Carson Harbor Village, Ltd. v. Unocal Corp., CV-96-3281 KMW (VAPx).

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
• Citation: 990 F.Supp. 1188
• Decision Date: 04 November 1997
• Docket Number: No. CV-96-3281 KMW (VAPx).,CV-96-3281 KMW (VAPx).
• 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.

990 F.Supp. 1188 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. No. CV-96-3281 KMW (VAPx). United States District Court, C.D. California. November 4, 1997.

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Douglas L. Carden, Shapiro Rosenfeld & Close, Los Angeles, CA, for plaintiff Carson Harbor Village Ltd.

Charles A. Jordan, Holley & Galen, Los Angeles, CA, for defendant Unocal Corporation.

Walter J. Lipsman, Morris Polich & Purdy, Los Angeles, CA, for defendants Carson Harbor Village Mobile Home Park, Richard Braley, Walter Smith.

Linda Cohen Harrel, Dept. of Transp., Legal Div., Los Angeles, CA, for defendants State 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 defendant County of Los Angeles.

Martin N. Refkin, Gallagher & Gallagher, Los Angeles, CA, for defendant City of Compton.

John J. Harris, Richards Watson & Gershon, Los Angeles, CA, for defendant City of Carson.

MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT IN PART AND DENYING PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION OF THE ISSUES

WARDLAW, District Judge.

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

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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.

I. BACKGROUND

On May 7, 1996, Plaintiff Carson 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 defendant Carson Harbor Village Mobile Home Park, a general partnership controlled by defendants Richard G. Braley and Walker Smith Jr. (collectively the "Partnership Defendants."). Defendant Unocal 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.

II. LEGAL STANDARD

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) (quoting Celotex 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).

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III. ANALYSIS

A. The CERCLA Claims

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

1. Plaintiff's Evidence that the Removal was `Necessary' is Insufficient

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). "To be necessary under CERCLA [plaintiff] must establish that an actual and real threat exists prior to initiating a response action. Where the conditions at a site do not pose any plausible threat to the environment, the response cannot be deemed necessary, and recovery must be denied." 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:

Q: If the owners had not come to you with a remediation plan, if they had simply reported to you that this is what they see here, would you have required then to develop some remediation plan?

A: Not likely.

Q: As far as you were concerned, this stuff, even the slag and tar-like material, could have just stayed there?

A: Very likely.

Q: So then, basically, this remediation was done at their initiative for their own reason and not because of any environmental or health problem that was perceived by the Regional Board?

A: Yes.

Ross Depo. 159:13-160:1.⁴

Plaintiff...