Otay Land Co. v. U.E. Ltd. L.P.

• Decision Date: 18 July 2006
• Docket Number: No. 03CV2488BEN(POR).,03CV2488BEN(POR).
• Citation: 440 F.Supp.2d 1152
• Parties: OTAY LAND COMPANY, a Delaware limited liability company, et al., Plaintiffs, v. U.E. LIMITED, L.P., a California limited partnership, et al., Defendants.
• Court: U.S. District Court — Southern District of California

440 F.Supp.2d 1152

OTAY LAND COMPANY, a Delaware limited liability company, et al., Plaintiffs, v. U.E. LIMITED, L.P., a California limited partnership, et al., Defendants.

No. 03CV2488BEN(POR).

United States District Court, S.D. California.

July 18, 2006.

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James A. Bruen, Farella Braun and Martel, San Francisco, CA, for Plaintiffs.

Alice A. Seebach, Seebach and Seebach, Deanne L. Miller, Morgan Lewis and Bockius, Los Angeles, CA, Mark J. Dillon, Gatzke Dillon and Ballance, Carlsbad, CA, R. Anthony Mahavier, Law Offices of R. Anthony Mahavier, John Joseph Freni, Law Offices of John J. Freni, San Diego, CA, Walter B. Hill, Jr., Booth Mitchel and Strange, Orange, CA, for Defendants.

Thomas L. Van Wyngarden, Deanne L. Miller, Morgan Lewis and Bockius, Los Angeles, CA, for Olin Corporation.

ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANTS ON FEDERAL CLAIMS AND DECLINING TO RETAIN JURISDICTION OVER STATE LAW CLAIMS

BENITEZ, District Judge.

I. INTRODUCTION

When a gun enthusiast takes target practice at a public trap and skeet range and lead shot falls back down to earth, does the firing range become a hazardous waste "facility" as defined by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), or does it come within the safe harbor provision created for consumer products in consumer use. In this case of first impression, the Court holds that a shooting range site used by the public for sport or recreation, where spent ammunition or targets have come to be deposited as a by product of target practice, is not a hazardous waste "facility" subject to CERCLA. It is not a case about whether former ranges should be remediated; it is a question of who should bear the cost.

On October 13, 1998, Plaintiff Otay Land Company was formed by two large investors for the purpose of bidding on a 4,793 acre piece of real estate at an estate sale.¹ On October 15, 1998, Otay Land Company successfully outbid other bidders with a bid of $19.5 million.² Prior to the bidding and sale, Otay Land Company was advised by its own consultant that a trap and skeet range had formerly operated on part of the tract.³ Not surprisingly, after the purchase in 1998, Otay Land Company found lead shot and clay targets on the ground. In December 2003, Otay Land Company transferred ownership of 69 acres which includes the shooting range site to Plaintiff Flat Rock Land Company, LLC. Otay Land company is the sole owner of Flat Rock Land Company.

In December 2003, Plaintiffs brought this action against former owners and operators of the firing range under § 107(a) of CERCLA, § 7002 of the Resource Conservation and Recovery Act ("RCRA"), and other state laws⁴ seeking declaratory and injunctive relief and money damages to pay for the cost of investigating, remediating or restoring the soil from the former trap and skeet shooting range. Neither the United States Environmental Protection Agency nor any state or local governmental agency has ordered Plaintiffs to clean up the site. And there is no evidence that the site could not continue to be used as a shooting range in the future. Defendants now move for summary judgment. For the reasons that follow, this Court grants summary judgment in favor of Defendants on the CERCLA claim and the RCRA claim, and declines to exercise ancillary jurisdiction over the pendant state law claims.

II. FACTS

Plaintiffs are the current owners of property located at 5350 Heritage Road, Chula Vista, California ("the shooting range"). The property is a former trap and skeet shooting range which opened to the public in 1965, and operated at various times between 1965 and 1998. Defendants are allegedly former owners of the property or operators of the shooting range.

III. LEGAL STANDARD

A. SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(c) permits a court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325-327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is warranted if 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." Fed.R.Civ.P. 56(c). A fact is material if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The movant has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The movant is not required to produce evidence showing the absence of a genuine issue of material fact, nor is he or she required to offer evidence totally negating the non-movant's claims. Lujan v. Nat'l Wildlife Fed'n., 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.1989). If the movant meets his or her burden, the burden then shifts to the non-movant to show that summary judgment is not appropriate. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The non-movant does not meet this burden by showing "some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A mere scintilla of evidence in support of the nonmoving party's position is not sufficient, "there must be evidence on which the jury could reasonably find" for the non-moving party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Accordingly, the non-moving party cannot oppose a properly supported summary judgment motion by "rest[ing] on mere allegations or denials in his [or her] pleadings." Id. at 256, 106 S.Ct. 2505. The non-movant must go beyond the pleadings to designate specific facts showing that there are genuine factual issues that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. 2505. If the non-movant fails to make a sufficient showing of an element of his or her case, the movant is entitled to a judgment as a matter of law. Celotex, 477 U.S. at 325, 106 S.Ct. 2548.

However, in considering the motion, the non-movant's evidence is to be believed and all justifiable inferences are to be drawn in his or her favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Determinations regarding credibility, the weighing of evidence, and the drawing of legitimate inferences are jury functions, and are not appropriate for resolution by the court on a motion for summary judgment. Id.

B. CERCLA

Plaintiffs seek to hold Defendants liable for clean-up costs under § 107 of CERCLA (42 U.S.C. § 9607), which provides an implied right to contribution. See Order Granting Plaintiffs' Motion to Amend the Second Amended Complaint (filed Sept. 22, 2005) (dkt. no. 112) (relying on Pinal Creek Group v. Newmont Min. Corp., 118 F.3d 1298, 1300 (9th Cir.1997)); but see Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S.Ct. 577, 584, 160 L.Ed.2d 548 (2004) (declining to address the issue of whether § 107 provides an implied right of contribution).

"CERCLA was a response by Congress to the threat to public health and the environment posed by the widespread use and disposal of hazardous substances.... Its purpose was to ensure the prompt and effective cleanup of waste disposal sites, and to assure that parties responsible for hazardous substances bore the cost of remedying the conditions they created." Pinal Creek, 118 F.3d at 1300 (internal citation omitted). "Section 107 of CERCLA permits the government or a private party who has incurred response costs to bring suit against a PRP⁵ to recover those costs." Fireman's Fund Ins. Co. v. City to Lodi, California, 302 F.3d 928, 945 (9th Cir.2002), cert. denied, 538 U.S. 961, 123 S.Ct. 1754, 155 L.Ed.2d 512 (2003); see also 42 U.S.C. § 9607.

To prove a prima facie case, or to escape Defendants' summary judgment on the CERCLA claim, the Plaintiffs must establish at least a genuine issue of material fact concerning the following four elements: (a) the site is a "facility" under § 9601(9); (b) there has been an actual or "threatened release" of a hazardous substance from the "facility"; (c) the release has caused Plaintiffs to incur response costs that are both "necessary" and "consistent with the national contingency plan"; and (d) the Defendants are within one of the four classes of "responsible parties" (or PRPs) described in § 9607(a). See Pakootas v. Teck Cominco Metals, 452 F.3d 1066 (9th Cir.2006); Carson Harbor Village, LTD v. County of Los Angeles, 433 F.3d 1260, 1265 (9th Cir.2006); San Diego Unified Port District v. TDY Industries, Inc., Case No. 03cv1146-B(POR), 2006 WL 762838, n. 6 (S.D.Cal. March 15, 2006) (Brewster, J.)(same). Section 9607(a) establishes four categories of PRPs. PRPs are: (1) current owners or operators of a facility; (2) persons who owned or operated⁶ a facility in the past at a time of hazardous substance disposal; (3) persons who arranged for disposal or treatment of hazardous substances at a facility (i.e., "arrangers"); and (4) persons who accepted hazardous substances for transport to disposal or treatment facilities (i.e., "transporters").

C. RCRA

Plaintiffs also seek injunctive relief under RCRA, 42 U.S.C. § 6972(a)(1)(B) (the third claim for relief) alleging that Defendants caused lead shot and target debris to be discarded and thus to become hazardous solid waste that presents an imminent and substantial danger. "RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste." Meghrig v. KFC Western, Inc., 516 U.S. 479,...