Friends of Riverside Airport, LLC v. Department of the Army, et al.

Memorandum of Points and Authorities in Support of Motion for Partial Summary Judgment

C.D. Cal.November 19, 2020

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 JON K. WACTOR (State Bar No. 141566) jonwactor@ww-envlaw.com WILLIAM D. WICK (State Bar No. 063462) bwick@ww-envlaw.com PETER TON (State Bar No. 232226) pton@ww-envlaw.com CAITLIN B. WILEY-WALKER (State Bar No. 327763) cwwalker@ww-envlaw.com WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland CA 94610 Telephone: (510) 465-5750 Attorneys for Plaintiff FRIENDS OF RIVERSIDE AIRPORT, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT COURT OF CALIFORNIA FRIENDS OF RIVERSIDE AIRPORT LLC, a limited liability corporation, Plaintiff, v. DEPARTMENT OF THE ARMY; ROHR, INC., a California Corporation; ANZA REALTY COMPANY, a California Corporation; ARLINGTON UTILITY COMPANY; LEAR SIEGLER, INC.; and DOES 1 through 100, inclusive, Defendants. Case No. 5:19-cv-01103-MWF-KK PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS FIRST CROSSCLAIM (CERCLA) AND THIRD CROSSCLAIM (HSAA) AGAINST CITY OF RIVERSIDE Date: December 21, 2020 Time: 10:00 am Courtroom: 5A CITY OF RIVERSIDE, Crossclaimant, v. FRIENDS OF RIVERSIDE AIRPORT, LLC, Crossdefendant. Judge: Hon. Michael W. Fitzgerald Trial Date: September 21, 2021 AND RELATED CROSSCLAIMS Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 1 of 21 Page ID #:2572 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -i- POINTS & AUTHORITIES ISO THE CITY’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE HEIMS -- Case No. 5:10-CV-03816 -- WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 TABLE OF CONTENTS I. INTRODUCTION ................................................................................................. 1 II. PROCEDURAL HISTORY.………………………………………………………….2 III. STATEMENT OF FACTS ................................................................................. 3 IV. LEGAL STANDARD .......................................................................................... 5 V. ARGUMENT……………………………………………………………………6 A. The City of Riverside is Liable Under CERCLA §107 ............................. 6 1. The Ag Park is a “facility”. ..................................................................... 7 2. The City was the “owner and operator” of the Ag Park from 1962 to 2006 ................................................................................... 9 3. A “release” or “threatened release” of hazardous substances occurred while City owned and operated the Ag Park .................................................................................................. 10 4. FRA has incurred recoverable “response costs” responding to the releases ........................................................................................ 12 5. The City is liable for the pollution at the Ag Park, and FRA is entitled to recover its cleanup costs from the City…………………15 B. The City of Riverside is Liable Under the HSAA ................................... 15 VI. CONCLUSION ................................................................................................. 16 Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 2 of 21 Page ID #:2573 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ii- POINTS & AUTHORITIES ISO THE CITY’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE HEIMS -- Case No. 5:10-CV-03816 -- WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 TABLE OF AUTHORITIES Federal Cases Amoco Oil Co. v. Borden Inc., 889 F.2d 664 (5th Cir. 1989) ………………. 10, 14 Anderson v. Liberty Lobby, Inc. 477 U.S. 242 (1986) …….……………………….6 California v. Montrose Chem. Corp., 104 F.3d 1507 (9th Cir. 1997) ……………15 Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001) ……………………………………. 1, 6, 12, 13 Castaic Lake Water Agency v. Whittaker Corp., 272 F. Supp. 2d 1053 (C.D. Cal. 2003) …………………………..…1, 13, 16 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ………………………….…..5, 5 fn2 City of Colton v. Am. Promotional Events, Inc.-West, 614 F.3d 998 (9th Cir. 2010)………..……………………………… 7, 12, 13 Dedham Water Co. v.Cumberland Farms Daisy, Inc., 889 F.2d 1146 (1st Cir. 1989)…………………………..………………… 14 Lincoln Props. v. Higgins, 1993 U.S. Dist. LEXIS 1251, at *65 (E.D. Cal. 1993) ….……………….. 10 Long Beach Unified Sch. Dist. v. Dorothy B. Godwin Living Tr., 32 F.3d 1364 (9th Cir. 1994) ……..……………………………………. 1, 11 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986)…....6 Mission Linen Supply v. City of Visalia, Case No. 1:15-CV-0672 AWI EPG at p. 16 (E.D. Cal. Feb. 5, 2019) …… 14 NL Indus., Inc. v. Kaplan, 792 F.2d 896 (9th Cir. 1986) …………………………12 NutraSweet Co. v. X-L Engineering Co., 227 F.3d 776 (7th Cir. 2000) ………13-14 Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir.1997) …... 1 Stevens Creek Assocs. V. Barclays Bank, 915 F.2d 1355 (9th Cir. 1990).………6, 8 Stewman v. Mid-South Wood Products of Mena, Inc., 993 F.2d 646 (8th Cir. 1993) …………………….…………………………10 United Alloys, Inc. v. Baker, 797 F. Supp. 2d 974 (C.D. Cal. 2011) …….………..15 United States v. Bestfoods,524 U.S. 51 (1998) …………………………………….7 United States v Conservation Chemical Co., 619 F. Supp.162 (W.D. Mo. 1985) ………………………………………… 8 United States v. Honeywell Intl, 542 F. Supp.2d 1188 (E.D. Cal. 2008)………8, 10 Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 3 of 21 Page ID #:2574 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iii- POINTS & AUTHORITIES ISO THE CITY’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE HEIMS -- Case No. 5:10-CV-03816 -- WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 United States v. Mottolo, 695 F. Supp. 615 (D.N.H. 1988) ………...…………8, 14 United States v. Northeastern Pharm. & Chem. Co., Inc., 810 F.2d 726 (8th Cir. 1986) ……………………………………...……….. 8 United States v. Shell Oil Co., 841 F. Supp. 962 (C.D. Cal. 1993) ……………..……………………….8, 14 United States v. Stringfellow, 661 F. Supp. 1053 (C.D. Cal. 1987) ………….…..14 Walnut Creek Manor, LLC v. Mayhew Center LLC, 622 F. Supp. 2d 918 (N.D. Cal. 2009) …………….………….……………12 Wells Fargo Bank, v. Renz, 795 F.Supp.2d 898 (N.D. Cal. 2011) ..……………..15 Westfarm Associates Limited Partnership v. Washington Suburban Sanitary Comm., 66 F.3d 669 (4th Cir. 1995) …………………………………………7 State Cases BKHN, Inc. v. Department of Health Servs., 3 Cal. App. 4th 301, 305(1992) ……………………………………………16 Orange County Water Dist. v. Alcoa Global Fasteners, Inc., 12 Cal.App.5th 252 at 328–29 (2017) ……………………………………..12 Federal Statutes and Regulations 42 U.S.C. § 9601 ………………….……………………………….……… 4 fn1, 7-11, 13 42 U.S.C. § 9605 ………………....……………………………………………… 12 42 U.S.C. § 9607 ………………...…………………………………. 1, 6, 10, 15, 16 40 CFR § 300, et. seq…………………………………….………………………. 12 40 C.F.R. § 300.700 ………………………………………………..……..12, 13, 14 State Statutes Cal. Health & Safety Code § 25300 et. seq…………….………………………… 15 Cal. Health & Safety Code § 25323.5 ………..……………………….…………. 16 Cal. Health & Safety Code § 25363 …………………………………….…..1, 15-16 Rules Fed. R. Civ. P. 56 ……………………………………………………………5, 6, 14 Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 4 of 21 Page ID #:2575 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Friends of Riverside Airport LLC (“FRA”) is seeking partial summary judgment against Third Party Defendant and Cross Defendant City of Riverside (“City”) on its (1) First Crossclaim for recovery of response costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) § 107, 42 U.S.C. § 9607; and (2) Third Crossclaim for recovery of response costs pursuant to the California Carpenter-Presley-Tanner Hazardous Substance Account Act (“HSAA”), Cal. Health & Safety Code § 25363. CERCLA’s two central purposes are “to ensure the prompt and effective cleanup of waste disposal sites, and to assure that parties responsible for hazardous substances [bear] the cost of remedying the conditions they created.” Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1300 (9th Cir.1997); Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 880 (9th Cir. 2001) (en banc). Covered parties include owners or operators of a property “at the time of disposal of any hazardous substance.” 42 U.S.C. § 9607(a)(2). CERCLA liability is strict liability, "a black hole that indiscriminately devours all who come near it." Long Beach Unified Sch. Dist. v. Dorothy B. Godwin Living Tr., 32 F.3d 1364, 1366 (9th Cir. 1994). The HSAA is the parallel state law enacted for the same purpose and adopts the same standard of liability as CERCLA. Castaic Lake Water Agency v. Whittaker Corp., 272 F. Supp. 2d 1053, 1084 (C.D. Cal. 2003) (HSAA “creates a scheme that is identical to CERCLA with respect to who is liable”); Cal. Health & Safety Code § 25363(c) (“The standard of liability for costs recoverable pursuant to this chapter is strict liability.”) In order for liability under CERCLA and HSAA to attach, the City of Riverside must have been an “owner” or “operator” of the Agricultural Park Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 5 of 21 Page ID #:2576 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 property (“the Property” or “the Ag Park”) at the time of disposal of any hazardous substance at the Property. From 1962 to 2006, the City was the “owner” of the Ag Park, and during the same period the City was the “operator” of the sewage treatment plant (“STP”) located at the Ag Park. The Ag Park STP accepted industrial wastewaters containing hazardous substances, such as now-banned polychlorinated biphenyl chemicals (“PCBs”), from Rohr, Inc. (“Rohr”), the major user of the STP at that time. One of the City’s practices was to spread the sludge effluent from the STP onto the ground as a method of disposal. Thus, the City was both an owner and operator of the Property at the time of disposal of a hazardous substance, and liable under CERCLA. FRA cleaned up the Ag Park’s contamination under the oversight of the California Department of Toxic Substances Control in accordance with CERCLA’s National Contingency Plan (“NCP”) requirements. Based on the uncontestable material facts contained in this motion, most of which are admitted, there is no genuine dispute that the City is liable under CERCLA and the HSAA as a former owner and operator of the Property at the time of the disposal of hazardous substances there. Accordingly, FRA is entitled to partial summary judgment against the City on its First Crossclaim (CERCLA) and Third Crossclaim (HSAA). II. PROCEDURAL HISTORY FRA filed this case on June 14, 2019 to recover from Defendants costs it incurred in cleaning up the contamination at the Ag Park. Dkt. 1. The City was joined in the action by way of Third-Party Complaint brought by Defendant United States Army. Dkt. 63. City and Plaintiff then brought crossclaims against one Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 6 of 21 Page ID #:2577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 another. Dkt. 70, 95. Plaintiff’s Second Amended Cross-Complaint is its operative cross-complaint against the City. Dkt. 129. The case is set for trial on September 21, 2021. III. STATEMENT OF RELEVANT FACTS This matter involves the environmental contamination at the Ag Park property located at 7020 Crest Avenue in Riverside, CA. (FRA’s Separate Statement of Undisputed Material Facts (“UMF”) 1). From 1962 to 2006, the City owned and operated the 64-acre Agricultural Park property. UMF 2. The Ag Park is a “facility” as defined by CERCLA. UMF 3. From 1962 to 1965, the City operated the Ag Park STP which accepted both sanitary and industrial process wastewaters from industrial users which discharged hazardous substances to the STP. UMF 4. The STP included pits, ponds, lagoons, and digester tanks used for sewage treatment. UMF 5. As a matter of practice, the City applied the waste sludge effluent from the STP to the land at the Ag Park. UMF 6. Rohr was one of the most significant users that piped its wastes to the Ag Park. UMF 7. Rohr further used PCBs it purchased from the Monsanto corporation in its aircraft parts manufacturing business. UMF 8. After the STP ceased operations in 1965, the City continued to use the Ag Park for other purposes including for direct dumping of wastes until 2003. UMF 9. In 2003, when demolishing the City’s STP at the City’s cost pursuant to the May 23, 2003 land swap contract (“Exchange, Disposition and Development Agreement” or “EDDA”), FRA’s contractor encountered undisclosed PCB sludge waste in an abandoned digester the City had used for its STP operations. UMF 10. Sludge was released to the soil from the City’s digester when the City owned the Ag Park. UMF 11. Subsequent testing by the City in 2003-2004 showed PCBs and Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 7 of 21 Page ID #:2578 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 other contaminants distributed throughout the Site unrelated to the sludge release from the digester. UMFs 12 & 13. In 2006, FRA acquired title to the Site from the City in the land exchange. UMF 14. In 2006, FRA also entered into a written agreement with the California Department of Toxic Substances Control (“DTSC”) under the California Land Reuse and Revitalization Act (“CLRRA”). UMF 15. In the CLRRA Agreement, the DTSC declared that FRA was a “bona fide purchaser” and was thus entitled to qualified immunities under the CLRRA statute. UMF 16. FRA excavated and removed PCB-impacted soils from the Ag Park. UMF 17. DTSC oversaw all phases of the cleanup. UMF 18. DTSC also partnered with FRA to conduct public outreach to keep the community informed of the cleanup activities. UMF 19. DTSC issued a No Further Action determination (“NFA”) in 2014, concluding that FRA used “all appropriate care” under CLRRA to conduct the cleanup. UMF 20. After additional historical contamination was discovered, FRA performed additional cleanup which culminated in DTSC’s issuance of a second NFA in July 2018 and in ratification by the U.S. Environmental Protection Agency (“EPA”) that the cleanup met the standards for residential use. UMF 21. FRA incurred significant response costs to clean up the Property, which included conducting site security, site investigations, a feasibility study of cleanup alternatives and costs, soil and groundwater sampling, air monitoring, excavations, soil loading, hauling, transporting, disposal and grading, public participation activities, site restoration, obtaining permits, preparation and submission of plans and reports, payment of government oversight costs, obtaining and paying for financing of the cleanup activities, and other cleanup activities performed under DTSC oversight.1 UMF 22. Documentation of a portion of DTSC’s oversight costs is provided in this motion as 1 42 U.S.C. § 9601(23), (24), (25) (response costs include the costs of investigations, clean-up, sampling, overseeing investigations, security fencing and other restrictive measures, and enforcement activities). Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 8 of 21 Page ID #:2579 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 an example of recoverable cleanup costs incurred by FRA. UMF 23. However, in total, FRA has incurred more than $41 million in CERCLA response costs to perform the cleanup. IV. LEGAL STANDARD Partial summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when viewing the evidence most favorably to the non-moving party, the movant is entitled to prevail as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Rule 56 of the Federal Rules of Civil Procedure provides in pertinent part: A party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim. […] An interlocutory summary judgment may be rendered on liability alone, even if there is a genuine issue on the amount of damages. Fed. R. Civ. P. 56(a) & (d)(2)(emphasis added). Thus, the determination of the actual amount of FRA’s response costs or damages, or of the City’s fair share allocation, is not necessary for the Court to enter a judgment on the City’s liability, as requested here. Fed. R. Civ. P. 56(d)(2).2 The moving party bears the initial burden of demonstrating the absence of a genuine material fact. Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party to “designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting FRCP 56(e)). To carry this burden, the non-moving 2 See also Celotex, 477 U.S. at 327 (1986) (“Summary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’”). Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 9 of 21 Page ID #:2580 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A party opposing summary judgment may not rest upon mere allegations or denials of the adverse party’s pleading, but “must come forward with specific facts showing that there is a genuine issue for trial.” Id. at 587 (quoting FRCP 56(e)). To survive summary judgment, the opposing party must demonstrate that “the evidence presents sufficient disagreement to require submission to a jury…” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986). Here, the undisputed facts support judgment against the City as a party liable under CERCLA and HSAA for the contamination at the Ag Park. Accordingly, the Court should grant summary judgment in favor of FRA. V. ARGUMENT A. The City of Riverside is liable under CERCLA § 107. To prevail on a claim under CERCLA § 107(a), a plaintiff must prove: (1) that the defendant falls within one of the four categories of potentially responsible party (“PRP”)3; (2) that the site is a facility; (3) that a release or threatened release of hazardous substances has occurred; and (4) that the release caused the plaintiff to incur response costs [that are necessary and consistent with the National Contingency Plan “NCP”]. 42 U.S.C. § 9607(a); see also Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1358 (9th Cir. 1990); Carson Harbor, 270 F.3d at 870-71; City of Colton v. Am. Promotional Events, Inc.-West, 614 F.3d 998, 1002– 03 (9th Cir. 2010). There is no genuine dispute of material fact that: 3 The four classes of “potentially responsible parties” or “PRPs” include “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” 42 U.S.C. § 9607(a)(2). Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 10 of 21 Page ID #:2581 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 (1) The Ag Park is a “facility.” (2) The City is a PRP as a former “owner” and “operator” of the Ag Park. (3) A “disposal” of “hazardous substances” occurred at the Ag Park during the City’s ownership and operation. (4) The release caused Plaintiff to incur necessary “response costs” in a manner consistent with the NCP. The evidentiary showing required to prevail on summary judgment regarding these four elements is set forth below. 1. The Ag Park is a “facility.” The City has admitted that the Ag Park is a “facility” as defined by CERCLA. UMF 3. Thus, this element of CERCLA liability is undisputed.4 Notwithstanding the City’s admission, the undisputed facts establish that the Ag Park is a “facility.” The term “facility” is broadly construed. United States v. Bestfoods, 524 U.S. 51, 56 (1998) (the term "facility" “enjoys a broad and detailed definition.”) First, the STP at the Ag Park is the archetypical CERCLA “facility.” Westfarm Associates Limited Partnership v. Washington Suburban Sanitary Comm., 66 F.3d 669, 678-80 (4th Cir. 1995) (a publicly owned treatment works is a “facility” under CERCLA). Specific components of the STP included pits, ponds, lagoons, and containers (such as tanks and digesters) used for sewage treatment. UMF 5. Each of these components specifically fit within the express definition of a “facility” pursuant to Section 101(9), 42 U.S.C. §9601(9)(A): [A]ny building, structure, installation, equipment ...well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, ... or any site or area where a 4 A “facility” is defined in CERCLA as "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located …." 42 U.S.C. § 9601(9)(B). . Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 11 of 21 Page ID #:2582 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located. 42 U.S.C. § 9601(9)(emphasis added) Second, the mere presence of hazardous substances at the Ag Park qualifies it as a facility: "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located …." 42 U.S.C. § 9601(9)(B). A “facility” broadly includes every conceivable place where hazardous substances come to be located. Stevens Creek, 915 F.2d at 1360; see also United States v. Honeywell Intl, 542 F. Supp.2d 1188, 1198 (E.D. Cal. 2008) (development was a facility because "there is ample evidence in the record showing the existence of high levels of arsenic throughout the property ...."); United States v Conservation Chemical Co., 619 F. Supp.162, 184-85 (W.D. Mo. 1985) (defining "facility" as "every place where hazardous substances come to be located."); United States v. Shell Oil Co., 841 F. Supp. 962, 969 (C.D. Cal. 1993)("An area or site is a facility within the meaning of CERCLA if a hazardous substance is placed there or has otherwise come to be located there."); United States v. Northeastern Pharm. & Chem. Co., Inc., 810 F.2d 726, 743 (8th Cir. 1986) ("The term 'facility' should be construed very broadly to include 'virtually any place at which hazardous wastes have been dumped, or otherwise disposed of.'"); United States v. Mottolo, 695 F. Supp. 615, 622 (D.N.H. 1988)("As defined by CERCLA, a 'facility' is essentially any site where a hazardous substance is located."). The City admits that it intentionally deposited its sewage treatment wastes on the Ag Park. UMF 6. Third, the Ag Park was also used as a dump facility for other wastes. UMF 9. Each of these uses qualify the Ag Park as a CERCLA “facility.” Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 12 of 21 Page ID #:2583 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 2. The City was the “owner” and “operator” of the Ag Park from 1962 to 2006. The City admitted that it was an “owner” and “operator” of the Ag Park. UMF 2. Thus, this element of CERCLA liability is undisputed. CERCLA section 101(20)(A), 42 U.S.C. § 9601(20)(A), defines an “owner or operator” as “any person owning or operati[ng] [...] a facility.” 42 U.S.C. § 9601 (21) defines “person” to include a “municipality.”5 Although a defendant need only be either an “owner” or “operator” for CERCLA liability to attach, the City admits that it was both an owner and operator. First, the City admits it was an “owner” of the Ag Park from 1962 to 2006. UMF 2. The City acquired the Ag Park by grant deed in 1962. UMF 2. It owned the Ag Park until its transfer to Plaintiff in 2006. UMF 14. Second, the City admitted it was an “operator” of Ag Park from 1962 to 2006. A CERCLA “operator” is “someone who . . . manage[s], direct[s], or conduct[s] operations . . . having to do with the leakage or disposal of hazardous waste.” United States v. Best Foods, 524 U.S. at 66-67 (1998). From 1962 to 1965, the City used the STP to accept, treat and dispose of wastes from industrial and residential users in its service area. UMF 15. After the STP ceased operations in 1965, the City continued to use the Ag Park for direct dumping of wastes until around 2003.6 UMF 9. These two admitted uses prove that the City was an operator of the Ag Park facility. 5 The term “person” means “an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body.” 42 U.S.C. 9601(21) (emphasis added). Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 13 of 21 Page ID #:2584 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 3. A “Release” or “Threatened Release” of Hazardous Substances occurred while City owned and operated the Ag Park. The third element of CERCLA liability is that a “release” or “threatened release” of hazardous substances occurred during the City’s ownership or operation. 42 U.S.C. § 9607(a)(2). In this case, releases of hazardous substances occurred at the Ag Park during the City’s operation and ownership. UMF 6, 11-13. CERCLA defines "release" broadly to include: [A]ny 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) Only a single release of hazardous substances is necessary to meet this element. Stewman v. Mid-South Wood Products of Mena, Inc., 993 F.2d 646, 649 (8th Cir. 1993) ("[T]here is no minimum quantitative requirement to establish a release or threat of a release of a hazardous substance under CERCLA"); Lincoln Props. v. Higgins, 1993 U.S. Dist. LEXIS 1251, at *65 (E.D. Cal. 1993) (“There is no quantitative, or threshold concentration, requirement for releases of hazardous substances”); Honeywell Intl, 542 F. Supp.2d 1188, 1198 (E.D. Cal. 2008) (definition of release is "liberally construed"); Amoco Oil Co. v. Borden Inc., 889 F.2d 664, 669 (5th Cir. 1989) (same). Here, environmental sampling reports produced by the City during its ownership show the ubiquitous presence of hazardous substances, including PCBs, at the Ag Park, consistent with the City’s practices of disposing of wastes directly to the Property, including sludge drying beds built for that purpose. UMF 12. Further, CERCLA operator liability may be based on evidence of active operation, regardless of whether the City had any involvement in creating the Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 14 of 21 Page ID #:2585 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 contaminated condition. Long Beach Unified School Dist., supra, 32 F.3d at 1366- 1367 (9th Cir. 1994) (an “operator” must have an active role in running the facility but does not necessarily have to have caused the contamination). The evidence here shows that City operated the STP and had direct involvement in creating and contributing to the contaminated condition. Two examples of City CERCLA releases at the Ag Park occurred in the 1960s and in 2003. First, the City admitted that its practice from 1962 to 1965 was to spread the waste sludge from the STP to the Ag Park. UMF 6. The sludge and soil at the Ag Park were sampled and found to contain PCBs among other hazardous substances.7 UMF 11-13. The application of this sludge to the land constitutes “disposal” and “release” of hazardous substances. 42 U.S.C. § 9601(22) (“release” includes “disposing into the environment”). Second, in 2003, sludge containing hazardous substances escaped from the City-owned abandoned STP digester. UMF 10-11. The City still owned the Ag Park at the time. Even without the spill, the City’s mere act of abandoning the sludge in the digester container constitutes a “release.” 42 U.S.C. § 9601(22) (“release” includes “abandonment of… closed receptacles containing any hazardous substance.”). UMF 10. 7 In addition to PCBs, other hazardous substances detected through sampling at the Ag Park included metals (including arsenic, barium, beryllium, cadmium, chromium, cobalt, copper, lead, mercury, molybdenum, nickel, selenium, silver, vanadium, zinc), dioxins, furans, perchlorate, polycyclic aromatic hydrocarbons (“PAHs”), petroleum hydrocarbons (including diesel), pesticides (including DDE and DDT), and volatile organic compounds (“VOCs” including acetone, p-isopropyl toluene, toluene, benzene, 2-butanone, ethyl benzene, 4-Ethyl toluene, 4-ethyl 2- pentanone, xylenes, 1,3,5-trimethylbenzene, 1,2,4-trimethylbenzene). UMF 12. Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 15 of 21 Page ID #:2586 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 4. FRA has incurred “response costs” responding to the release. CERCLA Section 107(a)(4)(B) allows private parties to recover “necessary costs of response incurred in a manner consistent with the National Contingency Plan” from liable parties. The “National Contingency Plan” (“NCP”) was revised and republished pursuant to 42 U.S.C. § 9605 and is promulgated in 40 CFR § 300, et. seq. Response costs are considered “necessary” when an actual and real threat to human health or the environment exists, and the response action is addressed to that threat. Carson Harbor, 270 F.3d at 872 (“In determining whether response costs are "necessary," we focus not on whether a party has a business or other motive in cleaning up the property, but on whether there is a threat to human health or the environment and whether the response action is addressed to that threat.”); City of Colton, 614 F.3d at 1003 (same). The response action need not be strictly necessary in the sense that no other means existed to protect human health and the environment or in the sense that the response action is not subject to legitimate criticism. “The applicable standard of necessity under CERCLA . . . properly understood, does not speak to the quality of the [plaintiff’s] response action. It simply asks whether the response action is addressed to an actual threat to human health or the environment.” Orange County Water Dist. v. Alcoa Global Fasteners, Inc., 12 Cal.App.5th 252, 328–29 (2017). A response action is considered consistent with the NCP “if the [response] action, when evaluated as a whole, is in substantial compliance” with it. 40 C.F.R. § 300.700(c)(3)(i) (emphasis added); see also NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898-899 (9th Cir. 1986) (“[C]onsistency with the NCP does not necessitate strict compliance…”); City of Colton, 614 F.3d at 1003 (9th Cir. 2010) (same); Walnut Creek Manor, LLC v. Mayhew Center LLC, 622 F. Supp. 2d 918, 930 (N.D. Cal. 2009) (“Immaterial or insubstantial deviations from the NCP… will not Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 16 of 21 Page ID #:2587 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 preclude a cost recovery action”)(citing 40 CFR 300.700(c)(4)). CERCLA broadly defines the term “response” to include “remove, removal, remedy, and remedial action” and all “enforcement activities related thereto.” Castaic Lake Water Agency, 272 F.Supp.2d 1053, 1062; 42 U.S.C. 9601(25) (response costs include the costs of investigations, clean-up, sampling, overseeing investigations, security fencing and other restrictive measures, and enforcement activities). Here, it cannot be seriously disputed that FRA’s costs were necessary. FRA conducted the cleanup under DTSC oversight, with substantial involvement from additional regulatory agencies such as USEPA. Carson Harbor, 270 F.3d at 872 (“[A]n actual agency cleanup order is highly relevant and, in some cases, compelling on the necessity question.”) DTSC provided oversight for all phases of FRA’s cleanup of the Ag Park to assure the cleanup met all appropriate regulatory requirements. UMF 16-17. DTSC partnered with FRA to conduct public outreach to keep the community informed of the cleanup activities. UMF 19. At the conclusion of the cleanup, DTSC issued NFAs declaring that FRA used “all appropriate care” under CLRRA to conduct the cleanup. UMF 20-21. It cannot be reasonably disputed that FRA’s response actions addressed the threat posed by the contamination, or that FRA expended money to clean up the Ag Park under DTSC oversight. UMFs 22. In fact, courts rightfully presume that DTSC-led cleanups are consistent with the NCP. Mission Linen Supply v. City of Visalia, 2019 U.S. Dist. LEXIS at 40 (E.D. Cal. Feb. 5, 2019) (“To the extent that consistency with the NCP is necessary, Mission's cooperation with DTSC, including entering into a voluntary consent decree, as well as its monitoring and investigation of the PCE Plume as directed by the DTSC, demonstrate that its actions have been at least substantially consistent with the NCP.”); NutraSweet Co. v. X-L Engineering Co., 227 F.3d 776, 791 (7th Cir. 2000) (affirming that NutraSweet had satisfied the Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 17 of 21 Page ID #:2588 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 NCP element for cost recovery where the Illinois EPA approved NutraSweet's clean-up plan, monitored the progress of the remediation, advised it that it could stop remediation because NutraSweet's efforts had succeeded to the maximum extent possible); 40 C.F.R. § 300.700(c)(3)(ii) (“Any response action carried out in compliance with the terms of an order issued by EPA” under CERCLA “is considered “consistent with the NCP.””). No minimum amount of response cost is required. A sample invoice for DTSC oversight costs paid by FRA are provided with this motion as an example establishing FRA incurred response cost amounts necessary and consistent with the NCP. UMF 23.8 The determination of the total amount of FRA’s damages, or any allocation-based City share of FRA’s response costs is not necessary for the Court to enter a judgment on City’s liability. Fed. R. Civ. P. 56(d)(2). Rather a determination of liability “hinges on whether plaintiffs incurred any response costs." United States v. Mottolo, 695 F. Supp. 615, 630 ( D.N.H. 1988)(emphasis added); Dedham Water Co. v.Cumberland Farms Daisy, Inc., 889 F.2d 1146, 1150 (1st Cir. 1989) (listing elements of liability and distinguishing liability from amount of recoverable costs). Recognizing summary judgment to be a useful tool in resolving what otherwise would be complicated CERCLA cases, courts routinely have granted summary judgment on liability. See, e.g., United States v. Shell Oil, 841 F. Supp. 962, 968 (C.D. Cal. 1993); United States v. Stringfellow, 661 F. Supp. 1053, 1058- 1059 (C.D. Cal. 1987) (same); Amoco Oil Co., 889 F.2d at 668 (5th Cir. 1989) ("Bifurcation and the use of summary judgment provide efficient approaches to these CERCLA] cases by narrowing the issues at each phase, by avoiding remedial questions if no liability attaches, and by potentially hastening remedial action or 8 Exhibit HH is DTSC’s Invoice to FRA charging $493.26 for project management at the Ag Park from April 2013 to June 2013. FRA’s proof of payment is also attached. Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 18 of 21 Page ID #:2589 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 settlement discussions once liability is determined."); United Alloys, Inc. v. Baker, 797 F. Supp. 2d 974, 994-95 (C.D. Cal. 2011) (having ruled that defendant was a liable party under CERCLA in prior summary judgment proceedings, the only remaining issue was the measure of damages and consistency with the NCP). Thus, while FRA does not now seek a ruling as to the exact amount of response costs to which it is entitled, it will seek such a ruling in another motion or at trial. 5. The City is liable for the pollution at the Ag Park, and FRA is entitled to recover its cleanup costs from the City. With each of the four elements of the claims under CERCLA § 107(a) having been proven, the City is strictly liable to the Plaintiff for all recoverable costs. California v. Montrose Chem. Corp., 104 F.3d 1507, 1518 n.9 (9th Cir. 1997) (“Note that under [42 U.S.C.] § 9607(a)(4), any owner, operator or other responsible party is strictly liable for all costs of removal or remedial action, any other necessary response costs, damages for injury to natural resources and the costs of any health assessments.”). B. The City of Riverside is Liable Under the HSAA. California's Carpenter–Presley–Tanner Hazardous Substances Account Act (“HSAA”), Cal. Health & Safety Code §25300 et. seq., is the state analog of CERCLA, which also creates a private right of action for contribution or indemnity from any [responsible person] ....” Cal. Health & Safety Code § 25363(e). The HSAA adopts CERCLA's definition of responsible parties verbatim: “Responsible party” or “liable person,” for the purposes of this chapter, means those persons described in Section 107(a) of the federal act (42 U.S.C. § 9607(a)). Cal. Health & Safety Code § 25323.5(a)(1); see also Wells Fargo Bank, v. Renz, 795 F.Supp.2d 898, 910-11, fn.9 (N.D. Cal. 2011) (“Because the HSAA incorporates 42 Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 19 of 21 Page ID #:2590 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 U.S.C. § 9607 to determine covered parties, see Cal. Health & Safety Code § 25323.5(a), the Court's discussion of [Defendant’s] CERCLA liability applies equally to Plaintiff's second claim under the HSAA.”); see also Castaic Lake Water Agency, 272 F. Supp. 2d at 1084 (C.D. Cal. 2003) (HSAA “creates a scheme that is identical to CERCLA with respect to who is liable”). In general, the standards of liability under HSAA and CERCLA are identical. BKHN, Inc. v. Department of Health Servs., 3 Cal. App. 4th 301, 305(1992) (citing Cal. Health & Safety Code § 25323.5). As with CERCLA, liability under HSAA is strict. Cal. Health & Safety Code § 25363(c) (“The standard of liability for costs recoverable pursuant to this chapter is strict liability.”); see also Cal. Health & Safety Code §25323.5(b) (HSAA also adopts the same four defenses to liability prescribed under §9607(b) of CERCLA as its own defenses that responsible parties may assert). The City’s liability under the HSAA is predicated on the same basis as its liability under CERCLA; because the City is liable under CERCLA, the City is also liable under HSAA. VI. CONCLUSION For all of the foregoing reasons, the Court should grant FRA’s motion for partial summary judgment in its favor on its CERCLA (first) cause of action and its HSAA (third) cause of action, and partial summary judgment in favor of FRA on each material fact in support of the motion that is not genuinely in dispute and then treat such facts as established in this case pursuant to Rule 56(g). Respectfully submitted, Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 20 of 21 Page ID #:2591 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17- POINTS & AUTHORITIES ISO FRA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE CITY (5:19-cv-01103-MWF-KK) WACTOR & WICK LLP 3640 Grand Avenue, Suite 200 Oakland, CA 94610 Dated: November 18, 2020 WACTOR & WICK LLP By: /s/ Jon K. Wactor JON K. WACTOR WILLIAM D. WICK PETER TON CAITLIN B. WILEY-WALKER Attorneys for Plaintiff FRIENDS OF THE RIVERSIDE AIRPORT LLC Case 5:19-cv-01103-MWF-KK Document 142-1 Filed 11/19/20 Page 21 of 21 Page ID #:2592