Zands v. Nelson
| Decision Date | 25 June 1992 |
| Docket Number | No. 89-0989-GT,90-1144-GT.,89-0989-GT |
| Parties | Samuel ZANDS and Sara Zands, Plaintiffs, v. Paul Imon NELSON, Ellen Eliza Nelson, Mildred Tacey, Jay Goodwin, Norma Goodwin, Stephen Kramer, Cletus Kramer, Fritz A. Nachant, Inc., and Does 1 to 100, Defendants. |
| Court | U.S. District Court — Southern District of California |
COPYRIGHT MATERIAL OMITTED
Harry V. McGahey, McGahey & McGahey, A.P.C., San Diego, Cal., for Samuel and Sara Zands.
John H. Stephens, Lynn M. Beekman, Robbins & Keehn, A.P.C., San Diego, Cal., for Paul and Ellen Nelson.
Mildred Tacey, pro se.
Peter L. Garchie, Sharon M. Lawrence, Susan E. Leonard, Lewis, D'Amato, Brisbois & Brisgaard, San Diego, Cal., for Jay and Norma Goodwin.
Carl J. Klunder, Karen A. Gruber, James P. Carter, Ramsay, Johnson & Klunder, Irvine, Cal., for Fritz Nachant.
On April 27, 1992 at 10:30 a.m., the above-captioned case came on for hearing. The plaintiffs had filed a motion for summary judgment against all the defendants, and defendants Goodwins and Nelsons had filed motions for summary judgment. The Court has fully considered this matter, including review of all papers and documents submitted by the parties in support of and in opposition to the respective motions.
Case numbers 89-0989-GT (CM) and 90-1144-GT (CM) are hereby consolidated.
On December 3, 1991, this Court ruled on previously filed motions for summary judgment. See Zands v. Nelson, 779 F.Supp. 1254 (S.D.Cal.1991). The December opinion held that RCRA did not contain a petroleum exclusion and that the creation of solid waste sufficiently supported a RCRA claim. Additionally, the Court, addressing the issue of contribution, held: "None of these individuals are so far removed that it can be said as a matter of law they did not contribute to the leakage." Id. at 1264. Because discovery was not complete, however, the Court postponed the resolution of the contribution issue until this factual summary judgment hearing.
The pertinent facts of ownership of the land and use of the gas tanks are the same as those facts set forth in the December Order. Defendants PAUL and ELLEN NELSON owned all title to the property in question from 1961 to November 1976. In 1972, the NELSONS instructed defendant FRITZ NACHANT CO. to install the piping and pumps for gasoline tanks at a service station on this property. The NELSONS then operated the gas station until 1975. In 1975, the NELSONS leased the gas station to defendants STEPHEN and CLETUS KRAMER. Although the KRAMERS maintained their lease and operated the gasoline station pumps from May 1975 to March 1979, the property was transferred to defendant MILDRED TACEY, who owned the property from November 1976 to April 1978, and then to defendants JAY and NORMA GOODWIN, who owned the property from April 1978 to December 11, 1980. In December of 1980, the GOODWINS transferred the property to the plaintiffs, SAMUEL and SARA ZANDS. It is unclear from the evidence if the gas station was ever operated after the KRAMERS' lease expired in 1979.
OWNERS
Paul and Ellen Nelsons
1976
Mildred Tacey
1978
Jay and Norma Goodwin
1980
Samuel and Sara Zands
OPERATORS
Paul and Ellen Nelsons
1975
Stephen and Cletus Kramer
1979
???
In 1987, the Bostonia Fire Department informed the plaintiffs the underground gasoline tanks had to be removed because the tanks violated the Uniform Fire Code. The plaintiffs removed the tanks in October 1987. At that time, they had the property tested for soil or groundwater contamination, and learned that hydrocarbon contamination had occurred.
It is undisputed that there has been leakage of gasoline into the soil at the property in question. The plaintiffs' expert, Stan L. Reynolds, stated that he believed 30,000 to 40,000 gallons of contamination occurred; defendant Nelsons' consultant, Mr. Zipp, believed that only 3,000 to 10,000 gallons of contamination occurred; and no defendant has submitted any evidence that there was no contamination. Although the plaintiffs claim there was no gasoline in the tanks at any time after the plaintiffs purchased the land, two witnesses state that they saw a co-owner of the plaintiffs, Mr. Israel Zamds, place the gasoline hose into his car on one occasion. Defendant Goodwin declares the gasoline pumps and tanks on the property had been abandoned and were no longer in use at the time he sold the property to the plaintiffs.
Rule 56(c) of the Federal Rules of Civil Procedure provides:
The summary judgment sought shall be rendered forthwith 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 a judgment as a matter of law.
F.R.C.P. 56(c) (1987) (emphasis added). At the summary judgment stage of the proceedings, the evidence must be viewed in the light most favorable to the non-moving party and all justifiable inferences are to be drawn in the non-movant's favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).
When, as is the case here, the moving party is a plaintiff, he or she must adduce admissible evidence on all matters as to which he or she bears the burden of proof. Schwarzer, Tashima, & Wagstaffe, Federal Civil Practice Before Trial 14:140 (1992). As a result, the Court will evaluate the elements of a section 6972(a)(1)(B) claim as to each defendant to determine whether there is genuine issue of material fact as to any element of plaintiffs' claim for relief.
The Court will first review plaintiffs claim against all of the defendants except defendant Nachant. These defendants, who will be referred to as the owner/operator defendants, all owned the land in question and/or operated the gas pumps on the land in question. These defendants are similarly situated and subject to the same legal review.
Section 6972(a)(1)(B) provides in part that "... any person may commence a civil action on his own behalf ... against any person ... who has contributed ... to the past ... handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment...." 42 U.S.C. § 6972(a)(1)(B) (1983 & Supp.1991).
The December 3, 1991 Order resolved the question of whether an action could be maintained for the creation of solid waste. Zands v. Nelson, 779 F.Supp. 1254, 1263-64 (S.D.Cal.1991). The Court now finds there has been a creation of solid waste. Additionally, each of these defendants qualifies as a "person" as required under the statute. Despite the argument to the contrary, it is not necessary that the plaintiffs prove that the property is a storage facility. Although the language of section 6972 states "any person ... including any ... past owner or operator of a ... storage ... or disposal facility," the use of the word "including" does not limit the definition of the word "person," and the Court will not construe it in such a restricted manner.
The two remaining elements that a plaintiff must show to prevail in a RCRA claim are that there is an imminent hazard and that defendants contributed to the hazard.
To prevail in a section 6972(a)(1)(B) claim, a plaintiff must show that the solid or hazardous waste may present an imminent and substantial endangerment to health or the environment. In United States v. Ottati & Goss, Inc., 630 F.Supp. 1361 (D.N.H.1985), the district court defined imminent hazard:
An "imminent hazard" may be declared at any point in a chain of events which may ultimately result in harm to the public. It is not necessary that the final anticipated injury actually have occurred prior to a determination that an "imminent hazard" exists.
Id. at 1394 (). The Court holds, based on the evidence before it, that there is an imminent and substantial endangerment to health or the environment as a result of the contamination at issue in this case.
The final element a plaintiff must prove to prevail in a section 6972(a)(1)(B) claim is that defendants "contributed to" the contamination. The Court holds that a genuine issue of fact does exist on the issue of contribution with respect to the owner/operator defendants. As a result, summary judgment is not appropriate. The following analysis is intended both to explain this conclusion, and to guide the parties as to how the legal issues relating to this element of the plaintiffs' case will be resolved when the case proceeds to trial.
Individuals are liable under RCRA without regard to fault or negligence. See United States v. Ottati & Goss, Inc., 630 F.Supp. 1361, 1400-01 (D.N.H.1985), affirmed, 900 F.2d 429 (1st Cir.1990) (). The "contributed to" language, however, has been held to "expressly specify that there is no liability without a causal relationship between a defendant and an imminent and substantial endangerment." See United States v. Hardage, 116 F.R.D. 460, 466 (W.D.Ok.1987); United States v. Bliss, 667...
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