Cadillac Fairview/California, Inc. v. Dow Chemical Co., Nos. 86-6464

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore CHAMBERS, WALLACE and POOLE; WALLACE
Citation840 F.2d 691
Parties, 56 USLW 2523, 18 Envtl. L. Rep. 20,470 CADILLAC FAIRVIEW/CALIFORNIA, INC., a California corporation, Plaintiff- Appellant. v. DOW CHEMICAL CO., a Delaware corporation, et al., Defendants, and United States of America; Gerald P. Carmen, Administrator of the General Services Administration; William Ruckelshaus, Administrator of the Environmental Protection Agency, Defendants-Appellees, Shell Oil Company; Cabot, Cabot & Forbes Interim Company, Respondents. CADILLAC FAIRVIEW/CALIFORNIA, INC., a California corporation, Plaintiff- Appellant, v. DOW CHEMICAL CO., a Delaware corporation; Shell Oil Company, Defendants- Appellees, and Cabot, Cabot & Forbes Interim Company; Thomas Heinsheimer, Chairman of the Board of the South Coast Air Quality Management District; Douglas Ferguson, President of the Central and West Basin Water Replenishment District of the State of California; Peter Rank, Director of the State Department of Health Services of the State of California; Jane Bray, Acting Chairman of the Board of the Regional Water Quality Control Board of the State of California for the Los Angeles Region, Defendants.
Decision Date25 February 1988
Docket NumberNos. 86-6464,86-6733

Page 691

840 F.2d 691
27 ERC 1313, 56 USLW 2523, 18 Envtl.
L. Rep. 20,470
CADILLAC FAIRVIEW/CALIFORNIA, INC., a California
corporation, Plaintiff- Appellant.
v.
DOW CHEMICAL CO., a Delaware corporation, et al., Defendants,
and
United States of America; Gerald P. Carmen, Administrator
of the General Services Administration; William
Ruckelshaus, Administrator of the
Environmental Protection
Agency, Defendants-Appellees,
Shell Oil Company; Cabot, Cabot & Forbes Interim Company,
Respondents.
CADILLAC FAIRVIEW/CALIFORNIA, INC., a California
corporation, Plaintiff- Appellant,
v.
DOW CHEMICAL CO., a Delaware corporation; Shell Oil
Company, Defendants- Appellees,
and
Cabot, Cabot & Forbes Interim Company; Thomas Heinsheimer,
Chairman of the Board of the South Coast Air Quality
Management District; Douglas Ferguson, President of the
Central and West Basin Water Replenishment District of the
State of California; Peter Rank, Director of the State
Department of Health Services of the State of California;
Jane Bray, Acting Chairman of the Board of the Regional
Water Quality Control Board of the State of California for
the Los Angeles Region, Defendants.
Nos. 86-6464, 86-6733.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Oct. 6, 1987.
Decided Feb. 25, 1988.

Page 692

Gregory R. Smith, Irell & Manella, Los Angeles, Cal., for plaintiff-appellant.

Stephen T. Swanson, Lawler, Felix & Hall, Los Angeles, Cal., for defendant-appellee Dow.

Edwin C. Schreiber, Keltner & Schreiber, Inc., Los Angeles, Cal., for defendant-appellee Shell.

Maria A. Iizuka, Dept. of Justice, Washington, D.C., for defendant-appellee United States.

Reed Sato, Deputy Atty. Gen., Sacramento, Cal., for amicus curiae.

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

Before CHAMBERS, WALLACE and POOLE, Circuit Judges.

WALLACE, Circuit Judge:

Cadillac Fairview/California, Inc. (Cadillac Fairview) appeals the district court's judgment dismissing its claims for damages and for declaratory and injunctive relief against Dow Chemical Co. (Dow) and Shell Oil Co. (Shell) for failure to state a claim upon which relief can be granted. Cadillac Fairview also appeals the order granting summary judgment in favor of the Administrator of the General Services Administration (GSA) and the United States of America (federal defendants). On appeal, Cadillac Fairview contends that the district court's order dismissing its claims and granting summary judgment was premised on an erroneous interpretation of section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. Sec. 9607(a). We have jurisdiction under 28 U.S.C. Sec. 1291 and 28 U.S.C. Sec. 1292(b). We reverse the dismissal of Cadillac Fairview's claims for damages and declaratory relief against Shell and Dow, and we reverse the summary judgment in favor of the federal defendants. We affirm the dismissal of Cadillac Fairview's claims for injunctive relief.

I

Cadillac Fairview's complaint alleges that it is the owner of certain real property (the Site) located in Torrance, California. Cadillac Fairview purchased the Site from CC & F Western Development Co., Inc. (Western) in 1976. It later learned that hazardous substances had been deposited at the Site, and that these substances had migrated into the underlying soil. Cadillac Fairview conducted chemical tests and analyses at the Site, which indicated that the presence of various hazardous substances in the soil threatened to cause substantial environmental and health problems. State officials requested Cadillac

Page 693

Fairview to undertake certain steps to protect neighborhood residents from illnesses that might result from contact with the hazardous substances. Pursuant to the state's request, Cadillac Fairview hired engineers to conduct chemical testing at the Site to evaluate the hazards posed by the substances, erected a fence around the Site, employed a guard service to secure the Site from trespassers, and posted bilingual "no trespassing" signs at the Site. These measures allegedly cost Cadillac Fairview in excess of $70,000.

According to the complaint, the federal government acquired the Site in 1942 and constructed a rubber-producing plant on it. The government contracted with Dow to operate the facility and authorized Dow to dump hazardous by-products from the facility at the Site. In 1955, Shell acquired the Site from the government. During the period of its ownership, Shell allegedly deposited hazardous substances at the Site and took no measures to prevent the release of those substances into the environment.

Shell owned the Site until 1972. It was then owned successively by defendants International Property Development Co. (International) and by Western. Defendant Cabot, Cabot & Forbes (CCF) is the successor in interest to International and Western. None of the latter defendants are parties to this appeal.

Cadillac Fairview sued the federal defendants, Dow, and Shell in district court under CERCLA Sec. 107(a), 42 U.S.C. Sec. 9607(a), to recover its costs of responding to the hazardous substances. Cadillac Fairview also requested a declaration that any cleanup costs or other damages resulting from the presence of the hazardous substances should be borne only by Dow, Shell, the federal defendants, or others who owned the property at the time of the dumping or who were responsible for such dumping. Finally, it requested an injunction requiring Dow, Shell, CC & F, and the GSA to remove hazardous wastes from the Site. Cadillac Fairview also brought state law claims against various defendants.

On the motions of Dow and Shell, the district court dismissed Cadillac Fairview's CERCLA claims for failure to state a claim upon which relief could be granted, and dismissed the pendent state law claims for lack of jurisdiction. The district court certified its order for immediate appeal under section 1292(b). The federal defendants' motion for summary judgment was granted, and the judgment certified for appeal under Fed.R.Civ.P. 54(b). We consolidated the appeals.

II

We review de novo the district court's dismissal of Cadillac Fairview's federal claims for failure to state a claim upon which relief could be granted. Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 889 (9th Cir.1986) (Wickland ). We must accept all the material allegations in the complaint as true and view them in the light most favorable to Cadillac Fairview. Id. at 889-90. The dismissal must be reversed unless it appears to a certainty that Cadillac Fairview is not entitled to relief under any state of facts that it could have proved. Id. at 890.

Section 107(a)(2)(B) expressly creates a private claim against any person who owned or operated a facility at the time hazardous substances were disposed of at the facility for recovery of necessary costs of responding to the hazardous substances incurred consistent with the national recovery plan. See id. at 890; NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986) (NL Industries ). Cadillac Fairview alleged that it incurred "necessary costs" of response within the meaning of section 107(a), and that Dow, Shell, and the federal defendants owned or operated the Site at the time that hazardous substances were deposited there. Despite these allegations, the district court dismissed Cadillac Fairview's suit against the private defendants for failure to state a claim under...

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95 practice notes
  • In re Hanford Nuclear Reservation Litigation, Master File No. CY-91-3015-AAM.
    • United States
    • United States District Courts. 9th Circuit. Eastern District of Washington
    • October 31, 1991
    ...(in which the court likewise relies on this paragraph for this purpose (citing Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 695 (9th Although the court has been unable to locate any cases in which the Ninth Circuit Court of Appeals has considered whether costs incur......
  • Arawana Mills Co. v. United Technologies Corp., Civ. A. No. 5:91CV00711 (JAC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • May 7, 1992
    ...can be resolved only at trial or after completion of full pretrial discovery. See Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 695 (9th Cir. 1988) ("whether a response action is necessary and consistent with the criteria set forth in the contingency plan is a factua......
  • Dent v. Beazer Materials and Services, Inc., Civil Action No. 2:89-2851-8.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • December 28, 1995
    ...and remediation has not yet begun. Rockwell, 702 F.Supp. at 1387, 1390. See also, Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 694-95 (9th Cir.1988); Artesian Water Co. v. Government of New Castle County, 659 F.Supp. 1269, 1294 (D.Del.1987), aff'd, 851 F.2d 643 (3rd......
  • Mid Valley Bank v. North Valley Bank, No. Civ. S-88-1691 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 21, 1991
    ...with the NCP is not a defense to liability, but goes only to the issue of damages. Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 695 (9th Cir.1988). See also U.S. v. Stringfellow, 661 F.Supp. at 1062 ("failure to comply with the national contingency plan ... is not a......
  • Request a trial to view additional results
94 cases
  • In re Hanford Nuclear Reservation Litigation, Master File No. CY-91-3015-AAM.
    • United States
    • United States District Courts. 9th Circuit. Eastern District of Washington
    • October 31, 1991
    ...(in which the court likewise relies on this paragraph for this purpose (citing Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 695 (9th Although the court has been unable to locate any cases in which the Ninth Circuit Court of Appeals has considered whether costs incur......
  • Arawana Mills Co. v. United Technologies Corp., Civ. A. No. 5:91CV00711 (JAC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • May 7, 1992
    ...can be resolved only at trial or after completion of full pretrial discovery. See Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 695 (9th Cir. 1988) ("whether a response action is necessary and consistent with the criteria set forth in the contingency plan is a factua......
  • Dent v. Beazer Materials and Services, Inc., Civil Action No. 2:89-2851-8.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • December 28, 1995
    ...and remediation has not yet begun. Rockwell, 702 F.Supp. at 1387, 1390. See also, Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 694-95 (9th Cir.1988); Artesian Water Co. v. Government of New Castle County, 659 F.Supp. 1269, 1294 (D.Del.1987), aff'd, 851 F.2d 643 (3rd......
  • Mid Valley Bank v. North Valley Bank, No. Civ. S-88-1691 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 21, 1991
    ...with the NCP is not a defense to liability, but goes only to the issue of damages. Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 695 (9th Cir.1988). See also U.S. v. Stringfellow, 661 F.Supp. at 1062 ("failure to comply with the national contingency plan ... is not a......
  • Request a trial to view additional results
1 books & journal articles
  • The Site Cleanup Processes
    • United States
    • Superfund Deskbook -
    • August 11, 2014
    ...implied private cause of action under §106. Cadillac Fairview/Cal., Inc. v. Dow Chem. Co., 14 ELR 20376 (C.D. Cal. Mar. 5, 1984), af’d , 840 F.2d 691, 18 ELR 20470 (9th Cir. 1988); REV 973, LLC v. Mouren-Laurens, No. CV 98-10690 AHM, 2010 WL 383615, at *1 n.1 (C.D. Cal. Jan. 25, 2010). 3. 4......

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