Catellus Development Corp. v. US

• Decision Date: 03 August 1993
• Docket Number: No. C-91-2531 EFL.,C-91-2531 EFL.
• Citation: 828 F. Supp. 764
• Court: U.S. District Court — Northern District of California
• Parties: CATELLUS DEVELOPMENT CORPORATION, Plaintiff, v. UNITED STATES of America; General Automotive, Inc., a Washington corporation; NL Industries, Inc., a New Jersey corporation; Morris P. Kirk, Jr., an individual; Andrew C. Merryman, III, an individual, Defendants.

828 F. Supp. 764

CATELLUS DEVELOPMENT CORPORATION, Plaintiff, v. UNITED STATES of America; General Automotive, Inc., a Washington corporation; NL Industries, Inc., a New Jersey corporation; Morris P. Kirk, Jr., an individual; Andrew C. Merryman, III, an individual, Defendants.

No. C-91-2531 EFL.

United States District Court, N.D. California.

August 3, 1993.

Kurt Flehinger, Landels, Ripley & Diamond, San Francisco, CA, for plaintiff.

Marilyn Perry Jacobsen, U.S. Dept. of Justice, Land & Natural Resources Environmental Defense Section, Washington, DC; Earl Hagstrom, Sedgwick, Detert, Moran & Arnold; Dirk M. Schenkkan, Howard, Rice, Nemerovski, Canady, Robertson & Falk, San Francisco, CA; James H. Schink, Kirkland & Ellis, Chicago, IL; and Jerome A. Busch, Busch & Taylor, Irvine, CA, for defendants.

ORDER GRANTING SUMMARY JUDGMENT

LYNCH, District Judge.

Plaintiff Catellus Development Corporation ("Catellus") brought this suit pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as Amended, 42 U.S.C. § 9601 et seq., ("CERCLA"), 42 U.S.C. §§ 9607(a)(2) and (3). Plaintiff seeks to recover response costs which it claims to have incurred in the investigation and remediation of its contaminated Point Isabel property in Richmond, California.

This matter is before the Court on a motion for summary judgment by one defendant, General Automotive, Inc. ("General"), and a cross-motion against General by plaintiff Catellus. For the reasons set forth below, the Court will grant General's motion for summary judgment and deny the cross-motion by Catellus.

I. Factual Background

The material facts pertinent to this motion are, by plaintiff's own admission, undisputed. Catellus owns a parcel of property at Point Isabel in Richmond, California, which was contaminated by lead that leached into the soil and surrounding bay from crushed battery casings dumped at the property over the course of several years. In the mid-1980's environmental regulators discovered elevated levels of lead in the soil and in the shellfish in the bay adjacent to the property and ordered Catellus to investigate and ultimately clean up the contamination. Catellus incurred response costs in excess of $6 million in the effort.

A substantial portion of the crushed battery casings which contaminated the property were transported to Point Isabel from a battery cracking plant operated by Morris P. Kirk & Sons, Inc. ("MPK"), a division of defendant NL Industries in Emeryville, California. The MPK plant reclaimed lead from dead lead acid batteries, the majority of which were from automobiles. MPK obtained dead batteries from gasoline service stations, United States military bases, and auto parts facilities throughout Northern California, such as the Grand Auto Parts Stores operated by General.

Defendant General, through its Grand Auto Parts Stores, sold dead automobile batteries to MPK. The batteries MPK purchased were depleted and no longer useful for their customary purpose of providing electrical power to automobiles. MPK purchased the batteries solely for the lead contained within them, and the prices MPK paid fluctuated directly with the price of lead.

The batteries MPK purchased required considerable processing before the lead contained within them could be reused. First, MPK would melt or guillotine the top off a battery in order to remove the lead plates from within it. MPK would then ship the lead innards to its facility in Los Angeles, California for smelting. The lead was smelted for a wide variety of new uses, which included the manufacture of lead solder, lead babbitts, sheet lead, lead pipe, lead shot, plumbers caulking lead, lead for printing type machines, and ingot lead for battery manufacturers.

After MPK removed the lead from batteries, the battery casings would be washed, crushed, loaded into a truck, and finally dumped. Tons of pieces of crushed battery casings were found at Point Isabel. Tests of those pieces of battery casings revealed that they were affected with lead which caused the contamination at plaintiff's Point Isabel property.

It is significant for purposes of the Court's analysis that upon purchase of batteries by MPK, MPK assumed full and complete ownership and control of the batteries. General, upon sale of the batteries to MPK, relinquished all ownership interest in and control over the batteries. General was not directly involved in the transportation, processing, recycling, or disposal activity conducted by MPK.

II. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate when the moving party shows that "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir.1985).

The central purpose of summary judgment is "to pierce the pleading and assess the proof in order to see whether there is a genuine need for trial." Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party meets its initial responsibility, the burden shifts to the opposing party to establish that a genuine issue of material fact actually exists. Id. at 585-586, 106 S.Ct. at 1355-1356. The opposing party must then "go beyond the pleadings and by her own affidavits or by the `depositions, answers to interrogatories and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The opposing party may not simply rest on its pleadings. Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983).

Furthermore, the opposing party must demonstrate that the fact in contention is material, that is, that "the evidence is such that a reasonable jury could return a verdict for the opposing party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rule 56(e), Fed. R.Civ.P. The opposing party must demonstrate that a material fact is in contention for each of the essential elements required to support its case. "A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all of their facts immaterial." Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. Summary judgment must be entered unless the opposing party can produce specific facts showing the existence of a genuine issue of material fact for trial. Steckl, 703 F.2d at 393.

III. Analysis

CERCLA provides a private right of action for a private party, like plaintiff Catellus, to recover necessary response costs it incurs pursuant to a national contingency plan. Among those persons who may be liable to another party for necessary cleanup costs, CERCLA includes inter alia "any person who by contract, agreement, or otherwise arranged for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances...." 42 U.S.C. § 9607(a)(3).

The parties' cross-motions for summary judgment present a discrete issue. Was General's sale of used batteries to MPK an arrangement for disposal or treatment of hazardous substances within the meaning of 42 U.S.C. § 9607(a)(3)? The Court thinks not.¹

A. "Arrangement for Disposal"

Plaintiff argues that a sale of used batteries containing hazardous material (lead), no longer useable for their customary purpose of providing electricity for vehicles, is for all practical purposes an "arrangement for disposal" and ought to give rise to liability under CERCLA. Defendant General contends that the sale of used batteries on a viable market, when such sale results in a complete transfer of ownership from seller to buyer and the seller's relinquishment of any control over the batteries, is not and should not be construed as an "arrangement for disposal" for purposes of creating CERCLA liability.

The issue before this Court is not one which has been squarely addressed by the Ninth Circuit, nor, to the best of our knowledge, by any other circuit court in a parallel factual context. However, two Ninth Circuit decisions — Jones-Hamilton Co. v. Beazer Materials & Services, Inc., 959 F.2d 126 (1992), and 3550 Stevens Creek Assoc. v. Barclays Bank, 915 F.2d 1355 (1990) — provide this Court with some guidance, and the Court will look to those decisions to the extent they shed light on the motion before it.

Although the Court is hard pressed to find a circuit court decision squarely addressing the issue the Court faces here, in the many published decisions in which courts have been forced to grapple with § 9607(a)(3), they have often done so in contexts where the government or a private party seeks to impose CERCLA liability on the seller of some product which consisted of or contained a hazardous substance. See, e.g., Florida Power & Light v. Allis Chalmers Corp., 893 F.2d 1313 (11th Cir.1990); Chesapeake and Potomac Telephone Company of Virginia v. Peck Iron & Metal Co., Inc., 814 F.Supp. 1269 (E.D.Va.); U.S. v. Pesses, 794 F.Supp. 151 (W.D.Pa.1992); U.S. v. Ward, 618 F.Supp. 884 (E.D.N.C.1985); State of New York v. General Electric Co., 592 F.Supp. 291 (N.D.N.Y.1984); U.S. v. A & F Materials Co., 582 F.Supp. 842 (S.D.Ill.1984). In such cases, where sellers have sought to characterize their transactions as "sales" rather than CERCLA disposals or disposal arrangements, the courts have not hesitated to look beyond the seller's characterization to determine whether a transaction in fact involved an arrangement for disposal of a hazardous substance under CERCLA. U.S. v. Aceto Agricultural Chemicals Corp., 872 F.2d 1373, 1381 (8th Cir.1987...