Castaic Lake Water Agency v. Whittaker Corp.

• Decision Date: 15 July 2003
• Docket Number: No. CV 00-12613 AHM.,CV 00-12613 AHM.
• Citation: 272 F.Supp.2d 1053
• Parties: CASTAIC LAKE WATER AGENCY, et al., Plaintiffs, v. WHITTAKER CORP., et al., Defendants. Whittaker Corp., Counter-Claimant, v. Castaic Lake Water Agency, et al., Counter-Defendants.
• Court: U.S. District Court — Central District of California

272 F.Supp.2d 1053

CASTAIC LAKE WATER AGENCY, et al., Plaintiffs, v. WHITTAKER CORP., et al., Defendants.

Whittaker Corp., Counter-Claimant, v. Castaic Lake Water Agency, et al., Counter-Defendants.

No. CV 00-12613 AHM.

United States District Court, C.D. California.

July 15, 2003.

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Frederic A. Fudacz, Andrew J. Yamamoto, Alfred E. Smith, Nossaman Guthner Knox & Elliot, Scott D. Pinsky, Greenberg Glusker Fields Claman Machtinger & Kinsella, Los Angeles, CA, for Plaintiffs.

Peter Muthig, Christensen Miller Fink Jacobs Glaser Weil & Shapiro, Richard A. Dongell, Thomas F. Vandenburg, Radcliff Dongell & Lawrence, Nancy Sher Cohen, Reynold Lloyd Siemens, Heller Ehrman White & McAuliffe, Los Angeles, CA, Joseph J. Armao, Heller Ehrman White & McAuliffe, San Francisco, CA, Lawrence J. Hilton, William E. Halle, Steven B. Imhoof, Hewitt & O'Neil, Irvine, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; ORDER DENYING COUNTER-CLAIMANT WHITTAKER CORP.'S MOTION FOR SUMMARY JUDGMENT

MATZ, District Judge.

This matter is before the Court on two motions for summary judgment. Plaintiffs move for summary judgment on their nuisance claims and their claims for recovery and declaratory relief under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. Defendant and Counterclaimant Whittaker Corporation ("Whittaker") moves for summary judgment on its counterclaims for declaratory relief under CERCLA and for contribution under both CERCLA and the California Hazardous Substance Account Act ("HSAA"), Cal. Health & Safety Code § 25300 et seq.

MOTION STANDARD

Federal Rule of Civil Procedure 56(c) provides for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A fact is material if it could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

"When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transportation Brokerage Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations omitted).

When the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out the absence of evidence from the non-moving party. The moving party need not disprove the other party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thus, "[s]ummary judgment for a defendant is appropriate when the plaintiff `fails to make a showing sufficient to establish the existence of an element essential to [its] case, and on which [it] will bear the burden of proof at trial.'" Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 805-06, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (citing Celotex, 477 U.S. at 322, 106 S.Ct. 2548).

When the moving party meets its burden, the "adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ.P. 56(e). Summary judgment will be entered against the non-moving party if that party does not present such specific facts. Id. Only admissible evidence may be considered in deciding a motion for summary judgment. Id.; Beyene v. Coleman Sec. Serv., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988).

"[I]n ruling on a motion for summary judgment, the nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505). But the non-moving party must come forward with more than "the mere existence of a scintilla of evidence." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted).

PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

I. Introduction

This is a groundwater pollution case. Plaintiffs Newhall County Water District ("Newhall"), Santa Clarita Water Co. ("Santa Clarita") and Valencia Water Co. ("Valencia") contend that four of their water wells have been contaminated by perchlorate. The Newhall, Santa Clarita and Valencia water service areas and allegedly contaminated wells are found within the boundaries of Plaintiff Castaic Lake Water Agency ("Castaic" or "the Agency").

Plaintiffs believe the perchlorate at issue in this case originated at a nearby property, the Whittaker-Bermite site, and traveled in a spreading plume to contaminate the Newhall, Santa Clarita and Valencia wells. Defendants Whittaker and Santa Clarita L.L.C. ("SCLLC") are the past and present owners of the the Whittaker-Bermite site, and Plaintiffs contend that Defendant Remediation Financial, Inc. ("RFI") currently operates the site.

The complaint alleges eleven causes of action for: recovery and declaratory relief under CERCLA, contribution under CERCLA, negligence and negligence per se, nuisance and public nuisance, trespass, recovery under the California Hazardous Substance Account Act ("HSAA"), Cal. Health & Safety Code § 25300 et seq., and declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 &amp 2202. Plaintiffs also allege that Whittaker is strictly liable for damages incurred as a result of its ultrahazardous manufacturing activities.

Plaintiffs now move for summary judgment on their CERCLA and nuisance claims.

II. The Parties

Newhall is a public agency organized and existing under the laws of California. August 26, 2002 Statement of Genuine Issues ("August 26 SGI") ¶ 55. See Cal. Water Code § 30000 et seq. (County Water District Law). Newhall provides water to customers living in the Santa Clarita Valley. Decl. of Kenneth J. Petersen ¶ 2. One of Newhall's wells, NC-11, allegedly has been contaminated by perchlorate. Id. ¶ 3.

Santa Clarita is a not-for-profit corporation that provides water to thousands of residential customers. August 26 SGI ¶ 60; Decl. of William J. Manetta ¶ 2.¹ Two of Santa Clarita's wells, Saugus-1 and Saugus-2, allegedly have been contaminated by perchlorate. Manetta Decl. ¶ 3.

Valencia is a California corporation that also provides water to thousands of residential customers. August 26 SGI ¶ 64; Decl. of Robert J. DiPrimio ¶ 2. One of Valencia's wells, VWC-157, allegedly has been contaminated by perchlorate. DiPrimio Decl. ¶ 3.²

Castaic is a public agency created and governed by the Castaic Lake Water Agency Law, Cal. Water Code App. § 103-1 et seq. See August 26 SGI ¶ 52. See also Klajic v. Castaic Lake Water Agency, 90 Cal.App.4th 987, 991, 109 Cal.Rptr.2d 454 (2001). The Castaic Lake Water Agency Law provides that the Agency "may acquire water and water rights ... and provide, sell, and deliver that water at wholesale only, for municipal, industrial, domestic, and other purposes ...." Cal. Water Code App. § 103-15.

Defendant Whittaker is a Delaware corporation doing business within this judicial district. August 26 SGI ¶ 45. Whittaker owned the allegedly contaminated Whittaker-Bermite site from 1967 to January 1999. Id. ¶ 46.

SCLLC is a Delaware limited liability company. Id. ¶ 43. SCLLC purchased the Whittaker-Bermite site in 1999 and is its current owner. Id. ¶ 44.

RFI is an Arizona corporation and the sole managing member of SCLLC. Id. ¶¶ 48-49.

III. Analysis

A. Plaintiffs' CERCLA Claims

Plaintiffs' complaint alleges CERCLA claims for cost recovery, 42 U.S.C. § 9607(a), contribution, 42 U.S.C. § 9607(a) and § 9613(f), and declaratory relief, 42 U.S.C. § 9613(g). Plaintiffs seek to recover their already incurred costs of response and to allocate responsibility for future response costs.

The prima facie elements of all three CERCLA claims are the same. City of Portland v. Boeing Co., 179 F.Supp.2d 1190, 1199 (D.Or.2001) (elements of CERCLA cost recovery and contribution claims the same). See also In re Dant & Russell, Inc., 951 F.2d 246, 249-50 (9th Cir.1991) (declaratory relief for future costs available once plaintiff has incurred at least some recoverable response costs).

In order to recover their response costs, Plaintiffs must establish that:

(1) perchlorate is a hazardous substance;

(2) there has been a release of perchlorate at Defendants' facility;

(3) the release or threatened release caused the Plaintiffs to incur necessary response costs consistent with the National Contingency Plan ("NCP");³ and

(4) Defendants are within one of four classes of persons subject to CERCLA's liability provisions.

See Carson Harbor Village Ltd. v. Unocal Corp., 270 F.3d 863, 870-71 (9th Cir. 2001) (listing same requirements but classifying them as only four different elements); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir.1989) (en banc).

1. Is Perchlorate a Hazardous Substance?

"CERCLA defines `hazardous substance' by reference to substances listed under various other federal statutes." Cose v. Getty Oil Co., 4 F.3d 700, 704 (9th Cir.1993); 42 U.S.C. § 9601(14). Plaintiffs contend that perchlorate...