Carson Harbor v. County of Los Angeles

• Decision Date: 12 January 2006
• Docket Number: No. 04-55024.,04-55024.
• Citation: 433 F.3d 1260
• Parties: CARSON HARBOR VILLAGE, Ltd., a limited partnership dba Carson Harbor Village Mobilhome Park, Plaintiff-counter-defendant-Appellant, v. COUNTY OF LOS ANGELES; City of Compton; City of Carson, Defendants-counter-claimants, Carson Harbor Village Mobile Home Park, a California general partnership; Richard G. Braley; Walker Smith, Jr., Defendants-cross-claimants, and Unocal Corporation, a Delaware Corporation, Defendant-cross-claimant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

433 F.3d 1260

CARSON HARBOR VILLAGE, Ltd., a limited partnership dba Carson Harbor Village Mobilhome Park, Plaintiff-counter-defendant-Appellant, v. COUNTY OF LOS ANGELES; City of Compton; City of Carson, Defendants-counter-claimants Carson Harbor Village Mobile Home Park, a California general partnership; Richard G. Braley; Walker Smith, Jr., Defendants-cross-claimants, and Unocal Corporation, a Delaware Corporation, Defendant-cross-claimant-Appellee.

No. 04-55024.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 17, 2005.

Filed January 12, 2006.

COPYRIGHT MATERIAL OMITTED

Thomas W. Casparian, Gilchrist & Rutter, Santa Monica, CA, and Chris M. Amantea, McDermott, Will & Emery, Los Angeles, CA, for the appellant.

Kurt Weissmuller, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, Los Angeles, CA, for the appellee.

Appeal from the United States District Court for the Central District of California; Margaret M. Morrow, District Judge, Presiding. D.C. No. CV-96-03281-MMM.

Before: HALL, O'SCANNLAIN, and PAEZ, Circuit Judges.

HALL, Senior Circuit Judge:

Plaintiff Carson Harbor Village, Ltd. (Carson Harbor) appeals the district court's grant of summary judgment for Defendant Unocal Corporation (Unocal) denying Carson Harbor recovery of cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. Carson Harbor argues there are genuine issues of material fact regarding whether it substantially complied with the National Oil and Hazardous Substances Pollution Contingency Plan (National Contingency Plan). Carson Harbor also appeals the district court's exclusion of proffered documentary evidence, arguing that it was properly authenticated and that the district court abused its discretion in not considering late-filed declarations.

The district court had jurisdiction pursuant to 42 U.S.C. § 9613. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm summary judgment for Unocal.

I. BACKGROUND

A. Facts

Carson Harbor is a limited partnership owned by James Goldstein and his corporation, Goldstein Properties, Inc., of which he is the sole shareholder and president. Carson Harbor has owned the Carson Harbor Village Mobile Home Park (the Property) in Carson, California since 1983. In the past, the Property had been used as a dairy farm and for oil production and storage. Unocal held an oil and gas lease in the Property from 1945 until 1977, when the Property was converted into a mobile home park. Included within the Property boundaries are about seventeen acres of marshy wetlands, crossing the Property with a downward slope from northeast to southwest.¹

Carson Harbor first discovered tar-like and slag material in the wetlands on the Property in 1994. The tar-like material was visible at the surface and covered an area about twenty feet by thirty feet in the wetlands. Later excavation revealed that the tar-like material actually covered an area about 170 feet long by 75 feet wide, with depths ranging from one to five feet. The slag varied in size and depth, but was most concentrated near the tar-like material. In 1994, Carson Harbor hired McLaren-Hart, a national environmental engineering consulting firm, to investigate the pollution at the Property.

McLaren-Hart collected and analyzed samples of the tar-like and slag materials to determine their components and found lead concentrations well above allowable levels in California.

As required by law, Carson Harbor notified the Regional Water Quality Control Board (RWQCB) of the high lead concentrations. Additionally, on June 8, 1994, Carson Harbor notified residents of the mobile home park of the pollution at the Property. A letter was sent out alerting the residents that high concentrations of lead were found in the wetlands. The letter stated that residents were being given this notice "as required by [California] Proposition 65."

On behalf of Carson Harbor, McLaren-Hart engaged in a series of communications with the RWQCB about the pollution at the Property. Specifically, McLaren-Hart employees met with RWQCB representatives on August 28, 1994, and representatives of the RWQCB visited the Property and later discussed that visit with McLaren-Hart. On January 27, 1995, McLaren-Hart sent the RWQCB a proposed remedial action plan for approval. After making minor modifications to the proposed remedial action plan,² the RWQCB approved the remedial action plan on February 27, 1995.

The remedial goals for the Property outlined in the remedial action plan were to remove all the tar-like and slag material, if possible; to ensure the removal did not endanger public health and safety or the environment; and to ensure the removal met standards of the RWQCB and other involved agencies. The only remedial measure addressed by McLaren-Hart in the remedial action plan was removal of the tar-like and slag materials to decrease the concentration of pollutants in the soil. There is no hint in the remedial action plan that McLaren-Hart considered other possible remedial measures. The sole indication that other options were considered is the declaration of one of Carson Harbor's experts, Dr. Hassan Amini, filed in opposition to Unocal's summary judgment motion. Dr. Amini worked for McLaren-Hart during the remedial action at the Property. In his declaration, he stated that "[McLaren-Hart] considered various alternatives for remediating the tar and slag material from the wetlands, including the alternative of leaving the material in place."

Unocal was first notified of pollution at the Property on March 10, 1995. Richard Close, Carson Harbor's counsel at the time, sent a letter to Unocal stating that Carson Harbor intended to hold Unocal responsible for the pollution and requesting Unocal's assistance in the remedial action. Internal memoranda from Unocal indicate that there had been numerous spills in the polluted area, at least one of which was from Unocal's operations. Initially, Unocal indicated that because of the sensitive nature of the wetlands "it seems unreasonable to do anything but document [the pollution] and leave it." Later, Unocal acknowledged that McLaren-Hart would remove the tar-like and slag material from the wetlands.

Carson Harbor sent a letter to the mobile home park residents on July 5, 1995, notifying them that removal of tar-like materials in the wetlands would begin on July 17, 1995. On July 7, 1995, Close sent a similar letter to both State Senator Ralph Dills, whose office had been involved in planning the remediation efforts, and to the RWQCB.³

During the remedial action,⁴ a total of 1,042 tons of material were excavated and transported offsite for disposal. On October 11, 1995, after the remediation was complete, McLaren-Hart sent the RWQCB a clean closure report dated September 13, 1995. The RWQCB replied with a "no further action" letter on October 18, 1995, after its staff inspected the Property to ensure the remedial action was successfully completed.

B. Procedural History

On May 7, 1996, Carson Harbor filed suit against Unocal, various local governments, and the prior owners of the Property seeking damages under CERCLA, the Resource Conservation and Recovery Act, the Clean Water Act, and various state laws including nuisance, indemnity, and negligent non-disclosure. On November 7, 1997, then-District Judge Kim McLane Wardlaw granted summary judgment in favor of all defendants on all claims except some state law claims not relevant here. Carson Harbor Village, Ltd. v. Unocal Corp., 990 F.Supp. 1188, 1199 (C.D.Cal.1997). A Ninth Circuit panel partially reversed summary judgment on the CERCLA claim. Carson Harbor Village, Ltd. v. Unocal Corp., 227 F.3d 1196 (9th Cir.2000), superseded by Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir.2001) (en banc) (Carson Harbor I). The en banc court reversed summary judgment in favor of Unocal on the CERCLA claim and remanded for a determination of whether Carson Harbor substantially complied with the National Contingency Plan and could therefore recover against Unocal under CERCLA. Carson Harbor I, 270 F.3d at 873. On remand, District Judge Margaret M. Morrow granted summary judgment in favor of Unocal on the CERCLA claim, holding that Carson Harbor failed to show there were genuine issues of material fact regarding whether its remediation substantially complied with the National Contingency Plan public participation and feasibility study requirements. Carson Harbor Village, Ltd. v. Unocal Corp., 287 F.Supp.2d 1118, 1172, 1204 (C.D.Cal.2003) (Carson Harbor II).

The district court's grant of summary judgment is reviewed de novo. Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir.2002). Viewing the evidence in the light most favorable to the nonmoving party and drawing all inferences in its favor, we must determine whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Id.

II. DISCUSSION

A. National Contingency Plan Compliance

CERCLA, 42 U.S.C. § 9601 et seq., was enacted in 1980 "to provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites." Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub.L. No. 96-510, 94 Stat. 2767 (1980). CERCLA contains a provision, 42 U.S.C. § 9607(a), which allows private parties who incur cleanup costs to recover those costs from "various types of persons who contributed to the dumping of hazardous waste at a site." Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir.1989). To establish a prima facie case under § 9607(a), the plaintiff must show that (1) the property at issue is a "facility" as defined in 42 U.S.C. § 9601(9); (2) a "release" or "threatened release" of a "hazardous substance" has occurred; ...