Carson Harbor Village, Ltd. v. Unocal Corp.
Decision Date | 04 November 1997 |
Docket Number | No. CV-96-3281 KMW (VAPx).,CV-96-3281 KMW (VAPx). |
Citation | 990 F.Supp. 1188 |
Court | U.S. District Court — Central District of California |
Parties | CARSON HARBOR VILLAGE, LTD., a limited partnership, dba Carson Harbor Village Mobilehome Park, Plaintiff, v. UNOCAL CORPORATION, a Delaware corporation; Carson Harbor Village Mobile Home Park, a California general partnership; Richard G. Braley; Walter Smith, Jr.; James W. Van Loben Sels, in his capacity as Director of the California Department of Transportation; County of Los Angeles; City of Compton; City of Carson, Defendants. |
Douglas L. Carden, Shapiro Rosenfeld & Close, Los Angeles, CA, for plaintiffCarson Harbor Village Ltd.
Charles A. Jordan, Holley & Galen, Los Angeles, CA, for defendantUnocal Corporation.
Walter J. Lipsman, Morris Polich & Purdy, Los Angeles, CA, for defendantsCarson Harbor Village Mobile Home Park, Richard Braley, Walter Smith.
Linda Cohen Harrel, Dept. of Transp., Legal Div., Los Angeles, CA, for defendantsState of California, Department of Transportation, James W. Van Loben Sels.
Gary Yardumian, Prindle Decker & Amaro, Long Beach, CA, DeWitt W. Clinton, Los Angeles County Counsel, Los Angeles, CA, for defendantCounty of Los Angeles.
Martin N. Refkin, Gallagher & Gallagher, Los Angeles, CA, for defendantCity of Compton.
John J. Harris, Richards Watson & Gershon, Los Angeles, CA, for defendantCity of Carson.
This is a suit brought by a property owner for reimbursement of costs incurred removing hazardous materials from the property.The current owner seeks reimbursement from previous owners, tenants, and nearby governmental entities asserting liability under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., the Clean Water Act("CWA"), 33 U.S.C. § 1251 et seq., and common law claims of nuisance, trespass, injury to easement, indemnity, and negligent nondisclosure.1
Having considered all the papers and records filed in support and opposition to these motions, and the oral argument of counsel, the Court hereby GRANTS the summary judgment motions of all the defendants, except with respect to certain state law claims asserted against defendant Unocal.Plaintiff's CERCLA claims fail because no admissible evidence has been offered to support a finding that the removal was necessary as required by that statute.With regard to plaintiff's RCRA claims, no admissible evidence has been offered to support a finding that there existed an imminent danger to human health or the environment as required by the statute.Finally, plaintiff has failed to offer admissible evidence that defendants are in violation of an NPDES permit, as required to find violation of the CWA.
For these reasons, elaborated upon below, plaintiff's motion for summary adjudication is DENIED.
On May 7, 1996, PlaintiffCarson Harbor Village, Ltd.("Carson Harbor") filed this environmental lawsuit, alleging that defendants disposed of or currently are disposing of hazardous substances upon a 70 acre parcel of land it owns in Carson, California (the "Property").First Amended Complaint ("FAC")¶ 23.The Property was previously owned by defendantCarson Harbor Village Mobile Home Park, a general partnership controlled by defendantsRichard G. Braley and Walker Smith Jr.(collectively the "Partnership Defendants.").DefendantUnocal Corporation("Unocal") held a leasehold interest in the Property from 1945 until 1983.FAC ¶ 25.In 1994, plaintiff discovered "tar-like" and "slag" materials which it alleges were dumped on the Property by Unocal.FAC ¶¶ 27-28.Plaintiff's causes of action arise from the costs associated with the removal of the tar-like and slag materials.
The majority of the Property is developed and used as a mobile home park.Approximately 17 acres of the Property are an undeveloped open flow wetlands area (the "wetlands") and natural drainage course which bisects the trailer park from the northeast to the southwest.FAC ¶ 26.The drainage area upstream from plaintiff's Property contains a mix of industrial and residential properties located within the City of Carson("Carson"), City of Compton("Compton") and certain unincorporated areas within the County of Los Angeles("Los Angeles")(collectively the "Government Defendants").In addition, California Highway 91 (the Artesia Freeway), operated by the California Department of Transportation("Caltrans"),2 is located upstream from the Property.Storm water runs from the Property controlled by the Government Defendants and Caltrans into the Wetlands.FAC ¶ 26.Plaintiff's principle contention against the Government Defendants and Caltrans is that dangerous levels of lead within the storm water runoff may have contributed either to (1) the lead found within the tar-like and slag materials or (2) lead levels outside the tar-like and slag materials.
Plaintiff discovered the hazardous materials on the Property during the process of refinancing the Property in 1993.The prospective lender inspected the Property and discovered the tar-like and slag materials.Plaintiff reported the findings of the hazardous materials to the Regional Water Quality Control Board("RWQCB") and undertook to have the tar-like and slag materials removed.In July of 1995 the materials were removed from the property.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.Fed. R.Civ.P. 56(c).A party opposing summary judgment has an affirmative obligation to bring forward evidence "on which the jury could reasonably find for [the nonmoving party]."Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986)."The mere existence of a scintilla of evidence ... will be insufficient."Id."Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'"Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538(1986).The nonmoving party must "go beyond the pleadings and show `by her own affidavits, or by the depositions, answers to interrogatories, or admissions on file' that a genuine issue of material fact exists."Hopkins v. Andaya,958 F.2d 881, 885(9th Cir.1992)(quotingCelotex Corp. v. Catrett,477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986)).Evidence offered in support of or opposition to a motion for summary judgment must be admissible.Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,896 F.2d 1542, 1555(9th Cir.1989).
Plaintiff asserts claims under CERCLA against all defendants except van Loben Sels.These claims fail as to each because plaintiff has failed to meet its burden on summary judgment as to a key element of proof under CERCLA.Specifically, CERCLA requires that every action brought under its name must be "necessary" within the meaning of the statute.42 U.S.C. § 9607(a).3
Remediation costs are "necessary" and thus recoverable under CERCLA when undertaken in response to an actual and real threat to human health or the environment.G.J. Leasing Co. Inc. v. Union Electric Co.,854 F.Supp. 539, 562(S.D.Ill.1994).Yellow Freight System, Inc. v. ACF Industries, Inc.,909 F.Supp. 1290(E.D.Mo.1995).
Plaintiff's focus on whether a party may recover for voluntary removal efforts misses the mark.A party may recover for voluntary removal efforts such as this one.CERCLA, however, was not designed to permit property owners to clean up their property unnecessarily for business reasons, and then to shift the costs to prior owners.G.J. Leasing Co. Inc. v. Union Elec. Co.,54 F.3d 379, 386(7th Cir.1995).The law requires that property owners ensure that an actual threat exists before undertaking remediation efforts.Id.In other words, while costs associated with voluntary remediation efforts are recoverable, plaintiff bears the burden of proving that this voluntary effort in particular was necessary at the time it was undertaken.
Plaintiff has not met this burden.The only admissible evidence is in fact to the contrary.James Ross, the RWQCB Director at the time of the removal and the person responsible for deciding whether the RWQCB would order cleanup, testified in deposition that plaintiff voluntarily proposed the removal.Ross further testified that had plaintiff not voluntarily proposed the cleanup, he would not have ordered remediation since the materials did not pose a health problem or a threat to the environment:
Plaintiff next relies upon flawed health risk assessments performed...
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Carson Harbor Village, Ltd. v. Unocal Corporation, Case No. CV 96-3281 MMM (RCx) (C.D. Cal. 10/29/2003)
...defendants on all claims except the state law nuisance and trespass claims asserted against Unocal.3 See Carson Harbor Village, Ltd. v. Unocal Corp., 990 F. Supp. 1188 (C.D. Cal. 1997). A Ninth Circuit panel reversed, in part, the entry of judgment on the CERCLA and indemnity claims. That d......
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Southfund Partners III v. Sears, Roebuck and Co.
...the effects of contamination, no reasonable juror could find the response costs to be necessary. See Carson Harbor Village, Ltd. v. Unocal Corp., 990 F.Supp. 1188, 1193 (C.D.Cal. 1997) (concluding response costs were not necessary at time they were undertaken because representative of appli......
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Carson Harbor Village, Ltd. v. Unocal Corp.
...defendants on all claims except the state law nuisance and trespass claims asserted against Unocal.3 See Carson Harbor Village, Ltd. v. Unocal Corp., 990 F.Supp. 1188 (C.D.Cal.1997). A Ninth Circuit panel reversed, in part, the entry of judgment on the CERCLA and indemnity claims. That deci......
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Carson Harbor Villiage v. Unocal Corp.
...motions on all claims except the state-law nuisance and trespass claims asserted against Unocal. See Carson Harbor Vill., Ltd. v. Unocal Corp., 990 F. Supp. 1188, 1199 (C.D. Cal. 1997). The court first held that Carson Harbor's CERCLA claim fails because it did not show that its remedial ac......
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Case summaries.
...state law claims, but their disposition is not relevant to, nor discussed in, this opinion. Carson Harbor Vill., Ltd. v. Unocal Corp., 990 F. Supp. 1188, 1199 (C.D. Cal. (56) Carson Harbor Vill., Ltd. v. Unocal Corp., 227 F.3d 1196 (9th Cir. 2000), superceded by Carson Harbor Vill., Ltd. v.......
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Status of Stormwater Regulation in California
...and constitute compliance with receiving water limitations.")(emphasis added); see also Carson Harbor Village Ltd. v. Unocal Corp., 990 F. Supp. 1188, 1197 (C.D. Cal. 1997)(summary judgment denied to plaintiff in citizen suit alleging violation of the 1996 MS4 Permit, due in part to the exi......