Sullins v. Exxon/Mobil Corp.

• Decision Date: 14 June 2010
• Docket Number: No. 08-04927 CW,08-04927 CW
• Citation: 729 F.Supp.2d 1129
• Parties: Carlton SULLINS, Rita Sullins, and Don-Sul, Inc., a California Corporation, Plaintiffs, v. EXXON/MOBIL CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of California

729 F.Supp.2d 1129

Carlton SULLINS, Rita Sullins, and Don-Sul, Inc., a California Corporation, Plaintiffs,

v.EXXON/MOBIL CORPORATION, Defendant.

No. 08-04927 CW.

United States District Court,

N.D. California.

June 14, 2010.

Heidi Anne Timken, Elizabeth K. Hwang, Timken Johnson Hwang LLP, Walnut Creek, CA, for Plaintiffs.

Whitney Jones Roy, Jeffrey John Parker, Sheppard, Mullin, Richter & Hampton, LLP, Los Angeles, CA, for Defendant.

ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

CLAUDIA WILKEN, District Judge.

This case is based on the allegations that, during the time Defendant Exxon Mobil Corporation owned the real property now owned by Plaintiffs, underground storage tanks leaked, contaminating the property, and that Defendant refuses to contribute to the cost of remediating the property. Defendant moves for summary judgment on three of the four claims in Plaintiffs' Third Amended Complaint (TAC): (1) liability under the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6972(a)(1)(B) (RCRA Subsection B); (2) contribution; and (3) indemnity. Defendant does not seek summary judgment on Plaintiffs' claim for continuing nuisance. Plaintiffs oppose the motion and Defendant has replied. The motion was heard on June 10, 2010. Having consideredoral argument and all the papers filed by the parties, the Court hereby grants, in part, the motion for summary judgment.

BACKGROUND

Plaintiffs Carlton and Rita Sullins (the Sullinses) are the sole shareholders of Plaintiff Don-Sul, Inc., owner of the real property located at 187 N. L Street, Livermore, California (the property). Plaintiffs purchased the property in 1972 and operated an equipment rental business, Arrow Rentals, on it from 1972 to 2009. Sometime before Plaintiffs purchased the property, Defendant operated a Mobil-branded gas station on it and installed five underground storage tanks (USTs). After Plaintiffs purchased the property, the City of Livermore fire department required them to remove three of the five USTs because they were leaking. Sometime later, the City of Livermore and the County of Alameda, Department of Environmental Health Services, Environmental Protection Division (ACEH) concluded that the soil and groundwater on the property contained hazardous materials and ordered Plaintiffs and Defendant, as responsible parties, to develop and implement a remediation plan.

Plaintiffs have hired several consultants to investigate the contamination on the property, to report to the governmental agencies and to prepare a remediation plan. Gonzalez Dec., Ex. A (Response to Interrogatories). Plaintiffs have applied to the State Water Resources Control Board's Underground Storage Tank Fund (UST Fund) for reimbursement of the fees they have paid to consultants, but it will not cover the full remediation costs. Rita Sullins Depo. at 145. Defendant has made no effort to investigate or remediate the property and has not contributed to Plaintiffs' efforts to comply with the regulatory agencies' cleanup orders. Rita Sullins Depo. at 163; Rita Sullins Dec. ¶ 4.

On April 30, 2001, Aquifer Sciences, Inc. (ASI) prepared a "Revised Human Health Risk Assessment" of the property on behalf of Plaintiffs. Roy Dec., Ex. 2. ASI identified chemicals of concern (COC) in the soil to be total petroleum hydrocarbons quantified as gasoline, diesel, benzene, toluene, ethylbenzene, xylenes, naphthalene and phenol. Ex. 2 at 5. ASI detected the following COCs in the groundwater: gasoline, diesel, methyl tertiary butyl ether (MTBE), naphthalene and 2-methylnaphthalene. Ex. 2 at 4. ASI explained that the relevant exposure pathways for these types of chemicals are through inhalation of vapors from soil or groundwater; ingestion of groundwater; and dermal contact with groundwater. Ex. 2 at 6. After explaining its investigatory techniques and findings, ASI concluded, "Based upon the soil vapor data, no remediation should be necessary to address the indoor air inhalation scenario for onsite commercial or residential development ... Based upon existing conditions, no soil or groundwater remediation is necessary for offsite exposure scenarios." Ex. 2 at 10, 11. ASI also concluded, "Based upon the distance to nearby wells, contamination on the site is not impacting any known water supply wells." Ex. 2 at 13. However, ASI concluded that, although onsite risks due to outdoor air inhalation were within acceptable levels, the baseline risks associated with indoor air inhalation and groundwater ingestion exceeded acceptable limits. Ex. 2 at 10. If commercial or residential development were to take place on the property, ASI recommended reducing the benzene, toluene and ethylbenzene levels of concentration in the groundwater. Ex. 2 at 11-12. ASI also concluded that, if the property were not developed for commercial or residential use, no remediation would be necessary because, "with appropriate institutional controls in place (a restriction on the use of groundwater and adeed notification for possible future development), soil and groundwater remediation may not be necessary. Over time, natural biodegradation and attenuation could reduce concentrations of the contaminants to levels less than remediation goals." Ex. 2 at 14. ASI recommended placing deed restrictions on the property to prevent use of the groundwater, placing notification of the deed restriction on file with the Livermore Building Department so that it could evaluate any proposed project with respect to potential exposure to contamination, and continuing to collect groundwater samples from monitoring wells annually until the concentration levels of the COCs reach remediation goals. Ex. 2 at 14.

On April 26, 2005, ASI wrote to ACEH requesting closure of the case, so that the property would no longer be subject to any cleanup order. In the letter, ASI summarized the findings and conclusions noted above, and indicated that deed restrictions on the property would be sufficient to account for any potential health hazard from future development. Roy Dec., Ex. 4 at 5.

In a letter dated May 2, 2005, ACEH explained that, before it could close the case, it required more documentation that the site met certain low risk requirements: (1) the leak was stopped and ongoing source product removed; (2) the site was adequately characterized; (3) the plume was not migrating; (4) no sensitive receptors were impacted; (5) there was no significant risk to human health; (6) there was no significant risk to the environment; and (7) water quality objectives were to be achieved within a reasonable time frame. Roy Dec., Ex. 6.

On August 8, 2005, in response to ACEH's letter, ASI submitted a supplemental report and again requested closure of the site. Roy Dec., Ex. 5. ASI explained that the ground water that is currently used in the vicinity is obtained from depths greater than 100 feet; because the contamination at the site extends less than sixty feet below grade and less than 100 feet offsite to the west, contamination at the site is not impacting any known water supply wells. Roy Dec., Ex. 5 at 7, 9. ASI concluded, "The analytical data further show that, if left undisturbed, residual contamination in soil, soil vapor and groundwater beneath the site should not adversely impact human health or the environment." Roy Dec., Ex. 5 at 9. ASI again recommended deed restrictions to limit future development of the property and to enable the City of Livermore to evaluate any proposed project with respect to potential exposure to residual contamination. Roy Dec., Ex. 5 at 10.

On March 1, 2006, the City of Livermore ordered Plaintiffs and Defendant, as responsible parties for the contamination of the property, to prepare a corrective action plan and remediate the property. Rita Sullins Dec. at ¶ 2, Ex. A, City of Livermore letter addressed to the Sullinses and Defendant. In the letter, the City of Livermore explained:

Redevelopment of the downtown area is a priority for the City of Livermore. The Downtown Specific Plan, adopted in the spring of 2004, describes the proposed redevelopment of the downtown. Arrow Rentals is located in the Downtown Livermore Redevelopment Project Area. Accordingly, the Livermore Redevelopment Agency (Agency) is diligently working to facilitate the reuse and revitalization of this blighted area. To that end, the Agency is working with owners of contaminated properties and the regulatory agencies to ensure that these properties are cleaned up in a timely and efficient manner and that the properties are cleaned up to a proper level to allow for redevelopment uses identified in the Downtown Specific Plan.

On July 27, 2006, the ACEH separately ordered Plaintiffs and Defendant to prepare a corrective action plan and remediate the Property. Rita Sullins Dec. at ¶ 3, Ex. B.

On August 1, 2007, a new consultant for Plaintiffs, Geological Technics, Inc. (GTI), submitted a Final Corrective Action Plan (CAP) to ACEH and the City of Livermore. Roy Dec., Ex. 8. GTI listed five COCs that were found on the Property and noted that their level of concentration in the groundwater exceeded the standards set by the San Francisco Bay Regional Water Quality Control Board (SFBRWQCB). Roy Dec., Ex. 8 at 13. GTI suggested three alternative plans for reducing the level of the COCs in the groundwater. The first alternative was "Monitored Natural Attenuation," which required the long term monitoring of the groundwater conditions with the lessening of the COC concentrations due to natural physical processes such as advection and dispersion, or through biological degradation processes. In regard to the concerns and limitations of this plan, GTI wrote:

The site poses negligible threat to human health since there are no wells within the boundaries of the groundwater plume to act as a conduit to human receptors. Achieving site closure therefore depends on reducing groundwater concentrations within a timeframe acceptable to the

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