Cose v. Getty Oil Co.

• Decision Date: 01 October 1993
• Docket Number: No. 91-16575,91-16575
• Citation: 4 F.3d 700
• Parties: , 23 Envtl. L. Rep. 21,335 Don A. COSE and Darlene A. Cose, Plaintiffs-Appellants, v. GETTY OIL COMPANY, a Delaware Corporation, et al., Defendants, and Texaco, Inc., a Delaware Corporation; Four Star Oil and Gas Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 700

4 F.3d 700

62 USLW 2131, 23 Envtl. L. Rep. 21,335

Don A. COSE and Darlene A. Cose, Plaintiffs-Appellants, v. GETTY OIL COMPANY, a Delaware Corporation, et al., Defendants, and Texaco, Inc., a Delaware Corporation; Four Star Oil and Gas

Company, Defendants-Appellees.

No. 91-16575.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 1993.

Decided Aug. 11, 1993.

As Amended Oct. 1, 1993.

Robert Mehlhaff, Souza, Coats, McInnis & Mehlhaff, Tracy, CA, for plaintiffs-appellants.

Ward L. Benshoff, McClintock, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, Los Angeles, CA, for defendants-appellees, Texaco, Inc. and Four Star Oil and Gas Co.

Appeal from the United States District Court for the Eastern District of California.

Before: SCHROEDER, PREGERSON, and D.W. NELSON, Circuit Judges.

PREGERSON, Circuit Judge:

Don A. Cose and Darlene A. Cose ("the Coses") appeal the district court's grant of summary judgment dismissing their Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Sec. 9601 et seq., action against the Getty Oil Company ("Getty Oil"), et al. The CERCLA action sought recovery for response costs needed to clean subsurface crude oil tank bottom waste discovered on property purchased from Getty Oil. The tank bottom waste contains substances deemed hazardous under CERCLA. The district court based its dismissal on its conclusion that crude oil tank bottoms fall within CERCLA's petroleum exclusion. We disagree and therefore reverse.

BACKGROUND

Getty Oil produced crude oil from wells in the Tafts-Fellow area of Kern County, California. The oil was transported by Getty to its Avon refinery in Martinez, California via a pipeline route and pumping stations located at twelve-mile intervals. The crude oil was stored at the pumping stations in tanks and heated to reduce its viscosity. The oil was then pumped farther along the pipeline.

When crude oil is stored in tanks, suspended sedimentary solids in the crude oil settle to the bottom. Because water is heavier than oil, it separates from the oil and also collects at the bottom of the tank. The bottom layer of the tank is known as basic sediment and water, or "crude oil tank bottoms." Crude oil tank bottoms are typically drained from crude oil storage facilities and disposed of in nearby sumps.

One pumping station used by Getty Oil was located in Tracy, California. The sump facility for the Tracy pumping station was situated on nearby property called the "Gravel Pit." About once a week, the crude oil tank bottoms from the Tracy pumping station storage tanks were drained and dumped in the Gravel Pit. Getty Oil closed the Tracy pumping station by 1968, when a new pipeline system on a different route rendered the Tracy station obsolete.

In May 1974, Don A. Cose purchased the Gravel Pit, a 40-acre parcel of undeveloped land, from Getty Oil ¹ for $50,000. The complaint alleges that when Cose purchased the property, a layer of topsoil concealed the crude oil tank bottom materials dumped on the property and hence, a reasonable inspection of the premises did not disclose the dumped materials. The Coses contend that Based on the results of the Kleinfelder investigation, the Coses filed suit in federal district court under CERCLA to recover "response costs" needed to clean up the Gravel Pit property. ² 42 U.S.C. Sec. 9607(a)(3).

                they discovered the presence of a "subsurface asphalt or tar-like material" on the property in November 1987 when they undertook to develop the property for housing.  They then commissioned Kleinfelder, Inc., a soils and environmental engineering firm, to investigate the property further.  The investigation included a preliminary assessment of the chemical composition of the oily waste found on the property.  Of particular concern, the investigation revealed a "high concentration" (10.5 ppm) of Chrysene, a known carcinogen.  Kleinfelder Report, at 4.  The concentration level of Chrysene in crude oil in the region was determined to be 28.0 ppm.  The Kleinfelder report recommended that "the waste, which contains concentrations of [petroleum hydrocarbons] that are considered hazardous by many regulatory agencies, be removed or stabilized prior to development of the site."   Kleinfelder Report, at 1
                

In response, Getty Oil moved for summary judgment. In its summary judgment motion, Getty Oil contended that the Coses could not prove that Getty Oil had disposed of a "hazardous substance" on the Gravel Pit property because CERCLA excludes from its "hazardous substances" definition crude oil tank bottoms.

The district court agreed and granted summary judgment in favor of Getty Oil. This appeal followed.

ANALYSIS

We review de novo the district court's grant of summary judgment. Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260, 1262 (9th Cir.1990). Likewise, we review de novo the district court's interpretation of CERCLA. Wilshire Westwood Assoc. v. Atlantic Richfield, 881 F.2d 801, 803 (9th Cir.1989).

We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). The court must enter summary judgment, "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id.

On appeal, the Coses do not allege that summary judgment was improper due to a genuine issue of material fact. Rather, this appeal rests solely on a claim that the district court incorrectly applied the relevant substantive law. Hence, we must review the relevant substantive law underlying CERCLA claims in this context.

Congress enacted CERCLA in 1980 "to facilitate the cleanup of leaking hazardous waste disposal sites." Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir.1989) (citing Exxon Corp. v. Hunt, 475 U.S. 355, 358-60, 106 S.Ct. 1103, 1107-08, 89 L.Ed.2d 364 (1986)). To further this purpose, Congress created a private cause of action for certain "response costs" against various types of persons who contributed to hazardous waste dumping at a specific site. Ascon Properties, 866 F.2d at 1152 (citing 42 U.S.C. Sec. 9607(a)).

To state a prima facie case under CERCLA, 42 U.S.C. Sec. 9607(a), a plaintiff must allege that: (1) the waste disposal site is a "facility" within the meaning of 42 U.S.C. Sec. 9601(9); (2) a "release" or "threatened release" of a "hazardous substance" from the facility has occurred, id. Sec. 9607(a)(4); (3) such release or "threatened release" will require the expenditure of response costs that are "consistent with the national contingency plan," id. Secs. 9607(a)(4) and (a)(4)(B); and, (4) the defendant falls within one of four classes of persons subject to CERCLA's liability provisions. Id. at Secs. 9607(a)(1)-(4); Ascon Properties, 866 F.2d at 1152.

Here, the district court granted summary judgment in favor of the defendants because it concluded as a matter of law that crude oil tank bottoms are not "hazardous substances" under CERCLA. Hence, the court held that the Coses could not establish a prima facie case under CERCLA because they could not show that Getty Oil had released a "hazardous substance."

CERCLA defines "hazardous substance" by reference to substances listed under various other federal statutes. ³ See 40 C.F.R. Sec. 302.4 (comprehensive listing of CERCLA hazardous substances). But Sec. 9601(14) of CERCLA expressly excludes from its "hazardous substance" definition "petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of [Sec. 9601(14) ]...."

Both the EPA and our court interpret the petroleum exclusion to apply to petroleum products, even if a specifically listed hazardous substance, such as Chrysene, is indigenous to such products. See EPA Memorandum, July 31, 1987; Wilshire Westwood Assoc., 881 F.2d 801 (leaded gasoline falls within the petroleum exclusion despite hazardous indigenous components and additives). In Wilshire, we analyzed the plain meaning of CERCLA, its post-enactment legislative history, and the EPA's interpretation of the statute to reach the following conclusion:

[T]he petroleum exclusion in CERCLA does apply to unrefined and refined gasoline even though certain of its indigenous components and certain additives during the refining process have themselves been designated as hazardous substances within the meaning of CERCLA.

881 F.2d at 810 (emphasis added).

The EPA has followed this interpretation through its rules and memoranda. As the EPA explained in a Final Rule published April 4, 1985,

EPA interprets the petroleum exclusion to apply to materials such as crude oil, petroleum feedstocks, and refined petroleum products, even if a specifically listed or designated hazardous substance is present in such products. However, EPA does not consider materials such as waste oil to which listed CERCLA substances have been added to be within the petroleum exclusion.

50 Fed.Reg. 13,460 (April 4, 1985) (emphasis added). See also Mid Valley Bank v. North Valley Bank, 764 F.Supp. 1377, 1384 (E.D.Cal.1991) (waste oil containing CERCLA hazardous substances does not fall under CERCLA's petroleum exclusion); United States v. Western Processing Co., 761 F.Supp. 713, 722 (W.D.Wash.1991) (tank bottom sludge does not fall within the petroleum exclusion in part...