823 F.Supp. 1528 (E.D.Cal. 1992), Civ. S-91-0760, Lincoln Properties, Ltd. v. Higgins

• Citation: 823 F.Supp. 1528
• Party Name: Lincoln Properties, Ltd. v. Higgins
• Case Date: December 21, 1992
• Court: United States District Courts, 9th Circuit, U.S. District Court — Eastern District of California

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823 F.Supp. 1528 (E.D.Cal. 1992)

LINCOLN PROPERTIES, LTD., Plaintiff,

v.

Norman HIGGINS, et al., Defendants.

No. CIV S-91-0760 DFL GGH.

United States District Court, E.D. California.

Dec. 21, 1992

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Michael C. Donovan, J. Martin Robertson, Joleen M. Grussing, David A. Hubb, John Antracoli, Ware & Freidenrich, Palo Alto, CA, and James A. Askew, Richard Archbold, and Dana R. Rivers, Neumiller & Beardslee, Stockton, CA, for Lincoln Properties, Ltd.

Brian M. Englund, Grossfeld, Dougherty & Grossfeld, Sacramento, CA, for Norman and Donald Higgins.

John F. Cheadle, County Counsel, Steven B. Bassoff, Deputy County Counsel, County of San Joaquin, Stockton, CA, and Robert C. Goodman, and John R. Capron, Feldman, Waldman & Kline, and Anthony Griffin, St. Clair, McFetridge & Griffin, San Francisco, CA, for Monroe H. Hess, Jr., Jeanne G. Hess and James A. Murray, Jr., each individually and dba Finest Care Cleaners (formerly Lincoln Center Martinizing and One Hour Martinizing).

William A. Gould, Jr. and Paul A. Dorris, Wilke, Fleury, Hoffelt, Gould & Birney, Sacramento, CA, for Hoyt Corp.

Ronald G. Aronovsky, Orrick, Herrington & Sutcliffe, San Francisco, CA, for County of San Joaquin.

James E. Ganzer, Ganzer & Williams, Stockton, CA, for A.A. Mederos.

Richard S. Baron and Andrew L. Finn, Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C., Detroit, MI, Robert B. Zaro, and Steven Mackey, Donahue & Callaham, Sacramento, CA, for Bennie Hein, individually and dba Norge Cleaners and Norge Cleaning Village; and Bonnie K. Crosby, individually and dba Norge Cleaners.

Jan Adam Greben, Scharff & Greben, Sacramento, CA, for Wilbert Moser, individually and dba Lincoln Village Cleaners.

Lynn S. Samuels, Zelle & Larson, San Francisco, CA, for Lumbermens Mut. Cas. Co. ex rel. Estate of Dwight Alquist, Deceased.

Stuart Lansing Smits, Lori J. Gualco, and David Frank, Trainor, Robertson, Smits & Wade, Sacramento, CA, for Jack Alquist, individually and dba Lincoln Village Cleaners, Village Cleaners, and Lincoln Village Cleaners, Inc.; and Estate of Dwight Alquist.

Roger W. Wenthe, McDermott, Will & Emery, Chicago, IL, and Mary Ellen Hogan and Tracy Loomis, McDermott, Will & Emery, Los Angeles, CA, for R.R. Street & Co., Inc.

MEMORANDUM OPINION AND ORDER

LEVI, District Judge.

Plaintiff Lincoln Properties, Ltd. ("Lincoln") is the owner of Lincoln Center, a 110-store shopping center on a thirty-acre parcel of land in San Joaquin County near Stockton, California. Over the years some of Lincoln's tenants have been dry cleaners who used perchloroethylene ("PCE") in the course of their business. In December 1984 the County discovered that PCE had entered one of its wells in the vicinity of Lincoln Center. As a result of this discovery, Lincoln undertook further tests and determined that PCE had entered the groundwater and soil below Lincoln Center. The full extent of the contamination is not known. The exact way in which the PCE entered the groundwater is disputed, although some PCE was discharged from leaky sewer lines.

Lincoln concedes that because it is the owner of Lincoln Center it is liable in the first instance for the costs of cleanup under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.§§ 9601 et seq. In this action, Lincoln seeks recovery under CERCLA of response costs and contribution from the dry cleaners and the County. Various dry cleaning defendants have also pled CERCLA claims against the County, Lincoln and the manufacturers of dry cleaning equipment.

The County now requests summary judgment and summary adjudication of facts as to all CERCLA claims asserted against it. The County's exposure to liability is based upon its alleged ownership of a portion of the leaking sewers under Lincoln Center and its undisputed ownership of various wells with cracked casings through which the PCE may have invaded the water table.

Section 107(a) of CERCLA authorizes recovery of costs incurred in responding to

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hazardous waste problems, and § 113(f) allows a party to seek contribution from any person who is or may be liable under § 107(a). 42 U.S.C. §§ 9607(a), 9613(f). A § 107(a) claimant must show that:

1) The waste disposal site is a "facility" within the meaning of 42 U.S.C.§ 9601(9);

2) There has been a "release" or "threatened release" of any "hazardous substance" from the facility;

3) The release or threatened release has caused the plaintiff to incur response costs that are "consistent with the national contingency plan"; and

4) The defendant falls within one of the four classes of persons subject to CERCLA liability. Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152-53 (9th Cir. 1989); see 42 U.S.C. § 9607(a). The four classes of "responsible parties" include the owners and operators of a "facility." ¹ CERCLA liability is limited by three affirmative defenses set forth in 42 U.S.C. § 9607(b), viz, the act of God, act of war and "third party" defenses.

The County contends that it is not the "owner" or "operator" of a facility and that plaintiff and cross-claimants have failed to establish any "releases" of hazardous substances from County facilities, including sewers and wells. The County also invokes CERCLA's third party defense.

I. Owner/Operator Liability

Plaintiff and the dry cleaning defendants maintain that as an owner and operator of portions of the Lincoln Center sewer system and the Lincoln Village Maintenance District wells, the County is liable for releases of PCE from these "facilities." ²

A. The County as "Owner"

CERCLA imposes liability on the past or present owner of a facility at which hazardous wastes were released or disposed of 42 U.S.C. §§ 9607(a)(1), (2). An "owner" is "any person owning ... such facility." 42 U.S.C. § 9601(20)(A)(ii). The circularity of this definition "renders it useless." Kaiser Aluminum & Chemical Corporation v. Catellus Development Corporation, 976 F.2d 1338, 1341 (9th Cir. 1992). However, the circularity "strongly implies ... that the statutory terms have their ordinary meanings rather than unusual or technical meanings." Edward Hines Lumber Co. v. Vulcan Materials Co., 861 F.2d 155, 156 (7th Cir. 1988), quoted in Kaiser Aluminum, 976 F.2d at 1341. "Mere ownership of the property on which the release took place is sufficient to impose liability under § 107(a), regardless of any control or lack of control over the disposal activities." U.S. v. A & N Cleaners and Launderers, Inc., 788 F.Supp. 1317, 1332 (S.D.N.Y.1992). In the absence of title, one may be an "owner" if one had "site control" or "authority to determine how the [property] was to be used." Id. at 1332-33 & n. 13.

The parties have provided considerable factual information concerning the Lincoln Center sewer system. There is no dispute that the majority of the sewer system is owned by Lincoln. However, there are two portions of the system that may implicate the County. These are the sewer lines beneath Benjamin Holt Drive and Gettysburg Place.

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As to the Benjamin Holt segment, there is no evidence of County ownership. In 1947 the County was granted by deed a right of way "for highway and road purposes, and the installation of public utilities upon, along, over and across" the land that later became Benjamin Holt Drive. Lincoln is the owner of the fee interest in the land on which the right of way runs. It is well-settled that a right of way is simply an easement, and conveys no possessory interest in property. See, e.g., Darr v. Lone Star Industries, Inc., 94 Cal.App.3d 895, 900-01, 157 Cal.Rptr. 90, 93 (1979). The sewer line itself was installed by Lincoln under the authority of an encroachment permit issued by the County. There is no evidence that the County ever acquired title to, or any possessory interest in, the sewer line. There is also no evidence that the County had control over this line or authority to determine how it would be used. The County is therefore not a past or present owner of the Benjamin Holt segment of the sewer line.

As to the Gettysburg Place segment, the County has conceded that it owned and continues to own a portion of the sewer below Gettysburg Place from Manhole No. 5 to Manhole No. 6. See Ex. A to County's Reply Memorandum (labeling this segment "County Owned Sewer System"). However, the County is not a former or present owner of the balance of the Gettysburg Place line. Gettysburg Place was dedicated to the County as a "public highway for road purposes" on October 25, 1948. Under Cal.Gov.Code § 66439(c),

[a]n offer of dedication of real property for street or public utility easement purposes shall be deemed not to include any public facilities located on or under the real property unless, and only to the extent that, an intent to dedicate the facilities is expressly declared in the statement.

The offer of dedication of Gettysburg Place includes no such statement of intent to dedicate the sewer line or other public facilities. Thus, the dedication of Gettysburg Place to the County did not make the County an owner of the Gettysburg Place sewer lines within the meaning of CERCLA. Similarly, the mere fact that the County moved the Gettysburg segment in response to a health threat in 1965 would not appear to impose owner liability on the County. By moving the segment, the County acquired neither title to nor control over this line.

Finally, as to Lincoln Village Maintenance District Wells 1 and 2, ³ it is undisputed that the County is the past and present owner of these wells within the meaning of CERCLA.

B. The County as "Operator"

CERCLA also imposes liability on the past and present operators of a hazardous waste facility. The statutory definition of an "operator" again is circular: an operator is...