State of Cal., on Behalf of California Dept. of Toxic Substances Control v. Campbell, 93-16754

Decision Date09 March 1998
Docket NumberNo. 93-16754,93-16754
Citation138 F.3d 772
Parties, 40 Fed.R.Serv.3d 399, 28 Envtl. L. Rep. 21,020, 98 Cal. Daily Op. Serv. 1666, 98 Daily Journal D.A.R. 2299 STATE OF CALIFORNIA, on Behalf of the CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Plaintiff-Appellee, v. Albert CAMPBELL, individually and as Trustee of the Victor Muscat Testamentary Trusts and Executor of the Estate of Victor Muscat; Charles Tackman, individually and as Trustee of the Victor Muscat Testamentary Trusts and Executor of the Estate of Victor Muscat, Defendants-Appellants, Western Resources, Inc., Receiver of the Victor Muscat Testamentary Trusts, Intervening Defendant.
CourtU.S. Court of Appeals — Ninth Circuit

Sandra Goldberg, Deputy Attorney General, Oakland, California, for plaintiff-appellee.

Dale C. Campbell, L. Burda Gilbert, Weintraub, Genshlea & Sproul, Sacramento, California, for defendants-appellants.

Thomas H. Clarke, Jr., Susan H. Handelman, Ropers, Majeski, John & Bentley, Redwood City, California, for intervenor.

Appeal from the United States District Court for the Eastern District of California; Garland E. Burrell, District Judge, Presiding. D.C. No. CV-93-00604 GEB.

Before: BROWNING, PREGERSON, and HAWKINS, Circuit Judges.

PREGERSON, Circuit Judge:

For almost twenty years, Victor Industries contaminated groundwater by dumping hazardous chemicals onto the ground at its manufacturing plant. The State of California sued the defendants under state environmental and nuisance law to require them to clean up the contaminated water. California also sought reimbursement from the defendants under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., for the money that California spent investigating the contamination.

Two of the defendants-Albert Campbell and Charles Tackman-appeal the district court's orders finding the defendants liable under CERCLA and California law. Campbell and Tackman also appeal the district court's injunction requiring the defendants to clean up the contaminated water.

Because we have no jurisdiction to review the district court's interlocutory order finding the defendants liable under CERCLA, we dismiss that portion of the appeal. We have jurisdiction over the remainder of the appeal under 28 U.S.C. § 1292(a)(1), and we affirm.

BACKGROUND

Victor Muscat owned Victor Industries until his death in 1974. From 1958 to 1984, Victor Industries manufactured metal tubes and cans at a plant on 20th Street in Chico, California ("the 20th Street Property"). For almost twenty years, workers at the plant used trichloroethylene as a solvent and disposed of it by dumping it on the ground. Trichloroethylene is a hazardous substance that causes cancer.

During an inspection, the California Department of Toxic Substances Control ("the Department") noticed hazardous substances stored in a manner that suggested that the hazardous substances were being dumped at the 20th Street Property. The Department took several soil samples. An analysis of the samples indicated the presence of trichloroethylene and other hazardous chemicals in the soil.

Subsequent testing indicated that high concentrations of trichloroethylene and other hazardous substances were present not only in the soil but also in the groundwater at the 20th Street Property. The Department tested the groundwater in municipal and private wells that are located downgradient from the 20th Street Property and determined that trichloroethylene had contaminated that groundwater as well. One of the polluted wells was located at Stanley Park, a housing subdivision located about a mile downgradient from the 20th Street Property.

On behalf of the Department, the State of California filed a complaint in federal court to require the defendants to clean up the contamination and to recover the money that the Department had spent investigating the contamination. The complaint named as defendants the executors of Muscat's estate and the trustees of Muscat's testamentary trusts. 1

California moved for summary adjudication of three of its six claims: a federal environmental claim under CERCLA, 42 U.S.C. § 9601, et seq.; a state public nuisance claim under California's common law; and a state environmental claim under California's Hazardous Substance Account Act, Cal. Health & Safety Code § 25300 et seq. Specifically, California argued that the defendants were liable as a matter of law for violating both CERCLA and the state laws. As a remedy for the state law violations, California requested a permanent injunction requiring the defendants to abate the public nuisance that the trichloroethylene contamination had caused.

In opposition to California's motion, the defendants argued that the trichloroethylene detected at Stanley Park and the other off-site locations did not come from the 20th Street Property. The culprit, the defendants The district court granted California's motion in its entirety, and the defendants appealed. 2

argued, was property owned by Louisiana Pacific ("the Louisiana Pacific Property"), which is located about a half-mile downgradient from the 20th Street Property and about a half-mile upgradient from Stanley Park.

STANDARDS OF REVIEW

We review grants of summary adjudication motions de novo. Amdahl Corp. v. Profit Freight Systems, Inc., 65 F.3d 144, 146 (9th Cir.1995). The district court's ability to grant an injunction is reviewed de novo, but the district court's exercise of that power is reviewed for abuse of discretion. Continental Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099, 1102 (9th Cir.1994).

DISCUSSION

Under California law, those responsible for polluting groundwater can be held liable for creating a public nuisance and for violating California's environmental laws. See Carter v. Chotiner, 210 Cal. 288, 291, 291 P. 577 (1930) (polluted water is a public nuisance); Selma Pressure Treating Co., Inc. v. Osmose Wood Preserving Co., 221 Cal.App.3d 1601, 1616-20, 271 Cal.Rptr. 596 (1990) (any person who creates or helps create and maintain a nuisance is liable for its abatement and damages); Cal. Health & Safety Code § 25358.3 (those responsible for endangering the public's health or safety or the environment may have to take remedial action to protect the public and the environment). Under CERCLA, any person who owned or operated a facility when hazardous substances were disposed there is liable for the costs that the government incurs when it responds to the contamination. 42 U.S.C. § 9607(a) ("any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of ... shall be liable for ... all costs of removal and remedial action incurred by the United States Government or a State....").

The district court found that the defendants were liable under both California law and CERCLA and granted California's motion for summary adjudication. As a remedy for the defendants' violations of California law, the district court issued an injunction that requires the defendants to abate the nuisance caused by the trichloroethylene contamination.

The defendants argue that the summary adjudication was improper because they did not have enough time to discover facts that were necessary to oppose the motion and because California failed to meet the summary adjudication standards. The defendants also argue that the injunction was improper because it is too broad and because it unlawfully incorporates a document by reference.

I. Jurisdiction

Before we address these issues on the merits, we must determine that we have jurisdiction to do so. As a general rule, federal courts of appeal have jurisdiction only over final decisions of the district courts. See 28 U.S.C. § 1291 (granting federal appellate courts "jurisdiction of appeals from all final decisions of the district courts"). A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945) (citing St. Louis I.M. & S.R.R. v. Southern Express Co., 108 U.S. 24, 28, 2 S.Ct. 6, 8, 27 L.Ed. 638 (1883)). Accordingly, an order that determines liability but not damages is not a final decision, In re Frontier Properties, Inc., 979 F.2d 1358, 1362 (9th Cir.1992); nor is an order that adjudicates less than all claims a final decision, Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir.1981).

The orders that the appellants appeal are precisely such orders. The CERCLA order determined that the defendants were liable under CERCLA for the costs that California

incurred while investigating the contamination at the 20th Street Property, but it did not determine what those costs were. The state-law order resolved the nuisance and endangerment-to-the environment claims, but left several other claims unresolved. Thus, unless the summary adjudication orders fall under an exception to the final judgment rule, we have no jurisdiction to hear them.

A. Collateral Order Doctrine

The Supreme Court has recognized that " § 1291 permits appeals not only from a final decision by which a district court disassociates itself from a case, but also from a small category of decisions that, although they do not end the litigation, must nonetheless be considered 'final.' " Swint v. Chambers County Com'n, 514 U.S. 35, 42, 115 S.Ct. 1203, 1208, 131 L.Ed.2d 60 (1995) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949)). This small category of decisions "includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action." Id. (citing Cohen, 337 U.S. at 546, 69 S.Ct. at 1225-26).

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