792 F.2d 887 (9th Cir. 1986), 85-1962, Wickland Oil Terminals v. Asarco, Inc.

Docket Nº:85-1962.
Citation:792 F.2d 887
Party Name:WICKLAND OIL TERMINALS, a California corporation, Plaintiff-Appellant, v. ASARCO, INC., a New Jersey corporation, and State Lands Commission of California, Defendants-Appellees.
Case Date:June 20, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 887

792 F.2d 887 (9th Cir. 1986)

WICKLAND OIL TERMINALS, a California corporation, Plaintiff-Appellant,

v.

ASARCO, INC., a New Jersey corporation, and State Lands

Commission of California, Defendants-Appellees.

No. 85-1962.

United States Court of Appeals, Ninth Circuit

June 20, 1986

Argued and Submitted March 10, 1986.

Page 888

Joseph A. Darrell, Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., for plaintiff-appellant.

C. MacNeil Mitchell, Breed, Abbott & Morgan, New York City, and Ellyn S. Levinson, Deputy Atty. Gen., San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE, KENNEDY, and FARRIS, Circuit Judges.

WALLACE, Circuit Judge:

Wickland Oil Terminals (Wickland) appeals from a judgment dismissing its claims for damages and for declaratory and injunctive relief against Asarco, Inc. (Asarco) for failure to state a claim upon which relief could be granted. The central question on appeal is whether a governmentally authorized cleanup program is a prerequisite to a private action under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. Sec. 9607(a). Wickland also appeals from a judgment in favor of the State Lands Commission of California (the Commission) on Wickland's claim for declaratory relief. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We reverse the dismissal of Wickland's claims against Asarco and remand the case, and

Page 889

we dismiss Wickland's appeal against the Commission for lack of jurisdiction.

I

Wickland's complaint advises us that from approximately 1886 through 1970, Asarco conducted smelting operations for the extraction of lead, zinc, and other metals on two contiguous parcels of land in Selby, California (the Selby site). Asarco owned one of the parcels. It occupied the other parcel under license until 1951, when the State of California became owner of the parcel; thereafter, Asarco leased the parcel from the Commission, which acted as custodian for the State of California. Wickland alleges that in the course of Asarco's smelting operations, Asarco deposited up to one million metric tons of smelter slag above the surface of the Selby site, and deposited an unascertained amount of slag below the surface. The slag remains on the Selby site.

Wickland purchased the parcel owned by Asarco in 1977. Wickland alleges that in April 1980 it learned for the first time that the slag abandoned by Asarco on the Selby site might contain hazardous concentrations of various metals. In July 1980, the California Department of Health Services (the Health Department) informed Wickland that the slag constituted a potentially serious environmental hazard and ordered Wickland "not [to] excavate, remove or recover the slag waste without written approval" from the Health Department. In October 1980, the Health Department notified Wickland that a Health Department study indicated that the Selby site contained hazardous waste; it further advised Wickland that Wickland was responsible for cleanup measures on the Selby site. Working with the Health Department and other state agencies, Wickland then developed and conducted testing on the Selby site of the groundwater concentrations of heavy metals and of the migration of slag particles.

In July 1981, Wickland leased the second parcel from the Commission. In the summer and fall of 1981, Wickland assembled a task force consisting of personnel from Wickland, the Health Department, and other state and federal bodies to conduct tests to evaluate the hazard posed by the slag. In December 1981, the Health Department and other state agencies mandated additional testing of the slag as a precondition to further commercial redevelopment of the Selby site by Wickland. By early 1982, Wickland had expended approximately $150,000 on slag testing required by state agencies. In January 1983, the Selby site ranked 21st on the Health Department's Priority Ranking of Hazardous Waste Sites. See generally 42 U.S.C. Sec. 9605(8)(B).

Wickland brought suit in district court against Asarco and the Commission under CERCLA, 42 U.S.C. Secs. 9601-9657. Wickland brought three federal claims against Asarco: it sought damages under section 107(a) of CERCLA, 42 U.S.C. Sec. 9607(a), for testing costs incurred; it requested a declaration that, as between Wickland and Asarco, Asarco was solely and entirely liable under CERCLA for any release of hazardous substances on the Selby site; and it asked for an order requiring Asarco to initiate cleanup of the Selby site. Wickland also sought a declaration that the Commission was liable under CERCLA for any release of hazardous substances on the Selby site.

On Asarco's motion, the district court dismissed Wickland's three claims against Asarco for failure to state a claim upon which relief could be granted. Wickland Oil Terminals v. Asarco, Inc., 590 F.Supp. 72 (N.D.Ca.1984) (Wickland ). Wickland then voluntarily dismissed its claim against the Commission. The district court entered final judgments in favor of both...

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