrival at GGS on October 28, 2006. APL also asked Patriot to assist, though TEC was the lead contractor handling the initial discharge and temporary containment of the containers and for the cleaning of the vessel. (See Fearn Decl. ¶¶ 45-46, 49; Soto Dep. at 9-14; Wetzel Dep. at 38-39; Strieter Decl. ¶ 54; Dorn Decl. ¶ 37; JX17 at 1.)

95. TEC assessed the APL Singapore and found a brown liquid covering the flooring in the ships hold at Hatch 27. During discharge of the containers from Hatch 27, it appeared that the ship’s hold at Hatch 25 had also been affected by the leaking containers. (See Soto Dep. 15-18; JX17 at 1.)

96. TEC discussed and prepared a work plan for discharge of the containers from the APL Singapore and for cleaning the vessel -with USCG. Though the version of the work plan in the record is not signed, the record indicates that the understanding of both Fearn and TEC was that the USCG approved the plan. (See Fearn Decl. ¶ 46; Soto Dep. at 9-14; Wetzel Dep. 26, 43-45; JX17 at 1; JX18 at 1-2. )

97. To execute that plan, TEC draped plastic sheeting over the vessel’s hatch, along the side of the vessel, on the pier and over the bomb carts used to transport the containers at the terminal. Both the containers leaking ferrous chloride and those affected by the leakage (victim containers) were discharged from the APL Singapore. These containers — 64 victim containers and 18 of the 29 containers containing the leaking ferrous chloride— were placed on plastic sheeting at GGS, awaiting further processing. TEC then decontaminated the affected areas of the APL Singapore and pumped the contents of the ship’s bilges into totes. The USCG and the local fire department remained on-scene throughout this process. (See Wetzel Dep. at 36-39, 43-45, 64-65; Soto Dep. at 9-14; Strieter Decl. ¶ 56; Fearn Deck ¶¶ 46-47; JX17 at 1-2; JX18 at 1-2; JX26 at 3.)

98. According to Strieter, based on his discussions with TEC, he believes TEC used the same general process for its initial response operations as Patriot used for the leaking containers from the Hyundai Independence. TEC did, however, use different, thinner plastic sheeting (and which, after a period of time, developed holes in it). As Dorn explained, this was a temporary containment situation in an emergency response; TEC did the best they could with the information and materials available to them. (See Strieter Deck ¶¶ 55-56; Trial Tr. at 168-70 (Dorn).) The Court agrees with this explanation.

99. The USCG issued Captain of the Port Order 2006-531 to Eagle Marine Services on October 29, 2006 in connection with the leaking ferrous chloride aboard the APL Singapore. The Order directed Eagle Marine to move all contaminated containers to a safe and secure location at least 75 feet from the water, and to submit a detailed plan for repairing, cleaning, and transporting each affected container on the APL Singapore and at the port. The Order required USCG approval for transport of any affected containers. Finally, the Order set forth the monetary penalties for violations of the Order under the Ports and Waterways Safety Act, 33 U.S.C. § 1221 et seq. (See Dorn Deck ¶ 38, Strieter Deck ¶ 57; Fearn Deck ¶ 48; PX26.)

100. Captain of the Port Order 2006-531 was substantially similar to Captain of the Port Order 2006-502, which was issued by the USCG in connection with the ferrous chloride leak aboard the Hyundai Independence. (Compare JX9 with PX26.)

101. APL notified Kemira of the leaking ferrous chloride aboard the APL Singapore on or about November 1, 2006. Fa-hey, however, had already received notice that the shipment was leaking four days earlier, on October 27, 2006, in an email from Tsai. In response to the notification from APL, Fahey asks Blaine to tell APL to notify Fairyland (which Blaine confirms that he did). (See JX19; PX25; PX31; Trial Tr. at 346-49 (Fahey); Blaine Dep. at 106-107.)

102. After the containers from the APL Singapore had been placed in temporary containment by TEC, Fearn had Patriot construct durable containment, staging, and “wet” decontamination areas at GGS similar to those it had constructed at CUT. Patriot then placed the leaking containers into these areas and began cleaning the victim containers. (See Fearn Deck ¶ 49; Strieter Deck ¶ 58; JX26 at 3; PX72 at 17-19.)

103. After the victim containers were cleaned, inspected, and released back into service by the USCG, Patriot began repacking the leaking containers at GGS using the same over-bagging method that was being use at CUT. The ferrous chloride was repacked into 44 new containers. The increase in the number of containers was, again, a function of the fact that the bags were now single-stacked rather than double-stacked. Patriot then stacked the containers two high for storage pending delivery to Kemira. The containment and wet wash areas were dismantled and cleaned to the satisfaction of GGS and the USCG, and the residue was collected and pumped into 6,500 poly tanks for disposal. (-See Dorn ¶¶ 39-40; Fearn Decl. ¶¶ 51-52; Trial Tr. at 167-68 (Dorn); JX26 at 3-4; PX77 at 25.)

104. In a letter to Fairyland dated November 3, 2006, Kemira rejected both shipments of ferrous chloride crystal as “materially nonconforming deliveries which substantially impair the value of the goods.” In the letter, Kemira Vice President & General Counsel Evin L. Netzer states that Fairyland alerted Fahey that the two ferrous chloride shipments “were improperly packaged and because of the improper packaging both shipments have leaked.” The letter states that APL intends to seek from Fairyland “at least $250,000 in clean-up related costs with respect to one shipment alone.” The letter also states that Fairyland has indicated that it will not be able to pay these costs, and that APL “may look to Kemira for payment” if Kemira accepts the ferrous chlo